Conflictoflaws

Miguel Checa Martínez (Kinship Law) has kindly shared the following summary of his latest publication on ‘Instituciones de estate planning y Derecho internacional privado patrimonial’ with us.

 

This monograph constitutes the first systematic treatment in Spain of international estate planning from the perspective of patrimonial private international law. Conceived for practitioners advising globally mobile families and cross-border wealth structures, the work offers a rigorous comparative analysis—particularly attentive to Anglo-American legal systems—of the legal instruments available to preserve, structure, and transfer family wealth efficiently across generations.

The study opens with an examination of the classical connecting factors that determine personal status in private international law—nationality, habitual residence, and domicile—and explores their practical implications in cross-border planning. It proceeds to address the preventive protection of vulnerable adults through enduring powers of attorney and related mechanisms, as well as the safeguarding of minors’ patrimonial interests.

A substantial portion of the book is devoted to matrimonial property regimes and their distinction from the financial consequences of divorce. Through comparative analysis, with particular emphasis on English and U.S. law, the author examines the interaction between these categories and the preventive structuring tools available to spouses, including marital agreements and prenuptial arrangements, as key instruments of wealth preservation.

At its core, the monograph provides an in-depth study of succession planning techniques. It distinguishes between lifetime planning devices—such as inter vivos gifts and trusts—and testamentary dispositions, including functional equivalents to wills (will-like devices). Special attention is given to the conflict-of-laws solutions offered by Regulation (EU) 650/2012 on international successions, particularly the role of the professio iuris and its potential to coordinate universal and territorially limited wills within a coherent cross-border strategy.

The final chapter addresses estate administration, focusing on the anticipatory design of executorial structures within the will, the appointment and confirmation of executors under Anglo-American probate procedures, and their capacity to act in respect of assets located in Spain.

Overall, the work offers a comprehensive and technically sophisticated framework for international estate planning, positioning patrimonial private international law as a central discipline for the structuring of global family wealth.

More information is available on the publisher’s website.

The first issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2026 was recently published last month. It contains the following works on private international law:

Bulat Karimov, “Arrest of Associated Ships from a Common Law Perspective”

The Arrest Conventions 1952 and 1999 provide for the arrest of ships owned by the person who would be liable for the claim in personam. The widespread use of one-ship companies has effectively circumvented these provisions. It has allowed shipowners to limit or avoid their liability by distributing their fleet between one-ship companies. The only country that has introduced separate associated ship provisions is South Africa. Other countries do not follow this example and generally deal with one-ship companies through beneficial ownership and piercing the corporate veil. The article examines the law and practice of arresting associated ships in South Africa, the US , England, Singapore and Australia. Particular focus is paid to the impropriety criterion, which is part of piercing the corporate veil but is irrelevant to the South African approach. It is concluded that the primary function of impropriety is preventing overreaching, which means subversion of the idea of separate legal personality of a shipowning company. The “objective” and “reasonableness” approaches are suggested as a middle ground to the problem discussed.

 

Steven Gee, “Enforcement of Judgments against Wealth Structures: Receivers, Trusts, Insolvency Act 1986, S.243 and Mareva Injunctions”

This article considers remedies leading to compelling satisfaction of a judgment, from assets in a wealth structure used by a judgment debtor, or assets produced by them, or from persons who have received such assets. These include (1) enforcement by equitable execution, (2) enforcement disregarding “sham” or invalid trusts or through an undisclosed legal power, (3) the effect of the Model Form of Freezing Injunction, and (4) use of the Insolvency Act 1986, s.423 to unwind transactions prejudicing creditors, including when to attribute to others a debtor’s purpose to prejudice creditors. It considers the relevance of a person having legal or de facto control of assets to the availability of these remedies.

Adrian Briggs, “The Death of Henry v Geoprosco“

Michal Hain, “Is a Foreign Judgment a Debt?”

Joseph Khaw, “Going Cherry Picking”

Paul MacMahon, “Pre-emptive Challenges to Recognition of Foreign Arbitral Awards”

 

 

 

Written by Prof Dr João Costa-Neto, Assistant Professor, Faculty of Law, University of Brasília
and Dr Pedro Pagano Payne, Academic Assistant, Faculty of Law, University of Brasília

 

In April 2025, the highest chamber (Corte Especial) of the Brazilian Superior Court of Justice (STJ), under Justice Maria Isabel Gallotti as rapporteur, ruled on ‘Recognition of a Foreign Judgment’ (HDE) no. 7.091/EX. The case concerned the recognition of a United States ruling changing the last name of a Brazilian national who had acquired US nationality. The Plaintiff sought recognition of (i) his US naturalisation and (ii) a ruling of the Supreme Judicial Court of Suffolk County, Massachusetts, which changed his name from ‘Ariosto Mateus de Menezes’ to ‘Matthew Windsor’.

The Court decided it had no competence to ratify the naturalisation. Granting US citizenship is a prerogative of the US Government. And loss of Brazilian nationality is ruled by a specific domestic administrative procedure, under the Brazilian Ministry of Justice. The Court concluded that, because of lack of competence, the documents presented did not satisfy the statutory requirements for recognition under the Brazilian Code of Civil Procedure and the Court’s internal rules. By contrast, the Court granted recognition of the name-change judgment. It found that the formal requirements for recognition had been met: the decision was rendered by a competent authority, had become stable, and was properly documented and translated. The decisive issue, therefore, was whether recognition would violate Brazilian ordre public.

Justice Gallotti grounded her analysis in Article 7 of the Introductory Statute to the Norms of Brazilian Law (LINDB), a statute inspired by the German Einführungsgesetz zum Bürgerlichen Gesetzbuche (EGBGB). LINDB provides that the law of the person’s domicile governs name and capacity. The applicant was domiciled in the United States. The name change was carried out under US law. The case did not fall within any area of exclusive Brazilian jurisdiction (Article 23 of the Brazilian Code of Civil Procedure).

The Attorney General’s Office (Ministério Público Federal) argued that Brazilian law does not permit total suppression of family names. The foreign judgment therefore offended public policy. The Court rejected this view.  It held that the mere fact that Brazilian legislation does not provide total suppression or change of surnames does not invalidate a foreign act. The prohibition is not a “nuclear” or foundational norm of the Brazilian legal order. There was no violation of ordre public, national sovereignty, or human dignity. Justice Gallotti stated: ‘The “ordre public clause” is intended to prevent the recognition of rights that contradict the fundamental principles of our legal order. In general, private international law doctrine considers, for example, that Western countries tend not to recognise more than one spouse, even when the husband is domiciled in a country governed by Islamic law. Polygamy (the marriage of a man to multiple women) is understood to violate the basic and core rules of national family law and succession law.’ Nothing of that nature was present in the case, said the Court. A foreign name change, even one involving the substitution of a surname, does not approach the level of structural incompatibility exemplified by polygamy.

The Court also placed the case in the context of recent domestic legal reform. Brazilian Law no. 14.382/2022 significantly facilitated changes of forenames in Brazil. A person may now change their first name extrajudicially (before a notary), without demonstrating a relevant reason. But such a change can only happen once in a lifetime and solely encompasses first names. Surname changes have also been made more flexible, but exclusively by allowing the recovery and inclusion of ancestral surnames. Brazilian law therefore no longer reflects a rigid immutability model, even if surnames remain harder to change than forenames. In HDE 7.091/EX, the Court considered it understandable and reasonable that the applicant adopted anglophone first and last names in the United States in order to avoid possible discrimination in the country of his new nationality. The change did not harm any relevant public or third-party interest.

 From a comparative perspective, the decision sits at an interesting point. In Common Law jurisdictions, name change is generally available with considerable freedom, often through unilateral instruments such as a deed poll, subject to modest administrative formalities. In Germany and Austria, by contrast, name changes are treated as exceptional and typically require an ‘important or relevant reason’ under public-law procedures. Christian von Bar’s comparative study Gemeineuropäisches Privatrecht der natürlichen Person (pp. 567–604) illustrates precisely the different models regarding name change. Some systems conceptualise the name primarily as an element of personal identity. Others see it as a structured institution embedded in family and public-order concerns. Brazil’s domestic law still reflects elements of the latter approach. Yet in recognition proceedings, Brazil’s highest Court with private law jurisdiction clearly opted for continuity of status formed at the domicile.

The decision is also consistent with a long Brazilian tradition of construing public policy narrowly in cross-border cases. As noted in a recent article, Brazilian law was frequently referenced in Ernst Rabel’s writings. For instance, Rabel noted how Brazilian Courts would recognise foreign divorces at a time when divorce was not yet permissible in Brazil. HDE 7.091/EX fits that pattern: foreign status effects may be recognised even when domestic law would not have produced the same result internally.

Ultimately, HDE 7.091/EX is a restrained and technically precise decision. It does not liberalise Brazilian internal surname law. It does not dissolve the state’s control over civil status. What it does is confirm that ordre public remains a high threshold in recognition proceedings of foreign rulings. In an era of increasing personal mobility and multi-layered identities, this approach reinforces a central intuition of private international law: the stability of personal status across borders is itself a value worthy of legal protection.

 

The Área de Derecho Internacional Privado of the Universidad Autónoma de Madrid (UAM) announces two initiatives of particular interest for scholars and practitioners of private international law.

1. Seminar: Nuevas perspectivas de la insolvencia internacional: reestructuraciones preconcursales y concursales

On Friday, 6 March 2026 (12:45), a seminar will be held at the Faculty of Law of UAM (Seminario II) in the framework of the research project “Nuevas perspectivas de la insolvencia internacional: reestructuraciones preconcursales y concursales” (PID 2022-140017OB100), coordinated by Professors Iván Heredia Cervantes and Elisa Torralba Mendiola.

On this occasion, Prof. Ángel Espiniella Menéndez (Universidad de Oviedo) will deliver a lecture entitled:

“Práctica relativa a los procedimientos territoriales de insolvencia”

The seminar addresses the practice of territorial insolvency proceedings, a topic of particular relevance in the evolving landscape of European and international insolvency law.

Venue:
Universidad Autónoma de Madrid
Facultad de Derecho – Seminario II

Date and time:
Friday, 6 March 2026 – 12:45

2. Seminario Julio D. González Campos 2026

Reform of Regulation (EU) 1215/2012 (Brussels I bis)

Throughout 2026, the Área de Derecho Internacional Privado of UAM will host the Seminario Julio D. González Campos, dedicated to the reform of Regulation (EU) 1215/2012 (Brussels I bis).

Both the above-mentioned insolvency seminar and the present seminar series will be held in Spanish. Only Sessions 2 and 3 of the present series will be conducted in English.

All sessions will take place at the Faculty of Law (Seminario V – J.D. González Campos, 4th floor), from 12:30 to 14:00.

The programme is as follows:

Session 1 – 13 March 2026
La revisión del ámbito de aplicación del RBIbis
Speaker: Rafael Arenas García (UAB)
Discussant: Miguel Virgós Soriano (UAM)

Session 2 – 24 April 2026 (in English)
The European Commission’s report on the application of the Brussels I bis Regulation
Speaker: Laura Liubertaite (European Commission)
Discussant: Elena Rodríguez Pineau (UAM)

Session 3 – 26 June 2026 (in English)
Issues relating to recognition and enforcement
Speaker: Costanza Honorati (Università di Milano-Bicocca)
Discussant: Elisa Torralba Mendiola (UAM)

Session 4 – 18 September 2026
Acciones colectivas en el RBIbis
Speaker: Fernando Gascón Inchausti (UCM)
Discussant: Francisco Garcimartín (UAM)

Session 5 – 30 October 2026
Revisión de los foros de competencia judicial internacional ¿a la luz de la jurisprudencia del TJUE?
Speaker: Marta Requejo Isidro (Court of Justice of the European Union)
Discussant: Iván Heredia Cervantes (UAM)

Session 6 – 11 December 2026
Digitalización de la economía y revisión de las reglas de competencia judicial
Speaker: Pedro de Miguel Asensio (UCM)
Discussant: José Ignacio Paredes Pérez (UAM)

This seminar series offers a comprehensive and forward-looking discussion of the potential reform of Brussels I bis, addressing questions of scope, jurisdiction, collective litigation, recognition and enforcement, the case law of the CJEU, and the challenges posed by digitalisation.

This post is posted on behalf of Arnav Sharma, Jindal Global Law School, Sonipat, India

 

Introduction

On 25th July 2025, a single judge bench of the Delhi High Court delivered a judgment in Engineering Projects (India) Limited v. MSA Global LLC (Oman) in CS (OS) 243 of 2025[1] that has stirred considerable discourse in international arbitration circles. The fundamental question at issue in the instant case was whether an Indian Court can grant an anti-arbitration injunction to stay proceedings in a foreign-seated arbitration on grounds of the proceedings turning oppressive and vexatious due to procedural impropriety, notwithstanding internationally well-settled principles of minimal judicial intervention, party autonomy, and lex arbitri that govern international commercial arbitration? The Delhi High Court answered in the affirmative, holding that Indian civil courts possess inherent power under Section 9 read with Section 151 of the Code of Civil Procedure, 1908 (“CPC”) to intervene under exceptional circumstances where the arbitral process itself becomes a vehicle of abuse.

 

This ruling carries profound implications for India’s aspirations to position itself as a global arbitration hub. By granting relief that undermines the exclusive jurisdiction of the Courts at the Seat (Singapore in the instant case), the ruling has invited scrutiny vis a vis its alignment with the territorial principle as elaborated upon in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. (“BALCO”)[2], and with internationally accepted ‘best practices’ which are well-settled considering that they promote predictability and finality in cross-border dispute resolution.

 

Facts

Engineering Projects (India) Limited (“EPIL”), a public sector enterprise, entered into a sub-contract agreement with MSA Global LLC (Oman) (“MSA”) for the design, supply, installation, integration, and commissioning of a border security system at the Yemen-Oman border. The agreement contained an arbitration clause stipulating that any disputes would be resolved by way of arbitration under the rules of the International Chamber of Commerce (“ICC”) with Oman’s law being the governing law, while conferring exclusive jurisdiction upon the courts at New Delhi, India. For the sake of clarity, Article 19 of the agreement between the parties containing the aforementioned arbitration clause, is extracted in its entirety as under:

 

“ARTICLE 19

LAW AND ARBITRATION

19.1 Disputes if any, arising out of or related to or any way connected with this agreement shall be resolved amicably in the First instance or otherwise through arbitration in accordance with Rules of Arbitration of the International Chamber of Commerce. The jurisdiction of the Contract Agreement shall lie with the Courts at New Delhi, India.

 

19.2 This Agreement shall be governed by, construed and take effect in all respects according to the Laws and Regulations of the Sultanate of Oman.

 

19.3 Any dispute or difference of opinion between the parties hereto arising out of this Agreement or as to its interpretation or construction shall be referred to arbitration. The Arbitration Panel shall consist of three Arbitrators, one Arbitrator to be appointed by each party and the third Arbitrator being appointed by the two Arbitrators already appointed, or in event that the two Arbitrators cannot agree upon the third Arbitrator, third Arbitrator shall be appointed by the International Chamber of Commerce. The place of the Arbitration shall be mutually discussed and agreed.

 

19.4 The decision of the Arbitration Panel shall be final and binding upon the parties.”

 

In the course of performance of the contract, disputes arose between the parties concerning alleged delays in contractual performance. Consequently, MSA invoked the arbitration agreement in 2023 nominating Mr. Andre Yeap SC (“Mr. Yeap”) as a co-arbitrator. Thereafter, on 20.04.2024, Mr. Yeap submitted his statement of acceptance, availability, impartiality and independence to the ICC, expressly declaring that he had “nothing to disclose” with respect to any facts or circumstances that could give rise to justifiable doubts as to his impartiality or independence. EPIL nominated Hon’ble Justice Mr. Arjan Kumar Sikri (Retd.) as its co-arbitrator. The Tribunal was duly constituted on 05.09.2023 with Mr. Jonathan Acton Davis KC being appointed as the presiding arbitrator by the co-arbitrators.

 

In June 2024, the tribunal rendered a first partial award on MSA’s application for interim measures. EPIL challenged this award before the Singapore High Court. In December 2024, in preparation of the evidentiary hearings, EPIL, through a Gujarat High Court Judgment dated 05.07.2024 titled Neeraj Kumarpal Shah v. Manbhupinder Singh Atwal, discovered the Mr. Yeap had been previously appointed as an arbitrator in separate proceedings involving Mr. Manbhupinder Singh Atwal who happens to be MSA’s Managing Director, Chairman, and Promoter. This prior involvement had not been disclosed when Mr. Yeap accepted his appointment. As such, on 19.01.2025, EPIL filed a challenge application before the ICC Court under Article 14(1) of the ICC Rules alleging non-disclosure and raising doubts about Mr. Yeap’s independence and impartiality. The ICC Court in its decision acknowledged the non-disclosure as “regrettable” but rejected EPIL’s challenge on merits, finding that the circumstances did not establish justifiable doubts regarding Mr. Yeap’s impartiality or independence. Subsequently, EPIL filed an application before the Singapore High Court under Article 13(3) of the UNCITRAL Model Law seeking determination on the validity of Mr. Yeap’s continued participation, and also simultaneously approached the Delhi High Court by filing the instant suit seeking a declaration and permanent injunction restraining MSA from continuing the ICC arbitration with the present tribunal composition. Further complicating the matter, MSA filed an enforcement petition before the Delhi High Court for the recognition and enforcement of the First Partial Award while also obtaining an anti-suit injunction from the Singapore High Court restraining EPIL from continuing its proceedings before the Delhi High Court.

 

The Dispute

The crux of the legal controversy in this case was around three inter-related questions.

 

1. Whether an Indian Civil Court has the jurisdiction to entertain a suit seeking an anti-arbitration injunction against a foreign-seated arbitration, particularly in light of the fact that the parties had agreed to arbitrate under ICC Rules with Singapore being designated as the seat. In this respect, MSA relied upon the judgment in Indus Mobile Distribution Pvt. Ltd. v. Datawind Innovations Pvt. Ltd. (“Indus Mobile”)[3] to contend that once parties agree to a specific seat of arbitration, it is solely the Courts at that seat that retain supervisory jurisdiction over the arbitral process to the exclusion of all other Courts. MSA further argued that the suit was barred by Section 5 and Section 45 of the Arbitration and Conciliation Act of 1996 which are the statutory embodiment of the principle of minimal judicial intervention and the territoriality doctrine affirmed in BALCO.

 

11. Whether the non-disclosure by Mr. Yeap rendered the arbitration proceedings vexatious, oppressive, and violative of Indian Public Policy. In this regard, EPIL argued that Mr. Yeap’s failure to disclose this material information constituted a manifest violation of Article 11 of the ICC Rules, which mandates arbitrators to disclose any facts or circumstances likely to give rise to justifiable doubts as to their impartiality or independence. EPIL contended that such non-disclosure strikes at the root of party consent and procedural fairness thereby rendering the entirety of the arbitral process illegitimate. On the other hand, MSA relied upon Article 11.2 of the ICC Rules read with Clause 3.1.3 of the IBA Guidelines which mandate disclosure only if an arbitrator has been appointed on two or more occasions in the past three years by a party or one of its affiliates; MSA contends this requirement had not been satisfied in the instant case.

 

III. Whether EPIL was entitled to interim injunctive relief restraining the continuation of arbitral proceedings pending final disposal of the suit.

 

As such, this dispute was centred around reconciling party autonomy and minimal judicial intervention on one hand, with the Court’s duty to prevent abuse of process and ensure procedural fairness on the other [4].

 

The Decision

 

On Maintainability

At the very outset, the Delhi High Court affirmed the strong presumption in favour of the civil court’s jurisdiction as under Section 9 of the CPC, which confers authority to adjudicate all suits that are of a civil nature unless the same is expressly or through implication barred by statutory law. The Court relied on the case of Dhulabhai v. State of Madhya Pradesh[5] and held that the exclusion of civil court jurisdiction cannot be readily inferred and must be clearly provided by law. Further, the Court distinguished the rulings in Indus Mobile and BALCO, noting that while these judgments do affirm the seat principle and the territoriality doctrine, they did not create an absolute bar on civil courts’ power to grant an anti-arbitration injunction in exceptional circumstances. The Court found guidance in the Union of India v. Dabhol Power Company[6] and ONGC v. Western Company of North America [7], wherein it was held that Indian Courts do have the power to grant injunctions against foreign proceedings whenever the circumstances make the proceedings oppressive, or where such an injunction is necessary or expedient, or when the ends of justice so require; with the former specifically referring to Sections 5 and 45 of the Arbitration and Conciliation Act of 1996 and stating that neither of them oust, entirely, the jurisdiction of the Indian Courts. Additionally, the Court emphasised the distinction between anti-suit injunctions and anti-arbitration injunctions, noting that the latter require a higher threshold of oppression or vexatiousness to be met, citing examples along the lines of doubts as to the consent of the parties, allegations of forgery, or fundamental procedural impropriety which can meet the aforementioned threshold. Crucially, the Court held that the principle of minimal judicial intervention does not and must not translate into negligible interference[8], and said this crucial difference has been preserved to ensure that private dispute resolution mechanisms such as arbitration do not turn oppressive or operate in an unruly manner, which can be deemed contrary to the foundational principles of judicial propriety.

 

On Vexatiousness and Oppressiveness of the Proceedings

The Court began the discussion in this regard by defining “vexatious” as proceedings instituted in the absence of sufficient legal basis and primarily intended to annoy, harass, and/or burden the opposing party, and “oppressive” as conduct that unjustly imposes harsh burdens or unfair disadvantages upon a party to the proceedings. Thereafter, in reference to the ICC Rules, the Court noted that Article 11 therein casts a categorical obligation upon arbitrators to make full and frank disclosure of any circumstance that might give rise to justifiable doubts regarding their impartiality or independence. It was emphasised that this obligation must be assessed from the perspective of the parties as is clear from the language of the provision insofar as it says “in the eyes of the parties”, rather than from an arbitrator’s subjective perception of bias. Further, it was noted that the arbitrator cannot withhold disclosure on the ground that the fact appears benign or remote in lieu of the fact that the obligation arises when there exists even a possibility that the information, if known to the parties, might give rise to an apprehension of bias in the parties’ minds.

 

The Court found that Mr Yeap’s non-disclosure was deliberate and calculated. Even though Mr. Yeap admitted in his response to the initial challenge application that he had made enquiries and was aware of the potential need for disclosure, he chose not to do the same based on his subjective assessment that four years had passed since the prior appointment in the matter concerning MSA’s Chairman. Moreover, Mr. Yeap had acknowledged in the initial proceedings that “had I made the disclosure, the possibility of the Respondent seeking to challenge my impartiality could not be discounted”. The Court viewed this statement as evidence of the fact that the non-disclosure was intentional and aimed at avoiding objection. Further, the Court held that the ICC Court’s decision on the challenge, while acknowledging the non-disclosure as “regrettable”, erroneously misplaced the burden on EPIL to demonstrate actual bias rather than focusing on the breach of the mandatory disclosure requirement, thereby noting that the decision was a classic case of operation successful, but patient dead. The logic behind this was that, while the ICC Court’s decision may seem sound on the surface and in compliance with the formal procedure, it did not address the substantive loss of confidence in the arbitral process’s neutrality.

 

On Interim Injunction

As such, applying the triple test of (i) prima facie case, (ii) balance of convenience, and (iii) irreparable harm for interim injunction as under Order XXXIX Rules 1 and 2 of the CPC, the Court found that all three conditions were satisfied and accordingly stayed the ICC arbitral proceedings until final disposition of the suit and restrained both parties from participating in the arbitration with the tribunal’s present composition.

 

Concluding Remarks

While the judgment articulates laudable concerns about procedural fairness and impartiality, the approach that has been adopted raises serious questions about jurisdictional overreach, inconsistency with India’s pro-arbitration legislative intent, potential damage to India’s credibility as an arbitration-friendly jurisdiction.

 

Firstly, the most fundamental flaw in the judgment lies in its erosion of the seat principle which is unarguably a cornerstone of international arbitration law[9]. The UNCITRAL Model Law, which forms the very basis of India’s Arbitration and Conciliation Act, is predicated on the seat principle, which has also been unequivocally affirmed by the Indian Supreme Court in cases such as BALCO. By granting an anti-arbitration injunction in this matter, the Delhi High Court effectively usurped the supervisory jurisdiction of the Singapore courts. The Singapore Court had already considered and rejected EPIL’s challenge to Mr. Yeap’s appointment, yet the Delhi High Court substituted its own judgment on the same issue. This created an untenable situation of conflicting judicial orders: the Singapore High Court granted an anti-suit injunction restraining the Delhi proceedings on 23 May 2025, while the Delhi High Court proceeded to grant an anti-arbitration injunction on 25 July 2025. Judicial conflicts of such nature undermine the predictability and finality that parties seek when choosing arbitration, not to mention the violation of principles of comity between courts. Additionally, it’s not as if EPIL was rendered remedy-less before the seat courts at Singapore. There were multiple appeals available to Singapore High Court’s decision on the challenge to Mr. Yeap’s impartiality. The Delhi High Court’s position could still have been appreciated had EPIL had no remedy left at the seat courts except to continue with vexatious and oppressive arbitral proceedings, but this was not the case. Further, the judgment’s reliance on Dabhol Power Company and ONGC v. Western Company were misplaced considering that those cases involved enforcement of foreign awards or bank guarantees, and not the question of intervening in ongoing foreign-seated arbitrations with active supervisory courts. Not to mention that the judgment’s characterisation of MSA’s conduct as vexatious appears rather selective and outrightly ignores EPIL’s own forum shopping tendencies, i.e., filing parallel challenges before ICC, Singapore Courts, and Delhi Courts simultaneously.

 

Secondly, while the Court correctly emphasised the importance of arbitrator disclosure, the underlying principles were applied in a problematic manner. The Court failed to consider that four years had passed since Mr. Yeap’s prior appointment, and neither the ICC Rules nor the IBA Guidelines mandate disclosure of appointments separated by such a temporal gap unless it can be demonstrated that the same constitutes a pattern of repeated appointments; this standard is akin to Entry 20 of the Vth Schedule to India’s 1996 Act. The ICC Court’s decision carefully considered these standards and concluded that while disclosure would have been prudent, a failure to do the same did not give rise to justifiable doubts about Mr. Yeap’s impartiality or independence. The Delhi High Court’s characterization of this reasoned decision as operation successful, but patient dead is rather dismissive, fails to engage with the substantive reasoning, and fails to also take into account the fact that international arbitration institutions like the ICC possess expertise in assessing arbitrator conflicts; it is a clear case of ‘due process paranoia’ [10]. Domestic courts ought to be cautious about second-guessing such determinations, especially when institutional rules provide clear mechanisms and standards for such challenges. Further, the judgment entirely conflates two distinct issues: whether disclosure was required, and whether non-disclosure renders the arbitrator actually biased.

 

Lastly, the present judgment runs counter to India’s objective to become an arbitration-friendly jurisdiction, as expressed in the Law Commission’s 264th Report. By allowing a non-seat court to stay a foreign-seated arbitration based on alleged procedural impropriety, the decision sends a troubling signal to international parties i.e., choosing India as a contracting party, even with a foreign seat, exposes you to unnecessary intervention by Indian Courts; this is precisely what the BALCO regime sought to eliminate[11]. The judgment also creates a dangerous precedent for other jurisdictions. If Indian courts can intervene in Singapore-seated arbitrations, what is to stop Chinese courts from intervening in London-seated arbitrations, or vice versa? The result would be a race to obtain competing injunctions, undermining the entirety of the international arbitration framework.? Beyond doctrinal concerns, this is also a clear case of practical ineffectiveness. The ICC tribunal and Singapore courts are not bound by the Delhi High Court’s judgment and have continued to recognise the arbitration’s validity. Singapore subsequently issued a permanent anti-suit injunction against EPIL on 18.09.2025, and initiated contempt proceedings when EPIL obtained yet another ex parte injunction from the Delhi courts restraining MSA from participating in the Singapore contempt proceedings. This cycle of competing injunctions serves neither party’s interests and brings both judicial systems into disrepute, which is a massive concern, especially when this ordeal was wholly avoidable considering that under the New York Convention, any award rendered in this arbitration would have ultimately been enforceable in India only through the procedures in Part II of the 1996 Act, at which point EPIL could have raised objections under Section 48, including alleged violation of public policy. The availability of this post-award remedy also undermines the necessity for pre-emptive intervention.

 

A better approach would have been for the Court to (i) recognise that the seat court in Singapore has exclusive supervisory jurisdiction, (ii) acknowledge that EPIL has adequate remedies through the ICC challenge process and challenges before Singapore courts under Article 13 of the UNCITRAL Model Law, along with post-award resistance to enforcement, and (iii) decline jurisdiction on forum non conveniens grounds while allowing EPIL to pursue its remedies before the aforementioned appropriate fora.

 

[1] 2025 SCC OnLine Del 5072.

[2] (2012) 9 SCC 552.

[3] (2017) 7 SCC 678.

[4] See https://www.scconline.com/blog/post/2022/10/20/party-autonomy-or-the-choice-of-seat-the-essence-of-arbitration/ for a discussion.

[5] 1968 SCC OnLine SC 40.

[6] 2004 SCC OnLine Del 1298.

[7] (1987) 1 SCC 496.

[8] See https://disputeresolution.cyrilamarchandblogs.com/2025/08/delhi-high-court-clarifies-scope-of-anti-arbitration-injunctions-in-foreign-seated-proceedings/ for a discussion.

[9] See https://indiacorplaw.in/2025/09/08/jurisdictional-overreach-and-the-illusion-of-equity-a-critique-of-the-delhi-high-courts-intervention-in-epi-v-msa-global/ for a discussion.

[10] See https://forum.nls.ac.in/nlsir-online-blog/arbitrator-non-disclosure-before-the-delhi-high-court/ for a discussion.

[11] See https://legalblogs.wolterskluwer.com/arbitration-blog/a-shield-of-justice-or-a-sword-through-the-seat-the-delhi-high-courts-contentious-anti-arbitration-injunction/ for a discussion.

FAMIMOVE 3.0 is an international project co-funded by the European Commission under the JUST-2025-JCOO program. The project’s full name is Families on the Move: The Coordination between international family law and migration law.

This project seeks to build on the results of FAMIMOVE 2.0 by focusing on children on the move in vulnerable situations and by consolidating the networks already established of experts in family law, child protection and migration law. It involves 7 universities in 6 EU Member States.

The duration of the project is two years from 1 March 2026 to 29 February 2028.

The Consortium is coordinated by Prof. Marta Pertegás Sender (Maastricht University) and is comprised of the following partners: Prof. Thalia Kruger (Antwerp University), Prof. Orsolya Szeibert (Eötvös Loránd University), Prof. Ellen Desmet (Ghent University), Prof. Ulf Maunsbach (Lund University), Prof. Carlos Esplugues (University of Valencia) and Prof. Fabienne Jault (University of Versailles Saint-Quentin-en-Yvelines). They will be supported by colleagues with expertise in these fields from their universities and beyond.

As indicated in the project summary, “FAMIMOVE’s general objective is to contribute to the effective and coherent application of the EU acquis in the field of international family law, in particular by ensuring more awareness of international child protection instruments applicable to migrant children […].”  In particular, FAMIMOVE 3.0 “intends to map the measures for the protection of children in 6 EU MS in family law and their interaction with migration law. In addition, it will put in place three transnational sub-projects relating to the portability of civil status documents (with a focus on statelessness and the age of the child), the interrelationship between international child abduction and migration law, and the protection of Ukrainian children in the EU.”

As part of this project, interviews will be conducted with Ukrainian children in order for them to express their views, which will be duly taken into account, and to fully participate in the results of the project in accordance with the UN Convention on the Rights of the Child.

As indicated, FAMIMOVE 3.0 is a spin-off of earlier projects with the same name, namely FAMIMOVE 2.0 and FAMIMOVE. The website of FAMIMOVE 2.0 is still operational. To view it, click here. One of the main achievements of this project is the book entitled Children in Migration and International Family Law: The Child’s Best Interests Principle at the Interface of Migration Law and Family Law and may be consulted here. We have previously posted on this project here and here.

FAMIMOVE resulted in two insightful documents published by the European Parliament: Children on the Move: A Private International Law Perspective and Private International Law in a Context of Increasing International Mobility: Challenges and Potential.

Any new development will be published here – stay tuned.

 

Views and opinions expressed in this project are however those of the authors only and do not necessarily reflect those of the European Union or the European Commission. Neither the European Union nor the granting authority can be held responsible for them.

The following call was kindly shared with us by Michiel Poesen (University of Aberdeen).

This is a call for papers and panels for the Private International Law subject section at the SLS Annual Conference 2026. This year, the annual conference will take place at the University of East Anglia in Norwich. The conference dates are: 2-4 September 2026.

The Private International Law section will meet in the first half of the conference on 2-3 September, and we can run up to four sessions, each lasting 90 minutes.?Doctoral students are very welcome and are encouraged to submit papers for consideration in the Subject Sections Programme. The conference theme is Doing Law Differently, but the Private International Law Subject Section welcomes paper and panel proposals on any topics connected to our discipline.

Conference Information

The 2026 conference at UEA will be fully in-person. This decision reflects a move globally to resume in person conferences, as well as the significant costs surrounding the delivery of a fully virtual attendance. However, it will be possible for members of the SLS to register to view the plenary sessions at the conference online. Furthermore, Council members who are not attending the 2026 Conference will still be able to attend the Council meeting and AGM virtually?and, consistent with our EDI priorities, speakers who cannot attend may, on sufficient notice, be able to present virtually. We will also endeavour to allow speakers unable to attend at the last minute due to ill-health or travel restrictions to present virtually. We continue to offer support for attendance via our Annual Conference Additional Support Fund (ASF) to support those with special circumstances warranting additional support. Priority for support will be given to applicants who have no other source of funding.

Submitting through Oxford Abstracts

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Friday 27 March 2026. All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed here – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same email address this year (if that address remains current). For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.

This is the fourth year we will be running first blind peer review, with a subsequent non-blind review once initial decisions have been made to consider profile diversity before final decisions are made and communicated. The feedback from convenors on this process has been very positive. We intend to communicate decisions on acceptance by Friday 8 May 2026.

Submission Format

We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the Private International Law subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.?Sessions are 90 minutes in length. Those proposing panels should include up to three speakers per panel (though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity).

As the SLS is keen to ensure that as many members with good quality papers as possible can present, speakers should not present twice at the conference at the expense of another credible paper.?The general expectation is that authors will submit no more than one single and/or one co-authored paper. There should be a maximum of 3 speakers per paper. For papers with more than 3 authors, the authors should consider submitting a panel. Submissions with multiple authors should clearly identify non-speaking and speaking authors. When you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

The Best Paper Prize

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career, and which is open to those presenting papers individually or within a panel.? The Prize carries a £300 monetary award, and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.

To be eligible for the Best Paper Prize :

• Speakers must be fully paid-up members of the SLS (where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and must be fully paid up. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final).
• Papers should be submitted as a word document and must not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count).
• Papers must be uploaded to the paper bank by 11:59pm UK time on?Friday 28 August 2026.
• Papers must not have been published previously or have been accepted or be under consideration for publication.
• Papers must have been accepted by a Convenor in a Subject Section and an oral version of the paper must be presented at the annual conference by at least one of the authors.
• Where a paper is delivered as part of a panel, the paper will only be eligible for consideration where: (a) the abstract for the panel indicates that this specific paper will be delivered at the annual conference, and that abstract has been accepted by a Convenor in a Subject Section; and (b) an oral version of the specific paper has been presented at the annual conference by at least one of the authors.
• Where a Convenor or Final Panellist is unable to judge, for example, where there is a conflict of interest, they will nominate another member of the Section or Executive Committee member to act as an alternate (a conflict of interest includes, but is not limited to, where a Convenor, Chair or Judge is a colleague or PhD supervisor of an author).
• The SLS adopts the same policy as Legal Studies as regards AI. The policy is available via this?link.

In 2020, the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal.

To be eligible for the Best Paper by a Doctoral Student Prize:

• Speakers must be fully paid-up members of the SLS who are doctoral students (where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be fully paid up members and all authors must be doctoral students, whatever their discipline. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final).
• Papers must be submitted in word document format and should not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count).
• Papers must be uploaded to the paper bank by 11:59pm UK time on?Friday 28 August 2026.
• Papers must not have been published previously or have been accepted or be under consideration for publication.
• Papers must have been accepted by a Convenor in a subject section and an oral version of the paper must be presented by at least one of the authors at the annual conference.
• Where a paper eligible for this prize wins the Best Paper Prize, the judges may at their discretion award the prize for Best Paper by a Doctoral Student to a different nominated paper.
• The judges may announce a shortlist at their discretion with the winner to be announced by the first week in November.
• Where a paper is delivered as part of a panel, the paper will only be eligible for consideration where: (a) the abstract for the panel indicates that this specific paper will be delivered at the annual conference, and that abstract has been accepted by a Convenor in a Subject Section; and (b) an oral version of the specific paper has been presented at the annual conference by at least one of the authors.
• Where a Convenor or Final Panellist is unable to judge, for example, where there is a conflict of interest, he or she will nominate another member of the Section or Executive Committee member to act as an alternate (a conflict of interest includes, but is not limited to, where a Convenor, Chair or Judge is a colleague or PhD supervisor of an author).
• The SLS adopts the same policy as Legal Studies as regards AI. The policy is available via this?link.

Registration and paying for the conference

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 19 June 2026 to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you.?Booking information will be circulated in due course and will open after the decisions on the response to the calls are made. Understanding the challenges faced by higher education, the SLS will keep ticket prices at 2025 rates for the 2026 conference.

With best wishes,

Dr Michiel Poesen
Dr Patricia Živkovi?

Co-convenors of the Private International Law section

Written by Dr Priskila Pratita Penasthika, Assistant Professor, Faculty of Law, Universitas Indonesia

INTRODUCTION

The Indonesian Personal Data Protection Law, Law Number 27 of 2022 (Indonesian PDP Law), came into effect on 17 October 2022. Before its enactment, data protection rules in Indonesia were fragmented across different sector-specific laws and regulations. The Indonesian PDP Law aims to unify these laws and regulations, providing greater clarity and ensuring consistent personal data protection across all sectors in the country. The Indonesian PDP Law sets out normative provisions on personal data protection; however, detailed, practical rules have yet to be specified in the implementing regulations. As of now, the drafting of these implementing regulations is still underway.

Many of the fundamental elements of the Indonesian PDP Law, including definitions of covered data and entities, lawful grounds, processing obligations, accountability measures, and relationships between data controllers and processors, are modelled after the European Union’s General Data Protection Regulation (GDPR). Nonetheless, several key provisions are tailored specifically to the Indonesian context. For instance, the Indonesian PDP Law has broad extraterritorial reach, which shall apply to entities insofar as their personal data processing activities have legal implications within Indonesia or pertain to an Indonesian national data subject outside Indonesian jurisdiction.

To date, there have been five decisions by the Constitutional Court of the Republic of Indonesia (Mahkamah Konstitusi Republik Indonesia) concerning the Indonesian Personal Data Protection Law. Briefly, the Indonesian Constitutional Court functions as one of Indonesia’s apex judicial authorities, alongside the Supreme Court. Its primary jurisdiction involves the constitutional review of enacted laws (undang-undang) in Indonesia to assess their conformity with the 1945 Indonesian Constitution (as lastly amended in 2002), thereby safeguarding the constitutional rights therein. Its decisions are final, legally binding, and possess immediate legal effect upon issuance, with no provisions for appeal or annulment by any other institutional body.

This piece will focus on the most recent ruling by the Constitutional Court issued on 19 January 2026 regarding the Indonesian PDP Law, namely Case Number 137/PUU-XXIII/2025, as it pertains to matters within private international law.

FACTS

The Petitioner mainly requests a constitutional review of Article 56 of the Indonesian PDP Law, which specifies the requirements for cross-border personal data transfers. Article 56 delineates a tiered set of prerequisites for such transfers. A personal data controller responsible for transmitting personal data abroad (data exporter) must verify that the recipient country offers an adequate or higher level of personal data protection than that provided by the Indonesian PDP Law. If this requirement is not met, the data exporter must ensure that sufficient and binding data protections are in place in the recipient country. If neither condition is satisfied, the data exporter is obliged to obtain consent from the data subject prior to transferring personal data abroad. Furthermore, the forthcoming implementing regulations are expected to provide further details on the specific requirements for cross-border data transfers.

The petition was initiated with the briefing announcement issued by the White House on 22 July 2025 concerning the Framework for Negotiating a Reciprocal Trade Agreement between Indonesia and the United States of America (Indonesia-USA Reciprocal Trade Agreement Negotiation Framework). As part of this framework, Indonesia has committed to establishing legal certainty regarding the ability to transfer personal data outside its borders to the United States.

The Petitioner argued that the Indonesia-USA Reciprocal Trade Agreement Negotiation Framework has led to a key interpretation of Article 56 of the Indonesian PDP Law concerning the transfer of citizens’ personal data beyond Indonesian borders. The Petitioner maintained that, under a strict interpretive approach, the PDP Law allows data controllers to assess the adequacy requirement independently, without parliamentary oversight. This could potentially weaken democratic accountability and expose personal data vulnerable to misuse. Additionally, the Petitioner emphasised that such commitments should require approval from the House of Representatives, as they directly impact national sovereignty and the protection of citizens.

The foundation of the Petitioner’s petition is based on Article 28G, paragraph (1) of the 1945 Indonesian Constitution, which protects citizens’ rights to their dignity, family, honour, and property, as well as the right to be free from threats to their fundamental rights. Additionally, the Petitioner referred to Article 11 of the 1945 Indonesian Constitution, which confers authority on the House of Representatives and the President to conclude international agreements.

Therefore, the Petitioner requests that the Constitutional Court interpret the provisions of Article 56 of the Indonesian PDP Law to mean that transferring personal data to jurisdictions such as the United States should occur only if there is an international agreement approved by the Indonesian House of Representatives. Moreover, transfers to countries considered to lack adequate personal data protection standards should take place only with the consent of the data subjects, after informing them of the risks involved in the cross-border transfers of their personal data.

CONSTITUTIONAL COURT DECISION

The Constitutional Court rejected all of the Petitioner’s petition and arguments. According to the Court, the cross-border transfer of personal data constitutes part of the administrative and technical measures carried out by the executive branch, rather than an agreement between nations that creates rights and obligations in the domains of politics, defence, or sovereignty. Based on this reasoning, the Court affirmed that there is no constitutional obligation to involve the Indonesian House of Representatives in any cross-border data transfer process, including in determining the adequacy decision regarding such a personal data transfer.

Regarding the adequacy decision, the Court held that the personal data controller (data exporter) shall undertake technical verification procedures to ascertain whether the recipient country of the personal data transfer maintains data protection standards that are adequate or even higher than those provided in the Indonesian PDP Law. Furthermore, the Court pointed out that cross-border personal data transfers do not rely solely on the personal data controller to ensure adequacy or higher protection standards in the recipient country. Instead, it also necessitates the existence and active involvement of the Personal Data Protection Authority (PDPA), as prescribed in Articles 58-61 of the Indonesian PDP Law. The PDPA is tasked with overseeing, evaluating, and implementing technical policy measures to ensure compliance with requirements for cross-border personal data transfers. Nevertheless, it is important to note that such authority has yet to be established.

 REMARKS

Despite the Constitutional Court’s rejection of the petition, Case Number 137/PUU-XXIII/2025 brings to light persistent concerns regarding the Indonesian PDP Law, particularly its provisions on cross-border personal data transfers. These issues call for further discussion and highlight the pressing need to pass the implementing regulations and establish the PDPA.

First, clarification is required regarding the party responsible for conducting cross-border transfers of personal data. Article 56 of the Indonesian PDP Law exclusively employs the term ‘personal data controller’ (pengendali data pribadi) in the context of cross-border data transfers, which seems to imply that only personal data controllers are authorised to carry out such transfers.

Second, it is necessary to delineate which countries are recognised as having adequate or higher levels of personal data protection. In this context, Article 60(f) of the Indonesian PDP Law provides that the PDPA is empowered to assess whether the requirements for cross-border personal data transfers are satisfied. The significant role of the PDPA in cross-border personal data transfer is also emphasised by the Constitutional Court Judges in Case Number 137/PUU-XXIII/2025. Since the PDPA has not yet been established or designated to date, this situation underscores the urgent need to set up or appoint such an authority.

Third, the forthcoming implementing regulations of the Indonesian PDP Law are expected to clarify issues surrounding cross-border personal data transfers, including the incorporation of whitelists and blacklists of specific jurisdictions, standardised contractual language, and specific data processing activities such as pseudonymisation and encryption. It is also presumed that the personal data controller and the forthcoming PDPA will be required to report to the Indonesian Ministry of Communication and Digital regarding cross-border transfers of personal data.

Fourth, as set out at the outset of this piece, the Indonesian PDP Law has an extensive extraterritorial scope. In the event of a personal data breach involving cross-border transfer of personal data, any individuals, corporations, public entities, and international organisations—irrespective of their origin or residence—whether functioning as personal data controllers or processors, may be considered potential defendants for violations that affect the rights of an Indonesian data subject. Referring to Article 2 of the Indonesian PDP Law, this applicability is contingent upon the occurrence of their misconduct (1) within the jurisdiction of Indonesia or (2) outside of Indonesia, provided that such misconduct results in legal consequences (a) within the Indonesian jurisdiction or (b) impacting an Indonesian personal data subject outside of Indonesian territory.

The subsequent issue concerns the court’s jurisdiction. As no cross-border data protection litigation has occurred in Indonesia to date, the court’s position in this matter remains indeterminate. Nevertheless, Indonesian courts are notorious for their indifference and insularity when addressing foreign-related issues. Furthermore, Indonesian civil procedural law does not specify provisions regarding parallel litigation. Consequently, in case of parallel proceedings concerning a cross-border data transfer dispute, it is likely that the Indonesian court would exercise jurisdiction and proceed with the legal proceeding in Indonesia, notwithstanding the existence of an ongoing legal proceeding involving the same dispute and parties in a foreign court.

If proceedings are conducted in a foreign court, the complexities of the issues may increase. Indonesia maintains a stringent stance that a foreign judgment is not enforceable unless it pertains to damages arising from marine salvage. Any foreign, other than those on damages resulting from marine salvage, must undergo re-examination by an Indonesian court. In light of this stance, it is apparent that Indonesian courts would not recognise or enforce foreign judgments concerning cross-border personal data transfer disputes and would require such disputes to be relitigated before an Indonesian court.

Practical challenges also include the complexities of seizing assets or digital evidence located in foreign jurisdictions, given that Indonesia has not yet acceded to the HCCH 1970 Evidence Convention.

Further details concerning the Indonesian PDP Law and its private international law aspects are available in Priskila Pratita Penasthika, “Chapter 12 – Indonesia” in Adrian Mak, Ching Him Ho, and Anselmo Reyes (eds.), Privacy and Personal Data Protection Law in Asia (Hart Publishing, 12 December 2024).

 

 

 

 

 

 

 

 

 

 

 

 

On Friday 29 May 2026 in Groningen, the Netherlands, Dr. Benedikt Schmitz from the University of Groningen is hosting a larger symposium on the topic of “Digitalisation of Justice: Perspectives from Germany and the Netherlands”

Theme

This event brings together leading and upcoming scholars to explore how digital transformation – from AI in adjudication to fully online proceedings – is reshaping our legal systems, while raising important questions about access to justice, procedural fairness, and the rule of law.

Programme

• A keynote by Dr. Benjamin Grimm, Minister of Justice and for Digitalisation (Federal State of Brandenburg, Germany)
• Expert panels on:
  • Private International Law (Prof. Dr. Susanne Lilian Gössl, LL.M. (Tulane); Prof. Dr. Frederick Rieländer, LL.M. (Cambridge); Asst.-Prof. Dr. Kirsten Henckel; Asst.-Prof. Dr. Benedikt Schmitz)
  • Civil Procedure (Prof. Dr. Gralf-Peter Calliess; Prof. Dr. Pauline Ernste; Patrick Koerts)
  • Criminal Procedure (Prof. Dr. Hannah Ofterdinger; Assoc.-Prof. Dr. Dorris de Vocht; Assoc.-Prof. Dr. Laura Peters; Asst.-Prof. Dr. Glenn Thodé)
  • Administrative Law (Prof. Dr. Sarah Rachut; Prof. Dr. Sofia Ranchordas; Asst.-Prof. Dr. Ida Varošanec)
• Elevator pitches by emerging scholars presenting cutting-edge research (Serap Bilgin, Noelle Funk, Sabrina Pölle, Constanze Rothermel, Anne Spijkstra)
• Plenty of time for discussion and networking, including coffee breaks, lunch, poster sessions, and an optional conference dinner

The full programme can be found on the conference website: https://weakerparties.eu/events/digitalisation-of-justice/

Time and Venue

• 29 May 2026, 8.30-17.10 CET
• Venue: House of Connections, Grote Markt 21, Groningen, the Netherlands

Registration

• This event is strictly in-person only.
• Attendance is free of charge.
• Register here: https://weakerparties.eu/events/digitalisation-of-justice/

A new issue of ZEuP – Zeitschrift für Europäisches Privatrecht is now available and includes contributions on EU private law, comparative law and legal history, legal unification, private international law, and individual European private law regimes. The full table of content can be accessed here: https://rsw.beck.de/zeitschriften/zeup.

The following contributions might be of particular interest for the readers of this blog:

Ignacio Tirado: UNIDROIT on the Occasion of Its (first) 100 Years

In the editorial, UNIDROIT on the Occasion of Its (First) 100 Years, Ignacio Tirado, Secretary General of UNIDROIT, traces the organisation’s origins and evolution, reflects on how it has navigated a turbulent century, and offers thoughts on how its centenary should be celebrated and what lies ahead for the Institute.

Wolfgang Wurmnest und Marie-Sophie Pillin: Der Data Act: Ein punktuelles europäisches Vertragsrecht für den Zugang und die Nutzung von Daten

Wolfgang Wurmnest and Marie-Sophie Pillin on Der Data Act: Ein punktuelles europäisches Vertragsrecht für den Zugang und die Nutzung von Daten highlights key private law provisions of the European Data Act. It analyzes the relationship between data controllers, users, and recipients, which in future will primarily be governed by contracts. In addition, the paper examines the new European rules on unfair contract terms.

Christian Kohler, Marlene Brosch, Jean-Christophe Puffer-Mariette: Unionsrecht und Privatrecht: Zur Rechtsprechung des EuGH im Jahre 2024

In Unionsrecht und Privatrecht: Zur Rechtsprechung des EuGH im Jahre 2024, Christian Kohler, Marlene Brosch and Jean-Christophe Puffer-Mariette offer an overview of numerous judgments of the ECJ in 2024 that are relevant to private law. Particularly noteworthy are decisions on the effects of Union citizenship and the enforcement of the General Data Protection Regulation as well as numerous judgments on consumer protection directives. A number of issues relating to the prohibition of discrimination and market freedoms have also been decided; judgments on copyright are equally worth mentioning.

Susanne Gössl: Das „Anerkennungsprinzip“ und das Internationale Recht der Geschlechtszugehörigkeit nach „Mirin“

Susanne Gössl on Das „Anerkennungsprinzip“ und das Internationale Recht der Geschlechtszugehörigkeit nach „Mirin“ comments on the recent ECJ decision of 4 October 2024, C-4/23 – Mirin regarding gender identity. The note explores how the Court strengthens the portability of a lawfully acquired gender identity within the EU, the limits of public policy objection, the treatment of non-binary gender entries, and the broader consequences of Mirin for the acceptance of a personal status in EU private international law. Finally, it assesses the repercussions of the judgment for German law.

For those interested in the EU’s sustainability framework, the article by Moritz Böbel, Ronjini Ray, and Marc-Philippe Weller on Die EU-Entwaldungsverordnung und ihre Auswirkungen auf den Globalen Süden am Beispiel von Indien provides an analysis of the EU’s deforestation regulation and its impacts on the Global South, focusing on India.

The thirty-ninth annual survey on choice of law in the American courts is now available on SSRN. The survey covers significant cases decided in 2025 on choice of law, party autonomy, extraterritoriality, international human rights, foreign sovereign immunity, adjudicative jurisdiction, and the recognition and enforcement of foreign judgments.

The cases discussed in this year’s survey address (among other things) the situs of cryptocurrency, exploding batteries in e-cigarettes, the sale of an antique military tank, the validity of an Urfi marriage ceremony, whether the Hague Service Convention prohibits email service on defendants in China, the enforcement of a Philippine forfeiture judgment, and claims of expropriation by German authorities during the Soviet occupation after World War II.

This annual survey was admirably maintained by Symeon Symeonides for three decades. The present authors are pleased to have extended this tradition.

Yesterday, the Project Report of the ELI Project “Enhancing Child Protection: Private International Law on Filiation and the European Commission’s Proposal COM/2022/695 final”

It contains constructive amendments to the original Commission’s Parenthood Proposal and intends to bring it more in line with the acquis and general considerations of EU PIL. Furthermore, it puts the best interest of the child in the focus of the analysis.

For a short background: In December 2022, the EU Commission published the Proposal for a Regulation on Private International Law Rules Relating to Parenthood (COM (2022) 695 fin). An analysis of the original proposal can be found, e.g., here.

Shortly afterwards, at the European Law Institute (ELI), a project group was established (led by Dr. Ilaria Pretelli and me). The following report, which proposes amendments to the initial Commission’s Proposal, was approved by the ELI Council in September 2025 and the ELI Membership in January 2026. The report was published yesterday and is available online here.

The Report examines the Commission Proposal and its critical role in advancing fundamental rights within the EU. While preserving the Commission’s Proposal’s core vision and framework, this analysis recommends strategic refinements that strengthen alignment with the existing EU acquis, foster deeper European integration, and enhance the protection of children’s fundamental rights. In addition, it expands upon the Proposal’s initial emphasis on the EU Strategies for children’s rights and LGBTIQA+ equality by incorporating a comprehensive women’s rights perspective.

If you are interested in the Report or the Proposal and like academic discussions about the subject, there will be a webinar on March 12, 2026, from 12:30-14:00 CET.

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By Ross Pey, Western University, Canada

1. Introduction

In Case C-86/23 E.N.I. and Y.K.I. v HUK-COBURG-Allgemeine Versicherung AG II (‘HUK-COBURG II’), the principal issue that arose was whether a Bulgarian compensation provision may be interpreted as having mandatory effect. In suggesting that it does not, the Court required the facts to have sufficiently close links with the forum. (Hereinafter the ‘sufficient connexion test’) Ostensibly, a freestanding sufficient connexion test could be viewed as a disguised jurisdictional control of the forum rather than part of a mandatory law analysis. In doing so, parallels to renvoi and forum non conveniens are drawn.

2. Facts

The daughter of the Bulgarian claimants died in a road traffic accident in Germany. The person responsible was insured by the defendant. The claimants commenced a claim in Bulgaria against the defendant for non-material damages suffered for the loss of their daughter. (HUK-COBURG II at [16]–[17])

The case was dismissed on appeal. As German law governed the claim under the Rome II Regulation, the claimants ‘had not established that the mental pain and suffering sustained had caused pathological harm’ required under German law. (HUK-COBURG II at [20], [24], [51])

Crucially, the Court also said that Bulgarian law, in particular Article 52 Zakon za zadalzheniyata i dogovorite (‘ZZD’), did not apply to the case as a mandatory overriding rule under Article 16 Rome II Regulation. This issue as to whether the ZZD applied as a mandatory overriding rule was appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation), which then referred the question to the ECJ.

3. The CJEU’s Reasoning

In essence, the ECJ said that although it is for the member state court to assess whether Article 52 ZZD was a mandatory overriding rule, it strongly suggested that it did not. (HUK-COBURG II at [47]-[54]). In the operative part, the Court said that that the Rome II Regulation must be interpreted as meaning that a forum law ‘cannot be regarded as an ‘overriding mandatory provision’, within the meaning of that article, unless, where the legal situation in question has sufficiently close links with the Member State of the forum, the court before which the case has been brought finds, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that national provision was adopted [.]’ (Emphasis mine)

4. Issues with Linking Sufficient Connexion and Mandatory Law

When faced with an allegedly mandatory provision, HUK-COBURG II requires a three-step analysis: (1) identify whether the law has a mandatory effect, (2) identify whether the facts have a sufficiently close connexion with the forum, and (3) determine whether the facts fall under the statute. One reading of the sufficient connexion test in this context is that it is intrinsic to the concept of mandatory law and is read in by the ECJ into the requirements of Article 16 Rome II Regulation. [1] However, there are two issues with this view.

Firstly, it may be that a sufficient territorial connexion forms part of the reason why a forum statute is a mandatory statute and is relevant to determining whether a mandatory rule applies to the facts.[2] But linking territorial connexion and mandatory effect is problematic as they are analytically distinct. In Soldiers, Sailors, Airmen and Families Association v Allgemeines Krankenhaus Viersen GmbH [2022] UKSC 29, Lord Llyod-Jones warned that there is a risk of ‘confusion’ if both territoriality and mandatory effect are conflated. The former relates to the intrusion into the territorial affairs of another state, while the latter relates to ‘whether the public policy of the forum displaces the more modest presumption that statutes only apply if they form part of the applicable law.’[3]

Secondly, one might argue that sufficient territorial connexion is required for a forum rule to be deemed a mandatory rule. But the difficulty here is why a territorial connexion with the forum matters at all. The point of mandatory overriding rules is that such rules are so important to the forum that they justify the departure from the law chosen by default choice of law rules. Viewed this way, it is difficult to see why the facts must be sufficiently connected with the forum for a mandatory law to apply. Forum mandatory overriding rules operate precisely because they are reflections of fundamental values of the forum. Requiring a territorial connexion could dilute this.

This is not to say that the Bulgarian law ought to be viewed as mandatory law. Rather, from an interpretative standpoint, grounding a rejection simply because the Bulgarian law fails to satisfy a sufficient connexion test is at least open to question.

5. A Disguised Jurisdiction Analysis?

From the above discussion, there exist questions regarding the role of a freestanding connexion test with the concept of overriding mandatory law. It is, however, plausible to read the judgment differently, where the sufficient connexion test is a jurisdictional analysis of forum choice disguised as a choice of law analysis.

Firstly, this interpretation is not precluded by the judgment itself. In the operative part, the ECJ stated that the ‘legal situation in question has sufficiently close links with the Member State of the forum’ before the forum court seised conducts a mandatory law analysis. Further, in the Court’s own analysis of what constitutes mandatory law from paragraphs 37 to 54, the Court did not place reliance on the lack of a sufficient territorial connexion. It was a factor in its own right (paragraphs 32 to 36) but does not seem necessary to the mandatory law analysis and the suggestion that Art 52 ZZD does not have a mandatory effect.

Secondly, both the ECJ judgment and the Advocate General’s opinion suggest this. The Court observed at paragraph 36 that although the claim was brought by the parents, who are domiciled in Bulgaria, the accident took place in Germany and was insured by a German insurer. The daughter who died and the person who caused the accident were Bulgarians, but are now residents in Germany. To a common lawyer, this discussion bears a striking resemblance to Step 1 of the forum non conveniens analysis in Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460, where the court asks which jurisdiction has the most real and substantial connexion with the dispute (ie. the ‘natural forum’). The jurisdictional impetus is fortified by the Advocate General’s opinion, which at paragraph 53 explicitly states that ‘the requirement of a close link helps to prevent forum shopping.’

This jurisprudential instinct to discuss the sufficiency of connexion is not unwarranted. Under the Brussels I bis Regulation, jurisdiction is allocated by a series of brightline rules, normally based on the domicile of the defendant (Article 4), and at times the claimant (for instance, under Article 11). Crucially, in Case C-281/02 Andrew Owusu v N. B. Jackson, the ECJ erred on the side of certainty in rejecting the doctrine of forum non conveniens. But in doing so, it deprived the courts of a flexible tool to control jurisdiction, making an indirect control via choice of law rules understandable.[4]

In fact, controlling jurisdiction via choice of law is not new. Briggs observes in 1998 that the doctrine of renvoi has, in part, served such a function in English law historically.[5] In this vein, the doctrine of forum non conveniens was part of the ‘tailor-made rules against forum shopping which went straight to the heart of the problem, and did not seek to operate by remote control.’[6]

If so, HUK-COBURG II is another example of the interrelatedness of the conflict of laws. When jurisdictional rules are understood rigidly, the pressure points move to other areas, including the choice of law.

[1] Eg. Dominika Moravcová, ‘Navigating the nexus: The Doctrinal Significance of close connection in the Enforcement of (not only) overriding mandatory norms’ (2025)

[2] Eg. Hague-Visby Rules scheduled to the Carriage of Goods by Sea Act 1971.

[3] Soldiers, Sailors, Airmen and Families Association v Allgemeines Krankenhaus Viersen GmbH [2022] UKSC 29 [36].

[4] The irony here is that the ECJ has now read in a sufficient connexion test into both Rome I and II Regulations, a move which it declined to do in the Brussels I bis Regulation.

[5] Adrian Briggs, ‘In Praise and Defence of Renvoi’ (1998) 47(4) The International and Comparative Law Quarterly 877.

[6] Adrian Briggs, ‘In Praise and Defence of Renvoi’ (1998) 47(4) The International and Comparative Law Quarterly 877, 879.

 

The general course in private international law delivered at the Hague Academy of International Law by Louis d’Avout during the 2022 Summer Session was published in the Academy’s Pocket Books Series (1 032 pages). Louis d’Avout is Professor at Université Paris Panthéon-Assas. In addition to his numerous scholarly works, readers of this blog may recall that his special course on “L’entreprise et les conflits internationaux de lois” was also published in the Academy’s Pocket Books Series in 2019. The general course is title « La cohérence mondiale du droit » (“The Global Coherence of Law”). The publication of a general course in private international law—particularly in the Academy’s Pocket Books Series—deserves the attention of the readers of this blog. The aim of this review is, modestly, to offer a glimpse into this important work so readers who are sufficiently francophone may be encouraged to read it directly, while those who are not are offered a brief overview of the author’s approach. 

Two caveats. First, translations, and inevitable related inaccuracies, are mine. Second, it should be stated at the outset that a work of such scope is not easily summarized: the demonstration, subtle and original, is based on detailed and nuanced analyses and is supported by an impressive bibliographical apparatus, of remarkable diversity. One may note in that respect the author’s relentless effort to draw on a very large number of courses delivered at the Academy of International Law, both in private and in public international law. It is unfortunately impossible to reflect such wealth in the present review other than in a very selective manner.

The course’s program 

The program of the course as encapsulated in the title is ambitious. The idea of “coherence” in law, and especially in private international law (PIL), is particularly evocative. On the one hand, it evokes the often recalled need to preserve the coherence of the forum’s legal order in the face of the disturbance that foreign norms may generate. On the other hand, it also conveys the traditional objective pursued by conflict of laws: the international harmony of solutions. The use of the term “global” (mondiale) gives this search for coherence a particular breadth: it does not concern merely the legal treatment of international or transnational private relationships—the traditional object of private international law—but rather the articulation of legal regimes (State and non-State, domestic and international, public and private) whose still largely disordered coexistence is one of the defining features of our time. As will be seen, the perspective adopted in the course is normative, oriented toward the pursuit of global legal coherence. This search must be understood in a double sense: to uncover coherence where it exists, and to restore it where it does not. At a first level, coherence refers to the rationality and predictability of legal regimes, as well as to their effectiveness. Such coherence (or at least the aspiration to it) is regarded by the author as consubstantial with law itself.

The context in which this search for coherence unfolds is marked by a triple dynamic. On the one hand, increased individual mobility and technological change have diminished the relevance of geographical distance, and even of the crossing of borders. On the other hand, and correlatively, new forms of inter-State cooperation or coordination have emerged. Added to this is the development of non-State and/or transnational legal regimes. These factors give rise to collisions between legal regimes, confronting individuals and enterprises alike. The author proposes to draw on the technical and conceptual wealth of private international law in order to bring coherence to this normative disorder. After all, PIL has a (multi-)millennial experience in resolving conflicts of norms.

Two points are central to the author’s approach. First, the search for coherence must be conducted at the supra-State level. The State level is still relevant for reasoning about conflicts of norms and their resolution, but with a view to a “framework extended to global society” (p. 29). Second, although the search for coherence benefits individuals, it does not necessarily entail a subjective right of individuals to the transnational coherence of law, that is, a right to enjoy a single legal status notwithstanding the crossing of borders and the diversity of legal systems (p. 41). 

Starting point and definitions

An introductory chapter, strikingly entitled “Confronting Global Legal Anarchy” (“Face à l’anarchie juridique mondiale”), provides the starting point of the demonstration and key definitional elements. Legal coherence does not mean “the uniformity of applicable rules and the absolute centralization of dispute resolution mechanisms, supplemented by a transnational enforcement police force,” but rather “the state of a system in which coordination between partial legal systems is generalized and whose effects are guaranteed, for the benefit of the predictability and legal certainty expected by each subject or user of the law” (p. 54). The expression “partial legal systems” refers, it seems, to the incompleteness of any legal system in the perspective of a transnational relation (here at least, comp. p. 117). The definition of coherence introduces the idea of a spontaneous coordination, which plays an important role in the demonstration, as will become clear. The author also revisits the traditional definitions of private international law. Rather than a conceptual definition centered on the notion of internationality (internationality of sources or subject-matter internationality), he prefers a functional definition (p. 75), structured around two objectives: respect for the legitimate expectations of the parties despite their exposure to diverse legal regimes, and the international harmony of solutions, which implies an “aptitude for universality” (p. 75) and the exportability of the solution adopted. Again this definition will prove instrumental in the demonstration (particularly to show that the singularity of PIL rules should not be overstated, compared to other norms).

After a brief historical overview presented in six evocative tableaux, the author examines the merits of three intellectual representations of the discipline, all of which share a connection with general international law: State-centrism, inter-Statism, and the allocation of jurisdiction. The author’s approach is structured by this concern with the relationship between private and public international law. In so doing, he deliberately continues a doctrinal current that has become rather minority in contemporary PIL scholarship (at least in France). In any event, private international law brings together mechanisms for opening State legal orders and articulating them with one another (p. 111).

The author then turns to defining “inter-State and transnational coherence of law” (p. 112). He devotes particularly dense pages to this issue, pages which are difficult to summarize but are decisive for the originality of his perspective. He emphasizes institutional and procedural coherence—that is, the institutions, procedures, mechanisms and actors whose work produces coherence. This procedural coherence is fundamental and constitutes a sine qua non condition of a legal system, whereas normative coherence (the consistency and logical character of the solutions produced) is both secondary—since it flows from institutional and procedural work—and closer to an ideal, often imperfectly achieved. 

Equally decisive is the author’s conviction as to the necessity of coherence. The “praise of incoherence” (p. 127) is dismissed as stemming from a confusion between normative coherence and institutional coherence: the former, being ideal, may fail to convince, whereas the latter is genuinely necessary for the jurist. In short, coherence and incoherence are opposing poles of a complex reality; the existence of incoherences is not sufficient to discredit the need for coherence. As a result, coherence is both necessary and achievable.

Basically, incoherence arises from the tendency of legal systems—particularly the most sophisticated and robust among them, namely States—to reason in autarchy and to impose their own viewpoint (often in the name of their internal coherence) at the expense of the “global rationality of the law applied”. What makes coherence possible is the openness of legal systems to one another (and thus openness to otherness) and their willingness to cooperate. The international (public) legal order itself is marked by a corresponding tension between unilateralism (each sovereign acting alone) and concertation (sovereigns acting together). Coherence in the international order may follow a horizontal (inter-State) or a vertical (supra-State) model. The vertical, supra-State and overarching (tending toward monism) model allows for a form of universality (a jus commune). By contrast, the horizontal model is characterized by pluralism. The author associates each model with a method of private international law: verticality and monism allow for bilateralism, whereas horizontality (and pluralism) implies unilateralism (p. 169). 

The book’s outline and summary

The horizontal/vertical distinction structures the book. The first part is devoted to the study of horizontal interactions: independent “legal spheres” interact with one another, coherence is not guaranteed but may be produced through mutual consideration and interaction. The second part focuses on institutional verticalization, a partial and complementary dynamic (limited to certain sectors or regions of the world), based on the creation and intervention of supra-State bodies capable of producing coherence for the benefit of individuals.

Horizontal interactions between legal systems

The first part of the course is therefore devoted to what the author terms “horizontal” interactions between “independent legal spheres”. In this context, he examines the mechanisms of classical private international law: conflicts of laws and conflicts of jurisdictions or authorities. Here, the “conjunction” of viewpoints (that is, of legal orders) with respect to an international private relationship is, in a sense, voluntary rather than mandatory. It operates through two main sets of mechanisms: first, the attachment of situations to a particular law, court, or authority; and second, cross-border cooperation between authorities (for example, the taking of evidence, the delegation of formalities, or the enforcement of judgments).

The spirit of Relativism

In the first chapter, the author sets out the rudimentary elements of the discipline. These rudiments appear clearly in historical perspective. He explores the tools spontaneously used by courts in order to take account of the foreignness of a person or a situation vis-à-vis the forum. This perspective is original, in particular because it does not merely recount a historical evolution but demonstrates the persistence of these instruments in contemporary PIL. The earliest manifestations of the openness of State legal orders were guided by a concern to achieve equity “formulated from the standpoint of the lex fori”, through recognition of the foreign elements of the situation to be regulated, combined with interpretative techniques applied to the law of the forum to reach a fair outcome. The author emphasizes that these instruments, rudimentary though they may be, are not devoid of subtlety. At their root lies a form of judicial spontaneity oriented toward the pursuit of equity in cross-border relationships. 

This pursuit is guided by a spirit of legal relativity: the transnational private relationship is exposed to a diversity “of laws, customs or values” (p. 187), and this diversity must be considered. The author thus shows how foreignness and relativity constitute the foundational elements of what he terms “international civil law”. The foreigner receives particular treatment when the lex fori is applied, and the international or foreign situation calls either for a reception mechanism (and, correlatively, for limits to relativism, notably an international public policy exception subject to modulation), or for a form of spatial limitation of the lex fori (as exemplified by the presumption against extraterritoriality in U.S. law). The author further demonstrates how these instruments continue to be used in contemporary law to manage situations of legal otherness within the domestic legal order itself. States are prompted to limit the undifferentiated and uniform application of their own laws through compromise solutions, often entrusted to the judiciary (see, from this perspective, the discussion of the Molla Sali judgment of the European Court of Human Rights, p. 218). The identity of individuals may likewise warrant specific accommodations from the inward pull of communities. The author reflects on the relationship between this spirit of relativism (both international and internal) and a form of liberal individualism, particularly as expressed through the growing judicial consideration of fundamental rights. From this perspective, the application of the principle of proportionality in private law may be seen as a manifestation of this spirit of relativity.

The author then explores the tactics developed by judges—and still employed today—to loosen, where necessary, the constraints of the lex fori, which remains the unavoidable starting point for the forum judge when confronted with an international situation. These tactics include the self-limitation of the law of the forum (see, for example, the analysis of the Gonzalez-Gomez decision of the French Conseil d’État, p. 266), creative interpretation of the lex fori, prise en consideration of foreign law, and judge-made international substantive rules. Judicial creativity, however, has its limits: true conflicts are difficult to overcome (see the analysis of unilateral techniques, p. 290 et seq.). The spontaneous modulation of the lex fori, while significant, reveals certain weaknesses and highlights the need for a selective method that appears to “allocate competences among the various legal spheres or among the different poles of law production” (p. 217).

Connecting factors and conflicts rules

The following chapter is devoted to connecting factors, whether from the standpoint of jurisdictional competence or of the applicability of laws. One of the drawbacks of the spontaneous judicial method of adapting the lex fori described in the preceding chapter lies in its casuistic nature, which proves ill-suited to the massification of international private relationships. The author defines the technique of connecting factors in general terms as establishing a rational link between a transnational situation and either a specific legal regime, whether domestic or conventional, or a collective entity (a State or an international organization) (p. 319). He devotes particularly thorough and insightful developments to connecting factors, highlighting their richness, diversity and complexity (see the synthesis at p. 344 et seq.).

Among other points, the author rejects an overly rigid opposition between unilateralism and bilateralism, noting that “the connecting operation may function in both directions” (p. 323): the connecting factor may operate either on the side of the legal consequence or on that of the presupposition of the rule. He usefully distinguishes between the policy of the connecting factor—that is, the intention guiding its author—and the justice of the connecting factor, which results from it and may be assessed independently. The respective connecting roles of bilateral conflict-of-laws rules, unilateral applicability rules, and jurisdictional rules are thus clarified. In another original move, the author also draws a link between the recognition of a foreign judgment and the operation of connecting factors, particularly from the perspective of reviewing the origin of the judgment (indirect jurisdiction).

Following these general observations, the author successively examines jurisdictional connecting factors (judicial or administrative) and substantive connecting factors. With regard to the former, one may summarize (see p. 398) the rich analyses developed as follows. Jurisdictional (or administrative) connecting factors are distinct from substantive connecting factors. They are unilateral (save under conventional regimes) and generally plural and alternative (with some exceptions), giving rise to a situation of “concurrent international availability” of authorities belonging to several legal orders. These connecting factors are not purely localizing: they always have a purpose grounded in considerations of appropriateness, sometimes linked to substantive aspects of the dispute. In any event, the connecting factor is not purely procedural. It affects the substance of the dispute (the forum applies its own procedural law and its own private international law), and it expresses a (legal) policy, understood as a balancing of the interests at stake. As regards administrative authorities, the connecting factors adopted are generally dictated by the applicability of the administrative law concerned, which the authority is tasked with enforcing (according to the model of the lex auctoris). The unilateral and diverse nature of jurisdictional rules creates risks for the coherence of the legal treatment of situations, thus calling for conciliatory mechanisms, namely the forum’s consideration of foreign judicial activity.

With respect to “substantive connecting factors” (conflict of laws rules, then), L. d’Avout claims from the outset a “substantive impregnation of the rules, imbued with objectives and revealing legal policies forged by their authors” (p. 402). These considerations are sometimes specific to the international context and sometimes derive from the orientations of domestic substantive law (often a combination of both). Faithful to his commitment to methodological flexibility, the author develops the idea of a progressive crystallization of synthetic bilateral rules, starting from an intuitive unilateralism (see pp. 412–416). Here he draws on the German doctrine of Bündelung (with reference to Schurig). This approach is convincing with regard to the formation of connecting categories. It is complemented by a sophisticated functional approach (with reference to the work of Professor Brilmayer in the United States). The choice of a connecting factor is above all a matter of appropriateness, taking into account both the divergent interests of the individuals directly concerned and, through consideration of externalities, the collective interests affected by the situation (p. 435).

These balances are struck by the author of the rule and are therefore liable to vary from one State to another, or where the rule has been adopted at a supranational level (for example, at the European level). The author thus distances himself from an apolitical, universalist, but also singularist vision of the discipline: the conflict-of-laws rule is a rule like any other, a deliberate rule. On this basis, the author addresses the classical difficulties of the conflict-of-laws method: characterization and dépeçage (pp. 439 et seq.), conflicts of systems (p. 443), and the authority of the conflict-of-laws rule (p. 447). In each case, the analyses are guided by the previously articulated teleological precepts, without any particular search for originality for its own sake (as the author himself acknowledges), but rather by a concern for… coherence.

The pragmatism advocated by the author is not exclusive of visceral attachment to the conflict-of-laws rule as a rule. Targeted adjustments that depart from this abstract mode of regulation (such as the escape clause or the recognition method) have their place, but they must remain subsidiary and be used with caution. Concluding on this point, the author offers a nuanced diagnosis of the connecting rule. As an international extension of domestic legislation, it is indeed an instrument of coherence (or at least of cohesion). Being anchored in the legal order that adopts it, it is however not capable—at least not systematically—of ensuring “the harmonious junction of legal spheres” (p. 473). Mechanical application must therefore be avoided, and the rule must be accompanied by a cooperative attitude, thus offering a transition to the following chapter.

Transnational cooperation

The final chapter of the first part is accordingly devoted to “transnational cooperation” and “communications between authorities”. The author adopts a broad conception of transnational judicial cooperation, ranging from ancillary technical cooperation (such as the taking of evidence or service of documents) to what he terms cooperation-communication, and even co-determination of solutions (p. 477). These mechanisms are important because they offer some remedy to the shortcomings identified earlier (competing jurisdictions and divergence in substantive connecting rules).

The prominence given to these instruments and the analyses developed in this chapter constitute arguably one of the course’s most strikingly original contributions. To be sure, significant scholarly work has already been devoted to international judicial cooperation (see the references cited in the chapter’s introduction). The analyses presented here stand out nonetheless both for their ambition to offer a comprehensive reflection on mechanisms that had previously often been addressed piecemeal, and, above all, for their full integration into a private international law framework, on an equal footing, so to speak, with the conflict-of-laws rule. This innovation is made possible by the course’s overarching perspective, since transnational judicial cooperation is fully part of the search for the global coherence of law.

L. d’Avout proposes a useful typology: administrative or judicial assistance or mutual legal assistance (acts auxiliary to the main proceedings); cooperation at the periphery of the main proceedings (a category that includes the recognition of judgments and public acts—see the justification at p. 499 et seq.); and more innovative hypotheses of co-determination of legal solutions, whether within a conventional framework (the example given is the 1993 Hague Convention on the Protection of Children, p. 507) or through spontaneous coordination. It is in respect of this last category that the developments are the most interesting and innovative (see the examples given at p. 519 et seq.).

On this basis, the author constructs a genuine theory of the concerted resolution of international disputes (illustrated by a traffic-light metaphor, p. 530). Without being able to go into the details of this theory here, its starting point lies in the ideal unity of the proceedings on the merits, possibly supplemented abroad by collaborative ancillary measures and by a subsequent review of acceptability (namely, recognition of the judgment on the merits). Because this ideal is not always achievable—nor even always desirable—additional instruments exist to ensure reciprocal consideration of judicial activity: stays of proceedings (potentially conditional upon a prognosis as to the regularity of the forthcoming judgment), or even the forum’s consideration of the likely outcome of the foreign proceedings. Instruments for managing procedural conflicts also occupy a prominent place (p. 536 et seq.).

The search for coherence does not, however, imply an idealized view of international litigation: frictions do exist, and they cannot always be avoided. What matters is to identify their causes and consequences clearly, rather than proceeding in isolation and disregarding their effects (whether for the parties, or one of them, or for the objectives pursued within a given branch of law). After examining several areas particularly conducive to transnational judicial concertation (family litigation, insolvency, and collective proceedings), the author proposes both existing and potential tools, advancing several stimulating proposals: the transnational procedural agreement and the transnational preliminary reference (question préjudicielle transnationale), to name a few. Should one then recognize an autonomous duty of cooperation incumbent upon judges or authorities in international cases? Characteristically, the author’s answer is cautious: cooperation is not the primary mission of the judge or of an administrative authority; it remains secondary (p. 575). 

Having thus explored the avenues of horizontal cooperation between legal systems—demonstrating both their potential and their limits—and following a rich intermediate conclusion, the author turns to the phenomenon of partial verticalization, which represents their transcendence.

Verticalization

The second part, entitled “Verticalization – Institutional Responses to the Interpenetration of Legal Spheres”, may come as something of a surprise to readers. Indeed, as it goes beyond the horizontality examined thus far, it tends to move away from the classical perspective of private international law. For the author, however, this movement is a natural one, as only a supranational construction is capable of overcoming the residual oppositions between States’ viewpoints. The approach unfolds in two successive stages. The first form of verticality examined is that of federative organizations, such as the European Union, whose role in coordinating legal regimes is undeniable. The second (and more exploratory) form of verticality concerns international law itself: are there international institutions that can be leveraged in the service of the global coherence of law?

The role of federative organizations  

The first chapter of this second part examines “the coherence of law through federative organizations”, that is to say, new modes of articulating legal regimes and of reducing the accumulation and conflict of international rules. The demonstration begins with European regimes of coordination in public law insofar as they affect individuals and companies. European measures facilitating administrative procedures have made it possible to remedy the overlap of national legislation or administrative procedures that necessarily results from individual mobility. European integration has also established articulations of State competences to the same end. Likewise, European Union law has fostered the polymorphous mobility of companies by organizing the normative and administrative interventions of the Member States. The chapter offers further, equally convincing examples: federative organizations effectively articulate sovereignties. The author further proposes a distinction between two aspects : the intensification of horizontal cooperation and institutional federalism. 

The first aspect provides an opportunity to examine mutual recognition as a form of articulation of competences, as well as its limits (p. 664 et seq.). While acknowledging the major achievements of European integration, the author rightly insists on the need to avoid imposing automatic recognition where the underlying control whose outcome is being recognized has not been fully harmonized. The second aspect developed concerns the action of supranational administrative bodies.

The author then turns to the “vertical discipline of conflicts of laws in the interest of private persons”. The issue here is to assess the impact of federative organization on the configuration and resolution of conflicts of laws. Following a preliminary discussion addressing the matter from an institutional perspective (in the form of an illuminating EU–US comparison), the author devotes profound developments to the renewal of conflict-of-laws reasoning brought about by institutional verticality. At the heart of this reflection lies the figure of the supranational judge, an external third party to conflicts of laws between Member States, and a point of “triangulation” of these opposing viewpoints.

Without being able to reproduce the entirety of the argument here, it may be noted that it leads the author to issue the following warning: “an analysis of current law does not support the emergence, within regional spaces, of an unconditional right of individuals to the transnational coherence of law and to a resolution of conflicts of laws favorable to them” (p. 725). Supranational courts that were to lose sight of this would expose themselves to the risk of “judge-made legislation”. The author nevertheless identifies “an intensified duty to take account of discordant viewpoints and, at times, to articulate them in novel ways, in application of the organization’s law and in the absence of harmonization by it of the applicable law”. Particular attention should be drawn to the author’s precise reassessment of the figure of so-called “diagonal conflicts”, based on a fruitful distinction between horizontal conflicts resolved along the vertical axis through fundamental rights, and frictions between a supranational regime and a State regime (see pp. 761 et seq.).

Verticality in public international law

The final chapter is both the natural culmination of the overall demonstration and one that will likely most surprise PIL scholars. Having examined the effects of the verticality of federative organizations of States on conflicts between legal regimes, the author considers it natural to search directly within international law for instruments capable of coordinating legal regimes applicable to private persons. The surprise may stem from the fact that contemporary private international law doctrine—at least in France—has largely ceased to look to general international law as a remedy for deficits in legal coordination.

The author’s perspective here is once again innovative. While there is no substantive subjective right of individuals or companies exposed to discordant legal treatment, the possibility of a procedural subjective right may be envisaged “insofar as such a faculty allows, either immediately or following unsuccessful recourse before State bodies, access to an impartial judge capable of stating the law or of reviewing the manner in which it has previously been applied” (p. 795). The author thus embarks on a quest for this emerging procedural right in its various modalities (individual claims against the State; claims mediated through another State or an international organization). This leads him to explore avenues as diverse as investment arbitration, the fascinating experience of binational courts (and their spontaneous production of private international law solutions, p. 819 et seq.), as well as the International Court of Justice, whose case law is scrutinized to detect the tentative emergence of substantive rights of individuals. The author perceives here a potential for a de-specialization of the Law of Nations through the expansion of its addressees (p. 874).

The author then turns to international institutional fragmentation, that is, the fragmentation of the various regimes (territorial State regimes, special international regimes). He concludes that techniques of horizontal interaction between these legal spheres should be developed, and possibly even hierarchical principles (p. 901). A solution might lie in seizing an authority capable of arbitrating conflicts of competences exercised by independent international bodies, by expanding the advisory procedure before the International Court of Justice, or even by entrusting it with a mission of resolving these conflicts of competence.

Finally, the author seeks to determine whether, in order to transcend the multiplicity of clashing legal regimes, it might be possible to invent and construct a new “jus commune” (droit commun). He advances three series of proposals or concluding observations in this regard. The first concerns the contemporary role of States and State sovereignty: the author calls for the consolidation of an “interface State between local communities and distant communities” (p. 920). In his view, “the durable persistence of State organization requires a minimum level of inter-State cooperation”. The second series of observations concern the possibility of the emergence of this universal jus commune and its defining qualities. The author focuses on points of convergence (principles, values, standards) that make it possible to discern a phenomenon of conjunction between norms of diverse origins. Finally, the author returns once more to the legal discordances affecting international relations to emphasize that, beyond disciplinary, conceptual, and terminological distinctions, a single problem emerges: the lack of coordination between autonomous legal spheres. Given contemporary developments in human societies, spatial mechanisms for resolving certain of these discordances may appear less relevant. What is therefore required is a genuinely substantive coordination, resting on the production of concerted solutions (in the various forms discussed above). For the most difficult cases, the subsidiary intervention of a supranational court could be envisaged.

Highlights

Within the limited space of this review, it is unfortunately not possible to engage in a detailed discussion of the analyses developed, other than by pointing to them in the summary above and advancing the following few remarks, necessarily too general.

The summary above perhaps gives a sense of the scope of the demonstration undertaken. It is particularly impressive and compelling in that it escapes the traditional boundaries of the discipline to embrace the globality of the phenomenon of normative fragmentation. Such an undertaking is remarkable. Global legal incoherences are numerous and addressing them solely through the lens of conflicts of laws or conflicts of jurisdiction would inevitably have been reductive. Moreover, as befits the ambition of a general course, the book offers a comprehensive and original framework for understanding the discipline. It is in a sense conceptualized anew (in object and methods) and endowed with a new vocabulary. This reconceptualization does not however entail revolutionary breaks with existing solutions. Nor is that its ambition: the author warns repeatedly against such ventures. Rather it provides a new perspective that enables regenerating analyses. The author never yields to the temptation of a purely hierarchical response to legal discordances, nor does he idealize horizontality as a sufficient answer to the conflicts generated by the interpenetration of legal spheres. Instead, he patiently reconstructs the diversity of techniques available—horizontal, vertical, institutional, procedural—and evaluates their respective capacities to achieve coherence without sacrificing pluralism. Also worthy of note is the deliberate choice to avoid doctrinal factionalism (unilateralism vs. bilateralism; localizing vs. substantive approaches; monism vs. pluralism) by adopting a generally pragmatic stance. The demonstration is constantly guided by a concern for individuals and economic actors confronted with the accumulation of fragmented regimes. Without positing the existence of a general subjective right to legal coherence, the author identifies concrete expectations, procedural guarantees, and institutional mechanisms capable of mitigating the most difficult effects of normative fragmentation. 

The author concludes with a quote from Savigny, inviting contemporaries to make full use of the doctrinal heritage accumulated in order to contribute to the advancement of scientific progress in the field. This quotation is doubly revealing of the author’s approach. First, the call to exploit accumulated doctrinal wealth is followed here with impressive determination. On every page, the author is keen to draw from both older and more recent sources, and to give resonance to the diversity of viewpoints. Second, the demonstration appears to be guided by an idea of progress: not in the sense that contemporary doctrine or case law would be superior to that of the past, but, as Savigny suggests, in the sense that the conflict-of-laws discipline itself progresses—and thus the coherence of law progresses—through “the combined forces of past centuries.” Without lapsing into naïveté, the argument reflects a form of optimism on the part of the author regarding the march toward global legal coherence. Such optimism is commendable. It may nevertheless be argued that belief in coherence as a cardinal value is not today universal, within and without the law. Thus, for example, the idea that irrational (incoherent) behavior by a State exposes it to sanctions (from within!, p. 920) unfortunately suffers daily contradiction. Moreover, multilateralism is undergoing a crisis so profound (for instance explored here by P. Franzina, from a private international law perspective) that some argue, not without reason, that it has never existed other than as a façade (as contended by the Prime Minister of Canada in a recent speech in Davos). Just over three years after this course was delivered at The Hague Academy, reasons for optimism are scarce. This does not imply that optimism is impossible, perhaps quite the opposite. The 2026 reader may wonder however what influence (if any) the recent aggravation of the crisis of multilateralism (as well as the simultaneous rise of adversarial and transactional sovereignism) would have on the demonstration of the author.

As noted above, the perspective of the course is normative in the sense that the search for coherence is presented as both desirable and possible. The temptation of normative disorder is only briefly considered, and then rejected, essentially on the ground that law and normative disorder are incompatible. Some might find this position not entirely convincing. There are several ways of approaching this issue, but one of them is to try to see what risks being lost in the pursuit of coherence (and thus of order). Alternative, non-modern forms of legality may come to mind. There are alternative presentations of the discipline that assign a predominant role to a radical acceptance of otherness (see, for example, the recent book by H. Muir Watt, reviewed here), from a pluralistic perspective. One of the criticisms then directed at contemporary private international law (at least at bilateralism) is its tendency to make room for alternative normativity only at the cost of its intense reconfiguration through the legality of the forum (through the lens or the rationality of the forum). From this perspective, the search for coherence (the process of rendering coherent) risks appearing as an extension of this rationalizing program. In reality, the opposition should perhaps not be overstated. As noted, L. d’Avout demonstrates methodological flexibility, without a priori privileging either bilateralism or unilateralism (or monism over pluralism, for that matter). Moreover, the coherence at play here is decentered from the forum, rather than imposed from an overhanging forum. In a sense, it is procedural and dialogical between States (as well as other “legal spheres”, i.e. alternative sources of normativity), rather than directly normative. Nevertheless, the demonstration rests on the idea that rationality is the inescapable horizon of law—an idea that maybe will face some pushback. Certain contemporary critiques of the international (legal) order (for instance, the decolonial scholarship, see this paper by S. Brachotte in a PIL perspective) tend instead to deeply deconstruct the very idea of legal coherence. These contemporary dynamics (the deep crisis of multilateralism and the teachings of the critical legal studies) obviously come from very different places and exist on different levels but they have in common a form of skepticism towards the concept of legal coherence. The reader may wonder to what extent they contradict the main thrust of the book, or if they can be reconciled with it, for instance through a reliance on, and reconfiguration of, horizontal (and intrinsically pluralist) modes of coordination. 

The recently published book Towards Universal Parenthood in Europe (Editoriale Scientifica, 2025), edited by Laura Carpaneto, Francesca Maoli, and Ilaria Queirolo, offers a timely and rigorous contribution to European private international law and family law scholarship.

This volume follows the convention reported at this blog here and likewise presents the results of the UniPAR – Towards Universal Parenthood in Europe project, an EU-co-funded research initiative that addresses some of the most complex legal challenges in cross-border parenthood. Bringing together expert authors from different universities across European Union, the book combines theoretical frameworks with practical insights into how parenthood is recognised and regulated across different Member States. Covering six EU jurisdictions (Spain, Belgium, Italy, Bulgaria, Croatia and Poland) the book provides comprehensive national reports and comparative analyses on key issues of jurisdiction, applicable law, adoption, recognition of decisions and birth certificates and judicial cooperation in parenthood matters. The contents are available here.

This scholarly work advances the debate on the need for coherence in legal frameworks governing parentage and family relationships in European Union, especially in contexts involving cross-border mobility, assisted reproductive technologies and the recognition of family statuses across Member States. The final conclusions and recommendations serve both academic and policy audiences, offering structured reflections on legislative gaps and potential paths towards harmonised rules in EU private international law.This is an essential resource that deepens understanding of the legal implications of cross-border parenthood and strengthens the foundation for future legislative reform in European Union.

1. Introduction

For more than 20 years after the handover, Hong Kong courts had regularly noted difficulties with the ‘trial supervision system’ (also known as ‘retrial procedure’ ) in the Chinese Mainland when attempting to recognise and enforce Mainland judgments under the common law, as the trial supervision system was thought to mean that these judgments fail to meet the ‘final and conclusive’ requirement. Such thinking was criticised by scholars as problematic.[1] To address the issue, statutory regimes on the reciprocal recognition and enforcement of judgments between the Chinese Mainland and Hong Kong have been implemented. More recent studies documented changes in the judicial attitude of Hong Kong courts,[2] but there was a lack of definitive rulings to clarify the legal position. This article focuses on the most recent Hong Kong cases which confirmed that the trial supervision system in the Chinese Mainland has no automatic impact on the recognition and enforcement of Mainland judgments in Hong Kong. A party alleging that the trial supervision system has affected the finality and conclusiveness of a Mainland judgment must prove the likelihood of a retrial being ordered through factual and/or expert evidence.

2. Early Cases

This vexed issue was first considered in Chiyu Banking Corp Ltd v Chan Tin Kwun, where Cheung J held that a Mainland judgment was not final and conclusive as it was not ‘unalterable in the court which pronounced it’ due to the trial supervision system.[3] This approach was seemingly affirmed in Lam Chit Man v Lam Chi To, but the Court of Appeal did not conclusively decide on the matter, as both parties did not adduce expert evidence on PRC law regarding the effect of the trial supervision system.[4]

Subsequently, in Lee Yau Wing v Lee Shui Kwan, the Court of Appeal was faced with a challenge against a Hong Kong summary judgment predicated on a Mainland judgment. The majority of the Court did not rule directly on the effect of the trial supervision system.[5] However, Chung J’s dissenting judgment raised the point that the trial supervision system was similar to the grounds of appeal in Hong Kong, and hence should not bar the finding that a Mainland judgment was final and conclusive.[6] This view, although not binding at that time, paved the way for later attempts in distinguishing Chiyu Banking.[7]

With no further cases directly addressing the issue or overruling the Chiyu Banking approach, the trial supervision system proved to be an obstacle for enforcing Mainland judgments under the common law for nearly two decades. The change in judicial attitude was hinted in the 2016 Court of First Instance decision of Bank of China Ltd v Yang Fan.[8] In that case, To J found himself bound by the earlier Court of Appeal decisions, but expressed in obiter that the trial supervision system in the Chinese Mainland had undergone significant changes since 2013 and it was ‘more like an appellate regime’; as such, the mere possibility of the trial supervision system being applicable did not preclude a Mainland judgment from being final and conclusive.[9] Further cases also expressed similar views in obiter.[10] Despite this change in attitude, the law at that time was still ambiguous, and clarifications did not come until much more recently.

3. Recent Cases

Several recent cases in late 2025 and 2026 have substantially clarified the law. It is now evident that under both the common law and statutory regimes in Hong Kong, the existence of the trial supervision system is no longer accepted as a ground to challenge a Mainland judgment as not ‘final and conclusive’ if there is no relevant supporting evidence.

3.1 Common Law Regime

In Sunsco International Holdings Ltd v Lin Chunrong,[11] one of the disputed issues was whether the trial supervision system would render a Mainland judgment unenforceable for not being final and conclusive under the common law regime. After reviewing the relevant authorities (at [11.1]–[11.25]), DHCJ Jonathan Wong made the following clarifications (at [12.1]–[12.6] and [13.1]–[13.2]):

1. Chiyu Banking cannot be read as authority for the proposition that the trial supervision system per se renders a Mainland judgment not final and conclusive. With reference to Lee Yau Wing (which Cheung J decided the case as Cheung JA), it was emphasised that the line of cases stemming from Chiyu Banking had not authoritatively determined the issue.[12]
2. The correct proposition is this: it is only when a retrial has been ordered that any order made in the original trial ceases to be res judicata between the parties. The possibility of a retrial would not by itself render an original judgment as not res judicata.[13]
3. The trial supervision system per se does not render a Mainland judgment not final or not conclusive. A Mainland judgment will likely satisfy the ‘final and conclusive’ requirement as set out in Nouvion v Freeman:[14]
   1. In the Mainland proceedings, there is no limit as to what arguments can be raised and advanced;
   2. The trial supervision system is considered to be akin to an appeal, especially considering the fact that the judgments are enforceable in the Mainland unless and until a retrial is ordered;
   3. A litigant has no right to re-litigate a matter which has been determined by a Mainland judgment, and their avenues to challenge a first instance ruling is by way of appeal or an application for a retrial;
   4. Parties to a Mainland judgment do not have a unilateral right for retrial, and the potential retrial is conditioned upon the exercise of discretion by an external organ, premised on some error or violation by a judicial officer;
   5. An analogy can be drawn with foreign default judgments, which, despite being liable to be varied or set aside by the court granting it, may nevertheless be final and conclusive for the purpose of common law enforcement unless and until it is set aside; and
   6. The absence of any time limit on the Mainland court and the procuratorate to invoke the trial supervision system does not affect the foregoing analysis, as the mere possibility of an appeal does not preclude a judgment from being final and conclusive under common law.
4. The paramount consideration when considering whether a Mainland judgment is final and conclusive, is the likelihood of a retrial being ordered under the trial supervision system. This is a matter to be demonstrated by factual evidence or expert evidence, or a combination of both. Some relevant considerations include:
   1. The cogency of the Mainland judgment being challenged;
   2. Whether the conditions leading to the invocation of the trial supervision system are satisfied;
   3. Whether the party has made an application under the trial supervision system; and if so, whether the application has been decided and the outcome of the application, or if not, the reasons for not applying; and
   4. If the party has not made or is no longer able to make an application under the trial supervision system, what is the likelihood of the Mainland court or the procuratorate initiating the Retrial Procedure on their own motion.

Sunsco International Holdings Ltd clarified the applicability of previous authorities and definitively affirmed that the trial supervision system is in no way per se an impediment in finding Mainland judgments as final and conclusive under the common law. The mere theoretical possibility of the trial supervision system being invoked should not strip the judgment of finality; such possibility should instead be supported by evidence. In Tsoi Chung Tat Prince v Wei Zhongxia, DHCJ Gary CC Lam further suggested that the question should be determined by expert evidence (but not necessarily oral expert evidence), and the burden of proof is on the party relying on the Mainland judgment to prove that it is final and conclusive by adducing expert evidence on Mainland law.[15]

The principles in Sunsco International Holdings Ltd received support in Beijing Renji Real Estate Development Group Co Ltd v Zhu Min.[16] The plaintiff in that case sought to enforce a judgment made by the Beijing Higher People’s Court under the common law regime. The decision of DHCJ MK Liu (at [43]–[52]) provided a useful illustration of the application of the clarified common law position. The defendants contended that there were substantive grounds for a retrial as the original judgment lacked evidentiary support and that there might be new evidence not previously considered in the Mainland judgment. These contentions were rejected as flawed or fanciful, and the defendants failed to show an arguable case that there is a likelihood that a retrial would be ordered under the trial supervision system. The Mainland judgment was therefore held to be final and conclusive.

3.2 Statutory Regimes

The clarifications under the statutory regimes were provided in Huzhou Shenghua Financial Services Co Ltd v Hang Pin Living Technology Co Ltd.[17] In that case, the plaintiff was seeking to enforce a Mainland judgment handed down by the Huzhou Intermediate People’s Court. The issue was whether the judgment was final and conclusive under the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597) (‘MJREO’), which took effect in 2008.

In delivering the Court of Appeal’s judgment, G Lam JA held that subsections (a) to (d) of section 6(1) of the MJREO were meant to be disjunctive and exhaustive regarding the categories of judgments that fall under the MJREO. Specifically, G Lam JA explicitly mapped out the relationship between the relevant provisions of the MJREO and the trial supervision system (at [63]–[66]):

1. Prior to the ‘Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and the Hong Kong Special Administrative Region Pursuant to Choice of Court Agreements between Parties Concerned’ signed in 2006 (‘the 2006 Arrangement’), it had already been noted that the trial supervision system had given rise to issues as to whether Mainland judgments are final and conclusive.[18] Accordingly, draft provisions were designed to address the common law requirements of finality. These provisions eventually made their way into Article 2 of the 2006 Arrangement.
2. Further, in the Report of the Bills Committee on the Mainland Judgments (Reciprocal Enforcement) Bill, it was noted that the trial supervision system may give rise to finality issues, and ‘special procedures would be adopted in order to address the common law requirements of finality’.[19] As such, section 6(1) of the MJREO was specifically enacted to address the common law requirement that the judgment is final and conclusive.

Hence, it was held that under the statutory regime, potential issues on the ‘final and conclusive’ requirement relating to the trial supervision system were pre-emptively addressed by the enactment of section 6(1) of the MJREO. As long as the judgment falls under the categories listed under section 6(1), the judgment is deemed to be final and conclusive irrespective of the operation of the trial supervision system, and one should not be required to fall back on the common law. The same reasoning was explained by DHCJ KC Chan earlier in Re Shenzhen Qianhai Orient Ruichen Fund Management Co Ltd in early 2025.[20]

It is submitted that the foregoing principles are also very likely be applicable to the expanded statutory regime of the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap 645) (‘MJCCMREO’), which came into effect in 2024:

1. The MJCCMREO sought to give effect to the ‘Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region’ signed in 2019 (‘the 2019 Arrangement’). Similar to Article 2 of the 2006 Arrangement, Article 4 of the 2019 Arrangement includes provisions relating to the trial supervision system.
2. Section 8 of the MJCCMREO stipulates a list of ‘effective’ Mainland judgments akin to section 6(1) of the MJREO. Thus, the foregoing reasoning by G Lam JA can be applied to section 8 of the MJCCMREO: the list should be treated as exhaustive, and as long as the Mainland judgment falls under any category explicitly stated under section 8, it is capable of being enforced regardless of the effect of the trial supervision system.[21]
3. The MJCCMREO intends to provide a mechanism which is similar to the MJREO for a wider range of judgments in civil and commercial matters, not limited to judgments arising out of an exclusive choice of court agreement.[22] The two ordinances serve similar purposes; for consistency reasons, they should adhere to the same principles regarding the effect of the trial supervision system.[23]

4. Conclusion

These recent clarifications from the Hong Kong courts are much welcomed in resolving the effect of the trial supervision system that had befuddled the courts for almost 30 years. From the author’s perspective, this clarified view must also be correct. Under the common law regime, it is consistent with the modern viewpoint that a possible appeal avenue is not by itself an impediment to the recognition and enforcement of the trial judgment.[24] As for the statutory regimes, it is consistent with the provisions of the 2006 and 2019 Arrangements and the subsequent statutes enacted respectively, the MJREO and the MJCCMREO.

 

This article is written by Wilson Lui (Centre for Private Law, The University of Hong Kong; Melbourne Law School), with research assistance by Avery Cheung (The University of Hong Kong).

 

[1] See eg Philip St John Smart, ‘Finality and the Enforcement of Foreign Judgments under the Common Law in Hong Kong’ (2005) 5 Oxford University Commonwealth Law Journal 301; Weixia Gu, ‘A Conflict of Laws Study in Hong Kong–China Judgment Regionalism: Legal Challenges and Renewed Momentum’ (2020) 52 Cornell International Law Journal 592. See also Section II below.

[2] See eg Wilson Lui and Anselmo Reyes, Hong Kong Private International Law (Hart Publishing 2025) 279–80.

[3] Chiyu Banking Corp Ltd v Chan Tin Kwun [1996] 2 HKLR 395 (CFI) 399.

[4] Lam Chit Man v Lam Chi To [2001–2003] HKCLRT 141 (CA) [18]–[21].

[5] Lee Yau Wing v Lee Shui Kwan [2007] 2 HKLRD 749 (CA) [15]–[29], [34]–[38]. See also Wu Wei v Liu Yi Ping (unreported, CACV 32/2009, 27 March 2009).

[6] Lee Yau Wing (n 5) [55]. In coming to this conclusion, Chung J admitted that his views had changed from his earlier decision in Lam Chit Man v Cheung Shun Lin [2001–2003] HKCLRT 243 (CA).

[7] Gu (n 1) 611.

[8] Bank of China Ltd v Yang Fan [2016] 3 HKLRD 7 (CFI).

[9] Bank of China Ltd (n 8) [51]–[54].

[10] Jiang Xi An Fa Da Wine Co Ltd v Zhan King [2019] HKCFI 2411 [85]–[90]; Beijing Renji Real Estate Development Group Co Ltd v Zhu Min [2022] 4 HKC 116, [2022] HKCFI 1027 [65]–[66]; Poon Sing Wah v Poon Sing Nam [2025] HKCFI 720 [117(a)].

[11] Sunsco International Holdings Ltd v Lin Chunrong [2025] HKCFI 5238.

[12] Lee Yau Wing (n 5) [15]; Sunsco International Holdings Ltd (n 11) [12.2].

[13] Bobolas v Economist Newspaper Ltd [1987] 1 WLR 1101 (CA).

[14] Nouvion v Freeman (1889) 15 App Cas 1.

[15] Tsoi Chung Tat Prince v Wei Zhongxia [2026] HKCFI 716 [47].

[16] Beijing Renji Real Estate Development Group Co Ltd v Zhu Min [2026] HKCFI 197.

[17] Huzhou Shenghua Financial Services Co Ltd v Hang Pin Living Technology Company Ltd [2025] 3 HKLRD 447, [2025] HKCA 434.

[18] See also Huarong Overseas Chinese Asset Management Co Ltd v Li Xiaopeng (transliteration) [2025] HKCFI 6402 [54].

[19] Legislative Council of Hong Kong, ‘Report of the Bills Committee on the Mainland Judgments (Reciprocal Enforcement) Bill’ LC Paper No CB(2)1521/07-08 (10 April 2008) para 73.

[20] Re Shenzhen Qianhai Orient Ruichen Fund Management Co Ltd [2025] HKCFI 707 [24]–[30], cited in Huzhou Shenghua Financial Services Co Ltd (n 17) [67]–[69].

[21] The Court of Appeal observed the striking similarity between the two sections as well: Huzhou Shenghua Financial Services Co Ltd (n 17) [15].

[22] Legislative Council of Hong Kong, ‘Report of the Bills Committee on Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Bill’ LC Paper No CB(4)871/2022 (12 October 2022).

[23] See eg Sunsco International Holdings Ltd (n 11) [11.25].

[24] Nouvion (n 14) 13; China NPL Holdings Pte Ltd v Mo Haidan [2021] 1 HKLRD 344, [2020] HKCA 1014 [54]–[57].

Richard Fentiman will be speaking on “Contactless Injunctions: New Approaches to Jurisdiction in English Law” at the forthcomming virtual workshop in the Max Planck Institute for Comparative and International Private Law series “Current Research in Private International Law” to be held on on Tuesday, 3 March 2026, at 11:00 (CET).

Richard Fentiman is Professor Emeritus of Private International Law at the University of Cambridge. His research is especially concerned with the law and practice of international commercial litigation and in particular with issues concerning jurisdiction and interim remedies. He will be speaking about the practice of the English courts which regularly grant extraterritorial injunctions to freeze foreign assets or prevent foreign proceedings. In a departure from past practice they will now do so even in the absence of any material link with England. This reveals much about English law’s distinctive approach to injunctions and begs deeper questions about the appropriate grounds for exercising jurisdiction in private international law.

The virtual lecture will be held as a video conference via Zoom. Prior registions is necesarry by Monday, 2 March 2026, using this link.

Since not all readers of the blog can be presumed to be avid consumers of the Journal of Legal History, it may be worth pointing out that issue 46/1 (2025) (table of contents  here) was dedicated to jurisdiction in the European Central Middle Ages. In their (open access) introduction, historians Danica Summerlin and Alice Taylor suggest explaining medieval law neither through the (rediscovered) Codex Justinianus as the basis of a ius commune, nor through the concept of legal pluralism, but instead through the emerging law of jurisdiction. Indeed, their approach deviates from earlier state-focused analyses on struggles between state and church and instead “foregrounds actors and performances as the means by which jurisdictions were asserted, defined and formalized – or, to put it another way, as the means by which jurisdiction came into being.”  The issue emerges from a British Academy funded multi-year research project on Jurisdictions, political discourse, and legal community, 1050–1250 that brought together (legal) historians from Europe and North America – but not, it seems, conflict of laws scholars. The contributions are fascinating and relevant for those of us who want to understand conflict of laws through its history – and may perhaps even provide a basis for future collaborations across disciplines?

An upcoming milestone in private international law — Recognition and Enforcement of Non-EU Judgments (Bloomsbury / Hart Publishing, Feb. 19 2026), edited by Tobias Lutzi, Ennio Piovesani, and Dora Zgrabljic Rotar.

This is not just another doctrinal text, but the first comprehensive comparative deep dive into how EU Member States handle judgments from outside the EU, an area of law that has been notoriously fragmented and under-theorized.

The book contains country reports from 21 EU Member States on their national rules on recognition and enforcement of non-EU judgments in a unified framework, giving the reader both breadth and comparative depth. The editors pull these strands together in a detailed comparative report that highlights patterns of convergence and divergence across EU jurisdictions. Additionally, the book situates the Member State approaches in relation to the Brussels I regime and the 2019 HCCH Judgments Convention, which is itself reshaping global judicial cooperation. It had practical and scholarly appeal

The release date is 19 February 2026 and it is available for pre-order already at here.

I. INTRODUCTION

This is the second symposium relating to private international law in Africa to be hosted on this blog, following a series that has run consistently since 2 February 2026. The first symposium, which focused on private international law in Nigeria, took place on 14 December 2020 and was jointly hosted on Afronomics and this blog. It was organised by Professor Richard Frimpong Oppong and me.

Professor Beligh Elbalti and I are deeply grateful to the scholars who agreed to participate in this symposium at short notice, including Dr Solomon Okorley, Dr Theophilus Edwin Coleman, Dr Elisa Rinaldi, Miss Anam Abdul-Majid, Mr Kitonga Mulandi,  Dr Boris Awa, and Dr Abubakri Yekini.

The idea for this second symposium originated with my dear colleague, Professor Beligh Elbalti, and I am thankful to him for involving me in the leadership and organisation of this project. The symposium finds its true genesis in a larger edited volume we are currently preparing on the recognition and enforcement of foreign judgments in Africa, which examines developments across no fewer than twenty-six African jurisdictions.

In the course of organising the project, we were struck by the depth and richness of engagement with private international law in African courts. This reality stands in sharp contrast to the popular but mistaken assumption that private international law in Africa is stagnant. On the contrary, the field is very much alive and kicking.

African courts are increasingly being called upon to engage with issues of private international law, and this is an empirical reality that our symposium seeks to demonstrate. At the same time, courts face significant and well-documented challenges, including inadequate legal frameworks, insufficient engagement with comparative law, and research approaches that prioritise the transplantation of foreign perspectives rather than the development of solutions grounded in local realities.

We therefore hope that courts, legislators, and researchers will actively engage with, develop, and refine the principles of private international law from an African perspective, in a manner that is context-sensitive, doctrinally sound, and responsive to the continent’s lived legal experience.

In this post, I briefly reflect on five overarching themes: situating African private international law within its broader context; the use of comparative law to promote independent and critical thinking; strengthening cooperation among African scholars; the importance of sustainable funding; and the need for stronger local institutional infrastructure.

 

II. RE-SITUATING AFRICAN PRIVATE INTERNATIONAL LAW WITHIN ITS PROPER CONTEXT

One of the central challenges confronting African private international law is its continuing reliance on inherited colonial traditions, particularly those of European powers such as England, France, the Netherlands, Spain and Portugal. Across the continent, many legal systems still mirror the frameworks they received during the colonial period. Thus, common law African jurisdictions tend to follow the English approach; Francophone systems largely adopt French doctrine; Roman–Dutch jurisdictions reflect a mixture of Dutch and English influences; Lusophone countries retain Portuguese models; and there are also Spanish law influences on few African countries.

This inherited structure has not always served African private international law well. While many European states have modernised their rules to facilitate economic integration, cross-border commerce, and development, numerous African jurisdictions have yet to undertake comparable reform. The result is often a body of law that is historically derivative rather than functionally responsive to contemporary African realities.

These concerns have long been recognised in the scholarship. More than three decades ago, Professor Uche Uche, delivering lectures at the Hague Academy of International Law, called for “a genuinely African-based and African-influenced work on the conflict of laws.” Professor Christopher Forsyth similarly cautioned against the “unthinking” acceptance of foreign solutions, warning that African private international law should not behave like “the weathervane flipping one way or the other as the winds blow from abroad.” In the same spirit, Professor Richard Frimpong Oppong has argued that, while extra-African sources remain relevant, African scholarship should draw primarily on African case law, legislation, and academic commentary, and should situate its analysis within the continent’s present challenges, including regional economic integration, the promotion of trade and investment, migration, globalisation, and legal pluralism.

Encouragingly, contemporary African scholarship increasingly reflects this intellectual independence. The present symposium offers a clear illustration. Contributors rely principally on local African sources and contexts rather than treating European doctrine as the default template. My joint post with Yekini highlights the growing importance of recognition and enforcement of international court judgments in Anglophone Africa and shows that African jurisdictions are beginning to lead intellectually in an area that remains underdeveloped elsewhere. Awa’s blog demonstrates that Member States of the Central African Economic and Monetary Community (CEMAC) have a significant number of situations in which they attempt recognising and enforcing each other’s judgments. Elbalti’s study of Mozambique illustrates the risks of scholars mechanically interpreting colonial transplanted rules without close attention to local jurisprudence. Abdul-Majid and Mulandi’s discussion of Kenya reveals judicial concern that exclusive jurisdiction clauses may export dispute resolution to foreign courts to the detriment of domestic adjudication. Rinaldi shows that South African courts are attentive to cross-border employment disputes involving restraints of trade, and that any critique of their rulings by practitioners or scholars should be carefully anchored in sound legal principle.  Coleman further demonstrates Ghana’s distinctive approach to proving foreign law in cross-border marriages, including potentially polygamous unions.  Finally, Okorley examines a decision of the South African Supreme Court of Appeal affirming that a child’s habitual residence under the Hague Child Abduction Convention is not determined by the marital status of the parents.

Externally, in another contribution, Coleman draws on the South African concept of ubuntu to interrogate the inequalities that may be embedded in party autonomy. Oppong and I also argue that African government contracts should not be subjected to foreign governing laws on public policy grounds.

None of this suggests that African private international law should become insular or excessively interest based. On the contrary, comparative engagement remains indispensable. The point is not to reject foreign influence, but to adapt it critically and constructively, ensuring that private international law develops in a manner that reflects African realities while participating confidently in global legal discourse.

 

III. UTILIITY OF COMPARATIVE LAW IN ENHANCING INDEPENDENCE AND CRITICAL THINKING

A further area in which private international law in Africa can be strengthened is through deeper and more systematic engagement with comparative law. In a recent study I co-authored with Yekini, we concluded that private international law in Nigeria—and, by extension, in several other African jurisdictions—remains underdeveloped in part because of limited comparative engagement. Indeed, it has been persuasively argued by Professor Diego Arroyo that private international law is scarcely conceivable without comparative law. As Professor Otto Kahn-Freund, famously remarks “comparative law is the mother of private international law.” I share these views as well.

Comparative analysis, however, should not be equated with continued dependence on the approaches of former colonial powers. Far from it. Properly understood, comparative law entails a broad and critical examination of diverse legal systems across the world in order to identify solutions best suited to local needs. Its purpose is intellectual openness, not slavish imitation. Currently, Asian private international law has evolved primarily through imitation before transitioning into a phase of innovation and eventual exportation (see here). This has primarily been done through extensive comparisons with legal systems around the world. I have also remarked that the Asian approach can “significantly benefit the ongoing development and reform of private international law in Africa” (see here).

This underscores the importance of legal education and professional training. Outside South Africa and a small number of other jurisdictions, legal education in many African countries remains heavily shaped by inherited colonial curricula, with limited exposure to comparative or regional perspectives. Moreover, meaningful dialogue across African legal systems is often lacking. Apart from parts of Southern Africa—and, to a lesser extent East Africa—many jurisdictions rarely engage systematically with developments elsewhere on the continent.

The practical consequences of this insularity are tangible. In a recent blog post, I discussed a Nigerian Court of Appeal decision that enforced a South African choice-of-court agreement in a dispute that was otherwise entirely domestic. Counsel for the claimant had undertaken no research into South African law. Had they done so, they would likely have discovered that South African courts themselves would decline jurisdiction on that case for want of a sufficient connection to South Africa, leaving the claimant without a forum to sue! A modest comparative inquiry might therefore have altered both the litigation strategy and the outcome.

South Africa has, in many respects, emerged as a leader in fostering comparative engagement. In this regard, particular credit is due to Professor Jan Neels for his work at the University of Johannesburg as Director of the Research Centre for Private International Law in Emerging Countries, which has trained and mentored a growing cohort of African scholars with strong comparative expertise. Elbalti and I have benefited greatly from collaboration with many of these scholars.

Importantly, the tools for comparative research are increasingly accessible. Open-access databases such as AfricanLII and SAFLII provide rich repositories of African jurisprudence that can and should be utilised more systematically by lawyers, judges, and scholars. Comparative engagement of this kind promotes intellectual independence rather than dependence. By examining a range of possible approaches before making doctrinal choices, African courts and legislatures can craft solutions that are both contextually appropriate and globally informed.

 

IV. COOPERATION AMONG AFRICAN SCHOLARS

A further area in which private international law in Africa can and should be strengthened is scholarly cooperation. The South African concept of Ubuntu aptly captures the spirit required: “I am because we are.” The development of African private international law cannot be the achievement of a single scholar or even a single jurisdiction. It must instead be the product of sustained collaboration across the continent. Collective intellectual effort, rather than isolated national initiatives, is essential to building a coherent and contextually responsive body of doctrine.

Encouragingly, some institutional foundations already exist. In addition to the important work facilitated by Neels at the University of Johannesburg, the Nigeria Group on Private International Law (NGPIL) has sought to promote dialogue and capacity building within Nigeria. The NGPIL, co-founded by Dr Onyoja Momoh, Dr Abubakri Yekini, Dr Chukwudi Ojiegbe, Dr Pontian Okoli and myself, brings together primarily UK-based scholars committed to strengthening Nigerian private international law through regular lectures, mentorship of early-career researchers, prize initiatives for students, and policy engagement aimed at encouraging the Nigerian government to recognise the strategic importance of private international law for economic development.

Nevertheless, more remains to be done. Efforts by Elbalti and me to establish a broader, continent-wide African private international law network have thus far proved difficult to sustain, particularly in terms of consistent participation. This highlights both the logistical challenges and the need for stronger institutional support structures.

Comparative experience demonstrates what is possible. Other regions have successfully institutionalised scholarly cooperation through bodies such as the Asian Private International Law Academy and the European Association of Private International Law, which provide regular forums for dialogue, research collaboration, and the exchange of ideas. A similar, genuinely pan-African platform would significantly advance the field. It is my hope that such an initiative will soon emerge and help consolidate the growing momentum behind African private international law.

 

VI. FUNDING AND LOCAL INFRASTRUCTURE

For private international law in Africa to generate meaningful and lasting value, it requires sustained and significant funding. The blunt reality is that this responsibility must rest primarily with African stakeholders — including governments, businesses, professional bodies, and regional institutions.

By contrast, established dispute-resolution hubs such as England, New York, Singapore, and Switzerland derive substantial economic and reputational benefits from international commercial adjudication. With deliberate investment in modern, efficient, and credible private international law frameworks, African jurisdictions can retain similar revenue within the continent and reduce the persistent dominance of Global North fora in resolving African disputes.

Elbalti in his forthcoming paper on foreign law in Africa, has called for the establishment of a dedicated research centre for comparative law, akin to the Max Planck Institute or the Swiss Institute of Comparative Law. He further suggests that Neel’s centre at the University of Johannesburg could play such a role by serving as a hub for sustained comparative research and doctrinal development.

If Africa is to compete effectively for international litigation and arbitration business, however, funding alone will not suffice. Serious institutional reform is indispensable. Infrastructure must be strengthened, judicial quality and consistency enhanced, delays reduced, training regularised, and corruption decisively addressed. Without these structural improvements, even the most sophisticated legal rules will struggle to attract confidence.

 

VI. CONCLUSION

Taken together, the reflections offered in this symposium challenge the persistent misconception that private international law in Africa is marginal or stagnant. The opposite is true. Across the continent, courts are engaging meaningfully with cross-border disputes, scholars are producing increasingly rich and context sensitive analyses, and new networks of cooperation are beginning to emerge. African private international law is no longer merely derivative of external models; rather, it is slowly but steadily becoming more self-aware, self-confident, and intellectually independent.

The path forward is clear. By grounding doctrine in African realities, embracing comparative learning without slipping into slavish imitation, strengthening scholarly collaboration, and investing seriously in funding and institutional capacity, African jurisdictions can build private international law systems that are both locally responsive and globally competitive. If these foundations continue to develop, Africa will not simply follow global trends but will increasingly help shape them.

Professor Ralf Michaels made a comment in the Asian context which I will quote and adapt to the African context by inserting “Africa” instead of the original use of “Asia”, “Africa is no longer object or subject but method, no longer one but many parts that are in dialogue with each other, no longer recipient or opponent of Western law and instead co-producer of modernity and of modern law. In this, the West has at least as much to learn from Africa as Africa did from the West. “

The energy, creativity, and commitment demonstrated by the contributors to this symposium — and by the wider community of African scholars and judges — give ample reason for optimism. The future of private international law in Africa is not only promising; it is bright.