Conflictoflaws

The Centre for Private International Law & Transnational Governance of the University of Aberdeen is continuing its Crossroads in Private International Law webinar series with a talk by Tobias Lutzi (University of Augsburg) titled ‘Between Ambition and Realism – What to Expect from the Upcoming Reforms to the Rome II and Brussels Ia Regulation?’:

The Centre for Private International Law & Transnational Governance invites you to attend the next seminar in our Crossroads in Private International Law seminar series. You can find the link to register at the bottom of this page.

Prof Tobias Lutzi (Junior Professor for Private Law at Augsburg University) will give a seminar on the reforms to the Rome II and Brussels Ia Regulation. Prof Lutzi has kindly provided the following abstract:

Last year, the EU Commission formally kicked off the process of reforming two key instruments of EU Private International Law, identifying potential areas for reform and setting out some overarching policy goals. In 2026, the Commission will face the more difficult decision of which of those areas to actually focus on. This talk will discuss the respective merits of those areas of reform, highlighting the tension between ambition and realism that will shape the Commission’s work.

We are looking forward to welcoming you online or on campus!

Additional information and the link to register can be found here.

By Taimoor Raza Sultan, Stockholm University

Introduction

The 1958 New York Convention (‘NYC’) is widely regarded as international arbitration’s most significant achievement. Having been ratified by over 160 states, , establishing a credible system of enforcement for arbitral awards. Yet the commercial reservation under Article 1(3), which allows the reserving state to limit the application of the ‘Convention only to differences …. considered as commercial’ under its own national law, risks jeopardizing the uniformity of the convention. By domesticating the definition of commerciality, the reservation invites forum shopping and inconsistent enforcement.

The CC/Devas (Mauritius) Ltd. v. Republic of India brings this latent tension to the surface. Devas Multimedia secured awards totaling approximately $111 million against India after Antrix Corporation (the commercial arm of the Indian Space Research Organization) terminated a 2005 satellite spectrum lease agreement. Antrix cited ‘essential security interests’ requiring the S-band spectrum for India’s defense forces and strategic public services. Relying on its settled domestic jurisprudence, India maintained that the Convention was inapplicable to BIT arbitrations, on the basis that investor–State disputes differ in nature from commercial arbitrations and implicate issues of public international law.

Enforcement attempts across Australia, the United Kingdom, and Canada achieved significantly different results, particularly in their respective approaches to defining commerciality under the convention. Australia strictly deferred to India’s view, while Canada applied an objective commercial lens. The UK court refused to decide the commercial reservation issue, instead ruling primarily that India’s NYC ratification does not waive sovereign immunity under s.2(2) SIA 1978 (para 98). This article compares the Australian and Canadian approaches, then proposes a ‘enforceability-focused objective standard’ to limit abuse while preserving the reservation’s purpose.

Australia’s Deferential Approach

In Republic of India v. CCDM Holdings, LLC [2025] FCAFC 2, the Federal Court of Australia unanimously reversed the enforcement order issued by the primary judge, holding that India is immune under section 9 of the Foreign States Immunities Act 1985 as the enforcement of the award is limited by India’s reservation under Article 1(3) of the Convention.

Furthermore, Article 1(3) creates a reciprocal obligation that even the non-reserving States like Australia must honor reservations declared by the reserving States in their mutual relationship (para 65). The court characterized the BIT dispute as arising from ‘public international law’ rights between the investor and the sovereign, and certainly not constituting private commercial relationship (para 81). The Indian Cabinet’s annulment decision was also motivated by the country’s ‘strategic requirements’, which reinforces the non-commercial nature of the transaction. It, therefore, concludes that India has not submitted to the jurisdiction of Australian courts under section 10(2) (para 75).

Crucially, the respondent did not adduce evidence to contest the non-commercial nature of the transaction (para 76). In the absence of proof of Indian law to the contrary, the court applied the presumption that foreign law is the same as Australian law (Neilson v. Overseas Project [2005] HCA 54). On that basis, the dispute was characterized as non-commercial under Australian law. The court made clear, however, that reliance on any different characterization under Indian law would have required specific proof of the content and application of Indian law to rebut the presumption (para 77). While this reflects a recognition of state sovereignty, the states could strategically reclassify market activities as policy-driven, which could frustrate investor expectations, undermining the pro-enforcement ethos of the New York Convention, and potentially deterring investment in reserving states like India.

Canada’s Objective Approach

The Quebec Court of Appeal (COA) adopted a contrasting approach in CC/Devas (Mauritius) Ltd v Republic of India (2024 Quebec CA) by denying immunity to India under both the waiver and commercial activity exception of the State Immunity Act 1985 (sections 4 & 5), and permitted enforcement and asset seizure.

The court primarily based its decision and analysis on the commercial activity under section 5. Contextually, the BIT essentially involved the commercial leasing of India’s spectrum capacity which aimed at ‘encouraging foreign investment’ and can be termed as a ‘trade agreement’ (para 42). The court did not consider the annulment grounds of India’s National Security Council materially relevant in the waiver determination. Instead, it focused more on economic substance, investment structure, and financial return of the deal. Such an approach also aligns more closely with the historically expansive interpretation of the commercial reservation under the New York Convention adopted by Indian courts. For instance, in R.M. Investment and Trading Co. v. Boeing Co. (1994), the court dealt with a state-level consultancy agreement for the sale of Boeing aircraft in India, and specifically remarked, ‘the expression ‘commercial’ must be construed broadly having regard to the manifold activities which are part of international trade today’ (para 12). The Canadian court has interpreted the deal similarly, appreciating its commercial nature under current modalities of international trade.

The Canadian approach upholds the pro-enforcement approach of NYC, but it risks under-appreciating the plain language of Article 1(3), which mandates reference to the domestic law of the reserving State.

Towards an Enforceability-Focused Objective Standard

The Devas saga reveals that the central fault line is not whether Article 1(3) mandates reference to the law of the reserving State, it plainly does, but rather how enforcing courts ought to apply that mandate. Australia’s highly deferential approach allows the reserving state’s self-characterization, casting a BIT dispute as a subject of public law or invoking annulment as a matter of public policy, to determine the scope of the Convention’s applicability. Canada’s objective approach, by contrast, considers the substance of the transaction by analyzing what the parties actually accomplished, including the investment of capital through commercial structures in order to receive financial gain.

The courts could, instead, adopt a pro-enforcement objective standard test without entailing a departure from the application of reserving state’s law. This approach requires the objective assessment of facts in answering the question of whether the dispute arise from the State’s market participation or exercise of core public authority? Courts may assess (i) the nature of act giving rise to the dispute, and (ii) nature of parties’ relationship at the time the investment was made.

In Devas, Antrix had entered the satellite capacity market as a commercial counterparty. The subsequent BIT claim merely internationalized the consequences of that commercial decision. Indian courts have themselves consistently treated contracts involving state-owned enterprises as commercial in nature under the Arbitration and Conciliation Act 1996. Therefore, an objective standard gives effect to Article 1(3)’s reference to Indian law, while resisting post-dispute recharacterization of commercial conduct.

Conclusion

Such an objective approach is consistent with the pro-enforcement mandate of the Convention, supporting a narrow construction of the reservation, and aligns with a liberal understanding of commercial activity in contemporary business. Excessive deference risks abuse, whereas an objective approach promotes predictability allowing investors to structure transactions around identifiable commercial elements while preserving space for genuine exercises of sovereignty, such as taxation and non-market regulation.

 

As part of the second online symposium on recent developments in African private international law, we are pleased to present the second contribution, kindly prepared by Boris Awa (Kigali Independent University, Rwanda), on The Recognition and Enforcement of Foreign Judgments within the CEMAC Zone.

I. Introduction

The Central African Economic and Monetary Community (CEMAC) is a regional intergovernmental organization comprising Cameroon, the Central African Republic, Chad, the Republic of Congo, Equatorial Guinea and Gabon. It was created by the Treaty establishing CEMAC on 16 March 1994 and revised in 2008 (Hereinafter referred to as the CEMAC Treaty). All CEMAC Member States also belong to the Organisation for the Harmonisation of Business Law in Africa (OHADA),[i] which aims to harmonise business law among its Member States. OHADA is composed of 17 Member States, all with legal systems rooted in the civil law tradition.

As regional integration and the harmonization of laws in CEMAC deepened, issues related to the recognition and enforcement of judgments became more prominent than ever before. This came in handy through the entry into force of the Judicial Cooperation Agreement of 28 January, 2004 (hereafter the “CEMAC Agreement”).[ii] Closely linked to the CEMAC Agreement are other multilateral initiatives, such as the General Convention on Judicial Cooperation in matters of Justice, 12 September 1961 in Tananarive (hereafter the “Tananarive Convention”)[iii], as well as bilateral treaties and domestic legislations of Member States, all of which are relevant in this context.

Against this background, we shall in turn discuss the conditions for the recognition of judgments under the laws of member States (II), under the relevant multilateral instruments, namely the Tananarive Convention and the CEMAC Agreement (III), and the hurdles that impede the recognition of foreign judgments under the CEMAC Agreement (IV).

 

II. Recognition and Enforcement under Domestic Legal Regimes

Most Member States in CEMAC have black letter laws on the recognition and enforcement of judgments. The table below outlines the relevant laws and provisions governing this area in each CEMAC Member State.

 

Jurisdiction Code/Act Provision Cameroon Law No 2007/001 of 19 April 2007 to Institute a Judge in Charge of Litigation Related to the Execution of Judgements and lay down Conditions for the Enforcement in Cameroon of Foreign Court Decisions, Public Acts and Arbitral Awards Articles 5-9 Gabon Civil Code (1972) Articles 71-77 Civil Procedure Code (1977) Articles 967-971 Tchad N/A N/A Central African Republic Code of Civil Procedure (1991) Articles 469-471 Equatorial Guinea Spanish Civil Procedure Code (1881) Articles 951-958 The Republic of Congo Code of Civil, Commercial, Administrative and Financial Procedure (1983) (CCCAFP). Articles 298-310

 

It emerges that five of the six CEMAC Member States have codified provisions on the recognition and enforcement of judgments. Moreover, the conditions for the recognition and enforcement of judgments in three Member States (namely, Cameroon, Gabon and Central African Republic) are similar. These include indirect jurisdiction, the right of defence, inconsistent judgments, public policy and finality. On the other hand, Congolese law provides no formal conditions for the recognition and enforcement of foreign judgments. In the Republic of Congo, the judgment debtor must seize the court that would have had subject matter jurisdiction to hear the claim, to render the foreign judgment executory in the Republic of Congo (art. 298 of the CCCAFP).

Apart from the aforementioned requirements for recognition and enforcement common to CEMAC member states, only Gabonese law (article 75 of the Civil Code) recognizes reciprocity as a condition for the enforcement of foreign judgments.

 

III. Recognition and Enforcement under the Applicable International Instruments

Two principal legal instruments govern the recognition and enforcement of judgments in the CEMAC zone: the 1961 Tananarive Convention and the 2004 CEMAC Agreement.

 

1. The Tananarive Convention

The Tananarive Convention presents the first efforts towards the harmonisation of judgment enforcement in francophone Africa. This convention mirrors the zeal to set up a common legal regime among Francophone African countries on judgement enforcement immediately after obtaining their independence.

The Tananarive Convention provides five (5) conditions for the enforcement of judgments in contentious and non-contentious decisions in civil and commercial matters under the treaty. These conditions are set out in article 30 and include:

(1) competent court according to the rules set out in the Convention (art. 38),

(2) the decision was rendered following the laws on conflict of law applicable in the state of where enforcement in sought,

(3) the judgment has, under the law of the state of origin, acquired the force of res judicata and is capable of enforcement

(4) the right of defence must have been respected and

(5) the judgment is not contrary to public order in the state where enforcement is sought, and does not conflict with a final judicial decision rendered in that State.

 

2. The CEMAC Agreement

The CEMAC Agreement is the first legal instrument establishing a unified legal framework for the enforcement of judgments within the CEMAC zone. Based on the principle of supremacy of community legislation over national laws, it follows that the CEMAC Agreement sits above local legislations in the hierarchy of legal norms. Thus, the legislation to be applied by the courts for the recognition and enforcement of judgments within the zone should be derived from CEMAC law – namely, the CEMAC Agreement – rather from local legislations.

There are five (5) conditions for the recognition and enforcement of judgments under the CEMAC Agreement. These requirements are set out in article 14 of the Agreement which states that the judgement must satisfy the following conditions:

(1) the decision emanates from a competent court of the country where it was rendered

(2) the decision is not contrary to case law in the member state where enforcement is sought,

(3) the decision has acquired the force of res judicata

(4) the judgment was rendered in a fair trial that guarantees the equitable presentation of parties, and

(5) the judgement is in conformity with public policy in the member state where enforcement is sought.

 

3. Brief Comparative Overview of the Two Instruments

While the conditions for allowing enforcement under the CEMAC Agreement may appear similar to those provided under the Tananarive Convention, several differences exist. Substantively, the Tananarive Convention allows the control of the law applied in the state where enforcement is sought, but this is not the case with the CEMAC Agreement. Also, while the CEMAC Agreement provides for the determination of the competent court based on the law of the rendering state, the Tananarive Convention provides controlling criteria for the determination of competent court in article 38 based on the type of civil or commercial dispute. Procedurally, under the CEMAC Agreement, the judgment creditor, by a petition (requête), seizes the president of the court in the place where enforcement is sought, provided that the court would have had subject matter jurisdiction to hear the dispute (art. 16). Under the Tananarive Convention, the request for enforcement is brought, by petition (requête), before the president of the court of first instance or a corresponding jurisdiction at the place where enforcement is sought (art. 32).

It is worth noting that article 37 of the CEMAC Agreement abrogates treaties, bilateral agreements, and conventions among CEMAC members states insofar as they are contrary to the CEMAC Agreement. Thus, the Tananarive Convention ceases to be a source of law for purposes of the recognition and enforcement of judgments within the CEMAC zone to the extent that its provisions conflict with the CEMAC Agreement.

 

IV. Hurdles Besetting the Recognition of Foreign Judgments within the CEMAC Zone

 

1. Fragmentation of laws

The CEMAC region is characterized by the coexistence of multiple applicable legal frameworks governing the recognition and enforcement of foreign judgments, including domestic laws, bilateral conventions, multilateral conventions (notably the CEMAC Agreement and the Tananarive Convention). This raises questions as to the rationale for the continued conclusion of bilateral treaties on the recognition and enforcement of judgments, given that the enforcement regimes found under various instruments in the region are sometimes similar, with few differences.

 

2. Judicial neglect of the CEMAC Agreement

 Given the superiority of CEMAC law over local legislation, the enforcement of judgments within the CEMAC zone should be governed by the CEMAC Agreement rather than by the domestic laws of the Member States. In practice, however, courts in several CEMAC Member States have not consistently adhered to this principle. Instead, judges often resort to domestic legislation with which they are more familiar when dealing with the recognition and enforcement of judgments from member states within the CEMAC zone.

This approach has received judicial endorsement. in a number of cases decided by Cameroonian courts. One such example is La succession Levy représentée par ses administrateurs, sieurs Levy Jesus Cyril et Levy Ishaï, commerçants demeurant à Bangui en République Centrafricaine, which concerned the recognition and enforcement in Cameroon of a jugdment from the High Court in Bangui (Central African Republic) attributing letters of administration (administrateurs) to the plaintiffs. In that case, the court applied Cameroonian domestic law rather than the CEMAC Agreement (Court of First Instance Douala-Bonanjo, Ordonnance of 31 January 2019 (Unreported)).

A similar approach was followed in Dame Tchagang Edo Ovono N’do Eyebe, Sieur Sandjong Mezui Verdier C/ Monsieur le Greffier en Chef du TPI Douala Bonanjo, where a Gabonese judgment appointing the plaintiff as the heir and successor of the deceased Gabonese national was recognised and enforced in Cameroon on the basis of domestic law, in disregard of the CEMAC Agreement (Court of First Instance Douala-Bonanjo, Ordonnance N°42 of 19 February 2019 (Unreported)). Needless to say that the judgments referred to above are, in principle, legally flawed, as they disregard the hierarchy of norms established by the CEMAC Treaty.

Also, despite the fact that article 37 of the CEMAC Agreement abrogates treaties, conventions among others among member states which are contrary to the CEMAC Agreement, some courts in Chad continue to use the Tananarive Convention against the CEMAC Agreement. The Chadian case of Etat du Cameroun, Représenté par Monsieur le Ministre des Finances C/ Fotso Yves Michel mirrors this example where the Chadian High Court of Ndjamena enforced a judgment from the Supreme Court of Cameroon in Chad using the Tananarive Convention thereby disregarding the CEMAC Agreement (High Court of Ndjamena, Repertoire No 78/2024 of 23 July 2024 (Unreported)).

Several factors may explain this state of affairs. One particularly relevant in our view relates to is the scarcity of sufficient legal literature, with a regional or community-law focus on the recognition and enforcement of foreign judgments within the CEMAC zone. Conflict of law scholarship in the region continues to place predominant emphasis on domestic private international law, often overlooking the relevant community-law framework. As a result, judges are deprived of adequate doctrinal guidance, and developments in CEMAC law in this field often go unnoticed.

 

V. Conclusion

 The reception and application of the rules governing the mutual recognition and enforcement of judgments within the CEMAC zone is not uniform. While some judges in Cameroon disregard the CEMAC Agreement and apply domestic legislation in enforcing judgments rendered from CEMAC member states, others in Chad continue to rely on the Tananarive Convention. As a result, despite of its twenty-one years (21) of existence, the CEMAC Agreement has – to the author’s best knowledge – yet to be effectively tested in judicial practice. This situation stems from the complexity of the applicable legal frameworks – domestic, bilateral, multilateral and regional integration frameworks – which operate concurrently.

Against this backdrop, it is recommended that academics within the CEMAC zone engage more actively with regional case law, increase scholarly output, and help raise the visibility of legal developments in the region. Such efforts would provide judges with doctrinal guidance and foster the development of private international law in the region in line with international standards and best practices.

 

Previous contributions:

1. Online Symposium on Recent Developments in African Private International Law, by Béligh Elbalti & Chukwuma S.A. Okoli (Introductory post)

2. Recognition and Enforcement of International Judgments in Nigeria, by Abubakri Yekini & Chukwuma Samuel Adesina Okoli

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[i] For an overview from the perspective of models of trust management in private international, see Matthias Weller, ‘“Mutual Trust”: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?’ 423 Collected Courses (2022) 203

[ii] On CEMAC and the 2004 CEMAC Agreement, see Weller, op. cit., 184 ; E-A T. Gatsi, ‘L’espace judiciaire commun CEMAC en matière civile et commerciale’ 21 Uniform Law Review (2016) 101.

[iii] Ratified by 12 African States including, Cote d’Ivoire, Benin, Burkina-Faso, Madagascar, Mauritania, Niger, Senegal and all the CEMAC Member States, except for Equatorial Guinea. This is likely because Equatorial Guinea had its independence seven years after the adoption of the Convention. On this Convention, see Weller, op. cit., 199.

Posted on behalf of Erdem Küçüker, an attorney-at-law registered at the Istanbul Bar Association and a private law LL.M student at Koç University. Mr. Küçüker specializes in commercial arbitration, arbitration-related litigation and commercial litigation, and acts as secretary to arbitral tribunals.

Article V of the 1958 New York Convention (“NYC”) lists the grounds of non-enforcement of a foreign arbitral award. Accordingly, Article V(1)(e) provides that when “[t]he award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made” the award’s enforcement may be refused.

In 2024, the Turkish Court of Cassation quashed the lower courts’ decision that declared an International Centre for Dispute Resolution of the American Arbitration Association (“ICDR”) award as enforceable, stating that the courts should have further investigated whether the award is final, enforceable and binding (Court of Cassation, 11th Civil Chamber, Docket No: E. 2022/5986, Decision No: K. 2024/2257, Date: 20.03.2024). This article explains the decision of the Turkish Court of Cassation and comments on the final, enforceable and binding character of an arbitral award in relation to Article V(1)(e) of the NYC.

Decisions of the Lower Courts and the Court of Cassation

The underlying dispute relates to the enforcement of an ICDR award with the seat located in the United States. In the arbitral award, the three respondents were ordered to pay a certain amount to the claimant. The claimant sought the enforcement of this arbitral award in Türkiye.

In the First Instance Court proceedings, the respondents did not submit an answer to the statement of claim. The court noted, amongst others, that (i) all documents in the arbitration, including the award, were validly notified to respondents, (ii) the award is final as per Article 30 of the ICDR Arbitration Rules (“Rules”), (iii) there is no means of appeal against the award, (iv) the respondents did not argue for the denial of the enforcement request. Thus, the court granted the enforcement of the award.

The respondents appealed this decision by claiming that they did not duly receive notification on the arbitration proceedings. However, the Regional Court of Appeal, as the second instance court, agreed with the first instance court that the respondents were duly notified on the proceedings and the award. The Regional Court of Appeal also held that it is the respondent who bears the burden of proof to establish that the award is not final or non-binding. It further incorporated the findings of the first instance court and stated that the award is final and binding according to the Article 30 of the Rules. The Regional Court of Appeal thereby dismissed the appeal on the first instance court decision.

Following the final appeal by the respondents, the was is brought before the Turkish Court of Cassation (“Court”). The Court initially referred to Articles 60-61 of the Turkish Private International Law Act numbered 5718 (“TPILA”) and noted that to enforce a foreign arbitral award, the latter should be final and this requirement shall be considered by the court ex officio. The Court concluded that the finality of the award was not clearly established, based on the information available in the case file. Thus, the Court revoked the lower courts’ decision, holding that the lower court shall render a decision following a further investigation as to whether the award is final, enforceable and binding.

Comments

Article V(1)(e) of the NYC provides that:

“Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that […] [t]he award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made”.

Accordingly, this provision lists three grounds for the refusal of the enforcement of a foreign arbitral award, which are (i) the non-binding character of the award, (ii) the setting aside of the award and (iii) the suspension of the enforcement of the award. NYC provides that these should be established by the party against whom the enforcement is sought.

In relation to the first of the said grounds, an award shall be deemed to be binding if there is no possibility of appeal on merits. Parties can freely characterize an arbitral award as binding between them. This can be made through an explicit agreement in the arbitration clause. The parties can also refer to arbitration rules or laws, which govern that the arbitral award shall be binding. If the parties have such an agreement, the award shall gain binding character in the sense of Article V(1)(e) of the NYC.

In relation to the “enforceable character” of the award, an arbitral award shall be deemed as enforceable, once it is rendered unless the arbitration agreement/rules/laws provide otherwise,. Some jurisdictions provide remedies against the award, in which case the competent authority may decide to suspend an award’s enforcement.

In terms of the final character, an award shall be deemed as final if, (i) there are no possible remedies foreseen against the award or parties waived to resort to such remedies, or (ii) parties initiated these remedies and these are rejected. Notably, for this ground, the NYC considers whether the award is set aside or not.

In the underlying dispute, the principle question discussed is whether the award was final, enforceable and binding on the parties. Before, analysing the binding, enforceable and final character of an award it should be noted that in the present case the Court’s application of TPILA to revoke the lower courts’ decision was systematically wrongful. Türkiye and the USA (i.e., the seat of arbitration) are parties to the NYC. As per Article 90(5) of the Constitution of the Republic of Türkiye and Article 1(2) of the TPILA, the provisions of the NYC prevail over the TPILA. Thus, the author considers that the Court should have applied the provisions of the NYC, instead of the TPILA.

Regarding the determination of the binding, enforceable and final character of an award, the lower courts relied on Article 30 of the Rules (2014 version), which provides under its paragraph 1 that:

“Awards shall be made in writing by the arbitral tribunal and shall be final and binding on the parties. […] The parties shall carry out any such award without delay and, absent agreement otherwise, waive irrevocably their right to any form of appeal, review, or recourse to any court or other judicial authority, insofar as such waiver can validly be made. […]”.

Starting with the binding character, in the present case, the parties had agreed in the arbitration agreement that the Rules shall be applicable in the arbitration proceedings. As stated above, Article 30 of the Rules provide that the award shall be binding on the parties. Consequently, in the author’s view, unlike the Court’s findings, this gives the award the binding character and the respondents did not establish the contrary.

In terms of the enforceable character, the respondents did not seem to argue that the award’s enforcement is suspended. Thus, the author considers that the award is enforceable as well.

For the final character, Article 30 of the Rules, as agreed between the parties, provide that the award shall be final and the parties waive any form of appeal against the award. The validity of such waiver can be further discussed in light of the applicable law. Notwithstanding this, as explained above, the NYC places emphasis on whether the award is set aside, and it is the respondent who carries such burden of proof. In the case at hand, respondents neither argued that they brought a setting aside action against the award nor that the latter was set aside. Thus, the author is of the view that the final character of the award was also established in the case at hand, unlike the ruling of the Court.

To summarize, the author initially finds that the Court’s application of the TPILA, instead of the NYC, was systematically wrongful in light of the Turkish Constitution Article 90. Additionally, the lower courts’ decision on the award’s binding and enforceable character was rightful, which, in the author’s view, did not require any further investigation. In terms of the finality of the award, the lower courts’ reliance to the arbitration rules may be debated; however, since the respondents did not prove that the award was set aside, the author argues that the award should have been regarded as final and binding on this final ground as well.

For further discussions on the topic, see also: Erdem Küçüker, ‘Binding and Final Character of Arbitral Awards in the Enforcement of Foreign Arbitral Awards in Türkiye – Recurring Need for Clarity’, Daily Jus Blog, 4 November 2025 (available at: https://dailyjus.com/world/2025/11/binding-and-final-character-of-arbitral-awards-in-the-enforcement-of-foreign-arbitral-awards-in-turkiye-recurring-need-for-clarity).

 

As previously announced, we are launching the second online symposium on recent developments in African private international law. As part of this symposium, a series of blog posts addressing various aspects of recent developments in African private international law will be published on this platform over the coming days.

We open the series with a blog post by Abubakri Yekini (Senior Lecturer in Law at the University of Manchester) and Chukwuma Samuel Adesina Okoli (Assistant Professor in Commercial Conflict of Laws at the University of Birmingham and Senior Research Associate at the Centre for Private International Law in Emerging Countries at the University of Johannesburg), focusing on the recognition and enforcement of international judgments in Nigeria.

 

 1. Introduction

Questions surrounding the recognition and enforcement of judgments have become increasingly prominent in Nigeria, both in academic writing and in practice (Yekini, 2017; Okoli and Oppong, 2021; Olawoyin, 2014; Adigun, 2019; Bamodu, 2012; Olaniyan, 2014; Amucheazi et al, 2024; PN Okoli, 2016). This development is not surprising. Nigerian individuals, companies, and public authorities are now routinely involved in disputes with cross-border elements, whether arising from international trade, investment, migration, or human rights litigation.

Nigeria operates a common law system governed by a written Constitution. The Constitution carefully allocates governmental powers among the three branches of government. Section 6 vests judicial power in the courts, while section 4 assigns legislative power to the National Assembly and State Houses of Assembly. Courts therefore play a central role in the interpretation and development of the law, but always within clearly defined constitutional limits. The Constitution and statutes enacted by the legislature form the bedrock of domestic law.

This constitutional structure has direct implications for the status of international law in Nigeria. Section 12 of the Constitution makes it clear that treaties and other international legal instruments do not become part of Nigerian law merely because Nigeria has signed or agreed to them at the international level. For such instruments to have domestic force, they must be enacted by an Act of the National Assembly. This position has long been settled and repeatedly affirmed by the courts (see Abacha v Fawehinmi (2000) NGSC 3).

Private international law in Nigeria largely remains judge-made, inherited from English common law as part of the received English law. Within this framework, courts have articulated principles governing when foreign judgments may be recognised, when they may be enforced, and when enforcement must be refused (Toepher Inc of New York v. Edokpolor (1965) All NLR 301; Macaulay v RZB of Austria (2003) 18 NWLR (Pt. 852) 282; Mudasiru & Ors v. Onyearu & Ors (2013) LPELR; GILAR Cosmetics Store v Africa Reinsurance Corporation (2025) LPELR-80701 (SC)).

Alongside these common law principles, there are two principal statutory regimes dealing with the recognition and enforcement of foreign judgments (Willbros West Africa Inc v Mcdonnel Contract Mining Ltd (2015) All FWLR 310, 342). The statutory registration scheme is governed by the Reciprocal Enforcement of Judgments Act 1922 (“1922 Ordinance”) and the Foreign Judgments (Reciprocal Enforcement) Act 1960 (“1960 Act”), but the latter is not yet in force (Macaulay v RZB of Austria (2003) 18 NWLR (Pt. 852) 282; Ekpenyong v. A.G and Minister of Justice of the Federation (2022) LPELR-57801(CA)). These frameworks have traditionally been applied to judgments of courts established under the laws of foreign states.

More recently, Nigerian courts have been confronted with judgments of international and regional courts created by treaty, most notably the ECOWAS Court of Justice (CBN v Gegenheimer & Anor (2025) LPELR-81477 (CA)). These courts are not courts of foreign states in the ordinary sense. Their jurisdiction derives from agreements between states, and they operate within legal systems that exist alongside, rather than within, national judicial structures. The fact that the ECOWAS Court sits in Abuja does not alter this position; it is not part of the Nigerian judicature as enumerated under section 6(5) of the Constitution.

Judgments of international courts therefore raise questions that are different in kind from those posed by judgments of foreign national courts. International courts increasingly hear cases involving Nigerian parties and Nigerian institutions. Claimants who succeed before such bodies understandably would seek to enforce their judgments before Nigerian courts, particularly where the international legal framework does not provide a direct enforcement mechanism.

It is against this background that this short article examines the recognition and enforcement of international court judgments in Nigeria. It does so by situating recent judicial developments within Nigeria’s existing constitutional and legal framework and by questioning whether current approaches are consistent with the limits imposed by that framework.

 

2. The Existing Enforcement Frameworks in Nigerian Law

There are two main mechanisms for recognition and enforcement of foreign judgments in Nigeria. A brief overview of these mechanisms is necessary to appreciate the kinds of judgments Nigerian law already recognises and, equally importantly, those it does not.

 

a. Common law enforcement of foreign judgments

At common law, a foreign judgment may be enforced in Nigeria by bringing an action on the judgment itself. The judgment is treated as creating an obligation, often described as a debt, which the judgment creditor may seek to recover (Toepher Inc of New York v. Edokpolor (1965) All NLR 301; Willbros West Africa Inc v Mcdonnel Contract Mining Ltd (2015) All FWLR 310, 342). Over time, Nigerian courts have identified conditions that must be satisfied before this route is available. These include whether the foreign court had jurisdiction over the judgment debtor, whether the judgment is final and conclusive, and whether it was obtained in circumstances consistent with basic requirements of fairness (Yekini; Okoli and Oppong)).

This common law route has always been limited in scope. It was developed to deal with judgments of foreign national courts operating within recognised state legal systems. Its underlying assumptions are rooted in territoriality and sovereignty. Jurisdiction at common law is assessed through concepts such as presence, residence, or submission within the territory of a sovereign state (Adams v. Cape Industries plc [1990] Ch. 433). Service of process, which founds the jurisdiction of the foreign court, is itself an exercise of sovereign authority.

The common law therefore assumes a relationship between two national legal orders: the foreign court that issued the judgment and the Nigerian court asked to give it effect. International courts do not fit easily within this framework. They are not organs of any single state. Their authority derives from treaties through which states agree to submit particular categories of disputes to an international judicial body. The legal force of their judgments exists, first and foremost, at the international level. Whether such judgments can have domestic effect depends on how each state structures the relationship between its domestic law and international obligations.

Some commentators have suggested that common law principles could be extended to accommodate international court judgments (Adigun, 2019). Others have acknowledged this possibility while also highlighting the uncertainties it would create  (Oppong and Niro, 2014). Whatever the merits of these arguments, the critical point for present purposes is that the common law enforcement of judgments was never designed with international courts in mind. Extending it in this direction would require courts to resolve questions for which the common law offers no clear answers. Which international courts would qualify? Would ratification of the relevant treaty be sufficient, or would domestication be required? What defences would be available, and whose public policy would apply? (Oppong and Niro).

In the absence of legislative guidance, courts would be left to answer these questions on an ad hoc basis. That would place courts in the position of deciding which international obligations should have domestic force and on what terms. In Nigeria’s constitutional framework, that is a role more properly reserved for the legislature. Unlike jurisdictions where courts are constitutionally mandated to engage in continuous development of the common law, Nigerian courts have traditionally exercised caution, particularly where the subject matter is affected by express constitutional provisions such as section 12 (cf Art 39(2) of the Constitution of the Republic of South Africa, 1996; Government of the Republic of Zimbabwe v Fick 2013 (5) SA 325 (CC) where the South African Constitutional Court enforced a judgment of the Southern African Development Community Tribunal against Zimbabwe by developing the common law regime. See also the Zimbabwean case of Gramara (Private) Ltd v Government of the Republic of Zimbabwe, Case No: X-ref HC 5483/09 (High Court, Zimbabwe, 2010).

 

b. Statutory regimes for foreign judgments

 The limitations of the common law action on a judgment have long been recognised. Because the judgment creditor must commence fresh proceedings, jurisdiction must be established against the judgment debtor, and procedural obstacles may delay or frustrate enforcement (Yekini, 2017; Okoli and Oppong). To address these concerns, Nigerian law provides for statutory registration of foreign judgments in defined circumstances.

Two principal statutes govern this area. The first is the Reciprocal Enforcement of Foreign Judgments Ordinance 1922, Cap. 175, Laws of the Federation of Nigeria, 1958 (“1922 Ordinance”). This statute applies on a reciprocal basis to judgments from a limited number of jurisdictions, including the United Kingdom Ghana, Sierra Leone, The Gambia, Barbados, Guyana, Grenada, Jamaica, Antigua and Barbuda, St Kitts & Nevis, St Lucia, St Vincent, Trinidad & Tobago, Newfoundland (Canada), New South Wales and Victoria (Australia). Its scope is narrow and largely historical, but it remains in force.

The second is the Foreign Judgments (Reciprocal Enforcement) Act 1960, Cap. F35, Laws of the Federation of Nigeria, 2004 (“1960 Act”). The Act was intended to replace the 1922 Ordinance and to provide a more comprehensive framework for reciprocal enforcement. It proceeds on the basis of reciprocity. Judgments from foreign countries may be registered and enforced only where the Minister of Justice is satisfied that reciprocal treatment will be accorded to Nigerian judgments and issues an order designating the relevant country and its superior courts (section 3(1)(a)).

Although Nigerian courts have, in practice, permitted registration under the 1960 Act notwithstanding the absence of formal designation (Kerian Ikpara Obasi v. Mikson Establishment Industries Ltd [2016] All FWLR 811), the structure of the Act would still not accommodate international courts judgments. It is concerned with judgments of courts of foreign states. It does not purport to regulate the enforcement of decisions of international courts created by treaty. The requirement of designation reflects a deliberate choice to tie enforcement to prior executive action i.e designation, rather than leaving the matter to judicial discretion. A similar conclusion was reached by the Ghanaian court in Chude Mba v The Republic of Ghana, Suit No HRCM/376/15 (decided 2 February 2016), where the applicant sought to enforce an ECOWAS Court judgment in Ghana. The court noted that “the ECOWAS Community Court is not stated as one of the courts to which the legislation applies” (see Oppong, 2017) for a fuller discussion of the case).

 

c. Treaty-based enforcement

 Beyond these reciprocal regimes, Nigerian law recognises that international judgments may be enforceable where the National Assembly has chosen to give direct effect to international obligations through legislation. Arbitration provides the clearest illustration.

Nigeria signed the ICSID Convention in 1965 and enacted the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act in 1967 to give domestic effect to its obligations. That Act provides that ICSID awards are enforceable as if they were judgments of the Supreme Court of Nigeria. The result is a clear and mandatory enforcement regime that leaves little room for doubt or judicial improvisation. A similar approach is reflected in the Arbitration and Mediation Act 2023, which governs the recognition and enforcement of international arbitral awards more generally.

These examples reflect the dualist framework set by the Constitution. Where international obligations are intended to produce direct domestic effects, legislation provides the necessary legal authority. The legislature defines the scope of enforcement and the procedures to be followed. Courts are then required to apply the law as enacted. Therefore, it is crystal clear that Nigerian law has always treated the enforcement of judgments as a matter requiring domestic legal framework. This provides the backdrop against which the enforcement of international court judgments must be assessed.

 

3. CBN V. Gegenheimer & Anor (2025) LPELR-81477(CA) – The Nigerian Case

In May 2025, the Nigerian Court of Appeal had the opportunity, for the first time as far as we are aware, to engage directly with the question of the enforcement of international court judgments in Nigeria. The case arose from a monetary judgment of ?63,650,925.00 and USD 10,000 made by the ECOWAS Court of Justice against Nigerian authorities following a successful human rights claim. The judgment creditor subsequently approached the Federal High Court to register and enforce that award, which ultimately led to garnishee proceedings against funds held by the Central Bank of Nigeria.

For present purposes, the central issue was whether Nigerian courts had jurisdiction to enforce a judgment of the ECOWAS Court. More specifically, one of the complaints before the Court of Appeal was whether the 1st Respondent had complied with the conditions precedent for the enforcement the ECOWAS judgment, notwithstanding the requirements stated in section 4 of the 1960 Act, particularly the requirement relating to the conversion of foreign currency into Naira, and whether the judgment could be enforced in the absence of express domestic legislation authorising such enforcement.

The Court of Appeal answered these questions in the affirmative. In doing so, it reasoned as follows:

It is of common knowledge that the ECOWAS Court of Justice, established in 1991 and located in Abuja, hears cases from West African States, including Nigeria. It was created pursuant to Articles 6 and 15 of the Revised Treaty of ECOWAS. Its organisational framework, functioning, powers, and applicable procedures are set out in Protocol A/P1/7/91 of 6 July 1991; Supplementary Protocol A/SP21/01/05 of 19 January 2005; Supplementary Protocol A/SP.2/06/06 of 14 June 2006; Regulation of 3 June 2002; and Supplementary Regulation C/Reg.2/06/06 of 13 June 2006. In other words, its jurisdiction covers Nigeria. Accordingly, the argument by learned counsel for the Appellant that Nigeria did not domesticate the ECOWAS Court Treaty, Protocol, and Supplementary Protocols is lame.

 

The Court further observed that the ECOWAS Court Protocol, particularly the 1991 Protocol as amended by the 2005 Supplementary Protocol, establishes the ECOWAS Community Court of Justice as the principal legal organ of ECOWAS, outlines its mandate, jurisdiction, functioning, and procedures, grants it competence over human rights violations within member states, and allows individuals to approach the Court directly without exhausting local remedies.

The Court also upheld the trial court’s conclusion that non-compliance with section 4(3) of the 1960 Act does not rob the court of jurisdiction to enforce the judgment.

What appears clear from the decision is that the ECOWAS judgment was effectively registered and enforced on the basis of the ECOWAS Supplementary Protocol A/SP21/01/05 of 19 January 2005, Supplementary Protocol A/SP.2/06/06 of 14 June 2006, Regulation of 3 June 2002, and Supplementary Regulation C/Reg.2/06/06 of 13 June 2006, with a passing reference to the 1960 Act to indicate that the judgment nothing under the Act robs the court off its jurisdiction.

That reasoning is difficult to sustain. The first difficulty lies in the Court’s treatment of domestication. The fact that Nigeria has accepted the jurisdiction of the ECOWAS Court answers the international question of competence; it does not answer the domestic question of enforcement. Jurisdiction determines whether the Court may hear a case and issue a judgment at the international level. It does not determine whether that judgment can be enforced within Nigeria. These are distinct matters. In a dualist constitutional system, the latter inquiry depends on the existence of domestic law authorising enforcement.

The Court did not identify any Nigerian statute that performs this function. Instead, it relied on the existence of ECOWAS instruments themselves. This approach blurs the distinction between international obligation and domestic law. It assumes that once Nigeria is bound internationally, domestic courts may act without further domestication. That assumption runs directly against Nigeria’s constitutional structure, particularly section 12 of the Constitution.

Equally problematic is the suggestion that the physical location of the ECOWAS Court in Abuja makes any legal difference. International courts frequently sit within the territory of member states without becoming part of the host state’s judicial system. The ECOWAS Court is not a Nigerian court, at least within the meaning of section 6 of the 1999 Constitution, and its judgments are not Nigerian judgments. Treating them as such because the Court sits in Abuja has no legal foundation. Jurisdiction at the international level determines whether a court may hear a case; it does not determine whether its judgment can be executed against assets or institutions within Nigeria. Physical location is therefore irrelevant. A court may sit in Abuja and still operate entirely outside the Nigerian legal system, as is the case with the ECOWAS Court.

The second difficulty concerns the Court’s reference to the 1960 Act. The proceedings proceeded as though the ECOWAS judgment could be situated within Nigeria’s foreign judgment enforcement regime. Yet, as discussed earlier, the Act was designed to deal with judgments of courts of foreign states and operates on the basis of reciprocity. The ECOWAS Court does not, and could not realistically, fall within that category. It is not a court of a foreign country, and it has never been designated under the Act. One would therefore have expected the Court to be explicit that the Act does not apply to the judgment in question. Instead, citing provisions of the Act in determining whether the trial court had jurisdiction risks creating the impression that the statutory regime is equally applicable to questions arising from the enforcement of international court judgments. This is an impression that is difficult to reconcile with the structure of the legislation.

This critique should not be misunderstood. It is not a denial of Nigeria’s international obligations, nor is it an argument that successful claimants before international courts should be left without remedies. The point being made is that domestic courts must act within the established legal framework, particularly in an area where foreign judgments do not have direct force of law except as permitted by statute or common law.

Ghanaian courts have consistently emphasised the country’s dualist constitutional structure, under which international and regional judgments are not binding domestically unless the underlying treaty or enforcement framework has been incorporated into Ghanaian law by legislation. In Republic v High Court (Commercial Division), ex parte Attorney General and NML Capital Ltd Civil Motion No. J5/10/2013 (unreported), the Supreme Court held that, in the absence of domestic legislation giving effect to the United Nations Convention on the Law of the Sea (“UNCLOS”), orders of the International Tribunal for the Law of the Sea were not binding on Ghana, notwithstanding Ghana’s international obligations. Similarly, in Chude Mba v Republic of Ghana (supra), where enforcement of an ECOWAS Community Court judgment was sought, the High Court confined its analysis strictly to the statutory regime, namely the Courts Act 1993, the High Court (Civil Procedure) Rules 2004, and the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument 1993, and concluded that enforcement was unavailable because the regime depends on reciprocity and presidential designation of the foreign court, which were absent. Notably, in both instances the courts did not consider the common law regime for the recognition or enforcement of foreign or international judgments, treating the issue as one governed exclusively by statute and constitutional principles of dualism.

A similar outcome was reached in a very recent case in Anudo Ochieng Anudo v Attorney General of the United Republic of Tanzania,  where the High Court of Tanzania declined to register and enforce a judgment of the African Court on Human and Peoples’ Rights, holding that such judgments fall outside the scope of Tanzania’s Reciprocal Enforcement of Foreign Judgments Act (Cap. 8 of the Laws of Tanzania, 2019). The court, inter alia, ruled that the Act applies only to judgments of foreign superior courts designated by ministerial notice and does not extend to international or regional courts established by treaty, including the African Court. Because the applicant anchored his claim exclusively on the Act and did not plead constitutional or international law as an independent basis for enforcement, the court held itself bound by the pleadings and precedent confirming that African Court judgments cannot be enforced under the statutory regime absent express legislative authorisation.

The decision of the Court of Appeal in CBN v Gegenheimer, with respect, is therefore a misnomer, as it lacks a solid legal foundation within Nigeria’s existing constitutional and statutory framework. Whether judgments of international courts ought to be enforceable in Nigeria is ultimately a question for the legislature. Until such laws are enacted, courts should be cautious about assuming powers they have not been granted.

 

4. Conclusion

It is clear that judgments of international courts are not enforceable in Nigeria in the absence of specific legal framework permitting their enforcement. The position is well illustrated by the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act 1967 and, more recently, the Arbitration and Mediation Act 2023, both of which demonstrate how Nigeria gives domestic effect to international obligations when it intends to do so.

The common law route is ill-suited to international court judgments. It was developed for judgments of foreign state courts and rests on assumptions of territorial jurisdiction and sovereignty that do not translate easily to treaty-based international courts. Extending it in this direction would leave courts to determine, without legislative guidance, which international judgments are enforceable and on what terms.

The decision in CBN v Gegenheimer is distinctive because it concerns the ECOWAS Court, a regional court whose jurisdiction Nigeria has accepted and whose role in access to justice is well recognised. Even so, acceptance of jurisdiction at the international level does not resolve the domestic enforcement question. Section 12 of the Constitution remains a barrier to direct enforcement in the absence of domestication. For that reason, the decision may yet face serious difficulty if the issue reaches the Supreme Court.

Beyond the ECOWAS context, it is difficult to see how judgments of other international courts could presently be enforced in Nigeria without similar legislative intervention. If international court judgments are to have domestic effect, the solution lies not in judicial improvisation, but in clear legislative action.

 

 

Written by Hadrien Pauchard (assistant researcher and doctoral student at Sciences Po Law School)

The fourth and last issue of the Revue Critique de droit international privé of 2025 has just been released. It contains four articles, eight case notes, and six book reviews. In line with the Revue Critique’s policy, the doctrinal part will soon be made available in English on the editor’s website (for registered users and institutions).

In the first article, Prof. Andrea Bonomi (Université de Lausanne) conducts an in-depth analysis of “Le droit suisse des successions internationales : heurs et malheurs de la récente réforme” (The Swiss law of international successions: the good and bad fortunes of the recent reform). Described by the author as a true “compromise” à la Suisse, the reform introduces original solutions, which are discussed as follows:

By a statute adopted on 23 December 2023 and entered into force on 1 January 2025, Switzerland has recently reformed its private international law rules in matters of international succession. Inspired by a highly commendable objective of harmonisation, this legislative revision will undoubtedly improve coordination between Swiss law and the European Succession Regulation. This objective is achieved both through a unilateral alignment of certain Swiss rules with those of the European Regulation and through a strengthening of the autonomy of the de cujus. Certain solutions are original and would deserve to be considered by the European legislator in the context of a future revision of the Regulation. However, during its legislative process, the initial draft encountered unforeseen resistance, which led, with regard to forced heirship, to a distinctly Swiss compromise that deprives the reform of part of its effectiveness and coherence.

In the second article, Prof. Gilles Cuniberti (University of Luxembourg) shares “Quelques réflexions sur la notion de juridiction en droit judiciaire européen” (Some thoughts on the concept of jurisdiction in European judicial rules). Surveying both European regulations and case law, the contribution provides a comprehensive overview of this important issue and suggests avenues for reflection to arrive at a consistent and effective approach. Its abstract reads as follows:

The dejudicialization of private law has led the European lawmaker to extend the benefits of European regulations on private international law to non-judicial authorities by broadly defining the concept of ‘court’ within the meaning of these texts. At the same time, the European Court of Justice has embarked on a process of restricting the same concept by excluding decisions rendered by judicial authorities not exercising judicial functions. This contribution examines the varied definitions adopted by the different regulations and questions the appropriateness of the direction taken by case law within the framework of the Succession Regulation. It concludes by proposing a return to a purely organic criterion for decisions rendered by judicial authorities.

In the third article, Dr. Melynda BouAoun (Université Saint-Joseph de Beyrouth & Université La Sagesse) reports on “La légitimation d’un enfant né hors mariage au Liban : une décision audacieuse marquant l’ouverture du système juridique libanais aux systèmes étrangers” (The legitimization of a child born out of wedlock in Lebanon: a bold decision marking the opening of the Lebanese legal system to foreign systems). The groundbreaking ruling gives the author an opportunity to share though-provoking observations on Lebanese family law regarding both jurisdiction and conflict of laws in a pluralist system. They are introduced as follows:

On March 13, 2025, the First Instance Court of Mount Lebanon, competent in matters of personal status and family law, delivered a remarkable decision by recognizing as legitimate a child born out of wedlock to a Lebanese couple belonging to two different religious communities, Shiite and Druze. This article aims to comment on this bold decision, which stands out at a time when issues of filiation — and personal status matters more broadly — continue, in principle, to fall within the jurisdiction of religious authorities in the Lebanese legal system.

The last article is authored by Dr. Emeric Prévost (Université de Kyushu, amongst other affiliations in France and Japan), commenting on “La loi applicable aux droits réels sur bitcoins. A propos d’une décision japonaise” (The law applicable to right in rem over bitcoins. About a Japanese decision). It offers a roadmap for navigating the complex issues raised by the private international regulation of blockchain, which could certainly inspire jurisdictions beyond the archipelago’s waters. The article’s abstract reads as follows:

The decision of 25 April 2024 of the Tokyo District Court is particularly significant in that it is the first to address, under Japanese private international law, the issue of the law applicable to proprietary rights over bitcoins. While a general principle of proximity appears to be affirmed, the judges also expressly refer to the lex situs rule in order to resolve the conflit mobile situation arising from the transfer of bitcoins from one legal system to another. In addition to implicitly recognising the movable nature of bitcoins, the judgment further emphasises the effective control that holders of the private key associated with a unique public address on the Bitcoin network can exercise over the corresponding crypto-assets. The Tokyo judges thus treat control of the private key both as a connecting factor for locating the disputed bitcoins and as an essential condition for property rights created under a foreign law to produce any effect within the Japanese legal order. Finally, the decision also highlights the difficulties in establishing a causal link between alleged breaches of an intermediary’s due diligence obligations and the violation of property rights over crypto- assets such as bitcoins. The decision therefore offers both valuable insights into the current state of the law and an outlook on possible future developments for the private international law of digital finance and crypto- assets.

Since 1957, the fourth issue of the Revue critique includes its annual Bibliographical Index that provides readers with the possibly most comprehensive list of publications in the various branches of private international law from the previous year. Thanks to contributions from Prof. Alejandra Blanquet (Université Paris-Est Créteil), Prof. Christine Budzikiewicz (Phillips-Universität Marburg), Prof. Béligh Elbalti (Osaka University), Prof. Pietro Franzina (Università Cattolica del Sacro Cuore), Prof. Louise Merrett (Cambridge), and Prof. Symeon Symeonides (Willamette University), the 2024 Bibliographic Index will soon be available on the publisher’s website. This multilingual Index includes a large general section devoted to private international law, a special section on international arbitration, and a section dedicated to case law panorama. For 2024, it features a particularly rich segment on Devoir de vigilance (Corporate Due Diligence), but also numerous references on the year’s hottest topics such as Election de for (Choice of court) or Filiation (Filiation).

The full table of contents is available here.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.

 

It is not uncommon for African and foreign scholars of private international law (PIL) to lament the current state of the field in Africa. Until the early years of the 21st century, PIL was widely regarded, often with little hesitation, as ‘a neglected and highly underdeveloped subject in Africa’.[i] Professor Forsyth famously described it as a ‘Cinderella subject, seldom studied and little understood’.[ii] This limited scholarly attention is reflected, for instance, in the treatment of African PIL in the Hague Academy courses, which include only 4 courses specifically devoted to PIL in Africa, the most recent of which dates back to 1993.[iii] Since then, a number of pleas for greater attention to PIL in Africa,[iv] as well as calls for enhanced cooperation with African countries to ensure better involvement and inclusiveness,[v] have been voiced.[vi]

The last fifteen years, however, have witnessed a noticeable increase in scholarly interest and institutional engagement with PIL in Africa. This is reflected first in the growing body of academic publications,[vii] and the emergence of initiatives aimed at articulating and strengthening an African perspective on the discipline. These include, among others, the publication of the African Principles on the Law Applicable to International Commercial Contracts, and the organization of a series of online workshops on ‘Private International Law in Africa’.

At the institutional level, since 2011, 6 African States have become Members of the HCCH, with Namibia and Rwanda joining respectively in 2021 and 2025, bringing the total number of African HCCH Member States to 9. The recent opening of a regional office for Africa in Morocco further underscores the growing institutional presence and engagement of the HCCH on the African continent.

More importantly, 33 years after the last Hague Academy Course devoted to PIL in Africa, the subject will once again be addressed within the framework of the Hague Academy. In the forthcoming Summer Courses, Prof. Richard Oppong will indeed deliver a course on the ‘Internationalism in Anglophone Africa’s Commercial Conflict of Laws’ This undoubtedly marks a significant milestone in the renewed visibility and recognition of PIL on the African continent.

There is, however, one aspect that remains relatively underemphasised: the rich and diverse, yet still understudied, body of African case law on PIL. This ‘hidden treasure’ demonstrates a simple, but often overlooked, fact: Africa is deeply connected to the rest of the world. From Chinese and Brazilian judgments being recognised in Mozambique, to Indonesian and Texan judgments being considered by courts in Uganda, or Canadian judgments sought to be enforced in Egypt; from Malawian courts applying the doctrine of forum non conveniens to many other remarkable decisions across the continent, African courts are actively engaging with transnational legal issues, including international jurisdiction and applicable law in employment contracts, the validity of foreign marriages, and cases of international child abduction. This case law also reveals the challenges faced by courts across the continent, which are often called upon to deal with complex issues using outdated or inadequate legal frameworks. Far from confirming the widespread perception of a stagnating field, judicial practice in Africa shows that important, and often fascinating, developments are taking place across the continent, developments that deserve far greater scholarly attention and engagement. Only through sustained scholarly engagement, by studying, commenting on, and comparing judicial approaches, and by highlighting shortcomings in existing legal frameworks and practices, can Africa develop a strong and distinctive voice in the field of PIL.

This is precisely the purpose of the present online symposium. Building on an established tradition of this blog, Conflictoflaws.net will host the second online symposium on African private international law.[viii] The main objective of the symposium is to shed light on selected aspects of recent developments in private international law in Africa. A number of scholars known for their active commitment to the development of private international law on the African continent have kindly agreed to comment on some of these cases or to share their views on what, in their opinion, best illustrates the diversity of private international law in Africa.

The symposium will run over the coming days and will feature contributions addressing a wide range of themes and African jurisdictions. These include the following:

1. Chukwuma Okoli (University of Birmingham) and Abubakri Yekini (University of Manchester, Uk), on the recognition and enforcement of international court judgments in Nigeria
2. Béligh Elbalti (The University of Osaka, Japan), on the enforcement of a Chinese judgment in Mozambique
3. Boris Awa (Kigali Independent University, Rwanda), on the recognition and enforcement of foreign judgments in the CEMAC region
4. Solomon Okorley (University of Johannesburg, South Africa), on the application of the 1980 HCCH Convention in South Africa
5. Anam Abdul-Majid (Advocate and Head of Corporate and Commercial Department, KSM Advocates, Nairobi, Kenya), on international jurisdiction in employment contracts in Kenya
6. Theophilus Edwin Coleman (University at Buffalo School of Law, New York), on proof of foreign law and fragility of foreign marriages in Ghanian courts
7. Elisa Rinaldi (University of Pretoria, South Africa), on Cross-border employment, contract and delictual liability merge in the South Africa

As aptly pointed out by Professor Oppong, ‘there is a need for greater international engagement with African perspectives on [PIL]. There is also a need to attract more people to researching and writing on the subject in Africa.’[ix] In line with these observations, we likewise hope that this initiative ‘will contribute to both greater international engagement with, and increased participation in, private international law in Africa’.[x] Therefore, we encourage readers, in Africa and elsewhere, to actively engage with this initiative by sharing their views or by highlighting other developments of which they are aware. We also hope that this initiative will encourage researchers in Africa and beyond to make fuller use of the available resources and case law, and to comment on them, whether in the form of blog posts or scholarly contributions in academic journals.

This platform remains open and welcoming to such contributions.

 

Béligh Elbalti & Chukwuma S.A. Okoli

 

——————————————

[i] Richard F. Oppong, ‘Private International Law in Africa: The Past, Present, and Future’ 55 AJCL (2007) 678.

[ii] Christophe F. Forsyth, Private International Law – The Modern Roman-Dutch Law including the Jurisdiction of the High Courts (5th ed., Juta, 2012) 46-47.

[iii] Abd-El-Kader Boye, ‘Le statut personnel dans le droit international privé des pays africains au sud du Sahara: conceptions et solutions des conflits de lois: le poids de la tradition négro-africaine personnaliste’, 238 Recueil des Cours  (1993) ; U U. Uche, ‘Conflict of Laws in a Multi-Ethnic Setting: Lessons from Anglophone Africa’, 228 Recueil des Cours (1991) ; Salah El Dine Tarazi, La solution des problèmes de statut personnel dans le droit des pays arabes et africains 159 Recueil des Cours (1978) ; and Ph. Francescakis, ‘Problèmes de droit international privé de l’Afrique noire indépendante’, 112 Recueil des Cours (1964).

[iv] Richard F. Oppong, ‘Private International Law and the African Economic Community: A Plea for Greater Attention’ 55 ICLQ (2006) 911.

[v] Richard F. Oppong, ‘The Hague Conference and the Development of Private International Law in Africa: A Plea for Cooperation’ 8 YPIL (2006) 189.

[vi] Orji Agwu Uka, ‘A call for the wider study of Private International Law in Africa: A Review of Private International Law In Nigeria’, on this blog; Chukwuma Okoli, ‘Private International Law in Africa: A Comparative Lessons’, on this blog.

[vii] Jan Neels, ‘List of Publications on South African Private International Law as from 2020’, on this blog; Chukwuma Okoli, ‘Private International Law in Africa: A Comparative Lessons’, on this blog.

[viii] The first online symposium organized on this blog was devoted to Private international law in Nigeria. The symposium features interesting contributions by Chukwuma S. A. Okoli and Richard Oppong, Anthony Kennedy,Richard M. Mlambe, Abubakri Yekini and Orji Agwu Uka.

[ix] Richard F. Oppong, ‘Private International Law Scholarship in Africa (1884-2009)’ 58 AJCL (2010) 326.

[x] Oppong, Ibid.

Posted on behalf of Jason Mitchell, barrister at Maitland Chambers in London and at Group 621 in Johannesburg.

An Australian, Hannon, wants to book a Southern African safari with his partner, Murti, as a surprise birthday gift. He sees one he likes on an Australian travel website. Hannon fills in the online form.

It turns out that the website is just the agent for a South African company, Drifters Adventours. Drifters emailed Hannon the price and payment details. Attached to the email is a brochure. The brochure says, “Drifters do not accept responsibility for any loss, injury, damage, accident, fatality, delay or inconvenience experienced while on tour.” The brochure also says, “You will be required to complete and sign a full indemnity prior to your tour departure.”

Fast forward a few months, and Hannon and Murti arrive in Cape Town. At some point, Hannon signs an indemnity (for himself and, purportedly, on Murti’s behalf too). Murti is none the wiser. The indemnity excludes Drifters’s liability for everything and anything. It also states, “This contract between Drifters and the client will be deemed to be the only contract between Drifters and the client The place and conclusion of contract will always be taken as South Africa, and any disputes, claims, or actions brought against Drifters can only be made under South African jurisdiction, and the parties agree to submit to the non-exclusive jurisdiction of the South African Courts.”

Hannon and Murti, and a few others in the tour group, take their seats on the converted Toyota safari truck. After a few days along South Africa’s west coast, they reach Namibia. A few days later, they arrive in Botswana. One day, while in Botswana, Murti got out of her seat to fetch something from a locker at the back of the truck (the brochure said she could). Murti tripped and fell against a window. The window fell from its frame. Murti hit the road.

Murti sued Drifters in Johannesburg. Drifters pointed to the exclusion of liability in the first disclaimer in the brochure and in the second disclaimer that Hannon signed. The High Court found for Murti, holding that the first disclaimer was too vague (even if it were binding on Murti) and that Hannon did not have actual or ostensible authority to bind Murti to the second disclaimer. The Supreme Court of Appeal dismissed an appeal. The Court agreed with the High Court’s findings that there was no evidence that Murti agreed to the first disclaimer and that Hannon did not have authority to bind Murti to the second disclaimer. The Court also held that Drifters did not adequately draw the disclaimers to Murti’s attention in the way that s.49 of the Consumer Protection Act requires.

So far so good. But why does South African law apply? The Court doesn’t say. It can’t be because of the dispute resolution clause in the second disclaimer: after all, the court just found that the disclaimer does not bind Murti (and besides, there is no choice of South African law in what is a largely incoherent clause). This is a(nother) regrettable oversight. It is by no means obvious that South African law applies. The delict likely occurred in Botswana (Murti alleged that negligent driving caused her injuries, though she also alleged a negligent failure to maintain the truck and a negligent failure to warn). Just last year, the Supreme Court of Appeal confirmed that “[t]he law applicable to a delict shall be the lex loci delicti, but the lex loci delicti may be displaced in favour of the law of the country with a manifestly closer, significant relationship to the occurrence and the parties” (then-Acting Justice Koen, who wrote this judgment, signed onto that judgment).

If the accident happened in Botswana, then, as a starting point, Botswana law should apply. Although Drifters is a South African company and the tour began and ended in South Africa, it is not evident that South Africa has a manifestly closer, significant relationship to the accident and the parties involved. These are the only factors that point towards South Africa.

The closest the Court comes to a conflict of laws analysis is its conclusion (and it’s just that: a conclusion) that the (South African) Consumer Protection Act applies because, under s.5(1), the Act applies to “every transaction occurring within the Republic”. It is, of course, possible for the forum to apply its own statute to override an otherwise applicable law (or overriding mandatory provisions, in the Rome language). But, as I have argued elsewhere, much more is needed than Parliament simply saying, ‘This Act applies to anything that happens in the Republic’: see To override, and when? A comparative evaluation of the doctrine of mandatory rules in South African private international law is found in the 2013 SALJ 757, where a better example is section 47 of the Electronic Communications and Transactions Act, which states that “the protection provided to consumers … applies irrespective of the legal system applicable to the agreement in question.” Like before, maybe the Court would have gotten to the same answer with a copy of Forsyth’s Private International Law close by (that is, a careful conflicts analysis could point to South African law anyway, or Botswana law could be the same, or the Court could have applied the Consumer Protection Act as a mandatory rule). But that’s not really the point. When litigation involves foreign elements—Australians on holiday, a South African tour guide, a car crash in Botswana—courts should be alive to the possibility that another law governs.

The recently published Part 4 of the Juridical Review for 2025 contains articles based on the International Perspectives on Scots Law seminar series held at the University of Stirling during 2023/2024. Some of these articles will be of interest to private international law aficionados:

‘The Pre-enactment Legislative Review Process in Scotland’ by Robert Brett Taylor and Adelyn L.M. Wilson (University of Strathclyde);

‘Taking the Transnational Nature of the UK Competition Appeal Tribunal Seriously: A Private International Law Perspective’ by Mihail Danov (University of Exeter);

‘The Evolution of Business and Human Rights Litigation against Multinational Companies’ by Mukarrum Ahmed (University of Lancaster);

‘Parties’ Intention and the Future Internationalisation of Scottish Arbitration – A Review of Scottish cases post 2010′ by Hong-Lin Yu (University of Stirling);

‘The Art of Persuasion: Embracing the Auld enemy and Beyond’ by Dr Mo Egan (University of Stirling).

The following information was kindly shared with us by the editors of the JLMI.

The Journal of Law, Market & Innovation (JLMI) welcomes submissions for its third issue of 2025.

The Call for Papers for this 3rd issue is devoted to Digital markets, consumer autonomy and consumer welfare.

You can find the call with all the details at the following link:

Digital markets, consumer autonomy and consumer welfare

Prospective articles should be submitted in the form of abstract (around 800 words) or draft articles to submissions.jlmi@iuse.it within 25 february 2026. The publication of the issue is set for the end of November 2026.

For further information, or for consultation on a potential submission, you can contact us by email at editors.jlmi@iuse.it.

Visit our website to read the full announcement.

The following information was kindly shared with us by De Gryuter Brill.

The Hague Academy is a renowned international institution dedicated to the study and teaching of public and private international law. Supported and recognized by the United Nations, the Academy aims to foster rigorous and impartial analysis of legal issues arising from international relations. Its courses address both theoretical and practical dimensions of international law, including legislation and case law. In principle, all courses are published in the Collected Courses of The Hague Academy of International Law in the language in which they were originally delivered. The courses on private international law that were published in 2025 are:

• Volume 451: Garcimartin, F.: Responses to a Legally Fragmented World: A Private Law Perspective (General Course of Private International Law)
• Volume 449: Esplugues, C.: New Dimensions in the Application of Foreign Law by Courts (and Arbitrators) and Non-Judicial Authorities
• Volume 446: Dickinson, A.: Natural Justice in Recognition and Enforcement of Foreign Judgments
• Volume 446: McLachlan, C.: On the Interface Between Public and Private International Law (General Course on International Law)
• Volume 445: Rodríguez Benot, A.: Le régime économique des couples en droit international privé

For a full listing, including the courses on public international law and international arbitration, please visit The Hague Academy Collected Courses Online / Recueil des cours de l’Académie de La Haye en ligne.

On Tuesday, February 3, 2026, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST). Stellina Jolly (South Asian University) will speak, in English, about the topic

“Forging a Path for Climate Justice: Integrating Public and Private International Law in Transboundary Litigation in India”

Cross-border climate litigation, gaining traction globally, requires active engagement with private international law for effective dispute adjudication. Although Indian climate jurisprudence has not yet substantively addressed cross-border disputes, emerging trends suggest that this scenario may soon evolve. The talk analyses three plausible litigation scenarios involving Indian and foreign parties to assess the readiness of Indian private international law in addressing transboundary climate harm. Firstly, Indian plaintiffs filing cases in foreign jurisdictions against transnational corporations headquartered abroad, alleging climate-related harm caused within India; secondly, foreign plaintiffs filing cases before Indian courts for the harm caused by Indian transnational corporations in their jurisdictions; thirdly, foreign plaintiffs filing cases before Indian courts for the transboundary harm caused by Indian companies as a result of their Greenhouse gas (GHG) emissions. The talk evaluates the adequacy of Indian private international law in addressing cross-border climate cases and proposes incorporating environmental and human rights considerations in the determination of choice of law.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

A new collective volume entitled “La circolazione dello statuto personale / La circulation du statut personnel” has recently been published by Pacini Giuridica. Edited by Gustavo Cerqueira (Nice), Nicolas Nord (Strasbourg) and Claudio Scognamiglio (Rome), the book brings together the proceedings of an international conference held on 19 January 2024 in Rome, in the prestigious Giallombardo Hall of the Italian Court of Cassation.

The conference and the resulting volume stem from a joint initiative supported by several leading institutions in the fields of private law, comparative law and private international law: the Société de législation comparée (Comparative Methodology of Civil Law Section), the Associazione Civilisti Italiani and the International Commission on Civil Status (CIEC), with the support of the of the Italian Court of Cassation and the Faculty of Law and Political Science of Nice.

The volume addresses the circulation of personal status in a broad sense, at a time when increasing mobility of persons, the continuous renewal of issues relating to personal status, and sustained legislative and judicial activity across jurisdictions make this topic more relevant than ever. Rather than focusing on a single issue, the contributors adopt a comprehensive approach encompassing civil status in cross-border situations, personal identification, family relationships, filiation, and nationality. Taken together, these areas reflect the contemporary legal conception of the person, shaped by complex family ties and by the dynamics of cross-border recognition.

With contributions from scholars and practitioners from France, Italie and Switzerland, the book offers a genuinely civil, international and comparative perspective. Its bilingual Italian-French format further enhances its accessibility and comparative value for a European private international law readership. The richness of the discussions reproduced in the volume confirms the relevance of the chosen approach and makes a significant contribution to ongoing scholarly debates on the circulation of personal status.

Further information on the book is available on the publisher’s website. 

 

English translation of fate Table of Contents:

 

Preface
Foreword Introduction
Nicolas Nord, The Circulation of Personal Status: Introductory Report

Civil Status and Cross-Border Situations

Gustavo Cerqueira, Civil Status and Borders
Francesco Salerno, The Paradigm of Substantive Values in the Extraterritorial Relevance of Personal Status
Marion Ho-Dac, Personal Status and International Cooperation: Attraction, Diversity and Obstacles

Identification of the Person

Giovanni Di Rosa, Identification of the Person: The Circulation of Surnames
Fernanda Munschy, The Cross-Border Circulation of Modified Gender Identity: From Attribution to Free Choice
Francesca Bartolini, The Circulation of a Person’s Sex: Attribution, Rectification and Autonomy

Union of Persons

Lukas Heckendorn Urscheler, The Circulation of Registered Partnerships: Tensions between Terminological Unity and Conceptual Diversity
Alessandra Spangaro, The Circulation of Registered Unions: Between Terminological Unity and Conceptual Diversity
Enrico Al Mureden, Same-Sex Marriage and Its Circulation: Between the Rights of the Couple, the Protection of the Child and the Prohibition of Surrogacy
Ilaria Pretelli and Renzo Calvigioni, Unions Celebrated Abroad: Certificates of Capacity and the Opportunities Offered by the New CIEC Convention No. 35

Filiation

Gordon Choisel, Filiation Based on Parenthood, or the Reversal of French International Public Policy
Mirzia Bianca, The Proliferation of Models of Parenthood: Reflections on De Facto Parenthood
Sylvain Bollée, Surrogacy: Spontaneous Circulation and Imposed Circulation
Roberto Senigaglia, The Circulation of Filiation Status Arising from Surrogacy Practices Established in EU and Non-EU States: The Case for a Differentiated Approach

Nationality

Hugues Fulchiron, Nationality and the Circulation of Personal Status: The Multiplication of Contemporary Issues
Sabine Corneloup, Evidentiary Difficulties and Obstacles to the Circulation of Status in Matters of Nationality

Conclusions
Liliana Rossi Carleo, The Circulation of Personal Status: Concluding Remarks

 

The latest issue of the Dutch Journal on Private International Law (NIPR) has been published. It contains the following contributions.

NIPR 2025, Issue 3

 

Editorial

Mathijs ten Wolde / p. 421

 

Articles

Steven Stuij, De positie van art. 10:2 BW in het Nederlands burgerlijk procesrecht / p. 423-444

Abstract

Article 10:2 of the Dutch Civil Code stipulates that the rules of private international law as well as the applicable law designated by those rules are to be applied ex officio. There has been a debate as to the positioning of this provision in relation to other rules of civil procedure on party autonomy as a result of two cases of the Dutch Supreme Court (‘Hoge Raad’). This contribution will address this problem and discuss different views on the issue of the interaction between Article 10:2 of the Dutch Civil Code and certain provisions of the law of civil procedure.

Jeroen van Hezewijk en Cathalijne van der Plas, De logica van Lindeteves; zijn de regels over internationaal derdenbeslag wel adequaat? / p. 445-470

Abstract

Receivables and other debts owed to a party (e.g., wages, bank balances, etc.) are part of that party’s assets. As such, other parties may seek to have recourse to those assets in the context of (pre- or post-) judgment enforcement efforts. In an international context, this presents various legal challenges. This article investigates these challenges by mapping out which (private and public law) interests are at stake when considering the attachment or garnishment of receivables/debts in an international context. It then reviews the Dutch doctrine and case law, in particular the leading 1954 Supreme Court precedent Lindeteves/Meilink. It assesses whether the Dutch legal rules adequately address the interests that they purport to protect. The authors conclude that public international law concerns that are sometimes voiced, in particular the so-called ‘principle of territoriality’, do not substantially restrict the Dutch practice of allowing attachments of and enforcement against (certain) international receivables/debts. The interest of protecting the third-party debtors (i.e., the debtors under the debt that is to be attached) against unfair prejudice (in particular the risk that they might be forced to pay twice: once to the judgment creditor and once to their original creditor, the judgment debtor) is not necessarily optimally served by the Dutch practice. The authors conclude that the Dutch practice is, in some respects, over-protecting and, in other respects, under-protecting the third party. Therefore, certain aspects of the current Dutch framework could be tweaked or reconsidered.

Case notes

Bryan Verheul, In de spiegel van artikel 24 Brussel Ibis? Over de exclusieve bevoegdheidsgronden onder Brussel Ibis in derdelandssituaties na BSH Hausgeräte/Electrolux (C-339/22) / p. 471-486

Abstract

In BSH Hausgerate, the Court of Justice of the European Union (‘CJEU’) was asked to rule on the relationship between Article 24(4) and Article 4(1) Brussels Ibis in the context of infringement proceedings concerning a patent registered in several EU Member States and in Turkey (a third State). While the judgment has far-reaching implications for intellectual property practice, this case note focuses mainly on the issues arising from the fact that the patent in dispute is (also) registered in Turkey. In his Opinion, the Advocate General seised upon this scenario to question the territorial scope of Brussels Ibis’ jurisdictional scheme in relation to third States. He proposed attributing so-called ‘reflexive effect’ to Article 24 as a means of filling what he described as a ‘gap’ in the Regulation’s territorial scope vis-a-vis third States. While adopting a different approach, the CJEU nonetheless advanced the debate by clarifying the territorial scope of the jurisdictional rules in a third State context. It held that – although not at issue in the present case – jurisdiction under Article 4(1) may be limited by the public international law principle of non-interference. In doing so, the CJEU distinguished between proceedings in a Member State resulting in inter partes decisions and those producing erga omnes effects. The CJEU’s reasoning seems capable of extending to other matters covered by Article 24, yet the broader discussion on the relationship between territorial scope and third States is far from concluded.

Ekaterina Pannebakker, Internationale rechtsmacht bij een vordering uit een pactum de contrahendo, Hof van Justitie EU 15 juni 2022, C-393/22, NJ 2023/335, NIPR 2023/747 (EXTÉRIA) / p. 487-500

Abstract

Which courts have jurisdiction over claims for breach of a pre-contractual agreement? This question was addressed by the Court of Justice of the European Union in C-393/22 (EXTERIA). In contrast to an earlier decision, Tacconi, in which the Court dealt with non-contractual liability in tort for breaking off negotiations, EXTERIA concerns liability in matters relating to a contract, namely, a claim for performance of a pre-contractual agreement. Such pre-contractual agreements are frequently used in commercial practice. Examples include letters of intent, memoranda of understanding, and heads of terms. In EXTERIA, the Court of Justice develops the existing private international law framework relating to obligations arising from such pre-contractual commitments.

 

By Luisa Cassar Pullicino and Krista Refalo, Ganado Advocates

In the preliminary reference Case C-77/24 Wunner (the Titanium Brace case), the CJEU was asked to determine whether a damages claim brought by a consumer directly against company directors for losses suffered from unlicensed online gambling fell within the scope of the Rome II Regulation (Regulation (EC) No 864/2007), or whether it was excluded under Article 1(2)(d) as a “non-contractual obligation arising out of the law of companies”.

The practical stakes were considerable. If Rome II applied, Article 4(1) would designate the law of the place where the damage occurred — which, for online gambling losses, would normally be the habitual residence of the consumer. If excluded, the applicable law would instead be determined by national conflict-of-laws rules, typically, the lex societatis.

1. Facts and Reference

The case arose from losses suffered by an Austrian consumer who participated in online games of chance offered by Titanium Brace Marketing Limited, a Maltese-registered online gambling company that did not hold a licence under Austrian gambling law. Following the company’s insolvency, the consumer brought an action for damages directly against two former directors, alleging that they were personally liable for having allowed or caused the unlicensed offering of gambling services in Austria.

The Austrian Supreme Court referred questions to the CJEU concerning: first, whether such a claim is excluded from the scope of Rome II under Article 1(2)(d); and secondly, if Rome II applies, how the applicable law should be determined.

2. The Court’s Reasoning: A Functional Interpretation of Article 1(2)(d)

2.1 Structural vs Functional approach

The Court reaffirmed that the exclusion in Article 1(2)(d) is not confined to ‘structural aspects’ of companies, but must be interpreted functionally, by reference to the nature of the obligation giving rise to liability. Drawing on its earlier case law, including BMA Nederland, the Court held that the decisive question is whether the non-contractual obligation arises from reasons specific to company law or external to it.

Where a director’s liability flows from obligations “incumbent on them owing to the creation of the company or to their appointment and linked to the management, operation or organisation of the company”, it is considered a company law matter, and is excluded from Rome II.

By contrast, where liability arises from the breach of an obligation external to the company’s affairs, the exclusion does not apply.

2.2 Application to unlicensed online gambling

Applying that test, the CJEU held that Article 1(2)(d) does not cover actions seeking to establish the tortious liability of company directors for breaches of national prohibitions on offering games of chances to the public without the requisite license. The Court reasoned that the directors’ alleged liability did not arise from company law. The claim was based on an alleged infringement of a general statutory prohibition under Austrian gambling law, applicable to ‘any person’ offering games of chance without a licence. As such, the action did not concern the internal relationship between the company and its directors, but the breach of a regulatory norm protecting the public.

The consequence was that the action fell within the scope of Rome II, with the applicable law determined in accordance with Article 4.

3. The Consequence: Consumer Habitual Residence as the Applicable Law

The consequence of the ruling is significant. In online gambling cases, the “place where the damage occurs” will often coincide with the habitual residence of the consumer, since that is where participation in the gambling activity takes place and where the financial loss is suffered.

As a result, any action for damages brought directly against a director will, in principle, be governed by the law of the consumer’s residence, regardless of where the company is incorporated, where the directors reside, or where the relevant management decisions were taken.

Following the preliminary ruling, the case will now be remitted to the Austrian court which is responsible for applying the CJEU’s guidance and determining whether the directors actually incur liability under applicable Austrian law.

4. Analysis

4.1 A Tense Separation of Office and Obligation

The Court’s distinction between obligations “specific to company law” and obligations “external” to it may be potentially difficult to sustain in this context.

A director’s decision to offer online gambling services in a Member State without holding the requisite licence is not a general act performed erga omnes. It is a paradigmatic management decision, taken precisely because the individual holds the office of director and exercises control over the company’s commercial strategy. The duty to ensure regulatory compliance in market entry is closely bound up with corporate governance and risk allocation, particularly in highly regulated sectors such as gambling.

The Court relies on the fact that the prohibition is framed as a general rule applicable to “any person”. However, in practice, only those directing the activities of the undertaking are capable of infringing the prohibition in the manner alleged.

4.2 The generic ‘duty of care’ analogy

The Court relies heavily on the distinction drawn in earlier case law between:

• a specific duty of care owed by directors to the company (company law), and
• a generic duty of care erga omnes (tort law).

However, this analogy sits uneasily with regulatory breaches in highly regulated sectors such as gambling. Unlike ordinary negligence, compliance with licensing regimes is inseparable from corporate governance. Treating such obligations as “external” significantly limits the operation of Article 1(2)(d) in regulated industries.

5. Consumer Protection Without a Consumer Contract?

The ruling confirms the applicability of Rome II while, in substance, applying the consumer-protective logic of Article 6 of the Rome I applicable to contractual obligations:

51. In the present case, those requirements militate also in favour of designating the place where the player is habitually resident as the place where the alleged damage occurred…

The CJEU justifies the approach as analogous to the determination of the ‘place where the harmful event occurred or may occur’ in Article 7(2) of Regulation No 1215/2012 for the purposes of jurisdiction. However, this approach may risk encroaching on the distinction between contract and tort that has traditionally been treated as structurally decisive in EU private international law.

There are several preliminary rulings delineating the parameters of the ‘place where the damage occurred’ for the purposes of Article 4(1) of Rome II, and yet the CJEU saw fit to propose a specific sub-connecting factor within the umbrella of Article 4(1), for claims brought by the players of games offered by gambling companies. The sub-connecting factor identified essentially reproduces the one in Article 6 of Rome I for consumer claims in contract: the habitual residence of the consumer.

The outcome may be defensible from a consumer-protection perspective, but it raises questions of doctrinal coherence and legal certainty. Once the Court characterises the claim as non-contractual, the consequences of that classification should follow. Consumer protection under Article 6 Rome I is not triggered by consumer status alone, but by participation in a consumer contract meeting specific conditions. Its rationale – derogation from general connecting factors in favour of the consumer’s habitual residence – is inseparable from the existence of a contractual relationship with a professional acting in the course of its business. Rome II, by contrast, contains no equivalent consumer-specific rule, suggesting a deliberate legislative choice not to extend such protection to non-contractual obligations. Applying that logic here might have prompted closer engagement with the reliance on a conflict rule whose rationale depends on the existence of a contract in the absence of one.

6. Veil-Piercing Through Conflict-of-Laws

While the Court insists that the imputation of liability is a matter for the applicable tort law rather than the lex societatis, the choice-of-law outcome itself has unmistakable substantive consequences.

By designating the consumer’s habitual residence as the applicable law, the Court enables claimants to:

• bypass the insolvent company,
• sue directors personally, and
• subject them to a foreign legal system with which their corporate conduct may have only an indirect connection.

This functionally might be compared to a form of veil-piercing, where the corporate shield of separate juridical personality is not pierced by substantive company law doctrines, but by re-characterising managerial conduct as ‘external’ to company law for the purposes of Rome II. The result may be an expansion of directors’ personal exposure as a by-product of the determination of applicable law.

7. Conclusion

The judgment in Wunner undoubtedly strengthens consumer protection and curtails the avoidance of host-state gambling controls through cross-border structuring. Yet it does so by drawing a distinction that is debatable. Do directors decide whether the company should hold a licence as private individuals, or as corporate officers?

Treating these decisions as external to company law risks blurring the boundary between corporate responsibility and personal liability, and in doing so, transforms Rome II from a neutral conflict-of-laws instrument into a powerful substantive lever. Whether this functional carve-out can be confined to gambling cases, or will spill over into other regulated sectors, remains an open and important question.

Directors of gaming companies should therefore carefully assess their personal and corporate risk profile when deciding which jurisdictions to offer online games in, as jurisdictional and applicable law rules may result in implications well beyond traditional frameworks.

Just 10 days left to participate in the public consultation on the Draft Text of a possible new HCCH convention on parallel proceedings and related actions!

The public consultation, launched on 18 November 2025, will close on 26 January 2026 at 9.00 a.m. CET. Experts, practitioners and judges from diverse legal traditions with experience in cross-border litigation and private international law more broadly are encouraged to participate in the consultation.

In 2021, the HCCH established a Working Group on matters related to jurisdiction in transnational civil or commercial litigation (WG), comprised of over 60 subject-matter experts from across the globe. The WG, after nine meetings, has developed a Draft Text containing provisions aimed at addressing parallel proceedings and related actions taking place in multiple States, acknowledging the primary roles of both jurisdictional rules and the doctrine of forum non conveniens. The objective of this future instrument would be to enhance legal certainty, predictability, and access to justice by reducing litigation costs and mitigating inconsistent judgments in transnational litigation in civil or commercial matters.

The public consultation seeks feedback on whether the Draft Text would, in practice, assist in addressing such matters and how the provisions in the Draft Text could be improved. The consultation is supported by a Consultation Paper comprising an Executive Summary, a detailed explanation of the key provisions and the operation of the Draft Text, and specific questions.

Responses received from this consultation will be submitted to all HCCH Members for consideration in advance of the next meeting of the Council on General Affairs and Policy (CGAP), the governing body of the HCCH, in March 2026, at which the Members of the HCCH will decide on the next steps for the project.

For more information on the public consultation, please visit: https://www.hcch.net/en/projects/legislative-projects/jurisdiction/public-consultation

 

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

One of the requirements for issue estoppel is identity of issue. However, the process of ‘refining down’ or ‘salami-slicing’[1] is not always clear. The argument that the issue is different because the two courts would arrive at different conclusions on the governing law is increasingly being utilised as a litigation strategy. If the first court applied its choice of law rules to determine that the governing law of the claim is Utopian law, would an issue estoppel arise over this decision in the second court if under the second court’s choice of law rules, Ruritanian law is the governing law? The answer depends on whether the ‘slice’ is thick or thin. Is the relevant issue ‘What law governs the dispute or issue?’ or ‘What law is identified by our (forum) choice of law rules to govern the dispute or issue?’

For example, there is considerable difference in tort choice of law rules. Some jurisdictions apply the double actionability rule.[2] Most jurisdictions adopt the lex loci deliciti or lex loci damni rule,[3] with differences on how the relevant locus is identified and whether a flexible exception in favour of the law of closer connection is present. Party autonomy is also permitted in certain jurisdictions.[4] Thus, in tort claims, the issue could be framed in different ways: eg, ‘what is/are the law(s) governing the tort?’, ‘what is the lex loci delicti?’, ‘where in substance did the tort arise?’, or ‘where was direct damage suffered’? It will be obvious that only the first, broad, framing of the issue, or, in other words, a ‘thick’ slice, will result in there being identity of issue. In essence, the question is: does a difference in choice of law rules matter for issue estoppel purposes?

The Hong Kong Court of Final Appeal in First Laser v Fujian Enterprises (Holdings) Co Ltd[5] took the view that an issue estoppel can arise over a foreign decision on the governing law of the dispute. However, there is a suggestion in the Singaporean Court of Appeal decision of Gonzola Gil White v Oro Negro Drilling Pte Ltd that a difference in the two laws is relevant.[6] Arguably, the Court’s views were limited to the specific situation where the Singaporean court as the second court would have arrived at Singaporean law after application of Singaporean choice of law rules. This is because the Singaporean court views it as part of its constitutional responsibilities to safeguard the application of Singaporean law.[7]  If this is correct, it is doubtful that the same approach would be adopted by at least the English courts, as English courts are prepared accord preclusive effect to a judgment of a foreign court even where that foreign court had made an error on English law in its judgment.[8]

The English Court of Appeal in Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2)[9] held that no issue estoppel will arise over a question involving forum international public policy. This is entirely explicable as each country’s public policy differs. It has also been suggested that no estoppel arises over an issue which is subject to a forum overriding mandatory rule.[10] Decisions on sensitive matters which give rise to comity considerations should also be excluded.[11]

The question is whether decisions on the governing law merit the same treatment. It is argued that for most private law claims, a foreign decision on the governing law of the dispute or on a specific issue in the claim is generally capable to giving rise to an issue estoppel. A contrary conclusion would disregard the policies underlying estoppel and allow forum shopping. However, some choice of law categories – eg, choice of law for consumer contracts or employment contracts, or for environmental torts – are underpinned by public policy considerations. For these special choice of law categories, it is suggested that the forum court retains the prerogative to decide on the issue of the governing law for itself, despite a prior foreign decision on the same point. In other words, a narrow ‘slice’ is appropriate.

The same broad-narrow question arises in other contexts. It could arise in the jurisdictional context: would the first court’s decision on the applicability of the personal equities exception for the Mocambique rule give rise to an estoppel in subsequent proceedings in a different court? What about a decision on which court is forum (non) conveniens? How about arbitration, where the balance of competing considerations may lie differently compared to international litigation? For example, should an issue estoppel arise over a foreign decision on subject-matter arbitrability?[12] Is it relevant if the first court decided this issue at the pre-award stage or at the post-award stage pursuant to proceedings to enforce an arbitral award? Does it matter if the first court is the court of the seat?[13]

These, and other questions, are considered in the open access article Adeline Chong, ‘Salami-Slicing’ and Issue Estoppel: Foreign Decisions on the Governing Law’, International and Comparative Law Quarterly (FirstView).

 

[1] Desert Sun Loan v Hill [1996] 2 All ER 847, 859 (Evans LJ).

[2] Eg, Singapore: Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377 (Singapore

CA); Hong Kong: Xiamen Xinjingdi Group Co Ltd v Eton Properties Ltd [2020] 6 HKC 451; Japan: Act on General Rules for Application of Laws (Act No 78 of 2006), art 22.

[3] Eg, Rome II Reg, art 4(1).

[4] Eg Rome II Reg, art 14; Swiss Federal Code on Private International Law, art 132.

[5] [2013] 2 HKC 459 (HKCFA).

[6] [2024] 1 SLR 307 [87] (Singapore CA).

[7] Ibid [78]-[79].

[8] Good Challenger Navegante SA v MetalExportImport SA, (The “Good Challenger”) [2003] EWCA Civ 1668, [54]–[55]. See also Godard v Grey (1870) LR 6 QB 139.

[9] [2012] EWCA Civ 855.

[10] Merck Sharp & Dohme Corp v Merck KGaA [2021] 1 SLR 1102 [55] (Singapore CA).

[11] See the reference to ‘matters of high policy’ in Yukos [2012] EWCA Civ 855 [151].

[12] Diag Human SE v Czech Republic [2014] EWHC 1639 (Comm) [58].

[13] See The Republic of India v Deutsche Telekom AG [2024] 1 SLR 56 (Singapore CA).

The 19th World Conference of the International Society of Family Law (ISFL) will take place in Istanbul, Türkiye, from 9 to 12 September 2026. The conference will be hosted by Pîrî Reis University at its Marine Campus in Tuzla, offering a distinctive coastal setting for this major event.

The theme of the conference is “Family Law & Vulnerability.”

The conference will explore how family law engages with different forms of vulnerability across diverse legal systems and social contexts. Contributions addressing the theme from comparative, interdisciplinary, theoretical or practice-oriented perspectives are welcomed.

The deadline for abstract submission has been extended to 20 February 2026. Abstracts may be submitted for paper presentations (including jointly authored papers) as well as for organized panels. Detailed submission guidelines are available on the conference website.

Conference registration will open in late February 2026. Registration fees for participation in the scientific program are as follows:

• ISFL members: €400 (early bird) / €450 (regular)
• Non-members: €500 (early bird) / €550 (regular)
• Participants from low-income countries: €250 (early bird) / €300 (regular)

The early bird rates will apply until 1 May 2026. Registration fees cover access to the scientific sessions of the conference; social events will be subject to separate registration and fees.

The conference venue, Tuzla, is located on the Asian side of Istanbul and is conveniently close to Sabiha Gökçen International Airport, which serves numerous international and domestic flights. Tuzla is well connected to other parts of the city by public transport.

A list of recommended hotels on the Asian side of Istanbul will be published on the conference website in due course, providing a range of accommodation options with convenient access to the venue by public transport.

Further information on registration procedures, accommodation and the conference program will be made available on the official conference website: www.isfl2026.org.

Giacomo Marola’s International Jurisdiction over Infringements of Personality Rights in EU Private International Law (2025 Wolters Kluwer) addresses a deceptively simple but persistently debated question: where should a claimant be entitled to sue when reputation, privacy, or personal data are infringed across borders? As the book makes clear from the outset, this question lies at the intersection of private international law, fundamental rights, and the realities of online communication. Personality rights disputes are structurally conflictual, typically opposing the protection of moral integrity to freedom of expression, while the Internet continues to strain jurisdictional rules built around territorial connecting factors. Against this backdrop, the book offers a timely and systematic assessment of the EU framework.

Chapter I constitutes the analytical core of the work. It provides a detailed examination of Article 7(2) of the Brussels I-bis Regulation and the Court of Justice’s case law on the ‘place of the harmful event’ in personality rights disputes. From Shevill to eDate Advertising, Bolagsupplysningen, Mittelbayerischer and Gtflix, Marola carefully examines the construction of locus actus and locus damni, focusing in particular on the publisher’s place of establishment, the persistence of the ‘mosaic’ approach, and jurisdiction based on the victim’s centre of interests. The chapter goes beyond doctrinal reconstruction by assessing these solutions against the objectives of proximity, predictability, and procedural balance, and by advancing a well-argued proposal de lege ferenda.

Chapter II places the EU approach in comparative perspective through an analysis of US jurisdictional doctrine in defamation and online tort cases. By retracing the path from Keeton and Calder to the rise and decline of the Zippo test and the renewed prominence of the ‘effects’ doctrine, the chapter sheds light on both convergences and structural differences. In doing so, it provides a useful corrective to overly enthusiastic transatlantic borrowings sometimes found in the European literature.

The final chapter turns to the General Data Protection Regulation and its interaction with the Brussels I-bis Regulation. Chapter III examines both public and private enforcement mechanisms, with particular attention to Article 79 GDPR and its implications for jurisdictional choice in data protection litigation. By integrating GDPR disputes into the broader analysis of personality rights, the book captures an increasingly central area of cross-border litigation.

Overall, the monograph combines doctrinal precision, critical insight, and pragmatic proposals, making it a valuable contribution for scholars and practitioners engaged with jurisdictional questions at the crossroads of EU private international law and fundamental rights.

On Thursday 12 February 2026, the Australasian Association of Private International Law (AAPrIL) is hosting its first seminar of 2026, as Professor Stephen Pitel presents free online and in-person (Qld, Australia) on the topic, ‘Reconsidering the “Proper Party” Basis for Jurisdiction’.

Abstract:

In several jurisdictions the fact that a defendant is a ‘proper party’ to a legal proceeding constitutes a sufficient basis for taking jurisdiction over that defendant. Advocates of the proper party basis rely on considerations of fairness and efficiency to support it. Do these considerations support the proper party basis, especially if it is given a wide scope? Recently Canadian courts have been reconsidering their approach to the proper party basis, as seen (somewhat opaquely) in Sinclair v Venezia Turismo, 2025 SCC 27. This presentation will explore that reconsideration and offer thoughts for changes in other jurisdictions including Australia and New Zealand.

Chair:

Mary Keyes is Professor of Law at Griffith University, and President of AAPrIL. She is a leading scholar on questions of international jurisdiction and international family law. Mary is co-author of Private International Law in Australia, and is a member of the Working Group on Jurisdiction at the Hague Conference on Private International Law.

Presenter:

Stephen Pitel Stephen G.A. Pitel is a Professor in the Faculty of Law at Western University. His research and teaching are focused on private international law, tort law, civil procedure and legal ethics. Stephen is the author of Conflict of Laws (3rd ed. 2025) and co-author of Private International Law in Common Law Canada: Cases, Text and Materials (5th ed. 2023) and Statutory Jurisdiction: An Analysis of the Court Jurisdiction and Proceedings Transfer Act (2012). His tort law scholarship includes co-authoring Fridman’s The Law of Torts in Canada (4th ed. 2020) and Cases and Materials on the Law of Torts (11th ed. 2023). In the field of legal ethics, Stephen is a contributor to Lawyers’ Ethics and Professional Regulation (4th ed. 2021). He is a former President of the Canadian Association for Legal Ethics.

Details:

Date and time: Thursday 12 February 2026, 5:00pm to 6:00pm (AEST)*

Date and time Thursday 12 February 2026, 5:00pm to 6:00pm (AEST)
in person: Griffith University, Southbank, Brisbane: Room 4.03 Building S07. The map is available here.

RSVP (essential): Please register via this link by COB Wednesday 11 February 2026, and advise whether you are attending in person or online. Please access the Teams link here. There is no cost.

* NZ. 8:00pm-9:pm; ACT, NSW, Tas and Vic. 6:00pm-7:00pm; SA, 5:30pm-6:30pm; Qld, PNG. 5:00pm-6:00pm; NT, 4:30pm-5:30pm; WA, 3:00pm-4:00pm