Conflictoflaws

I. Introduction

Recent years have witnessed a movement towards the dejudicialization of consensual divorce and the proliferation of extrajudicial divorce mechanisms notably in Europe. While this mode of “private divorce” is not, as such, a new phenomenon and extrajudicial divorce has been practised in different forms across various parts of the world (see e.g.,  Béligh Elbalti, “Le divorce au Japon et son accueil en Tunisie” (2026) 73 Osaka University Law Review 6), it has attracted increasing attention in recent years, given the growing number of European jurisdictions that have introduced mechanisms allowing spouses to dissolve their marriage outside the courts, as well as the complex questions that such divorces raise in terms of their recognition and circulation across borders (for a comparative view in Europe, see e.g., CJEU, Directorate for Research and Documentation, “Extrajudicial Divorce: Rules, Procedures and Cross-Border Recognition in Member States” (Research Note, February 2022) 3; Pablo Quinzá Redondo, “The Recognition of Non-Judicial Divorces in Europe” in Konrad Duden and Denise Wiedemann (eds), Changing Families, Changing Family Law in Europe (Intersentia, 2024) 23). This is particularly true of the Italian form of extrajudicial divorce, introduced by Decree-Law No. 132/2014, converted into Law No. 162/2014, which allows spouses meeting specified conditions to obtain a divorce through an agreement before the civil registrar, rather than through a court.

As previously reported on this blog, the recognition of such an Italian divorce in another Member State gave rise to a CJEU decision in Senatsverwaltung für Inneres und Sport v TB (Case C-646/20) and to scholarly discussion, notably concerning the appropriateness of the CJEU’s treatment of such a divorce agreement as a “decision” for the purposes of its recognition under the Brussels IIa Regulation, later replaced by the Brussels IIb Regulation (for critical comments, see e.g., Elena Bargelli, “Reshaping the Boundaries Between ‘Decision’ and Party Autonomy. The CJEU on the Extrajudicial Italian Divorce” (2023) 8(1) European Papers 43; Quinzá Redondo, op.cit., 35 ; Sabine Corneloup, “La circulation européenne du divorce sans juge : nouvel arrêt et toujours des incertitudes” (2023) RCDIP 409).

The issue of the recognition of Italian extrajudicial divorces has recently crossed the Mediterranean and reached the Tunisian courts. While this is not the first time that Tunisian courts have dealt with the issue (for an earlier case concerning the recognition of a French out-of-court divorce, Souhayma Ben Achour, “Le divorce extrajudiciaire français devant le juge tunisien, une tolérance à contrecœur…À propos du jugement du tribunal de première instance de Tunis du 14 novembre 2017 (no 86358)” (2018) RCDIP  211; on this issue in general, see Elbalti, op cit. 48-49, and, more specifically, on the recognition of Japanese extrajudicial divorce, pp. 50 et seq.), to my knowledge, this is the first time that the issue of the recognition of an Italian extrajudicial divorce has been brought before the courts in Tunisia. The issue is particularly interesting from a comparative law perspective, as it provides insights into the way in which Tunisian courts approach a form of marital dissolution originating in a different legal system, as well as the challenges that may arise in the cross-border circulation of such divorces from the perspective of non-EU law.

 

II. The Case

The petitioner, X (a Tunisian national), married the first respondent, Y (an Albanian national), in Italy in 1996. Since 2005, pursuant to a judgment of personal separation issued by an Italian court, the parties had been legally separated. In 2021, the parties obtained a divorce by mutual agreement before the Italian civil registrar, in accordance with the applicable Italian rules on extrajudicial divorce. Later, in 2025, X initiated summary proceedings against Y and the Public Prosecutor, as the second respondent, seeking an order from the First Instance Court of Nabeul (one of the 28 courts of first instance in Tunisia) seeking a summary order allowing the entry of the divorce agreement in X’s civil-status records.

In support of the application, X argued that the divorce had been obtained by mutual consent before the Italian civil registrar and that the resulting agreement should be entered in his civil-status records. X relied, in particular, on the 1967 Tunisian–Italian Convention on judicial assistance, arguing that the Convention provides for the recognition in Tunisia of decisions issued by Italian authorities and that this should also extend to extrajudicial divorces under Italian law, introduced as a simplified procedure allowing spouses, subject to certain conditions, to dissolve their marriage before the civil registrar. X further argued that the agreement concluded by the parties complied with all the requirements under Italian law: in particular, the parties had no children and had appeared before the civil registrar twice, more than thirty days apart, to confirm their agreement. X also argued that the Italian divorce had been issued by a competent authority in accordance with Italian law, had become final and effective in Italy, and had already produced its effects there, as demonstrated by the official documents submitted to the court.

 

III. The Ruling

In its summary order dated 24 February 2026, the First Instance Court of Nabeul admitted the application and ruled as follows.

The Court began by recalling the general context of the case and referring to the relevant provisions of Italian law submitted by the applicant. It then identified three legal issues to be addressed: first, whether the Court, sitting in summary proceedings, had jurisdiction to deal with an application seeking an order allowing the entry of the Italian divorce in the Tunisian civil-status records; second, whether judicial review of the Italian divorce by agreement by a court sitting in summary proceedings was permissible; and third, whether the Court should order the entry of the Italian divorce by agreement in the Tunisian civil-status records.

Regarding the first issue, the Court recalled that the jurisdiction of a court sitting in summary proceedings depends on the satisfaction of two conditions: (1) the existence of a situation of urgency; and (2) the summary proceedings must not prejudice the merits of the case. With respect to (1), the Court considered that the requirement of urgency was satisfied given the instability and discrepancy in the applicant’s civil status resulting from the foreign divorce, and the potentially serious consequences of such a situation for family stability. With respect to (2), the Court considered, referring to Tunisian scholarly opinions, that this requirement was also satisfied, since the substance of the right invoked had already been addressed in the foreign country.

Regarding the second issue, the Court invoked four grounds justifying judicial review of the Italian extrajudicial divorce by a court sitting in summary proceedings. The first was a legal ground, based on the view that the extrajudicial divorce could be treated as a “decision” under the Tunisian–Italian Convention and the 1998 Tunisian Code of Private International Law (TCPIL). The Court considered that the TCPIL aims to recognize legal situations created abroad and that its provisions could therefore be applied to the recognition of extrajudicial divorces, whether consensual, notarial, or administrative. The second was a scholarly ground: the Court referred to the prevailing opinion in Tunisian legal literature in favour of the recognition of extrajudicial divorces. The third was a case-law ground: the Court referred to previous cases in which the entry of extrajudicial divorces obtained abroad into the Tunisian civil-status records had been allowed. The fourth was based on practical considerations, namely that summary proceedings allow time and effort to be saved, the need to take into account the Tunisian diaspora living in countries where extrajudicial divorce is permitted, and the absence of any serious controversy between the parties.

Regarding the third issue, the Court held that the Italian extrajudicial divorce should be entered in the Tunisian civil-status records. It considered that refusing to recognize a divorce that had already taken effect in Italy, in the absence of any serious dispute between the parties, would create an inconsistency in their civil status and potentially interfere with their private lives and the exercise of rights resulting from their changed marital status. The Court also noted that the divorce had already been recorded in the parties’ Italian civil-status records, that the respondent had authorized X to seek its registration in Tunisia, and that the agreement complied with the requirements of Italian law and did not prejudice the interests of either spouse or of any children.

On this basis, the Court issued the order allowing the entry into the Italian divorce in X’s Tunisian civil-status records.

 

IV. Comments

While the outcome of the case can be agreed with, the Court’s reasoning raises serious questions concerning the manner in which an extrajudicial divorce can be given effect in Tunisia. Various aspects – notably from the perspective of the general legal and procedural framework applicable to the “recognition” of foreign divorces in Tunisia – deserve a more thorough analysis, which may not be appropriate for a blog post, (for a detailed analysis of this issue, see Elbalti, op cit. 24 et seq.). Three particular issues, however, will be addressed here.

 

1. Summary Proceedings and the Recognition of Foreign Divorce

First, regarding the jurisdiction of the First Instance Court sitting in summary proceedings, it is sufficient to point out that, in assessing the requirement that summary proceedings must not prejudice the merits of the case, the Court seems to have confused the substantive merits of the case (i.e. the dissolution of the marriage) with the object of the proceedings, which, in the Court’s own words, was to obtain the “recognition” of the Italian divorce for the purpose of its entry in the Tunisian civil-status records. However, given that, under the current legal framework in Tunisia – and despite the prevailing view in Tunisia to the contrary – “recognition” is not automatic (for details, see Elbalti, op. cit., p. 29, describing the issue as “thorny” (épineuse)), a formal exequatur procedure for giving effect to the foreign divorce would have been required. Such a procedure falls within the subject-matter jurisdiction of the courts of first instance exercising their ordinary jurisdiction (Elbalti, op. cit., p. 41). In other words, the requirement that summary proceedings must not prejudice the merits of the case should have been examined with regard to the exequatur procedure that should have been initiated pursuant to the applicable rules governing the recognition and enforcement of foreign judgments, rather than with regard to the dissolution of the marriage itself. In that respect, examining the “recognition” of the foreign divorce necessarily entails an examination of the conditions governing its recognition and enforcement and, therefore, requires the court to determine issues that properly belong to the exequatur proceedings. In this sense, the exercise of jurisdiction by the First Instance Court sitting in summary proceedings would not, under the applicable legal framework currently in force, be legally justified.

In any event, it is worth noting that, in recent years, the practice of initiating summary proceedings for the “recognition” of foreign divorces for the purpose of ordering their entry in the Tunisian civil-status records (as well as other procedural modalities) has developed in judicial practice in Tunisia, generally with the approval of Tunisian scholars (see Elbalti, op. cit., p. 43).

 

2. The Uncertain Method of Recognition

 Second, it is remarkable that the Court began its analysis by placing itself on the terrain of the “recognition of foreign decisions”, either under the 1967 Tunisian–Italian bilateral Convention or under the TCPIL. Leaving aside the question of whether an Italian extrajudicial divorce can properly be treated as a “decision” (on this issue, see the convincing analysis of Bargelli, op. cit., arguing that it should not), such an approach would suggest that the recognition of the Italian divorce should have been examined by reference to the requirements governing the recognition and enforcement of foreign judgments, notably those prescribed by Article 3 of the 1967 Tunisian–Italian Convention, which the Court expressly referred to. (It is worth noting, however, that Tunisian scholars are generally in favour of applying domestic law, namely the TCPIL, as it sets out less restrictive requirements for the enforcement of foreign judgments than those provided for in the international conventions concluded by Tunisia. On this issue, see e.g., Souhayma Ben Achour, La réception des decisions étrangères dans l’ordre juridique tunisien (CPU, 2017) 33).

However, this is not what the Court did. It did not examine the recognition of the Italian divorce under the applicable rules governing recognition, whether under the convention-based framework or the requirements set out in the TCPIL. Instead, the Court seems to have focused on the need to prevent and remedy the harm resulting from the discrepancy in the parties’ civil status created by the divorce abroad. It emphasized the need to recognize the divorce agreement concluded abroad and to order its entry in the Tunisian civil-status records, particularly because the divorce had already produced its effects in Italy. This approach is reminiscent of recent discussions concerning the “recognition of situations created abroad” as an alternative method for giving effect to foreign legal situations (see e.g., Dagmar Coester-Waltjen, “Recognition of Legal Situations Evidenced by Documents” in Jürgen Basedow et al. (eds), Encyclopedia of Private International Law – Vol. 2 (Edward Elgar Publishing, 2017) 1495).

The Court went even further, however, by stating that the divorce complied with the requirements and procedures prescribed by Italian law. Such a reference to Italian law would not have been necessary under either of the two approaches mentioned above. It would, by contrast, have been entirely justified had the Court proceeded to examine the validity of the divorce under Tunisian choice-of-law rules under the so-called “method of acceptance by conflict-of-laws” (Susanne Lilian Gössl, “Open Issues in European International Family Law: Sahyouni, ‘Private Divorces’ and Islamic Law Under the Rome III Regulation” (2017) European Legal Forum 69). Such an approach would have led to the application of Italian law as the law of the parties’ common domicile, pursuant to Article 49 of the TCPIL (see Elbalti, op cit. p. 57). Importantly, however, such an approach would not have required the Italian divorce to be characterized as a “decision” under the Tunisian–Italian Convention or under the Tunisian rules on the recognition and enforcement of foreign judgments.

 

3. Towards a More Tolerant Approach to Extrajudicial Divorce

Finally, the case illustrates the evolving treatment of extrajudicial divorces in Tunisian PIL. Until recently, the “judicial nature” of divorce was generally regarded as a matter of public policy, leading Tunisian courts to (almost) systematically refuse to give effect to divorces that had not been pronounced by a judicial authority (see Elbalti, op. cit., pp. 46–49). This was particularly true of extrajudicial divorces obtained in other Arab jurisdictions, whether in the form of traditional talaq or khulʿ, as well as administrative divorces permitted in some other countries (see Elbalti, op. cit., p. 59). The position of the courts has been consistent in this respect and was endorsed by the Tunisian Cour de cassation, which had the opportunity on several occasions to state that the judicial nature of divorce forms part of Tunisian public policy (see, e.g., the Tunisian Cour de cassation ruling of 7 November 2018, in which the Court stated, in dictum, that the principle that divorce must be judicial forms part of Tunisian public policy in the meaning of PIL).

Since the introduction of the French divorce sans juge in 2016, however, the situation has gradually begun to change, particularly in legal scholarship and in the judicial practice of the courts of first instance (see Elbalti, op. cit., p. 63). While Tunisian courts have generally continued to refuse recognition of extrajudicial divorces originating in other Arab jurisdictions (see Elbalti, op. cit., p. 60 and the cases cited therein), even where recognition is sought by the wife (see Elbalti, op. cit., p. 63, fn 239), they have shown greater tolerance towards extrajudicial divorces originating in certain European countries, notably France, as well as Japan (see Elbalti, op. cit., p. 63, contrasting the “great tolerance” shown towards French extrajudicial divorce with the “consistent hostility” towards forms of dissolution of marriage originating in other Arab jurisdictions).

One of the possible explanations for this difference in treatment lies in the generally hostile attitude of Tunisian courts and legal scholarship (see Elbalti, op. cit., p. 48 and the various opinions cited therein at fn 196) towards traditional forms of divorce, which are often regarded as incompatible with the legislative policy pursued by the Tunisian State since independence. That policy has sought, among other things, to distance Tunisian family law from unilateral and traditional forms of divorce. By contrast, extrajudicial divorces based on the mutual agreement of the spouses appear more compatible with this legislative policy, which is grounded in the principles of equality between men and women and non-discrimination, particularly in matters relating to the dissolution of marriage. They have therefore encountered less resistance in Tunisian judicial practice (in this sense, see Ben Achour, op. cit., 222), despite their non-judicial character. This suggests an evolving approach towards the judicial nature of divorce in Tunisian PIL, at least with regard to extrajudicial divorces originating in Europe and Japan. This approach has been largely endorsed by the Tunisian lower courts (see Elbalti, op. cit., p. 59), but remains to be confirmed by the higher courts, including the Tunisian Cour de cassation.

For anyone who begins studying private international law – particularly from a civil law perspective – one of the first concepts encountered, after Savigny’s ‘Copernican Revolution’, is the American ‘Choice-of-Law Revolution’. Since the late 1950s, American courts and scholars have progressively abandoned the rigid territorial methodology embodied in the First Restatement of Conflict of Laws in favour of more flexible approaches based on standards and policy-oriented analyses. The pioneering contributions of Brainerd Currie, David Cavers, Robert Leflar, and William Baxter, among others, fundamentally reshaped American conflicts law and made the United States a laboratory of modern choice-of-law theory.

In this context, the publication of Professor Linda J. Silberman’s General Course on Private International Law in the prestigious Collected Courses of the Hague Academy of International Law (Volume 456), under the thought-provoking title The Counter-Revolution in U.S. Private International Law: From Standards to Rules?, is a significant event.

Professor Silberman hardly needs any introduction to readers interested in private international law. Emerita Professor at New York University School of Law, she is one of the leading authorities in the field, whose scholarship has profoundly influenced the development of U.S. private international law, particularly in the areas of conflict of laws, transnational litigation, international civil procedure, and the recognition and enforcement of foreign judgments. She has also played a major role in several American Law Institute Restatement projects, served as Reporter for the proposed federal statute on the recognition and enforcement of foreign judgments, and has been closely involved in the work of the U.S. State Department and the Hague Conference on Private International Law.

Professor Silberman’s General Course revisits this well-known narrative from a fresh perspective. Rather than focusing on the revolution itself, she examines whether American private international law is now witnessing a ‘counter-revolution’. Her central thesis is that, after several decades dominated by flexible standards and multifactor balancing, a discernible movement towards more rule-based solutions has emerged in a number of areas of U.S. private international law.

The breadth of the course is particularly noteworthy. Beyond choice of law, Professor Silberman explores the standards-vs-rules debate across a wide range of topics, including party autonomy in contracts, the extraterritorial application of U.S. statutes, judicial jurisdiction, adjudicatory comity (forum non conveniens, lis pendens, and international abstention), human rights litigation, transnational discovery, treaty interpretation, and the recognition and enforcement of foreign judgments. The table of contents alone demonstrates the ambitious scope of her work and its attempt to identify a common methodological trend across the different branches of American private international law. The publication of this General Course is therefore a significant event for both American and comparative private international law, as it does not only provide a comprehensive account of the evolution of U.S. private international law over the past six decades, but also offers an original framework through which to understand its most recent developments.

The general outline of the volume is structured as follows

Biographical Note

Principal Publications

Preface and Acknowledgments

Chapter I. Introduction to the U.S. Legal System and to the Nomenclature of Standards and Rules

Chapter II. The Counter-Revolution from Standards to Rules in Choice of Law: The Example from Torts and the Third Restatement of Conflicts

Chapter III. Party Autonomy in Contracts: From Standards to Rules and the Third Restatement of Conflict of Laws

Chapter IV. Extraterritorial Reach of U.S. Statutes: From Standards to Rules

Chapter V. Judicial Jurisdiction in the Supreme Court: The Move Toward a More Rule-Based Regime

Chapter VI. The Role of Adjudicatory Comity—Forum Non Conveniens, Lis Pendens, and International Abstention—in the Rules vs. Standards Debate

Chapter VII. Human Rights Violations: Suits Against Private Parties in the Age of Statutes

Chapter VIII. Discovery and Judicial Assistance in Transnational Litigation and Arbitration: Of Rules and Standards

Chapter IX. Wherefore Rules and Standards in Treaty Interpretation: The Hague Abduction Convention Example

Chapter X. “Standards” vs. “Rules” in the U.S. Recognition and Enforcement of Foreign Country Judgments: Prospects for the Future

Epilogue: A Summary

Bibliography

While much of Europe slows down for August, there is still some fresh academic news to share: the publication of the second edition of the *Research Handbook on EU Private International Law*, edited by Youseph Farah, of the University of East Anglia and Elisabetta Bergamini, of the University of Udine, and published by Edward Elgar Publishing as part of the *Research Handbooks in European Law* series.

Thoroughly revised and updated, the new edition brings together civil-law and common-law perspectives to examine some of the most important questions and continuing challenges in EU private international law. Alongside the traditional fields of jurisdiction, contractual and non-contractual obligations, the Handbook addresses significant developments in family law, parental responsibility and cross-border succession.

Building on the first edition, the volume includes new contributions on class actions and collective redress, party autonomy, behavioural economics, and the harmonisation of private international law in matters of succession and parental responsibility. It also expands the analysis of the Rome I and Rome II Regulations, including the particularly complex questions concerning the law applicable to defamation and privacy.

Further chapters explore parallel proceedings and the EU rules on lis pendens, the relationship between the Brussels I Recast Regulation and arbitration, anti-suit injunctions before and after Brexit, the determination of the lex arbitri in decentralised blockchain-based arbitration, and the application of EU law principles in the fields of civil jurisdiction and arbitration.

The Handbook comprises 16 substantive chapters written by scholars from a range of jurisdictions and legal traditions. By combining analysis of the existing legal framework with critical assessments and proposals for its further development, the volume provides a valuable resource for researchers, teachers, postgraduate students and practitioners working in private international law, EU law, international dispute resolution, family law and succession law.

The book is available in hardback and electronically, and the opening chapter is available in open access. Further information, including the complete table of contents and access options, is available on Elgaronline webpage.

from Marlene Tiede,  a Research Fellow and PhD Candidate at the Max Planck Institute for Comparative Public Law and International Law.

 

Can one speak of a European society without speaking about private relations? Recent scholarship on European society has largely approached the concept through the lens of public law. Yet societies are constituted at least as much by the horizontal relations between individuals and groups as by public institutions. In the absence of a comprehensive European private law, this blogpost turns to EU private international law (PIL), the principal framework for coordinating interactions between the diverse private laws of the Member States and structuring cross-border private life within the Union. I will argue that EU PIL brings into view the importance of coordination frameworks for organising a mode of integration based not on unification, but on interdependence.

Unity Through Interdependence

The Commission v Hungary judgment refers to “a society in which pluralism prevails” (paras. 551, 556). By placing that formula in the context of the Union and its common legal order (paras. 551, 556) and explicitly invoking European society (para. 554), the judgment leaves little room for doubt that it understands “a society in which pluralism prevails” as denoting a single European society. Yet this raises a fundamental question. If European society is constituted by pluralism – that is, by heterogeneity rather than homogeneity – what holds it together? Much like the Union’s own aspiration to be “united in diversity”, the notion of a single European society defined by pluralism appears almost oxymoronic. How is unity achieved under conditions of diversity?

 

A clue may lie in the particular mode through which European integration has proceeded in important domains. Read against the background of more than seventy-five years of integration, “a society in which pluralism prevails” appears as a fitting description of a European project in which integration has often advanced not by replacing the plurality of national legal orders with a single one, but by weaving them together into an increasingly dense web of legal, economic, and social interdependence. Rather than pursuing unification, integration in many domains has relied on ever closer cooperation between the diverse legal orders of the Member States. The resulting web of relations and interdependencies is sufficiently deep to sustain the idea of a single European society, while leaving intact the plurality of national legal orders. From this view, unity is achieved not through unification, but through interdependence.

I explore this mode of integration through the lens of EU PIL, a field particularly well suited to bringing into view both the horizontal relations between individuals and groups that have largely remained overlooked in accounts of European society and the coordinating structures through which interdependence is organised.

Mutual Trust and the Case for Private International Law

Mutual trust provides the normative foundation for cooperation between the diverse legal orders of the Member States. Although criticised as a judicial construct lacking a clear legal and empirical basis, it has become a structural principle of EU constitutional law. Resting on the presumption that all Member States comply with the values enshrined in Art. 2 TEU, mutual trust is a precondition for the functioning of the Union’s legal order. By requiring Member States to presume the adequacy of one another’s legal systems, it enables them to enter into relations of growing mutual dependence. Its significance is particularly pronounced in areas that remain only marginally harmonised, where cooperation relies less on common substantive standards than on confidence in the adequacy of the legal solutions adopted by the Member States.

Mutual trust occupies a central place within the Area of Freedom, Security and Justice (AFSJ), a policy area based on cooperation rather than unification. Within the AFSJ, the following reflections turn to judicial cooperation in civil matters – better known outside the Treaties as PIL – to investigate more closely how integration through interdependence operates in practice.

Admittedly, one might hesitate before venturing deeper into a field of law famously disparaged as a “dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon”. Yet, before the reader hastily retreats to firmer ground, two considerations make this “swamp” particularly worth exploring. First, accounts of European society, as developed most prominently by Armin von Bogdandy and Loïc Azoulai, have so far focused primarily on its public law dimension, leaving largely unexplored the horizontal relations between private individuals and groups – despite their centrality to any notion of society. Second, PIL brings into view the importance of coordination frameworks for a mode of integration based on interdependence rather than unification.

PIL deals with legal issues arising from private relations connected to more than one legal system and, in doing so, provides a framework for coordinating the interaction between diverse private legal orders. While substantive private law remains only marginally harmonised at the EU level – save for specific areas such as consumer protection, intellectual property, anti-discrimination law, and parts of labour and company law – PIL has been extensively harmonised. The result is a highly integrated coordination framework governing interactions between substantive laws that continue largely to be constituted by the diverse legal orders of the Member States. To return to the “dismal swamp” metaphor, what was once dismissed as an obscure and largely technical discipline has become a framework of central importance for the everyday lives of individuals and businesses throughout the Union. The denser the web of cross-border relations, the more indispensable coordination frameworks become.

In the following two sections, I demonstrate that EU PIL performs a dual function: first, it renders growing social and economic interdependence compatible with the continued plurality of national private laws; second, through the design of conflict rules, it regulates the externalities generated by interdependence.

Mobility Across Private Legal Orders

By facilitating mobility, openness, and cooperation across diverse private legal orders, EU PIL renders the growing density of cross-border relations compatible with the continued plurality of national private laws.

The increasing free circulation of civil judgments provides a prominent illustration of this dynamic. Following the abolition of exequatur – an intermediary procedure under which a judgment rendered in one Member State first had to be declared enforceable by the courts of another in order to be enforced there – judgments rendered in one Member State are, in most cases, recognised and enforced in another under the same conditions as domestic judgments. By rendering the outputs of one national judicial system effective throughout the Union, this closer form of cooperation reduces the costs and uncertainties associated with cross-border litigation and, in doing so, lowers the barriers for individuals and businesses to enter into cross-border relationships.

The growing mobility of individuals within the EU is further reflected in the reconfiguration of the connecting techniques of classical continental PIL. EU instruments have shifted the principal connecting factor from nationality to habitual residence and expanded the scope for party autonomy. By relying on less static connecting factors, EU legislation adapts conflict rules to increasingly transnational patterns of life and facilitates engagement with the private legal orders of other Member States.

Where harmonised PIL rules are absent or prove insufficient to structure cross-border social life within the EU, recognition-based mechanisms grounded in EU primary law have come to complement traditional PIL. Legal statuses validly established in one Member State increasingly circulate throughout the Union by virtue of fundamental freedoms, Union citizenship, and fundamental rights. These recognition-based mechanisms enable legal statuses created under one legal order to produce effects across borders irrespective of the law designated by traditional choice-of-law rules. Prominent examples can be found in both economic and family law: corporationsvalidly incorporated in one Member State must, on the basis of fundamental freedoms, be recognised throughout the Union; same-sex marriages or surnames lawfully established under the law of one Member State increasingly require recognition in other Member States on the basis of Union citizenship. Rather than replacing national private laws with a uniform European law, these recognition-based mechanisms render the private legal orders of the Member States progressively more interdependent by allowing individuals and businesses to carry their legal identities and relationships across borders.

Regulating Interdependence Through Conflict Rules

The growing interdependence of diverse legal orders gives rise not only to new forms of cooperation, but also to new governance challenges. A common concern is that private actors will exploit differences between legal regimes, circumventing regulation and triggering a race to the bottom. Yet, unlike mechanisms based solely on mutual recognition or the country-of-origin principle, which generally privilege the legal order of the Member State of origin, PIL is capable of employing more finely calibrated connecting factors that take account of the regulatory consequences of the applicable law. In this way, PIL does not merely accommodate legal diversity but also governs the externalities generated by interdependence, thereby assuming a regulatory function.

Art. 7 Rome II Regulation provides an instructive example of how conflict rules can be used to pursue substantive policy objectives. The provision allows claimants in environmental damage cases to choose between the law of the place of conduct and the law of the place of injury. Either connecting factor, if applied in isolation, would create opportunities for undertakings to exploit differences in national environmental standards. A pure place-of-conduct rule might encourage undertakings to locate polluting activities in low-protection jurisdictions, while a pure place-of-injury rule could create incentives to establish operations in higher-protection Member States where natural conditions, e.g. downwinds, ensure that the harmful effects are realised elsewhere. By conferring the choice upon the injured party, who is likely to opt for the more favourable law, Art. 7 Rome II seeks to reduce incentives for regulatory arbitrage, thereby aligning the operation of PIL with the Union’s objective of ensuring a high level of environmental protection.

Art. 7 Rome II thus demonstrates that conflict rules are not neutral techniques for allocating claims of regulatory authority. Their design can itself pursue substantive objectives and shape the conditions under which cross-border private relations unfold. More broadly, the extensive incorporation of PIL into the EU legal framework has transferred the design of conflict rules to a supranational level that stands above the legal systems whose interactions it seeks to organise.

 

I would like to thank Iris Canor, whose forthcoming contribution, “In Mutual Trust We Trust – A Structural Principle of a Diverse Union”, in Bast/von Bogdandy (eds.), The Constitutional Core of the Union (OUP, forthcoming), articulated with particular force the idea of European integration as a process driven by interdependence rather than unification. This contribution has greatly benefited from her insights.

 

 

 

This was first published at verfassungsblog.de

In Kea Investments Ltd v Wikeley [2026] NZSC 97, the New Zealand Supreme Court recently delivered its reasons for reinstating world-wide anti-enforcement orders in relation to a fraudulently obtained default judgment from Kentucky. The judgment, given by Kós J, contains a useful analysis of the principles on anti-suit and anti-enforcement injunctions and offers guidance on the interrelationship between fraud and comity.

The background to the case is set out in previous posts (here, here and here). In summary, Kea Investments Ltd (Kea), a British Virgin Islands company, alleged that the default judgment obtained by Wikeley Family Trustee Ltd (WFTL), a New Zealand company, was based on fabricated claims intended to defraud Kea. The New Zealand High Court found that the defendants had perpetrated a tortious conspiracy. The Court of Appeal upheld the findings of fraud but allowed an appeal against the grant of the injunction, concluding that an injunction could only be granted as a step of last resort, which required Kea to pursue its right of appeal against the Kentucky judgment.

It was not in issue before the Supreme Court that the claim in the Kentucky court formed part of a conspiracy to defraud Kea (at [102]). It was also not in issue that New Zealand was the proper jurisdiction to deal with the claim of fraud (at [102]). In these circumstances, the Court found that comity did not stand in the way of anti-enforcement relief.

 

Relevant principles

The Court considered that the in personam nature of anti-suit and anti-enforcement injunctions remains “fundamental”, even though “the jurisdictional conflict” that arises “may indirectly impinge on the freedoms of the foreign jurisdiction” (at [105]).  The Court also confirmed that the grant of such an injunction “tends to depend on there being something wrongful”, which could be “unconscionable (or vexatious or oppressive) litigation in the foreign state”, such as a fraudulent proceeding, or “the disregard of a right in contract not to be sued in the foreign state” (at [107]).

Turning to anti-enforcement injunctions more specifically, the Court did not think it was helpful to say that they “should only be granted in ‘exceptional circumstances’”, although it would be “a rare case that the conditions for their grant will be met” (at [108], adopting the language of Males LJ in SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599, [2020] 1 CLC 816). Citing Adrian Briggs (Civil Jurisdiction and Judgments (8th ed, Routledge, Oxford, 2025) at 463), the Court noted that the enforcement of a judgment that has been wrongfully obtained “aggravates the original wrong” (at [108]).  However, an applicant would have to be able to explain why there had been no earlier application for an anti-suit injunction; and where the anti-enforcement injunction seeks to prevent enforcement in the country in which the judgment was given, “comity may demand particular restraint” (at [109]).

The Court described comity as “the need for domestic courts to respect the legitimate exercise of jurisdiction by the courts of a foreign state” (at [10], [113], citing Maria Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at [1.29]). It accepted that “comity is a consideration necessitating caution in making anti-suit or anti-enforcement injunctions that cut across the authority of a foreign court acting within its legitimate jurisdiction” (at [116]). However, comity had “a measure of elasticity”; it did not “entail blind deference” (at [116]).

Crucially, the Court considered that fraud “reframes ordinary comity considerations” (at [117]). First, fraud is a “paradigm” case of vexatious and oppressive conduct that justifies an injunction if the fraudster is in the court’s jurisdiction (Ellerman Lines Ltd v Read [1928] 2 KB 144 (CA)) (at [117], [118]-[128]). Second, there is “a mutual interest in both courts to act quickly and effectively to restrain such conduct”. In fact, the Court went so far as to say that “[r]espect by the foreign court for the domestic court’s anti-fraud orders may reasonably be expected” (at [117], [128]-[130]).

Finally, there was no requirement that an applicant exhausts local remedies in the foreign court before applying for an injunction (at [134]). In this sense, anti-suit or anti-enforcement injunctions are not a “measure of last resort”, as the Court of Appeal had considered. The Court accepted counsel’s submission that “the idea that the New Zealand courts should wait and see whether the Kentucky courts do the ‘correct’ thing is ‘not only invidious but the reverse of comity’” (at [134]).

 

This case

Kea was “that rare case” where direct evidence of fraud justified the grant of anti-enforcement relief (at [120]). According to the Supreme Court, the fraud “[set] out to make a fool of both jurisdictions” (at [127]):

One court exerts jurisdiction upon a wholly false premise— both as to jurisdiction and obligations; the other—despite being the proper forum to address the fraud—is then counselled to act with restraint out of a need for comity for the first court.

The courts that were invoked in this case had “a mutual interest in stifling cross-border fraud of this kind”, and their international cooperation was consistent with a commitment to the rule of law (at [128]). From this perspective, the High Court’s anti-enforcement orders “enhance, rather than erode, comity” (at [128]). Expert evidence of US law confirmed that an injunction to stop the continued perpetration of a fraud would be consistent with US notions of comity (at [129]).

The fact that WFTL had been placed in protective interim liquidation also reframed the comity considerations in the case (at [131]). WFTL was controlled by the liquidators, who were subject to the High Court’s personal jurisdiction. An order “requiring them to seek discharge of the default judgment … ought to be within the remedies that Court ought to be able to exercise” (at [132]). The liquidators recognised “that they cannot take any responsible or lawful action other than to have the default judgment discharged” (at [131]) but the orders were still necessary to allow the liquidators to fulfil their duties (at [132], [136]). In these circumstances, the injunctions were “consistent with protecting the Court’s processes and officers” (at [133]).

The Court concluded that the anti-enforcement orders were not only justified but also necessary (at [136]): “If not in this case, then when? If not by the New Zealand High Court, then by whom?” The level of fraud in this case was such that “even requiring a party to apply for a stay or dismissal in the foreign court would be unjust” (at [135], citing Thomas Raphael The Anti-Suit Injunction (2nd ed, Oxford University Press, Oxford, 2019) at [5.45]). The proceedings in the Kentucky courts were “a core operative element of the fraud” (at [135]). If the High Court had not made the interim orders in this case, “control of WFTL, and with it the default judgment … would by now have passed well beyond the New Zealand jurisdiction” (at [135]); the “status quo for both jurisdictions would soon have shifted as part of this swirling, evolving fraudulent enterprise” (at [136]).

 

Comment

The existence of the fraud was not in issue, and neither was the High Court’s conclusion that it had jurisdiction – and that it was the appropriate forum – to determine the claim for fraudulent conspiracy. But the Supreme Court made it clear that the High Court’s approach to jurisdiction, at a time when the existence of fraud was “a strongly arguable possibility”, was “entirely correct” (at [103]). The alleged fraudster was in New Zealand, which made it appropriate for the New Zealand court to become involved, culminating in the grant of anti-enforcement relief once the question of fraud had been finally determined.

Why is it appropriate for a New Zealand court to decide on the right- or wrongfulness of proceedings in a foreign court (see here)? Should such decisions not fall exclusively within the foreign court’s jurisdiction? The Kentucky court in this case had taken the position, at first instance, that the default judgment should stand.

The Supreme Court acknowledged that anti-suit and anti-enforcement injunctions “cut across the authority of a foreign court acting within its legitimate jurisdiction” (at [116]). But in the case of fraudulent proceedings, the fraudster’s jurisdiction, too, is connected to the fraud and has a responsibility to stop it. In fact, comity here requires cooperation to stop the fraud, and within this framing of cooperation, questions about the courts’ relative jurisdictional authority do not arise. If anything, it is the foreign court, the court that entertained the fraudulent proceedings, that may be thought to be interfering with comity if it denies the importance of combatting fraud (see [117]).

While the Court of Appeal had been sceptical of the legitimacy of anti-suit and anti-enforcement injunctions, the Supreme Court recognised them as valid and established tools of the conflict of laws. It pointed to the history of anti-suit and anti-enforcement injunctions as originating in the courts of equity, which granted injunctions to restrain proceedings in the common law courts, to explain why they are “very much a creature of the Anglo-American common law” (at [104], referring to Martin Davies and others Nygh’s Conflict of Laws in Australia (11th ed, LexisNexis, Sydney, 2026) at [9.2]). At the same time, the Supreme Court’s thoughtful analysis of the relationship between fraud and comity may inspire New Zealand courts to tread carefully in future cases. If anti-suit and anti-enforcement injunctions “cut across the authority of a foreign court acting within its legitimate jurisdiction”, there needs to be a convincing reason on the facts of a particular case why they are not, in fact, an undue interference with comity.

 

 

from Marcel Vitor de Magalhães e Guerra

 

On 14 November 2025, the English High Court handed down its Stage 1 judgment in Município de Mariana and others v. BHP Group Plc and BHP Group Limited [2025] EWHC 3001 (TCC), finding the defendants liable — under Brazilian law — for the 2015 collapse of the Fundão tailings dam: over 600,000 claimants, an estimated £36 billion, the largest group litigation in English legal history. This post argues that Mariana exposes a functional interconnection between public and private international law at the stage of determining jurisdiction itself: although doctrinally distinct, the court’s application of a private international law rule required engaging questions of corporate organisation, adjudicatory legitimacy, and transnational responsibility that traditionally belong to public international law.

A jurisdictional rule that was anything but self-executing

The formal basis for the English courts’ competence was straightforward: Article 4(1) of the Brussels I Recast Regulation, under which BHP Group Plc — domiciled in England and Wales, then part of a Dual Listed Company structure with the Australian BHP Group Limited — was subject to mandatory jurisdiction. Yet the rule was anything but self-executing. Turner J struck out the claims (Municipio de Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC)) as an abuse of process, also accepting the Article 34, forum non conveniens and case-management applications on alternative grounds. Only the Court of Appeal’s 2022 judgment ([2022] EWCA Civ 951) — drawing on Owusu (Case C-281/02, [2005] ECR I-1383) and Vedanta ([2019] UKSC 20) — rejected those objections, confirming that complexity could not convert mandatory jurisdiction into a discretionary one.

Even this mandatory rule required the courts to engage with contested questions about the defendants’ identity, group structure, parallel proceedings and manageability — requiring considerably more than a purely procedural inquiry, and engaging the same transnational corporate reality that later informed the liability determination. The jurisdictional inquiry thus already illustrates the interconnection between public and private international law.

The same underlying corporate relationships

The jurisdictional history of Mariana illustrates a phenomenon that has received surprisingly little explicit attention in scholarship. In Private International Law and Global Governance, Horatia Muir Watt and contributors recast private international law as an instrument of transnational governance, allocating and constraining the regulatory authority exercised by private actors, and Ralf Michaels cautions against treating jurisdiction as a single, uniform concept.[1] Alex Mills, in The Confluence of Public and Private International Law, has argued that the two fields increasingly operate as complementary components of a common transnational legal order. The public international law dimension lies not in the jurisdictional rule itself, but in the international legitimacy of projecting adjudicatory authority over conduct occurring partly outside the forum State — a question traditionally analysed through principles governing the permissible bases of jurisdiction. The procedural application of Article 4 in Mariana therefore became inseparable from questions of international jurisdictional legitimacy.

Jurisdiction and liability remain analytically distinct, but such litigation may require successive, asymmetrical reconstructions of the same corporate organisation. Allegations about the coordinated operation of the two BHP parent companies formed part of the factual setting for assessing whether the proceedings were abusive or unmanageable; at the merits stage, Mrs Justice O’Farrell reached a strikingly similar conclusion applying Brazilian law’s “multifactorial and evaluative” approach to indirect polluter liability, finding that BHP, through its control of Samarco, caused or permitted the continued raising of the dam despite known risks.

A caveat: although the corporate reality examined is the same at both stages, the evidentiary burden escalates sharply — from threshold plausibility to proof on the balance of probabilities. The relationship is thus telescopic, not repetitive.

The phenomenon is not confined to environmental litigation. Toussaint Nothias’s recent account of the Kenyan proceedings against Meta describes a comparable problem: Meta contested jurisdiction by relying on its foreign incorporation and moderators’ formal employment status, yet the courts examined its Kenyan operations and subcontractor relationships — relevant both to jurisdiction and to whether Meta was the moderators’ true employer.

Morelli had already asked, in 1953, whether States face limitations in exercising judicial jurisdiction over civil actions.[2]Mariana and the Kenyan litigation reveal how far that interconnection extends today — distinct from the choice-of-law analysis that resolves the merits, since which court may hear a case does not turn on which law governs it. Jurisdictional doctrine cannot be developed in complete isolation from the evidentiary realities of transnational litigation.

That overlap is rarely made explicit in the jurisdiction literature, which treats domicile, service, and forum non conveniensas self-contained inquiries.

A live illustration for the HCCH parallel proceedings debate

This bears on the continuing HCCH debate following the recently concluded consultation on the Draft Text of a future Convention on Parallel Proceedings. As a recent follow-up post on this blog reported, the German Judges Association flags concerns about Articles 9 and 10, which, in bracketed form, would permit courts to assess whether another court is more appropriate — a discretionary test unfamiliar to jurisdictions like Germany’s, trading predictability for a forum non conveniens-style exercise.

Mariana offers a cautionary data point from a jurisdiction where such discretion is already familiar: BHP’s strategy was, in substance, an attempt to secure a comparable reassessment — through forum non conveniens and an abuse-of-process argument that the litigation was “irredeemably unmanageable.” Both succeeded at first instance, reversed only on appeal, years later — precisely what the Association warns a discretionary regime could produce elsewhere. Its concern that such factors could disadvantage claimants given complex, globalised structures maps onto this case: the Dual Listed Company structure at issue is exactly what such a regime would have to unpack before reaching the forum question.

What this means for private international law

The upshot is not that domicile-based jurisdiction under Brussels I Recast should be reopened to substantive scrutiny — the Court of Appeal was right that complexity cannot convert a mandatory rule into a discretionary one. The point is narrower: courts adjudicating cases like this may already be engaging in a sequence of partially overlapping inquiries spanning what doctrine presents as separate stages. Future work might therefore pay less attention to treating these stages as entirely self-contained, and more to understanding how their factual and normative interdependence shapes transnational litigation.

The significance of Mariana extends beyond the relationship between jurisdiction and liability: it shows that determining adjudicatory jurisdiction itself increasingly occupies a space where public and private international law interact functionally, requiring courts to evaluate a common transnational corporate reality before either jurisdictional or substantive questions can be resolved.

Marcel Vitor de Magalhães e Guerra is a Public Defender (Defensor Público) of the State of Espírito Santo, Brazil. He holds a doctorate in International Law from the State University of Rio de Janeiro (UERJ) and is the author of the book Jurisdição Internacional e Efetividade Climática (Conjecturas, 2026).

[1] Ralf Michaels, ‘Some Fundamental Jurisdictional Conceptions as Applied in Judgment Conventions’ in Eckart Gottschalk, Ralf Michaels, Giesela Rühl and Jan von Hein (eds), Conflict of Laws in a Globalized World (Cambridge University Press 2007) 29–62.

[2] Gaetano Morelli, Diritto processuale civile internazionale (2nd edn, CEDAM 1953) 87.

Call for Papers: 3rd International Seminar “The Challenges of Private International Law in Contemporary Society” – Belo Horizonte, Brazil, 4-6 November 2026

 

 

This Call for Papers has been kindly shared with us by Inez Lopes / University of Brasilia (UnB) and Fabricio B. Pasquot Polido / University of Minas Gerais (UFMG)

Following the previous editions hosted by the University of Brasilia in 2019 and 2024, the Third Seminar “The Challenges of Private International Law in Contemporary Society”, will be held from 4 to 6 November 2026 at the Faculty of Law of the Federal University of Minas Gerais, Brasil. The theme of the 2026 edition is:

“Jurisdiction and Transnational Access to Justice between New Technologies and ‘The Human Side of Artificial Intelligence’”

The event forms part of a continuing initiative developed by Brazilian and international research networks in the field of Private International Law. It is articulated with academic groups and networks devoted to Private International Law, international civil procedure, international judicial cooperation, digital technologies and artificial intelligence, including the Research Group “Private International Law in Brazil and International Fora”, the Latin American Research Network on International Civil Procedure, the CNPq research project “Digital Technologies as Tools for International Judicial Cooperation, Private International Law and Comparative Law”, the Brazilian National Forum on Law and Artificial Intelligence, and members of the American Association of Private International Law – ASADIP.

The 2026 edition aims to foster interdisciplinary debate on the impact of emerging technologies and artificial intelligence on the foundations of Private International Law, domestic and regional legal systems, transnational litigation, transnational access to justice, and mechanisms of international judicial cooperation. In addition to the Working Group sessions, the Seminar will feature thematic academic panels addressing contemporary challenges of Private International Law, new technologies, artificial intelligence, international judicial cooperation and access to justice.

The Scientific Committee invites submissions of draft papers and extended abstracts, in Portuguese, Spanish or English, for presentation in the following Working Groups:

• The Human Side of Artificial Intelligence, Domestic Courts and Private International Law;
• Foundations of Private International Law and Digitalisation;
• Complex Cross-Border Litigation in Data, Technologies and Artificial Intelligence;
• International Judicial Cooperation, Digitalisation and AI;
• Artificial Intelligence and Transnational Access to Justice on a Global Scale.

The selected draft papers/extended abstracts will be presented in person during the Working Group sessions, which will take place as part of the Seminar in Belo Horizonte.

The deadline for submissions is 10 September 2026, at 11:59 pm Brasília time. Results will be announced by 30 September 2026.

Submissions must be made through the electronic form: https://forms.gle/8rknWFYgueAqdELJ9

The full Call for Papers, including submission guidelines, and information on presentations in the Working Groups, is available in the event documents folder.

For further information, please do not hesitate to contact the Committee (rdip.ufmg@gmail.com) and follow the news and updates on the PIL Seminar at https://pos.direito.ufmg.br/noticias/noticias/

 

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its XLIX Seminar entitled “Towards a new codification of Private International Law in Mexico” (Hacia una nueva codificación del Derecho Internacional Privado en México) from 15 to 16 October 2026. The venue of the seminar will be the Universidad Autónoma de Yucatán (Mérida, Mexico).

This edition of the seminar will primarily focus on the draft bill on Private International Law for the state of Yucatán, an initiative presented by AMEDIP to the authorities of that state. This draft breaks from previous practice, according to which state PIL rules are contained in civil codes, by suggesting the adoption of a standalone Act (available here).

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by 3 August 2026. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services, but some exceptions may be made by the organisers upon request for presentations in English or Portuguese. For more information on the requirements, click here.

 

The publisher’s blurb, including a discount code, is as follows:

Private International Law and Children’s Rights Law  

Conflicts in International Child Abduction Cases

Tine Van Hof

This book examines the relationship between two legal fields when courts decide on cross-border child abduction. While private international law prioritises the child’s prompt return and applies the best interests principle in abstracto, children’s rights law demands an in concreto, individualised assessment of the child’s best interests. These differing approaches can lead to legal friction in practice.

Through a detailed analysis of legal instruments and supranational case law, the book explores how these conflicts arise and how they might be resolved.

Offering clear recommendations for lawmakers, international organisations, and courts, the book provides a roadmap for fostering constructive relationships between legal fields. It is an essential resource for scholars of private international law, judges and practitioners in cross-border family law, and policymakers working at the intersection of international law and children’s rights.

 

Tine Van Hof is a legal researcher at the University of Antwerp, Belgium.

 

Jun 2026   |   9781509977055   |   288pp   |   Hbk   |    RRP: £90

Discount Price: £72

Order online at www.hartpublishing.co.uk  – use the code GLR BD8 to get 20% off!

Sign up to our email list to receive updates about our new titles.

 

This post has kindly been provided by Markus Lieberknecht (University of Osnabrück).

It is our great pleasure to bring to readers’ attention the publication of the article “The Reasons Highest Courts Give: England, France, Germany; 1880–89 and 2007–16”, co-authored by Holger Spamann (Harvard Law School), Stefan Vogenauer and Jasper Kunstreich (MPI Hamburg), Heinrich Nemeczek (Scalable Capital) and Markus Lieberknecht (Osnabrück University), in The Journal of Legal Studies.

One of the core debates in comparative law concerns the characteristics, extent, and development of the common/civil law divide. In this context, it is a familiar trope that common and civil lawyers reason differently, but that the systems are converging. However, the empirical basis for such claims is thin to nonexistent. To address this paucity of data-backed research, we present the first systematic quantitative comparison of three paragon jurisdictions of common law (England) and civil law (France and Germany), and across two centuries (1880–89 vs. 2007–16). Specifically, we analyze the use of legal authorities (cases, statutes, and literature) in 40 representative opinions of each apex court in each of the two decades we surveyed.

Our findings challenge some conventional wisdoms. Take the claim of fundamental differences: Our findings suggest that England and Germany differ only in degree, not in kind. For instance, most German opinions were already citing and distinguishing precedent in the 1880s. There is nothing that one court does, that the other does not do at all. Nonetheless, English courts engage with prior cases more closely than the German courts. Overall, the odd one out in this trio is France, not England. The convergence thesis does not fare well in light of our data either: We observed no such development but instead noted the opening of a new chasm with regard to legal literature, which only the modern German court engages extensively.

Naturally, our study can only pose a challenge, not a refutation, of engrained beliefs that common and civil law systems are fundamentally different but that they have been converging.  It is, however, a rather strong challenge, relying on data from the three arguably central jurisdictions on the bread-and-butter object of legal studies (opinions of apex courts). We invite further research based on our sampling and coding scheme, which is scalable and can be applied to other jurisdictions and time periods.

The article – Spamann/Kunstreich/Lieberknecht/Nemeczek/Vogenauer, 55 J. Leg. Stud. 365 (2026) – can be accessed here or obtained from the author of this post.

The following announcement was kindly shared with us by Fabienne Jault-Seseke.

The 6th issue of Perspectives contentieuses internationales has been released and is online.

It contains seven articles related to the consolidation of cross-border litigation. These articles form the first part of the proceedings of a conference held in Toulouse in November 2025. The second part will be published in Volume 7. Volume 6 also includes two further articles, one on the law applicable to air transport and one of theclassification, and three short notes (focus).

Here is the list of papers, along with their abstracts.

Fabienne Jault-Seseke, The consolidation of cross-border litigation in the interests of consistency

The consolidation of cross-border litigation makes it possible to satisfy the requirement of consistency. It is mainly understood as the ability to bring claims and defendants before a single judge,but it also arises in the context of res judicata. Consolidation serves the proper administration of justice by avoiding fragmented decisions in the same case, and it must be seen together with the right of access to a court. Finding the right balance is difficult. It depends on the nature and subject matter of the dispute. The rules that make such concentration possible are varied (related actions, the most appropriate forum, lis pendens, transfer of jurisdiction, specialization of courts, and cooperation between judges).

Sandrine Clavel, Global litigation strategy and consolidation

An analysis of the procedural strategies likely to be employed by the main parties involved in civil and commercial litigation—particularly businesses and nongovernmental organizations (NGOs)—reveals that they hold an ambivalent stance toward the goal of consolidating litigation. These strategies are, in fact, primarily driven by the desire to achieve the most favorable outcome for the party concerned; however, this fundamental objective is sometimes best served by consolidating the litigation and at other times by splitting it up. This analysis also highlights that the fragmentation of litigation is a natural tendency in transnational disputes, due to the multiplicity of parties and the dispersion of the elements of the dispute across multiple legal systems, but also, at times, due to the nature of the applicable legal rules. It is therefore relatively easy for the parties to capitalise on this trend by devising procedural strategies based on multiple proceedings, whereas it may prove more complex for those who, for very legitimate reasons, wish to effectively consolidate their litigation. The overview of litigation strategies presented in this article therefore leads to the conclusion that what matters is not so much deciding, in abstracto, on the respective merits of consolidating or fragmenting international litigation — this must be decided on a case-by-case basis by the parties involved, depending on the nature of the dispute and the applicable rules — but rather to provide litigants with effective tools to achieve the objective of consolidating litigation when they deem it desirable, and to provide judges with effective tools to sanction any abuses that might be committed by those litigants in defining their litigation strategies.

Estelle Gallant (dir.), The consolidation of litigation in family matters

Although the concentration of litigation in international family matters could undoubtedly be favored, it nevertheless appears that the European regulation of international family conflicts offers litigants a broad range of rules on judicial jurisdiction and thus establishes a deliberate form of forum shopping. This notably enables the better-informed parties to bring proceedings before the court whose applicable law will provide them with the greatest advantages. Mechanisms for consolidating proceedings do exist, but they clearly do not reflect any general objective pursued by the legislature. The autonomy of the will, increasingly valued in private international family law, may therefore prove valuable for parties wishing to anticipate outcomes in the event of a dispute; however, it may also appear as a discriminatory tool serving only a certain category of litigants and thus fail to satisfy all the objectives of justice in private international law. Finally, the fragmentation of international litigation sometimes comes into conflict with national rules requiring the indivisibility of certain proceedings, raising the question of how such rules should be reconciled with European regulations.

Marie Nioche, Provisional justice and consolidation of cross-border disputes

Provisional justice tends to fragment proceedings in cross-border disputes. The analysis is based on the Brussels I bis Regulation. The author first addresses the causes of this fragmentation. She then considers possible solutions for improving the concentration of cross-border provisional litigation. Under current law, the options are limited, as traditional tools are ill-suited to provisional litigation. De lege ferenda, however, it is possible to effectively tackle fragmentation by recognizing the central role of the judge who has jurisdiction on the merits, both ex ante – to prevent coordination difficulties and conflicts of provisional proceedings or decisions – and ex post – to resolve them. 

Philippine Blajan, Consolidation of cross-border disputes litigation through the optimal use of choice-of-court agreements

Choice-of-court agreements have become key instruments for managing cross-border disputes in an increasingly complex international commercial environment. Beyond ensuring predictability, they enable parties to concentrate litigation before a single forum and reduce the risks of parallel proceedings and inconsistent judgments. Their effectiveness, however, depends on their ability to bind third parties involved in complex contractual networks and to withstand competing jurisdictional claims. At the same time, excessive concentration may undermine procedural fairness where vulnerable or weaker parties are compelled to litigate before a distant or burdensome forum. The article analyses the tensions between party autonomy, procedural efficiency, and access to justice under European and French private international law. It concludes by suggesting a new “jurisdictional concentration clause” designed to centralize disputes arising from interconnected contractual relationships while preserving fairness and legal certainty, and binding force of contracts.

Julie Esquenazi, Hélène Georgelin, Choice-of-court agreements, primacy at any cost comes at a price

In the last few months, case law has been particularly notable in relation to jurisdiction clauses. Notably, the scope of such clauses is becoming increasingly broader, particularly with regard to their primacy over other jurisdictional rules as well as their enforceability against interested third parties. This approach in case law, justified by the objective of predictability, may conflict with other principles, such as the proper administration of justice or the relative effect of agreements.

 

Laurence Idot Consolidation of litigation: the contributions of public enforcement to private enforcement

Public enforcement in cross-border matters has developed considerably. Competition law is a prime testing ground. But financial and digital matters, among others, are also concerned. The mechanisms for concentrating litigation found there cannot simply be transposed to private enforcement. They are nevertheless a source of inspiration, whether in identifying the most suitable authority, putting in place cross-border information mechanisms, or identifying rules that help ensure coherence.

Caroline Derache, Constance Plouchart, The law applicable to disputes relating to air transport

Although international air transport is governed by uniform substantive rules laid down among others in long-standing international treaties, there are still many situations where, in case of litigation, the court may have to determine the law applicable to the claims brought before it. This is the case, for example, when parties other than the carrier are involved. Determining the relevant text and subsequently applying the appropriate conflict of laws rule can, then, give rise to debates that have led to decisions that are worth examining. However, some issues have not yet been resolved.   

Sophie Duparc, Elie Lenglard, Maud Minois, Noela Picari, What role does the ‘lege fori’ classification play in the age of independent classification ?

What role remains for lege fori characterization in a private international law increasingly shaped by the European Union and by autonomous concepts developed by the Court of Justice of the European Union ? Using the landmark Caraslanis decision as its starting point, the article argues that the opposition between domestic and autonomous characterization is less radical than commonly assumed. Although European harmonization has shifted the interpretation of connecting-factor categories to the legal order of the Union, it has neither eliminated the relevance of national legal concepts nor resolved the difficulties surrounding the identification of the object of characterization. The article highlights the continuing methodological value of lege fori characterization through three contemporary case studies: the fiducie and the trust, the direct action mechanism, and claims based on the abrupt termination of established commercial relationships. These examples reveal the persistent tension between European uniformity and the diversity of national private law systems. The authors contend that autonomous characterization can operate coherently only through renewed reliance on comparative analysis and a careful understanding of national legal institutions. The challenge today is therefore not to replace lege fori characterization with autonomous concepts, but to articulate both approaches in a manner that safeguards the unity of EU private international law while preserving the coherence of domestic legal systems.

The focus are the following :

Summary report on the inaugural conference of the GLAS Forum, by Daniela de Avilez Demoro and Yannick Vincent

A first step towards a revision of the Brussels I bis Regulation, by Sandrine Clavel

The transposition of the anti-SLAPP Directive, by Fabienne Jault-Seseke

 

This post was kindly prepared by Véronique Carole Ngono, Professor of Private Law (agrégée), University of Douala, Cameroon.

 

I. Introduction

The recognition and enforcement of foreign judgments in French-speaking sub-Saharan Africa has not been the subject of many studies. Although a few such studies do exist, this is in contrast to the field of conflict of laws and personal status law in particular. Consequently, the two rulings issued by the Supreme Court of Senegal on August 12, 2020, in connected disputes went practically unnoticed, even though they offer valuable insights into determining the jurisdiction of Senegalese courts in international disputes and the enforcement of foreign judgments.

The purpose of this note is therefore to shed light on the law and practice of conflict jurisdictions in Senegal.

 

II. Facts and proceedings

The dispute involves a Senegalese couple, X (the husband) and Y (the wife), who married in Senegal in 1996. They lived there for some time before Y moved to Montreal, Canada, where she settled in 2015.

In 2017, X filed a petition for divorce in Senegal. Y challenged the jurisdiction of the Senegalese courts. The lower court rejected Y’s objection and assumed jurisdiction over the dispute. Dissatisfied with the decision, Y appealed to the Supreme Court [Case 1].

Meanwhile, in 2019, Y successfully obtained an interim order from a court in Montreal, Quebec, in the divorce proceedings between the parties. The order, among other things, granted Y the exclusive right to occupy a residence located in Senegal, to the exclusion of X.

The lower court declared the Canadian judgment enforceable in Senegal. Dissatisfied with that decision, X appealed to the Supreme Court [Case 2].

 

III. Rulings

Case 1 (Ruling No 73 of 12 August 2020)

In the first case, the Supreme Court ruled that when disputes involve spouses of Senegalese nationality, the wife resides abroad, the rule governing the international jurisdiction of Senegalese courts set forth in Article 853 of the Family Code (CF) apply to the exclusion of domestic provisions contained in Article 167 of the same Code, which are confined to matters of territorial jurisdiction. Second, the Court held that, by virtue of the exclusive jurisdiction conferred upon it by Article 853, the Senegalese Court are not required, in the event of international lis pendens, to decline jurisdiction in favor of a foreign court hearing the same dispute between the same parties. Consequently, the lower court dismissed the lis pendens noting that the – both Senegalese national married in Senegal – had lived there before Y moved to Canada in 2015, properly justified its decision.

 

Case 2 (Ruling No 74 of 12 August 2020)

In the second case, the supreme Court ruled as follows:

First, the Supreme Court recalled the applicable legal framework for granting exequatur, notably Articles 787-790 of the Code of Civil Procedure (CCP) dealing with the exequatur requirements, and Articles 853 [op. cit.] as well as 843 and 846 of the FC dealing with the law applicable to the extra-patrimonial effects of marriage and divorce or legal separation, as well as matrimonial property regimes. The Court then observed that the lower court had declared the Canadian judgment enforceable in Senegal on the ground that it satisfied the requirements for recognition and enforcement.

However, the Supreme Court disagreed and held that, by declaring the Canadian judgment enforceable, the lower court had misapplied the law. First, the Canadian court lacked jurisdiction to order provisional measures in divorce proceedings between Senegalese spouses, since some of those measures were to be enforced in Senegal and the Canadian court had failed to apply Senegalese law, which was designated as the applicable law under the Senegalese conflict-of-laws rules. Second, nothing in the order established that the judgment had been rendered in proceedings in which the parties had been duly served, properly represented, or declared in default.

 

IV. Comments

An analysis of the two rulings sheds light on how Senegalese Courts deal with parallel proceedings in international disputes (1) and the requirements of the recognition and enforcement of foreign judgments (2).

 

1. The treatment of parallel proceedings by Senegalese Court

The first ruling in case 1 by the Supreme Court of Senegal provides some useful insights. First according to the supreme court, where one of the defendants is resident abroad, rules on international jurisdiction should apply even when the dispute is between two Senegalese nationals. Second, rules on international jurisdiction do not recognize international lis pendens. This is because according to the Court, Article 853 of the FC confers exclusive jurisdiction to Senegalese court whenever either plaintiff or the defendant is Senegalese national.

Accordingly, while Article 853 of the FC does not explicitly refer to the exclusive nature of the ground of jurisdiction based on the Senegalese nationality, the Court interpreted the “privilege of jurisdiction” referred to in the provision as conferring Senegalese courts exclusive jurisdiction. This exclusive nature of the jurisdiction of Senegalese courts precludes the recognition of international lis pendens, unless the parties have waived the jurisdictional privilege conferred to them or the judgment resulting from proceedings initiated in Senegal is intended to be enforced abroad.

Consequently, a judgment rendered abroad in a dispute between Senegalese nationals or between a Senegalese national and a foreign national in violation of this exclusive jurisdiction may not be enforced in Senegal. Paragraph 2 of this article further provides that Senegalese courts also have jurisdiction over disputes between foreign nationals when the defendant is domiciled in Senegal or when one of the jurisdictional grounds referred to in article 34 through 36 o the CPC dealing with territorial jurisdiction is located in Senegal.

 

2. The recognition and enforcement of foreign judgment

 

a) Applicable legal framework

Under Article 787 of the CCP, in civil, commercial and administrative matters, contentious and non-contentious decisions rendered by foreign courts have de plano the force of res judicata in Senegal territory if they meet the following conditions:

a) The decision was rendered by a court having jurisdiction in accordance with the rules on conflicts of jurisdiction recognized in Senegal;

b) The decision applied the law governing the dispute in accordance with the conflict-of-laws rules recognized in Senegal

c) The decision is, under the law of the State in which it was made, final, binding and enforceable under the law of the rendering State;

d) The parties were duly summoned, represented or declared in default;

e) The judgment is not contrary to Senegalese public policy and does not conflict with a Senegalese court judgment having the force of res judicata.

The application of Article 787 must also be read in conjunction with Article 790 of the CCP, and Articles 843, 846 et 853 of the FC. Article 790 of the CCP determines the scope of the exequatur court’s review by providing that, the President of the Regional Court of the place where enforcement is limited to verifying whether the decision for which a declaration of enforceability is sought meets the conditions laid down in Article 787.

Articles 843 and 846 of the FC lay down the rules on conflicts of law relating to personal status in Senegal, particularly in matters of marriage and divorce. These provisions are relevant for determining whether the foreign court had applied the law governing the dispute according to the Senegalese choice of law rules, as required by Article 787(b). Finally, as noted above, Article 853 establishes the rules governing international direct jurisdiction o the Senegalese courts and is relevant to determining whether the foreign court exercised jurisdiction in accordance with the jurisdictional rules recognized in Senegal, as required by Article 787(a).

 

b) The practice of recognition and enforcement of foreign judgements in Senegal

According to the Supreme Court the conditions laid down in Article 787 were not satisfied. First the Canadian court lacked jurisdiction to order provisional measures to be enforced in Senegal. Second, the Canadian court failed to apply Senegalese law, which was applicable in accordance with the conflict-of-laws rules Articles 843 and 846 of the FC. Those provisions provide that the extra patrimonial effects of marriage as well as divorce and legal separation, are governed by the spouses’ common national law where they share same nationality or where they are of different nationalities, by the law of the country where they have their common domicile at the time the proceedings are instituted. In the absence of proof of the existence of a common domicile the lex fori applies. Furthermore, the Court noted that nothing in the finding of the appealed order that the foreign judgment was rendered in proceedings which the parties had been duly summoned, represented or declared in default.

A new volume coming out of the Programme in European Private Law for Postgraduates (PEPP) has just been published as part of the Scritti di diritto privato europeo ed internazionale series.

The book, available in open access here, focuses on the emergence of new legal personality for environmental features; protection of children; alternative dispute resolution; protection of the internal market and access to justice; SLAPPs; onlice activities and private international law; jurisdiction and choice of court agreements, and tax arbitrability.

Contributions include:

Michał Kućka: Rivers and Other Elements of Nature as Legal Persons: On the Use of Private Law Instruments in Environmental Protection (Polish Perspective)

María González Marimón: Mediation in International Child Abduction Cases in the Brussels II ter Regulation

Francesca Maoli: The EU Legislation on SLAPPs and its First “Stress-Tests” in Lawsuits Between Environmental NGOs and Corporations

Simone Carrea: Arbitrability of Tax Matters in the Context of Inter-private Dis-putes

Stefano Dominelli: Lex fori prorogati and Brussels I bis

Luana Matoso: Choice of Court Agreements and Service Out of the Jurisdiction: The Influence of the Brussels I bis Regulation on English Law After Brexit

Rosa Pla Almendros: The Relevant and Complex Role of Private International Law in the Private Enforcement of the DSA

Felix D. Pollmann, Jonathan L. T. Chu: Standard Terms in Business-to-Business Contracts under English and German Law: Comparative Assessment and Strategies for Avoiding the Application of §§ 305-310 BGB

Kai Hüning: The Hearing of the Child in Child Abduction Cases under the 1980 Hague Convention

Amber Boes: Judicial Powers in Promoting Mediation: A Paper Tiger or a Wolf in Sheep’s Clothing?

Lise Van den Eynde, Ruth Sander: Conflict of Interest in Representation: Belgian ‘Novelty’ versus German Tradition

Jonathan L. T. Chu, Felix D. Pollmann: Debt, Judgment, and Security: English and German Approaches to Preclusion

Sofia Caruso: Access to Justice for Consumers and SMEs: A Competition Law Problem?

Eden Smith: Origins and Aspects of Mitigation in the Law of Damages in England and Germany

Paula Granell: Transfer Pricing and the Role of Contractual Terms in the Post-BEPS Era

Monika Chmielowiec: Towards a Framework of Tort Liability for AI: Insights from Legal Scholarship

Monika Naumovski: Consumer Safety in the Internal Market: The Harmonisation of EU Product Liability

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

The second issue of the Revue Critique de droit international privé of 2026 was just released and is accessible online. It contains two articles, eight case notes, as well as five book reviews. In line with the Revue Critique’s recent policy, the doctrinal part will soon be made available in English on the editor’s website (for registered users and institutions).

The first article by Prof. Étienne Farnoux (Université de Strasbourg/Université Saint-Joseph de Beyrouth) scrutinizes the French Supreme Court’s recent case law pertaining to the Localisation du préjudice financier sur le compte bancaire de l’investisseur en France, une nouvelle doctrine de la Cour de cassation pour la compétence juridictionnelle et la loi applicable ? (The Localisation of Financial Losses on the Investor’s Bank Account in France: A New Doctrine from the Cour de Cassation Regarding Jurisdiction and Applicable Law?). Beyond the innovative solution in the particular cases (outlining a unitary connection of the financial loss centred on the investor’s bank account), this series of six rulings tackles some fundamental questions raised by the localisation of purely immaterial damages, which materialize broader concerns in contemporary private international law scholarship and judicial practice. The author identifies these trends as follows:

In four judgments delivered on October 1st and two further judgments on 26 November 2025, the Cour de cassation located the financial loss suffered by an investor at that investor’s domicile, within the framework of a unitary approach common to both the determination of jurisdiction and the identification of the applicable law. Beyond the outcome – favourable to the investor – the methodology adopted is noteworthy: the Cour de cassation applies a sophisticated connecting-factor, based on a multifactorial and case-by-case analysis, thereby rationalising the complex case law of the Court of Justice of the European Union concerning financial loss in the context of the European forum delicti. This article analyses these rulings, emphasising three significant methodological developments: the alignment of forum and jus, the disaggregation of the connecting rule, and the personalization of the connecting factor.

In the second article, Prof. Véronique Carole Ngono (Université de Douala) ponders over Les Principes africains sur la loi applicable aux contrats commerciaux internationaux : un modèle pour l’Afrique ? (The African Principles on the Law Applicable to International Commercial Contracts: A Model for Africa?). Informed by a large survey of legislative practices in numerous African jurisdictions and regional bodies, the author’s critical appraisal of the 2024 African Principles provides an informed glimpse into the main issues and challenges of modern codification within the field. Her inquiry is summarized as follows:

African private international law has been enriched by a flexible legal text: the African Principles on the Law Applicable to International Commercial Contracts, which were officially launched in 2024. While the objective of harmonising solutions for the choice of law in international commercial contracts in Africa is commendable, despite the fact that they are, in principle, an extension of the 2008 Rome I Regulation on the law applicable to contractual obligations and the Hague Principles on the choice of law applicable to international commercial contracts, the question of their impact arises. The answer is nuanced: while these principles constitute a necessary model given the unsatisfactory state of African legislation on the issue, their impact could be hampered by certain shortcomings.

The full table of contents is available here.

Previous issues of the Revue Critique (from 2010 to 2025) are available on Cairn.

This post was written by Aukje Mens, Jurist at INEA, the Dutch expertise centre on intercountry adoption. She wrote in her own name. 

Recently, an article I wrote about adoption in the proposal for a European Parenthood Regulation was published in the Dutch Journal of Family and Youth Law (Tijdschrift voor Familie- en Jeugdrecht, 2026/3). This article examines the uncertainties and gaps in the regulation of adoption and argues for an autonomous European Adoption Regulation to adequately govern international adoptions. Below is a summary in English of the article.

 

Introduction

On 7 December 2022, the European Commission submitted a Proposal for a European Parenthood Regulation to govern jurisdiction, applicable law, and the recognition of decisions and authentic instruments relating to parenthood (COM(2022) 695 final). Although adoption is mentioned in the proposal, it remains to a significant extent unclear which types of adoption are covered by the proposal and how these adoptions are regulated. The proposal refers to adoption in three provisions—articles 1(2), 3(2)(e) and 66(3)—while explicitly excluding international (Dutch version) or intercountry (English version) adoption from its scope (article 3(2)(e)). This raises questions concerning the proposal’s formal scope, since the terms ‘international adoption’ and ‘intercountry adoption’ are not synonymous.

Furthermore, it is initially unclear which substantive forms of adoption are governed by the proposal, since this is not explicitly stated in the provisions. The explanatory memorandum and recitals provide some guidance, but in certain cases it is necessary to consult additional documents to fully understand the material scope, and even then, some aspects remain ambiguous.

The unclear formal and material scope in relation to adoptions is indicative of the inadequate regulation of international adoption law in the proposal. The proposal also remains unclear, incomplete, or even entirely silent on several other essential points. The article addresses the scope of the proposal, and then three questions: whether the proposed international jurisdiction rules and conflict-of-laws rules also apply to adoptions (point 2 below), what the legal consequences are of recognising a foreign adoption (point 3 below), and whether the proposal also governs the (recognition of) conversion of a “simple” or “weak” adoption, i.e., an adoption which does not cut off the legal family ties between the child and the family of origin, into a “strong” or “full” adoption, i.e. an adoption which does cut off these ties (point 4 below).

 

1 Scope of the proposal with respect to adoption

 1.1 Formal scope

a) Domestic adoptions (non-intercountry adoptions)

The proposal distinguishes between domestic adoptions (non-intercountry adoptions), and intercountry adoptions. Domestic adoptions, where the child and the adoptive parent(s) reside in the same Member State, fall implicitly within the scope, whereas intercountry adoptions—where the child is transferred across borders due to or with the purpose of the adoption—are excluded (article 3(2)(e)). This creates uncertainties, for example, in situations where one adoptive parent resides in another Member State. It is therefore recommended that the regulation explicitly apply to non-intercountry adoptions, after which this term should be clearly defined. In my view, this definition should include situations where one adoptive parent resides in another Member State, as long as there is no cross-border transfer of the child. Furthermore, for the sake of clarity, the regulation should also define precisely what is meant by an excluded ‘intercountry adoption’.[1] However, the proposal is criticised for excluding intercountry adoptions that fall outside the 1993 Hague Adoption Convention, which could lead to “limping adoptions’ within the EU, i.e. adoptions that are valid in one Member State, but not in another.

b) Adoptions from a Member State

Furthermore, the proposal is limited to the recognition of non-intercountry adoptions from a Member State and excludes adoptions from third countries (article 3(3)). However, I argue that it is conceivable that a European regulation could include recognition rules for decisions from third countries, as the EU appears to have the competence to do so.[2] A uniform recognition policy would increase legal certainty within the Union by providing a clear framework for when (adoption) decisions from outside the EU should or should not be recognised. This would eliminate the need for Member States to rely on national recognition rules and would generally prevent “limping” third-country adoptions.[3] However, the political feasibility of such rules remains questionable.

The article questions whether the proposal requires Member States to recognise a decision from another Member State that recognise a third-country adoption. The proposal does not explicitly address this issue. However, expert group reports suggest that such recognitions would not automatically circulate between Member States.[4] Since the proposal does not clearly regulate this matter, it is recommended that the Regulation specify whether it applies to these cases. Several authors, including Barth,[5] and Kohler and Pintens,[6] oppose the application of European recognition rules to recognition decisions made by Member States. In principle I oppose them too, as this could make the public policy of one Member State decisive for the others.[7] For this reason, a common European recognition policy for third-country adoptions is preferable,[8] although its political feasibility is questionable.

 

1.2 Material scope

a) Legal parent-child relationship

Only adoptions that establish a legal parent–child relationship are implicitly included in the proposal, so it does not seem to cover forms of care such as kafala or foster care.

Recital 26 refers to adoptions that establish a permanent parent-child relationship. This raises the question of whether the proposal only covers irrevocable adoptions, meaning adoptions that cannot be undone in the Member State where they were established. However, I believe this is not the case; rather, the intention seems to be that a genuine legal filiation bond must have been created. It is preferable that this be explicitly clarified in the proposal, as is done in het Hague Adoption Convention of 1993 (Article 2(2)), to avoid any misunderstandings.

Recital 26 further indicates that the proposal covers both “full” adoptions—which sever legal ties with the biological family—and “simple” adoptions, where those ties remain. However, this is not expressly regulated. The recitals refer to whether the “legal relationship” between the child and the family of origin is ended or maintained, but since the term “legal relationship” can be interpreted more broadly than “family-law relationship,” it would be preferable to use the latter term.

The proposal is silent on whether family-law relationships are created between the child and the legal relatives of the adoptive parent(s), even though this is essential given the distinct legal consequences of adoption compared with regular parentage. The absence of any mention regarding these relevant forms of establishment might suggest that, for the purposes of the proposed regulation, it is immaterial whether they are used. However, this is not certain, and an explicit provision on this point would be preferable.

b) Judgments and authentic instruments with binding effect

According to Article 1, the proposal covers the recognition of both judicial decisions (Article 24 et seq.) and authentic instruments with binding legal effects (Article 36 et seq.). However, there is considerable uncertainty regarding the distinction between these two types of instruments, particularly as authentic instruments with binding effects presumably do not exist within the European Union.[9] With respect to adoptions, the proposal does not apply to purely contractual adoptions or those established automatically by law. However, such forms do not occur in the European Union.

c) Minor and adult adoptions

Article 4(2) indicates that the proposal covers both minor and adult adoptions, as the term ‘child’ is defined as ‘a person of any age whose parentage must be established, recognised or proved’. While the provision primarily focuses on regular parent-child relationships, if it is accepted that the proposal also applies to adoptions, then the age of the child at the time of adoption appears to be irrelevant.[10]

d) No requirements regarding the adoptive parent(s)

Finally, the proposal does not impose specific requirements regarding the status of adoptive parents. Article 4 refers to “a particular parent or parents” and “any parent”. This indicates that the proposal covers single-parent adoptions—including stepparent or partner-of-parent adoptions—as well as adoptions by two persons jointly, without setting requirements relating to the marital status or sexual orientation of the adoptive parent(s). The European Commission has thus opted for the broadest possible material scope of application in this regard.[11]

 

2. International jurisdiction and applicable law

Although the proposal clearly provides for the recognition of domestic adoptions from Member States, it remains unclear whether the rules on international jurisdiction and conflict-of-laws are applicable to adoption.

The explanatory memorandum and Recital 25 indicate that the proposal does not apply to parentage in purely domestic situations without cross-border elements, such as a domestic adoption that takes place entirely within a single Member State. In this respect, the European Commission appears to assume that non-intercountry adoptions are, by definition, domestic cases without any cross-border aspect. However, this assumption is demonstrably incorrect. In fact, a non-intercountry adoption may well have an international character, for example, where the adopted child and/or the adoptive parent(s), though habitually resident in the same Member State, hold the nationality of another Member State or a third country.  In such cases, there is in fact an international non-intercountry adoption, which raises questions about whether the court addressed has international jurisdiction to decide on the adoption request and which law should be applied. These questions of jurisdiction and applicable law seem to be left out, however.

Nevertheless, scholars suggest that the proposed international jurisdiction and conflict-of-law rules do apply to adoptions.[12] However, some of them argue that these rules are unsuitable for adoptions, as they are not primarily designed to prioritise the best interests of the child or to grant jurisdiction to the court best placed to assess those interests.[13]

The prevailing opinion in the literature thus seems to be that the proposed international jurisdiction and conflict-of-law rules do indeed apply to adoptions but are nevertheless unsuitable. In my view, however, this position cannot be reconciled with the wording of the regulation, its explanatory memorandum and the recitals. My conclusion is therefore that these rules are not applicable to adoptions. They are clearly drafted solely for regular parentage relationships. Although the European Commission sought to regulate the recognition of non-intercountry adoptions from a Member State under the regulation, it has otherwise left international adoption law untouched. Since there appears to be differing views on this matter, clarity is needed on this point.[14] There should be specific private international law rules on adoption.

 

3. Legal effects of recognising foreign adoptions

The proposal does not explicitly address the legal effects of recognising a foreign adoption, leaving unclear what exactly is recognised. Case law of the Court of Justice of the European Union suggests that a recognised decision must be granted the same authority and effect as in the Member State of origin (Hoffman/Krieg; Apostolides/Orams; Prism Investments/v/d Meer; Gothaer Allgemeine Versichering/Samskip; BNP Paribas SA/TR). But what does this mean for the recognition of an adoption?

It goes without saying that recognition should at the very least include the legal parent-child relationship between the child and the adoptive parent(s), since establishing such legal relationships is the fundamental aim of the proposal. Nevertheless, it seems desirable that this be explicitly clarified, so that there can be no doubt—especially in the case of simple adoption.

But does it end there? Should the creation of new family-law ties between the child and the legal relatives of the adoptive parent(s), as well as the possible severance of the original family-law relationships, also be recognised under the proposal, or are these legal consequences left to the ordinary law of the Member States? Perhaps the previously mentioned principle of the Court of Justice can or should be interpreted broadly, so that these legal consequences must also be recognised when they have arisen in the Member State where the adoption was pronounced. However, whether this is the case remains uncertain.

The foregoing leads me to conclude that an explicit provision is necessary, clearly stating the legal consequences of recognising either a full or simple adoption for the legal parentage of the individuals concerned. This is essential to prevent Member States from taking divergent approaches, which could result in inconsistent or limping family law relationships across borders. In my view, it should simply be stipulated that the recognition of a foreign adoption means that all legal consequences for the lineage of those concerned are recognised—no more, no less. Such a provision is not only essential for achieving the objectives of the proposal, namely legal certainty and predictability—but is also dogmatically necessary.[15] By its very nature, adoption concerns both the creation of new family-law relationships and the possible dissolution of existing ones, and, consequently, the recognition of a foreign adoption also pertains to these aspects.[16] In short, if new family-law ties have been established between the child and the legal relatives of the adoptive parent(s) in the Member State where the adoption took place, or if the original family-law relationships have been severed there, then not only should the legal parent-child relationship between the child and the adoptive parent(s) be recognised, but these additional legal consequences should be recognised as well. Other possible legal consequences, such as those relating to parental authority, maintenance, name and inheritance, do not fall within the scope of the concept of adoption and therefore remain governed by their own private international law rules. This aligns with Article 3(2) of the proposal, which states, among other things, that the regulation does not apply to parental responsibility (subsection b), maintenance obligations (subsection f) and succession (subsection g).

 

4. Conversion of simple adoptions into full adoptions

The proposal does not explicitly address the conversion of simple adoptions into full adoptions, an important issue in adoption law whereby original family-law ties are severed. Although the EU lacks competence to regulate substantive family law, it may be able to adopt at least recognition rules for conversion decisions. The absence of such rules may lead to legal uncertainty about a child’s legal parentage across Member States, which may also affect the child’s identity development. Greater clarity and regulation in this area are therefore necessary.

 

By way of conclusion: argument for an autonomous European Adoption Regulation

In the article I argue that the current proposal insufficiently accounts for the special nature and legal consequences of adoption. International adoptions merit an autonomous and clear regulation within European private international family law. A separate European Adoption Regulation would provide space to address adoption-specific issues such as recognition, conversion, jurisdiction, and conflict-of-law rules. Common recognition rules are necessary to prevent “limping adoptions” and to enhance legal certainty for all parties involved. Although political feasibility poses challenges, a separate regulation is seen as the most effective way to regulate international adoptions within the EU.

In sum, the proposed European Parenthood Regulation insufficiently regulates adoption and fails to acknowledge the unique legal consequences associated with it. International adoptions require an autonomous European Adoption Regulation that offers room for careful and effective governance, with the aim of ensuring legal certainty and predictability for all involved, in particular the children.

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[1] See also European Group for Private International Law (EGPIL), Observations on the Proposal for a Council Regulation in matters of Parenthood, 2023, https://gedip- egpil.eu/, p. 2, no 7, and C. Budzikiewicz e.a., The Marburg Group’s Comments on the European Commission’s Parenthood Proposal, Cambridge: Intersentia 2024, https://epub.ub.uni- muenchen.de/, pp. 10- 11.

[2] See also A. Bonomi, ‘European private international law and third states’, IPRax 2017, pp. 190- 191; D. Martiny, ‘The recognition and enforcement of court decisions between the EU and third states’, in: A. Trunk & N. Hatzimihail (red.), EU civil procedure law and third countries. Which way forward?, Baden- Baden: Nomos Verlagsgesellschaft 2021, pp. 129- 130 en 138.

[3] Compare Bonomi 2017, pp. 190- 191, and Martiny 2021, p. 132 (note 3). See also S.M. Carbone, ‘What about recognition of third states’ foreign judgments?’, in: F. Pocar, I. Viarengo & F.C. Villata (red.), Recasting Brussels I, Milaan: Cedam 2012, p. 301 en W. Hau, ‘Unified European rules on the recognition and enforceability of third- country judgments’, Law & Criminology Journal 2025, par. 3.

[4]  Minutes of 7 February 2022, of the 5th Meeting of the Expert Group on the recognition of parenthood between Member States, 2 December 2021, and Minutes of 20 February 2022, of the 6th Meeting of the Expert Group on the recognition of parenthood between Member States, 9 February 2022.

[5] M. Barth, ‘Parent in every country? – Der Kommissionsvorschlag einer EU Abstammungs- VO mit Europäischem Elternschaftszertifikat’, Studentische Zeitschrift fur Rechtswissenschaft Heidelberg Wissenschaft online 2023, p. 26.

[6] C. Kohler & W. Pintens, ‘Entwicklungen im europäischen Personen-, Familien- und Erbrecht 2022- 2023’, FamRZ 2023, p. 13, note 15.

[7] Compare C.G. van der Plas, A.F. Veldhuis & B.H.B. Verheul, ‘Automatische erkenning en tenuitvoerlegging van vonnissen in het Europa van nu: de noodzaak van een nieuwe blik op wederzijds vertrouwen na J/H Limited’, NIPR 2024, p. 263.

[8] See also C. González Beilfuss & I. Pretelli, ‘The proposal for a European Regulation on Filiation Matters – Overview and Analysis’, Yearbook of Private International Law 2022/2023, p. 292.

[9] Marburg Group 2024, p. 77 (note 1); C. Mayer, ‘Keine verfahrensrechtliche Anerkennung von beurkundeten oder registrierten familienrechtlichen Rechtsgeschäften innerhalb der EU’, RabelsZ 2025, p. 753 et seq.

[10] See also P. Twardoch, ‘Regulating international filiation law at the EU- level. Comments on applicable law under the European Commission’s Proposal’, European Review of Private Law 2024, p. 276.

[11] See also D. Danieli, ‘“Third- state connections” in the proposal for an EU Regulation on parenthood: More than a regime of circulation of status between member states?’, Cuadernos de Derecho Transnacional 2023, p. 1392- 1393.

[12] González Beilfuss & Pretelli 2022/2023, p. 291 en 296 (note 8); A. Fillers, ‘Proposal for the Regulation in matters of Parenthood: A critical overview of jurisdiction and conflict- of- laws rules’, in: Revisiting the limits of freedom while living under threat. I, Collection of research papers in conjunction with the 9th International Scientific Conference of the Faculty of Law of the University of Latvia, 2024, p. 227; Marburg Group 2024, p. 50-51 (note 1); Twardoch 2024, p. 275- 276 (note 10); I. Queirolo, ‘The proposed EU Regulation on Parenthood: A critical overview of the rules on jurisdiction’, The European Legal Forum 2024, p. 3.

[13] Beilfuss & Pretelli 2022/2023, p. 291 (note 8); Observations EGPIL 2023, p. 1, No 4 (note 1); Fillers 2024, p. 228 et seq. (see note 12); Marburg Group 2024, p. 50-51 (note 1).

[14] See also Twardoch 2024, p. 289 (see note 10).

[15] A. Mens, Erkenning en omzetting van buitenlandse adopties in Nederland. Over de betekenis van beide fenomenen in het Nederlandse internationaal privaatrecht’, diss. 2024, par. II.3.2.2.1.

[16] Ibid, par. II.1.3.2, II.3.2.2.1, III.1.3.2, III.4.3.2, and III.6.3.2.

By Graham Smith, Of Counsel, Bird & Bird LLP, London, UK

The CJEU’s recent copyright decision in Anne Frank endorses state of the art geo-blocking as an effective way of shielding a website from the different copyright laws of another EU Member State. Although the result on the facts is welcome, the potential implications of the Court’s underlying reasoning are less so. At a principled level, the judgment creates post-Brexit divergence with the UK courts’ targeting approach to cross-border online copyright infringement.

The EU Position

The Anne Frank case concerns a scholarly digital edition of the Anne Frank diaries made available free of charge on a website in Belgium, a country in which copyright in the full diaries has expired. The website owner geo-blocked countries, including the Netherlands, in which parts of the diaries are still in copyright.

Geo-block notwithstanding, the owner of copyright in the diaries (the Anne Frank Fund) sued those involved in the Belgian website project (the Anne Frank Foundation, the Dutch Royal Academy and a Belgian association) in the Dutch courts for infringement of Dutch copyright (specifically, the communication to the public right). The Dutch Supreme Court (Hoge Raad) referred three questions about cross-border copyright infringement to the CJEU.

The Hoge Raad’s first question raised the issue of whether a targeting test, familiar from CJEU caselaw on other territorial intellectual property rights, should be applied to the copyright communication to the public right:

“Is Article 3(1) of [Directive 2001/29] to be interpreted as meaning that the publication of a work on the internet is only to be regarded as a communication to the public in a particular country if the publication is addressed to the public in that country? If so, what factors must be considered in assessing that?”

(The unfamiliar term ‘addressed’ in the first question looks like a quirk of translation. The Dutch language originals use ‘gericht’, which appears to translate readily into the familiar ‘directed’ or ‘targeted’.)

The CJEU, however, did not give a direct answer to that question. By dint of the time-honoured device of reframing and combining the referring court’s questions, it rolled the territoriality question into the labyrinth of its previous substantive jurisprudence on communication to the public. None of that case law was concerned with a cross-border question.

The operative part of its judgment concluded that where a work is in the public domain in some EU Member States but is still in copyright in another, and is published free of charge on a website that implements state of the art geo-blocking designed to prevent access by users from that other Member State, there is no communication to the public under the copyright law of that other Member State. That is the case even if internet users can circumvent the geo-blocking by means of a VPN or similar service.

That is a highly fact-specific formulation. What of the corollary? Does it follow that a website that does not implement geo-blocking necessarily engages the communication to the public right in another Member State? That would imply that mere accessibility of a website on the internet is sufficient to engage the communication to public right of another country; or, which comes to the same thing, that targeting is to be inferred from not geo-blocking.

The CJEU addresses the fact-specific corollary at para 42:

“Indeed, where a work is protected by copyright in only one Member State but is in the public domain in other Member States, any person who knows or ought reasonably to have known that to be the case … and who publishes the work on a website must ensure that that work is made accessible only to internet users who are liable to access that website from Member States in which the work is in the public domain, so as not to infringe the exclusive and inexhaustible [communication to the public] right of the copyright holder … in the Member State in which the work is still protected.”

It goes on:

“It follows that such a person is under an obligation to adopt effective technological measures to restrict access to the website solely to those internet users, failing which, given the freely accessible nature of websites, that person would be giving access to the work concerned to all internet users and would thus be infringing that right.”

That starts from either mere accessibility or targeting inferred from lack of geo-blocking, but with the added condition of actual or constructive knowledge of continuing copyright protection in the other Member State. The Court borrowed the knowledge requirement from its CTP jurisprudence on hyperlinks to infringing material on the internet (G S Media).

It is unclear whether an equivalent knowledge condition (or indeed some other condition or factor plucked from the CJEU’s voluminous CTP caselaw) would apply in other cross-border factual situations. Nor is it clear whether the CJEU’s approach would apply to websites located in countries outside the EU.

What can be said is that the Court did not apply the conventional targeting test. Targeting requires evidence of positive conduct directed towards the country in question before its local law can be engaged. To the extent that mere accessibility, or targeting inferred from lack of geo-blocking, underlies the CJEU’s reasoning, that either rejects or inverts the targeting test.

The UK position

The Anne Frank judgment opens up a post-Brexit divergence of principle with the UK. Five years ago the Court of Appeal in TuneIn [2021] EWCA Civ 441 applied the CJEU’s well known intellectual property targeting caselaw to the copyright CTP right:

“…the internet is global and users in the UK can, in the absence of geo-restriction, access websites hosted, and content posted on or streamed from such websites, from anywhere in the world. Intellectual property rights, however, are territorial. At least in the case of copyright and similar rights and trade marks, the CJEU has held that accessibility of a website from a Member State is not sufficient to give rise to an infringement of rights conferred by the law of that State, and that the relevant act must be targeted at that State: see [L’Oréal v eBay [2011] (trade marks), Donner [EU:C:2012:370] (copyright) and Football Dataco v Sportradar [EU:C:2012:642] (database right)]. This case law has been applied in this jurisdiction to communication to the public: EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch).

The principle is clear: mere accessibility is not sufficient. Nor, it follows, can a website be inferred to be targeting a country by reason of not geo-restricting. That would be mere accessibility in a different guise. (The Donner case, to be clear, concerned the copyright distribution right, which is separate from the communication to the public right.)

The status of targeting as a prior threshold condition is well illustrated in Birss J’s (as he then was) first instance judgment in TuneIn:

“I will address [targeting] first because if TuneIn does not target the UK then UK copyright is not engaged at all.” [15]

That fundamental territoriality point (subsequently endorsed by the Court of Appeal) is obscured in the CJEU’s approach of combining the Hoge Raad’s first question with consideration of substantive CTP law. None of the CJEU caselaw on targeting and the territoriality of IP rights relied on by the Court of Appeal is mentioned in the Anne Frank judgment.

In the context of trade marks, the UK Supreme Court in Lifestyle Equities v Amazon [2024] UKSC 8 summarised the rationale for the targeting test:

“Led by the CJEU, EU jurisprudence has sought to chart a safe course between the Scylla of watching trade mark protection become entirely illusory in the context of internet marketing and sale, and the Charybdis of creating an exorbitant and unprincipled extension into the international sphere of the territorial jurisdiction to protect trade marks. It has done so by reference to two separate concepts. The first is by treating the advertisement and offering for sale of branded goods in a way which is targeted at a protected territory as a use of the mark in the targeted territory. …”

The CJEU in Anne Frank justified its conclusion in para 50:

“a [state of the art geo-blocking] measure serves to ensure a fair balance between, on the one hand, the interest of the rightholder in his or her work not being freely accessible in the Member States in which he or she still has an exclusive and inexhaustible right to authorise or prohibit any communication of the work to the public under Article 3(1) and (3) of Directive 2001/29 and, on the other hand, the interest of any third party in making the work freely accessible online free of charge in the Member States in which the work is in the public domain as well as the public’s interest in enjoying such access in those Member States, in accordance with both the freedom of expression and the freedom of information.”

However, that recitation of balancing factors appears to assume the conclusion that the legitimate interest of the rightholder is in restraining mere accessibility cross-border. In any event it does not explain why an approach that the CJEU has applied to other territorial intellectual property rights is not appropriate for the copyright CTP right.

Whatever the precise reasoning that may underlie it, the CJEU judgment in Anne Frank is for the moment the leading authority on the cross-border aspects of the communication to the public right within the EU. As for the UK courts, as a general matter they are not bound to follow new CJEU judgments although they may have regard to them. However, in any event the formal precedential status of the Court of Appeal judgment in TuneIn applying targeting is not altered by the CJEU judgment.

Graham Smith is writing in his personal capacity and opinions expressed are his personal opinions.

This post follows up on our earlier observations on the public consultation responses to the HCCH Draft Text of a future Convention on Parallel Proceedings and Related Actions. At the time our overview was prepared, the response of the German Judges Association was not yet available to us among the consultation materials on the HCCH website and could therefore not be included. It has since been made available, and we would like to take this opportunity to briefly add its key points to the discussion, notwithstanding that there are still coming up new responses such as the ones by Jonathan Mance (UK) – „Former Deputy President of UK Supreme Court, Co-Chair of the LC Advisory Committee”, the International Association of Consumer Law (IACL) or the Philippine Women Judges Association. We will leave it to others to comment on these.

I.    Support in principle

The German Judges Association supports, in principle, the idea of an international instrument on parallel proceedings. This corresponds to the broad overall support for the project identified in our earlier overview. A uniform framework could promote legal certainty and predictability in cross-border litigation beyond the Brussels Ia Regulation.[1]

At the same time, the response is cautious as to whether the current Draft Text can actually meet these expectations, not least in view of constitutional and European standards of access to justice and the right to be heard before the competent court.[2] Its concern is therefore not directed against international coordination as such, but against a coordination mechanism that may rely too heavily on discretion.

II. The core concern: discretion instead of predictability

The central point of the response concerns the relationship between predictability and discretion. From the perspective of German judicial practice, the Draft Text risks replacing the predictability of jurisdiction with judicial discretion. The Association stresses that German and European civil procedure have traditionally relied on clearly defined jurisdictional rules. These rules allow the parties to know in advance which court is competent. According to the Association, this predictability is closely linked to legal certainty, litigation costs, time efficiency and the parties’ right to be heard before the court determined by law.[3]

Against this background, the Association views the proposed mechanism of Articles 9 and 10 of the Draft Text with particular scepticism. The “more appropriate court” test is seen as introducing a forum non conveniens-type assessment into a legal environment in which such a discretionary displacement of jurisdiction is not familiar.[4] From this perspective, the concern is also constitutional in nature: jurisdiction should be sufficiently determined by law and should not depend too heavily on a later judicial balancing exercise.[5]

The Association therefore points out that the assessment of the more appropriate forum could establish a time- and cost-consuming preliminary procedure and significantly slow down proceedings, since several examination steps would precede the court’s review of the merits.[6] This concern is reinforced by the practical uncertainty surrounding the connecting factors, which are new to German judicial practice and whose application would first have to be developed by the courts.[7] The Association also warns that the connecting factors in Article 10 may lead to an inequality of arms between natural and legal persons, especially in light of changing business relations, complex corporate structures and increasingly globalised transnational operations.[8] Against this background, the Association sees a risk that the mere possibility of another forum being considered more convenient could lead to more satellite litigation and forum shopping than today.[9]

III. What should be done instead?

The German Judges Association therefore pleads for a more rule-based solution. The Draft Text should not replace jurisdictional rules with a broad assessment of the “better” forum, but should preserve the predictability of clear jurisdictional criteria.[10]

In particular, the Association welcomes the idea that the court first seised should generally be the court to proceed where Articles 6 to 8 of the Draft Text do not resolve the conflict.[11] More specifically, it suggests examining whether the court first seised could be treated as a clearly appropriate forum where its jurisdiction is based on established jurisdictional rules.[12] This would come closer to the Brussels Ia model, which combines priority with foreseeability.

At the same time, if connecting factors are retained, they should be framed narrowly and precisely. The suspension of proceedings under Article 9 should also not be mandatory.[13] Connecting factors should guide the allocation of proceedings, not open the door to a general forum non conveniens-style balancing exercise.

In short: legal certainty should remain the rule; discretionary correction should be limited and exceptional.

IV.  Concluding remark

The response of the German Judges Association usefully complements our earlier overview. It confirms support in principle for an international instrument on parallel proceedings, but adds a note of caution from the perspective of German judicial practice. Its central concern is that coordination should not come at the expense of legal certainty and foreseeability. This is particularly relevant for Articles 9 and 10 of the Draft Text, which should remain sufficiently rule-based and compatible with constitutional and European procedural standards.

[1] See Submission by the German Judges Association, Response to Question 1.1.

[2] Ibid.

[3] Ibid.

[4] Ibid., Response to Question 8.1.

[5] Ibid.

[6] Ibid., Response to Question 7.2 and 8.1.

[7] Ibid., Response to Question 1.1 and 8.2.

[8] Ibid., Response to Question 7.3.

[9] Ibid., Response to Question 13.3.

[10] Ibid., Response to Question 1.1 and 8.3.

[11] Ibid., Responses to Questions 7.1.

[12] Ibid., Responses to Questions 8.1.

[13] Ibid., Responses to Questions 8.1 and 8.3.

Guest post by Professor YEO Tiong Min, Yong Pung How Chair Professor of Law, Yong Pung How School of Law, Singapore Management University

Much has been in the news about governmental endeavours to protect children from the ills of social media, which has partially eclipsed the equally important issue of social media being used to cause online harms to both the young and not so young alike. The Online Safety (Relief and Accountability) Act 2025 (OSRAA) came into effect in Singapore on 29 June 2026, with the objective to strengthen the protection of victims against various types of emerging online harm, including intimate image abuse, image-based child abuse, doxxing, online harassment, and online stalking. The statute established the Online Safety Commission that can make orders to hold accountable those who post harmful content (Communicators), control the hosting of the harmful content (Administrators), or host the harmful content (Platforms).

In addition to regulatory orders, the OSRAA provides civil law relief to victims by imposing duties on: (a) Communicators (not to communicate, publish or engage in conduct relating to specified online harm); (b) Administrators (not to create, set up, or administer online locations that facilitate the conduct of online harm with intention or knowledge that such harm would ensue, and to take reasonable measures to address such harms upon notification); and Platforms (to take reasonable measures to address specified online harms upon notification). Victims can seek civil remedies, including damages and injunctions, from the Singapore court.

Online harms inevitably happen in the borderless world of electronic communications. Of significance to private international law are the following provisions in the OSRAA:

Tort treated as taking place in Singapore

101. For the purposes of any proceedings for a tort under Part 10, 11 or 12, that tort is to be treated as having taken place in Singapore if any act or omission or any part of an act or omission that is an element of the tort —

(a)         was initiated or occurred in or from Singapore;

(b)         is perceived by one or more persons in Singapore; or

(c)         caused damage, loss or harm suffered in Singapore.

 

Limits to exclusion of liability

102.—(1)  This Act has effect despite any provision or term to the contrary in any contract, agreement or notice and any provision or term in a contract, agreement or notice is void if and to the extent that —

(a)         it is inconsistent with Part 11 or 12;

(b)         it purports to exclude or limit the jurisdiction of the courts of Singapore for a  claim made under Part 11 or 12; or

(c)         it purports to prevent a person from making a claim under Part 11 or 12.

(2)  Subsection (1) does not apply to a provision or term of a contract, agreement or notice that is fair and reasonable having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract, agreement or notice was made.

(3)  In determining for the purposes of subsection (2) whether a provision or term of a contract, agreement or notice is fair and reasonable, the court is to take into consideration the prescribed matters.

(4)  To avoid doubt, section 26(1) of the Electronic Transactions Act 2010 (which relates to the limitation of liability of network service providers) does not apply in relation to any liability under the provisions of Part 12 or 13 in relation to the liability of an online service provider.

Section 101

Section 101 is clearly intended to affect private international law, since the concept of the place of the tort has no legal significance within Singapore domestic law. The substantive tortious duties are enumerated in Parts 10 (Communicators), 11 (Administrators) and 12 (Platforms). Section 101 situates the relevant statutory tort within Singapore upon the occurrence of any one of the disjunctive connections in subsections (a), (b), and (c). The connections in (a) and (c) are standard ways to measure the connections of a tort to a particular jurisdiction, but there is no weighing of these factors against countervailing factors pointing elsewhere. Further, the connection in section 101(b) can be pretty tenuous. There is clear intention to locate the tort in Singapore so long as there is some connection with Singapore. Section 101 has significant implications for both jurisdiction and choice of law analysis.

The Singapore court has in personam jurisdiction over defendants who are served in Singapore, or who are served outside Singapore with the permission of the court. Permission for service out of jurisdiction may be granted when: (a) the claim has sufficient nexus with Singapore; (b) Singapore is the forum conveniens; and (c) there is a serious issue to be tried on the merits. Locating the tort in Singapore immediately secures a sufficient nexus with Singapore by reinforcing the tort gateway (which strictly only requires a tort to occur partially in Singapore), although sufficient nexus can already be established simply by invoking a power of the court under a Singapore statute (which will be the case here). Moreover, it triggers a presumption that Singapore is forum conveniens. This is not a legal presumption but a factual one arising from the likelihood of the location of the events, evidence and witnesses as well as the applicable law (more on this below) being of significance in the evaluation of the forum conveniens question. Thus, this presumption may not be a high hurdle to the defendant who wishes to object to the Singapore court exercising jurisdiction if the connections to Singapore are otherwise fragile. The legislative intention of the scope of protection of the administrative measures (ie, orders made by the Online Safety Commission) is clear: only Singapore citizens, permanent residents, and persons with a prescribed connection with Singapore (eg, legal migrant workers in Singapore) can raise a complaint to the Commission. It is indicative, however, that even though there is no express limitation in the statutory tort provisions, the primary legislative target of protection by the tortious duties are people connected with Singapore. Forum conveniens becomes the critical tool for the Singapore court to sieve out cases with minimal connections with Singapore, in particular cases where a foreigner is opportunistically seeking to take advantage of the Singapore statute to make OSRAA tort claims against another foreign entity.

Under Singapore private international law, the choice of law rule for torts is double actionability subject to a flexible exception. The claim must succeed as a tort under domestic law (in this case, OSRAA), and civil liability in respect of the same claim must also be made out under the law of the place of the tort. Where section 101 applies to deem Singapore to be the place of the tort, the second limb of double liability will be tested under Singapore law. The result is that Singapore law will apply exclusively to the tort so long as one of the connections under section 101 is made out under the general rule of double actionability. Given especially the span of section 101(b), it will be a rare case brought before the Singapore court that will not trigger section 101. In such a rare case, the common law test of substance of the tort will determine where the tort occurred instead. This requires an evaluation of the connections of the events constituting the tort to determine where in substance the tort occurred. If even the section 101 connections are not satisfied, then it is highly unlikely that the tort will be found to have occurred in substance in Singapore. In the eventuality that the tort is found to have occurred outside Singapore (assuming it is not already filtered out through forum non conveniens), double actionability will require civil liability to be satisfied under the foreign law of the place of the tort in addition to the OSRAA under Singapore law (as the law of the forum), and it will be unlikely that Singapore law can displace foreign law under the flexible exception given the paucity of connections with Singapore. The result is that the claimant can only recover the common denominator between the law of the forum and the law of the foreign place of the wrong.

Insofar as the tort is located in Singapore, there remains the possibility of the flexible exception being invoked to apply the law of a foreign country with the closest connection to the parties and the tort, displacing Singapore law. The flexible exception will be invoked only in exceptional circumstances where the connections with Singapore are so fortuitous that the application of the general rule of double actionability will lead to serious injustice to the parties. Thus, in most cases involving victims with connections in Singapore, the Singapore court is likely to have and exercise jurisdiction, and to apply OSRAA to the facts.

This is consistent with the intention of Parliament to protect residents of Singapore. The operation of section 101 appears to have the practical effect of imbuing the OSRAA torts with the character of overriding forum mandatory rules that will apply to all cases with specified connections to Singapore, albeit under the cloak of connecting factor design. This technique, rather than a straightforward forum mandatory rule approach, leaves a safety valve for the courts to apply foreign law in exceptional cases. Thus, the important work of drawing the limits to the extraterritorial reach of the OSRAA is left to the judiciary applying private international law, at both the jurisdictional (forum conveniens) and the choice of law (exception to double actionability) levels.

This deliberate general overriding effect over otherwise connected foreign legal systems arises from a powerful legislative concern to protect victims of online harms, as well as a legitimate concern that foreign laws may not have adequate rules to protect victims of online harm given the novelty and scale of such harms committed using new technologies. However, one problem that could emerge in the future is where a connected foreign law provides stronger protection to the victim than the OSRAA. In such a case, Section 101 will result in the lower level of protection under Singapore law being afforded to the victim, even if the foreign law would be applicable under the common law if the section had not existed (provided the law of the place of the wrong applies to the exclusion of the law of the forum under the flexible exception, or if the Singapore court decides to excise the law of the forum limb of double actionability in an exercise of judicial law reform). The simple solution is to sue outside Singapore, but this type of choice of law arbitrage requires wherewithal beyond the means of most victims. Second, in endorsing – albeit impliedly – the place of the wrong as the connecting factor for torts, the legislation may impede further judicial development of this aspect of the common law choice of law rule. It will not be an obstacle to the removal of the law of the forum limb (as the Canadian and Australian courts have done), but it may prevent further consideration of alternatives to the place of the tort as a connecting factor (even though it remains as the sole connecting factor in Canadian and Australian torts choice of law). A connecting factor relying on the concept of locating a tort in a physical place appears increasingly out of touch with the realities of human interactions in the modern world.

Another possible interpretation of section 101 is that it sets out the connecting factors for a unilateral choice of law rule for the application of the OSRAA torts, displacing the common law multilateral approach to the extent that the statute applies. This will also lead to the application of Singapore domestic law once any connection in section 101 is found. However, there is no flexible exception in this statutory choice of law rule. The language of the provision does not direct the application of Singapore law; it modifies the meaning of the connecting factor of the place of the tort by replacing the common law test of the substance of the tort with a statutory test, a connecting factor which has been clearly established as part of Singapore private international law for torts. The statutory language is more consistent with legislative intention to ride on the common law multilateral choice of law approach, and there is nothing in the Parliamentary materials to suggest the contrary.

Section 102

Section 102 is directed at the issue of Administrators and Platforms excluding or limiting potential liability under the OSRAA by the use of contractual terms or non-contractual notices. Beyond standard exclusion of substantive liability clauses and notices, the section also catches exclusions practically effected by means of an arbitration clause, an exclusive choice of foreign court agreement or even a mediation agreement that takes the dispute out of the reach of the Singapore courts (section 102(1)(b)). Whether this is indeed the effect will depend on what remedies are available in the alternative forum, and whether mediation agreements which normally only impose temporary restraint on recourse to courts will have that effect may depend on the terms of the agreement and the underlying factual matrix. Exclusion cannot, however, be done using a choice of foreign law clause as party autonomy is not recognised under the Singapore torts choice of law rule in its present form. Section 102 also prevents Administrators and Platforms from invoking the protection, found in the Electronic Transactions Act, against liability as a network service provider. Nevertheless, section 102 allows for exclusion or limitation of liability where it is fair and reasonable in the circumstances at the time of the contract or notice, taking into account the relative bargaining positions of the parties and the extent to which the term or notice makes it more convenient or cost-effective to resolve the dispute between the parties (as prescribed pursuant to section 102(3)).

The question arises whether Section 102 applies when the contract containing the relevant term excluding or limiting liability is governed by foreign law. Nothing in Section 102 expressly renders the provision to be an international or overriding mandatory rule that will apply irrespective of the relevance of foreign law by choice of law analysis. The concept of evasion has very limited application in Singapore private international law. A contract is governed by the law expressly or impliedly chosen by the parties provided the choice is legal, bona fide and not against public policy. In the absence of party choice, a contract is governed by the system of law objectively most closely connected with the contract. Circumvention has a residual role in contract choice of law where a choice of law by the parties may not be given effect to if the sole purpose of the choice is to evade the rules of the otherwise applicable foreign law (ie, a non-bona fide choice). This limitation has never been applied in Singapore law, as it is improbable that parties’ choice has only a single and evasive purpose. In any event, the likely consequence is that the contract will be governed by the objective proper law rather than the law of the forum.

The choice of law approach to contractual defences against tortious liability lacks clarity under Singapore private international law. The general approach to the contractual exclusion or limitation of tort liability was advocated in O. Kahn-Freund, “Delictual Liabiity and the Conflict of Laws” (1968) 11 Hague Recueil 1 at 142-145 and endorsed in P.M. North, “Contract as a Tort Defence in the Conflict of Laws” (1977) 76 ICLQ 914 at 922 et seq: whether tort liability allows for exclusion or limitation at all is a question of admissibility of the contract defence which is a tort issue, while the validity of the contract term in question raises a contract issue. On the premise of Singapore law applying to the substantive tort liability, whether liability under the OSRAA can be limited or excluded raises a question of tort governed by Singapore law, so Section 102 is engaged as the applicable law to the issue. This is clearly the correct approach when it is a notice rather than a contract term that is the agent of exclusion or limitation. However, in the case of contractual exclusion or limitation, the applicable law of the contract is still relevant to govern the validity of the clause. This in turn raises the further characterisation question: do the conditions of validity under section 102 (reasonableness) raise questions of admissibility or validity? That they set limits to party autonomy might incline towards a contractual characterisation, but the limits are dictated by policies in tort law. Arguably they go to the admissibility of the defence to the extent that they are designed to safeguard the principles of tort liability (Kahn-Freund, supra, at 144). On this view, foreign law has limited significance under section 102. The only role for foreign law would be to determine contractual validity per se (ie, whether subject to duress, misrepresentation, etc), and there is no need to resort to forum mandatory rule reasoning to apply section 102.

On the other hand, the Singapore court may take a leaf from the majority of the English Court of Appeal in Sayers v International Drilling Co NV [1971] 1 SLR 1176 to characterise the contractual defence to tort liability as a contractual issue, and apply the proper law of the contract. This may be a compelling argument in the case of a dispute resolution clause because the exclusion will clearly arise from a contractual promise not to sue in the Singapore court. It is uncontroversial under Singapore private international law that the validity of a choice of court or arbitration clause is governed by the law applicable to the clause as a contract issue (except under the Hague Convention on Choice of Court Agreements 2005 where the private international law of the chosen court applies). On this approach, Administrators and Platforms might rely on dispute resolution clauses governed by foreign law to take themselves out of the reach of OSRAA by taking the case out of the Singapore jurisdiction. Outside of international conventions, two responses are possible. First, the effect of a jurisdiction agreement on the jurisdiction of the Singapore court is a matter of procedure governed by the law of the forum and thus section 102 applies. Second, section 102 may be interpreted as a mandatory and overriding provision, or as a source of fundamental public policy, in order to give effect to the strong protective policy of the OSRAA. Thus, the Singapore court is likely to test any dispute resolution clause that has the practical effect of limiting or excluding tort liability under the OSRAA for enforceability under Section 102, in addition to assessing its contractual validity under the law applicable to the clause.

Finally, international conventions may also be engaged in the application of Section 102. The Singapore Convention on Mediation (2018) is not relevant at this point because it only applies to the resulting settlement agreements and not to the validity or enforcement of mediation agreements. The Hague Convention on Choice of Court Agreements (2005) is unlikely to be activated by a choice of court agreement in this context because consumer contracts are out of scope. Singapore did not make a reservation to exclude non-commercial cases in acceding to the New York Convention (1958), so it can apply. In the rare case that the Hague Convention should apply, and in a case where the New York Convention applies, recourse will likely be made to Singapore public policy to justify applying section 102 to determine whether the clause is null and void. Non-arbitrability arguments may be also invoked in the case of the New York Convention, but it is unlikely that Parliament intended to exclude arbitration of OSRAA tort disputes altogether given the possibility of upholding the clause within the bounds of Section 102. In any event, under Singapore private international law, arbitrability at the jurisdiction stage is governed by the law applicable to the arbitration agreement and the law of the seat (though non-arbitrability may also arise as a defence at the subsequent enforcement stage). For a foreign-seated arbitration agreement governed by foreign law, the only practical argument for the victim is that the agreement is null and void for contravention of the public policy of the forum. Statute can be a source of common law public policy. Whether Singapore public policy is actually contravened on the facts will however depend on the parameters in section 102.

I. The Apostille Convention

The HCCH has recently announced that “[o]n 9 July 2026, the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (1961 Apostille Convention) entered into force for the People’s Democratic Republic of Algeria following the deposit of its instrument of accession on 5 November 2025.” With Algeria’s accession, the 1961 Apostille Convention now has 130 Contracting Parties, making it by far the most successful of all HCCH Conventions in terms of global participation.

The reason for this success appear to be straightforward: the Convention replaces the cumbersome and often costly chain of diplomatic and consular legalisations with a single formality: the issuance of an Apostille by the competent authority of the State from which the public document originates. Therefore, by considerably simplifying the circulation of public documents across borders, the Convention reduces both the time and expense involved in having documents recognised abroad, and significantly contributes to facilitating international mobility and cross-border legal transactions for individuals, businesses, and public official documents, including judgments, notarial deeds and authentic instruments alike.

 

2. The situation in Africa

However, a closer look at the list of Contracting Parties reveals that only 17 African States have so far ratified the Convention. These are, Algeria, Botswana, Burundi, Cabo Verde, Eswatini, Lesotho, Liberia, Malawi, Mauritius, Morocco, Namibia, Rwanda, Sao Tome and Principe, Senegal, Seychelles, South Africa and Tunisia (countries in bold characters are HCCH Member States). In other words, only about 31% of the continent’s 54 sovereign States currently benefit from the simplified authentication procedure established by the Apostille Convention. This is the lowest rate in the world, as the following table clearly shows (AI generated table):

 

Region Contracting Parties Total States Coverage rate Europe 46 46 100.0% North America (incl. Central America & Caribbean) 20 23 87.0% South America 12 12 100.0% Oceania 9 14 64.3% Asia 26 49 53.1% Africa 17 54 31.5% Total 130 198 65.7%

Yet, a closer look at judicial practice across Africa demonstrates beyond doubt the practical need for wider adherence to the Convention. Courts throughout the continent are frequently confronted with issues relating to the authentication and legalisation of foreign public documents, often resulting in delays, additional costs, and, in some cases, the refusal to admit or give effect to such documents because the applicable formal requirements have not been satisfied. Indeed, in a number of African states, particularly civil law jurisdictions, proof of the authenticity of a foreign judgment is one of the requirements for its enforcement. This is particularly the case in countries including Benin, Burkina Faso, Burundi, the Democratic Republic of Congo (DRC), Rwanda, and Mozambique, where authenticity is an independent requirement for the enforcement of foreign judgments. In some other African countries, notably Cameroon, Gabon, Guinea, Mali, and Senegal, while authenticity is not listed among the requirements for the enforcement of foreign judgments, reference to it is included in the list of documents to be submitted in support of the application for enforcement. More importantly, available case law shows that, where the Apostille Convention is not applicable, authentication is likely to become an issue in many jurisdictions.

 

III. Examples of judicial practice – The Rwandan High Commercial Court’s decision on the enforcement of a Congolese judgment

The difficulty stemming from the absence of a simplified method of authentication can be illustrated by a case decided by the High Commercial Court of Rwanda decided on 18 November 2021, which shows how how formal authentication requirements may become decisive in enforcement proceedings(*).

(*) Many thanks to Boris Awa (Kigali Independent University ULK, Kigali, Rwanda) for kindly sharing the text of the decision

 

1) Underlying facts

This case concerns the enforcement in Rwanda of a Congolese judgment. The background is rather complex, involving proceedings in both the DRC and Rwanda. It began with a successful action brought by X against his sister, Y, in the DRC, in which the court ordered Y to pay X a certain amount of money. X subsequently sought to enforce that judgment in Rwanda. Y opposed the enforcement on the ground that she had never been notified of the proceedings and had only become aware of the judgment when enforcement proceedings were initiated against her assets in Rwanda. The Rwandan courts, however, rejected her challenge and allowed the enforcement of the Congolese judgment (Judgment 1). Y then challenged the original judgment before the Congolese courts and succeeded in having it set aside in its entirety. She subsequently sought to enforce this second Congolese judgment in Rwanda so that the original judgment could no longer be enforced there.

 

2) Parties’ allegations

X eventually challenged the enforcement of the second Congolese judgment on the ground, inter alia, that it did not satisfy the requirement of authenticity. Y argued that there was no issue as to the judgment’s authenticity, since it bore the Congolese enforcement formula, certification by the Congolese Ministry of Foreign Affairs, certification by the Rwandan Embassy in the DRC, notarisation, certification by the Congolese Embassy in Rwanda, and authentication by the Rwandan Ministry of Foreign Affairs. According to Y, these certifications clearly established the authenticity of the judgment.

For his part, X argued that the copy of the judgment was not authentic because not all of its pages bore the required signatures and official stamps, as required by the standard practice in Rwanda. In particular, he maintained that affixing signatures and stamps only to the last page of a judgment of more than ten pages did not satisfy the applicable legal requirements.

 

3) The Court’s reasoning

The High Commercial Court refused to enforce the foreign judgment, holding that there was no proof that the chain of diplomatic certifications actually related to the judgment submitted for enforcement. In reaching this conclusion, the Court compared the judgment with another Congolese judgment in the case file (Judgment 1) and noted that every page of that judgment bore the complete chain of legalisation, including certification by the court, the Congolese Ministry of Foreign Affairs, the Rwandan Embassy, a Congolese notary, the Congolese Embassy in Rwanda, and the Rwandan Ministry of Foreign Affairs. The Court regarded this as the ordinary practice for Congolese judicial documents. Since the appellate judgment had not been authenticated in the same manner, it concluded that the applicant had failed to establish its authenticity.

 

IV. Insights

The Rwandan case is a good illustration of the practical difficulties associated with the traditional chain of legalization and authentication, particularly where questions arise as to whether the chain of authentications was physically attached to, and clearly identifiable with, the judgment itself. The decision illustrates the burden that the traditional system of diplomatic legalisation places on litigants. Had both Rwanda and the DRC been parties to the HCCH Apostille Convention, the lengthy chain of diplomatic and consular certifications that became the central issue in this case would likely have been replaced by a single Apostille certificate. This could have avoided the type of formal dispute that led to the refusal of exequatur.

The importance of authentication for the enforcement of foreign judgments is also illustrated by the available judicial practice in Mozambique, although the case law reflects a less rigorous approach. Indeed, according to the available decisions of the Mozambican Supreme Court, the authenticity of a foreign judgment is generally verified through the process of legalisation required by Article 540 of the Code of Civil Procedure. Where the required legalisation is not included in the initial application, the Supreme Court generally allows the applicant to submit the necessary documents at a later stage (see eg the Mozambican Supreme Court, Ruling of 5 October 2011, in which the Mozambican Supreme Court held that an English judgment could not proceed to review (recognition and enforcement) because it had not been recognised or authenticated by the Mozambican consular authorities in the United Kingdom, as required by Article 540 of the Code of Civil Procedure. The Court accordingly invited the applicant to cure the defect, but the proceedings were later dismissed after the applicant failed to comply).

Such practices vividly illustrate why African States should give greater consideration to joining the 1961 Apostille Convention. The increasing movement of persons, investment, trade, and family relationships within Africa and beyond requires foreign public documents to be produced before domestic authorities and courts with growing frequency. Yet, the traditional system of diplomatic and consular legalisation remains cumbersome, costly, and prone to disputes over formal requirements, often delaying or even preventing the recognition of documents whose authenticity is not genuinely in doubt. By replacing this complex chain of authentications with a single Apostille certificate, the Convention enhances legal certainty, reduces costs and delays, and facilitates access to justice. Wider adherence to the Convention would therefore represent a significant step towards improving cross-border judicial cooperation and promoting legal and commercial integration, both within Africa and with the rest of the world.

This situation also highlights the important role that the HCCH should continue to play in promoting the Convention across Africa. Much has already been done, but further efforts are needed to encourage wider adherence to the Convention.

The latest issue of RabelsZ has just be released. It contains the following articles as well as an editorial with important information regarding the journal’s future governance structure and publication process. All content is Open Access: CC BY 4.0.

 

EDITORIAL

New Governance Structure and Double-Blind Peer Review, pp 225–228, https://doi.org/10.1628/rabelsz-2026-0020

 

ESSAYS

Sören Segger-Piening,Grundstrukturen des Kollisionsrechts der Digitalisierung am Beispiel von DSGVO, Data Act, DSA, DMA und KI-VO. „Europe Rules the Waves?“, [The Private International Law Dimensions of Digitalization. »Europe Rules the Waves?«], pp 229–292, https://doi.org/10.1628/rabelsz-2026-0012

The private international law of the digital single market is characterized by unilateral scope rules. This article analyses multiple pieces of legislation from the perspective of both private and public international law. In terms of substantive law, there is a substantive duality between private law and public law. With regard to connecting factors and principles, the market location principle dominates, but there are considerable differences in the details of each piece of legislation, particularly between the GDPR, the Data Act, and the AI Regulation on the one hand and the DSA and the DMA on the other hand. From the perspective of public international law the goal of a global regulation can be identified, even though the hoped-for »Brussels effect« may have the opposite impact. While the scope rules do have an impact in private international law, they hardly fit into the existing system; recognized goals such as decisional harmony and party autonomy are not being achieved. De lege ferenda, there are options for achieving justice under private international law while also attaining global applicability.

 

Tobias Lutzi, Arvid Kerschnitzki, Streitgegenstand und Rechtskraft. Perspektiven für einen autonomen Streitgegenstandsbegriff in der EuGVVO [Subject-Matter and Res Judicata. The Prospects of an Autonomous Concept of Subject-Matter under the Brussels Ibis Regulation], pp 293–322, https://doi.org/10.1628/rabelsz-2026-0011

While the debate on the reform of the Brussels Ibis Regulation is well underway, the concepts of lis pendens and res judicatahave thus far received little attention, despite constituting some of the Regulation’s core mechanisms. In fact, there has long been a structural mismatch between the autonomously defined »subject-matter« of a dispute – underpinning the rules on lis pendens and the grounds for refusal of recognition – and a concept of res judicata that remains determined by national law. This incongruence may lead to unsatisfactory outcomes, e.g. where the lis pendens rules successfully prevent parallel proceedings but the resulting judgment produces only a limited preclusive effect, creating the potential for (further) decisions that will be incapable of circulation within the EU. Against this background, the present article explores the prospects of developing an autonomous concept of subject-matter under the Brussels Ibis Regulation. It advocates harmonization based on the doctrine developed by the ECJ in its interpretation of Art. 29 Brussels Ibis. A more far-reaching harmonization – one which could include an extension of the rules on lis pendens – would also seem useful, but for now it appears unlikely to receive sufficient support.

 

Saloni Khanderia, From Domestic Courts to Transnational Justice. An Examination of India’s PIL within a Comparative Asian Framework, pp 323–358, https://doi.org/10.1628/rabelsz-2026-0018

India, with its vast population, economic presence, and historical prominence in constitutional and human rights jurisprudence, has profoundly shaped international legal discourse. However, it has lagged in developing its PIL rules, chiefly due to its particularistic views favouring national law and its focus on international commercial arbitration. Judicial efforts striving to pace the country’s economic policies post-liberalization are insufficient without concomitant efforts by the Parliament and the Law Commission of India. Using Singapore, China, Japan, and South Korea as examples, the study suggests that modernising India’s framework predominantly involves relaxing restrictions on foreign legal practitioners, empowering the judiciary to investigate foreign law ex officio, and overhauling the recognition and enforcement regime to align with international standards. Pending comprehensive codification, interim guidelines drawn by the highest court should encapsulate case law to ensure consistency. The author contends that India’s PIL cannot be internationalized by courts alone. Rather, the effort will require a collective of institutional perspectives – spanning the legislature, the Law Commission, and the judiciary – to foster sustainable growth.

 

Jürgen Samtleben, Das Internationale Privatrecht Kolumbiens. Tradition und Vision, [The Private International Law of Colombia. Tradition and Vision], pp 359–384, https://doi.org/10.1628/rabelsz-2026-0019

The private international law of Colombia follows in the territorialist tradition of the Chilean Civil Code of 1855, which Colombia adopted in 1873/1887. But Colombia opted for an even more rigid territorialist conception, under which Colombian law applies to all domestic transactions. Colombian nationals abroad continue to be subject to Colombian law as their personal statute inasmuch as their activities have effects in Colombia. Foreign law is entertained only as an exception under a vested-rights theory for transactions concluded abroad. Subsequent legislation has done hardly anything to alter this archaic system despite unabated criticism in the Colombian legal literature. Two recent proposals by Colombian scholars have breathed new life into the discussion. These proposals are based on a bilateral conception of the domiciliary principle and show the influence of modern tendencies in the conflict of laws. This article compares and contrasts the current law with the newly proposed rules and thereby shows the deficits of the existing rules. The new proposals so far have not elicited any official response.

 

BOOK REVIEWS

This issue also contains several reviews of literature in the fields of comparative private and private international law and on related topics (pp. 385–409).