Conflictoflaws

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 27 February 2025 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is ‘Private International Law in the Inter-American system: A glance in the light of the 50 anniversary of the CIDIP’ and will be presented by OAS Director Dante Negro (in Spanish).

CIDIP is the Spanish acronym for the Inter-American Specialized Conferences on Private International Law. For a history of the CIDIP, click here.

The details of the webinar are:

https://us02web.zoom.us/j/87314720181?pwd=yN9CVZdxnVWKs1R9oE8aPIxukLKvie.1

Meeting ID: 873 1472 0181

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

 

In 2024, Oxford University Press published Philosophical Foundations of Private International Law, edited by Roxana Banu, Michael S Green, and Ralf Michaels. The book represents the first inter-disciplinary engagement with questions of private international law from a philosophical perspective, covers a wide range of philosophical questions in private international law and brings philosophers in conversation with private international law scholars to demystify the analytical tools of each discipline in relationship to the other. More information on the book, including a table of contents, is here.

Now, Oxford University is organizing a hybrid book launch on March 19, 4pm-6pm. An introduction from the Editors will be followed by a discussion on key themes by Gabriel Encinas, Verónica Ruiz Abu-Nigm,  Robert Stevens, Antonios Tzanakopoulos, and Emmanuel Voyiakis. More information on the event and on how to sign up for physical or virtual participation is here.

I. Introduction

The recognition and enforcement of foreign judgments in the MENA region can sometimes be challenging, as it often involves navigating complex legal frameworks (domestic law v. conventions). In addition, case law in this field has encountered difficulties in articulating the applicable guiding principles and is sometimes ambiguous, inconsistent, or even contradictory. Two recent decisions rendered by the Egyptian Supreme Court highlight this issue, alhoutgh – it must be admitted – the Court did provide some welcome clarifications. In any event, the cases reported here highlight some key issues in the recognition and enforcement of foreign judgment and offer valuable insights into the evolving landscape of this area of law in Egypt.

 

II. The Cases

 

1. Case 1: Ruling No. 12196 of 22 November 2024

a. Facts

The first case concerns the enforcement of a court-approved settlement deed (saqq) issued by a Saudi court. While the underlying facts of the case are not entirely clear, it appears that the parties involved seem to be Egyptian nationals. The original case, initiated in Saudi Arabia, concerns a claim for maintenance to be paid by the husband, ‘Y’ (defendant/respondent), to his wife and children, ‘Xs’ (plaintiffs/appellants). Before the Saudi court, the parties reached a settlement, which was recorded in a court-issued deed (saqq). Under this agreement, Y was obligated to pay a monthly alimony to Xs, with payment to be made by way of bank transfer to the wife’s account from November 2009. However, as Y failed to make the payment and returned to Egypt, Xs filed an action before Egyptian courts in 2019 to enforce the Saudi court’s settlement deed in Egypt (however, it remains unclear when Y stopped making the alimony payment or when he returned to Egypt).

The Court of first instance ruled in favor of Xs. However, the decision was overturned on appeal. Xs then appealed to the Supreme Court. According to Xs, the court of appeal refused to enforce the Saudi court’s settlement deed on the grounds that it violated Islamic sharia and the Constitution. This was based on the fact that Xs continued to reside in Saudi Arabia, the children had obtained university degrees and were employed—along with their mother—in Saudi Arabia, while Y had left the country after his retirement. Xs argued that, in doing so, the Court of Appeal went beyond a formal examination of the enforcement requirements and instead engaged into re-examining the substantive merits of the case.

 

b. The Court’s Ruling (summary):

The Supreme Court accepted the arguments made by Xs on the following grounds:

First the Supreme Court recalled the general principles governing the recognition and enforcement of foreign judgments in Egypt. It made a clear distinction between the “recognition” of foreign judgments and their “enforcement” and determined their respective legal regimes.

Regarding the enforcement of the Saudi court-approved settlement deed, the Supreme Court considered that the deed in question was “a final judicial decision rendered by a competent judicial authority, in the presence of both parties and after they were given the opportunity to present their defense”. Accordingly, such a judgment should be given effect in accordance with the conditions and procedures specified by Egyptian law (Arts. 296~298 of the Code of Civil Procedure (CCP)). If these conditions are met, Egyptian courts are required to declare the foreign judgment enforceable; otherwise the courts’ role is limited to rejecting enforcement, without reassessing the substantive reasoning of the foreign judgment. The Court concluded that Court of appeal had gone beyond its authority by failing to adhere to the above principles and instead re-examined the judgment’s reasoning.

 

2. Case 2: Ruling No. 2871 of 5 December 2024

a. Facts

The second case concerns the enforcement of a Kuwaiti money judgment. Here, too, the underlying facts of the case are not entirely clear. However, it appears that the dispute involved a Kuwaiti company, ‘X’ (plaintiff/respondent), and an Egyptian national ‘Y’ (defendant/appellant).

X initiated a lawsuit against Y in Kuwait, seeking the payment of a certain amount of money. Based on the arguments submitted by Y, it seems that by the time the lawsuit was filed, Y had already left Kuwait to return to Egypt. X prevailed in the Kuwaiti lawsuit and then sought to enforce the Kuwaiti judgment in Egypt.

The court of first instance ruled in favor of X and this decision was upheld on appeal. Y then appealed to the Egyptian Supreme Court. Before the Supreme Court, Y contested the lower courts’ rulings on the ground that he was not properly summoned in the original Kuwaiti case, as the notification was served to the Public Prosecution in Kuwait, despite his having already left Kuwait before the lawsuit was filed.

 

b. The Court’s Ruling (summary):

The Supreme Court accepted Y’s argument on the following grounds:

The Court first recalled that proper notification of the parties is a fundamental requirement for recognizing and enforcing a foreign judgment, that is explicitly stated in Article 298(2) of the Egyptian CCP and Article 27(3) of the 2017 Judicial Cooperation Agreement between Egypt and Kuwait. The Court also referred to Article 22 of the Egyptian Civil Code (ECC), according to which procedural matters (including service of process) are governed by the law of the country where the proceedings take place.

The Court then observed that, although Y had already left Kuwait before the lawsuit was filed, the Court of Appeal ruled that the service was valid under Kuwaiti law. However, the Supreme Court emphasized that, according to Kuwaiti CCP, a summons must be served to the defendant’s last known address, workplace, or residence, whether in Kuwait or abroad. This law also addresses situations where the defendant has or has not a known domicile abroad. Since Y had left Kuwait, the lower court should have verified whether the notification complied with these requirements. The Supreme Court concluded that the lower courts had incorrectly relied on notification via the Kuwaiti Public Prosecution without confirming whether this method met the requirements established by Kuwaiti law for notifying defendants abroad.

 

III. Comments

The reading of the two cases leaves a mixed impression.

 

i. On the hand, one can appreciate the general framework outlined by the Supreme Court in both decisions. Notably, in the first case, the distinction between recognition and enforcement of foreign judgments is noteworthy, as Egyptian courts have reached divergent conclusions on whether the “recognition” of foreign judgments can operate independently from their “enforcement” (for the situation in the UAE, which has a similar legal framework, see here).

Moreover, the Supreme Court’s reaffirmation of the principle of prohibition of révision au fond is also commendable. Although the principle is generally accepted in Egyptian law, what sets this case apart is that the Court did not merely affirm a general principle, but it actively overturned the appealed decision for violating it.

In the second case, the Court’s correct reference to the applicable convention is particularly noteworthy, given that it has failed to do so in some previous cases (for a general overview, see my previous post here).

 

ii. On the other hand, the Court’s approach in both cases raise certain questions, and even doubts.

a) Regarding the first case, one may question the applicability of the Court’s general stance to the specific issue addressed. It should be noted that the case concerned the enforcement of a court-approved settlement deed, which is the equivalent to a “judicial settlement” (sulh qadha’i – transaction judiciaire) under Egyptian law. While foreign judicial settlements can be declared enforceable in Egypt (Article 300 of the CCP), they do not constitute – contrary to the Court’s affirmation – “final judgments” per se, and therefore, do not carry res judicata effect, which – if recognized – would preclude any review of the “merits”. The Court’s reasoning appears difficult to justify given the longstanding position of Egyptian courts that judicial settlements lack res judicata effect and that the fact that they are approved by the court has no implication on their characterisation as “settlements” (and not decisions). This is because, while judicial settlements involve the intervention of the court, the court’s involvement is not based on its adjudicative function but rather serve a probative purpose. The Court’s failure to acknowledge this distinction is particularly striking in light of the established case law.

It is also regrettable that the Supreme Court failed to apply the correct legal framework. Indeed, both Saudi Arabia and Egypt are contracting states of the 1983 Riyadh Convention, and the case falls within its scope of application. This is particularly relevant given that the 1983 Riyadh Convention explicitly prohibits any review of the merits (Article 32), and – unlike, for example, the 2019 HCCH judgments Convention (Article 11) – allows for the “recognition” of judicial settlements (Article 35).

Finally, doubts remain as to whether the Supreme Court was justified in overturning the appealed decision for allegedly engaging in a prohibited révision au fond, or whether the Court of Appeal’s approach can be considered a review of the merits at all. It should be noted that the settlement was reached in 2009, while the enforcement lawsuit was filed as decade later. Moreover, Y argued that his children had already graduated from university and were employed in Saudi Arabia. Taking this significant change of circumstances into account should not necessarily be regarded as a “review of the merits”, but rather as a legitimate consideration in assessing whether enforcement remains appropriate. Therefore, such a change in circumstances could reasonably justify at least a partial refusal to enforce the Saudi court-approved settlement deed.

 

b) With respect to the second case, the Supreme Court’s stance to overturn the appealed decision on the ground that the court of appeal failed to confirm whether the service complied with the requirements established by Kuwaiti law for notifying defendants has a number of drawbacks. Two main issues arise from this position:

(1) One might question how Egyptian judges could be more qualified than Kuwaiti judges in applying their own procedural rules, especially if it is admitted that Kuwaiti procedural law is applicable (article 22 of the ECC).

(2) The Court overlooked that the 2017 Egyptian-Kuwaiti Convention, which it explicitly cited, contains a chapter specifically dealing with service of process (Chapter II). Therefore, the validity of the service should not be evaluated based on Kuwaiti procedural law, as the Court declared, but rather in accordance with the rules established by the Convention, as the Supreme Court itself had previously ruled (see the cases cited in my previous post here) . Given that this Convention is in force, there was no need to refer to domestic law, as – according to Egyptian law – when an international convention is applicable, its provisions take precedence over conflicting national laws (Article 301 of the CCP), a principle that has been repeatedly confirmed by the Supreme Court itself on numerous occasions.

by Faidon Varesis, University of Cambridge

Background

The dispute in the UniCredit v. RusChem saga arose from bonds issued by UniCredit to guarantee performance under contracts for Russian construction projects, where RusChem, after terminating the contracts due to EU sanctions, initiated Russian proceedings for payment in breach of an English-law governed arbitration agreement that mandates resolution in Paris under ICC rules.

UniCredit sought an anti-suit injunction in the UK to stop these Russian proceedings, arguing that the arbitration clause must be enforced under English law. Teare J at first instance held that the English court lacked jurisdiction—finding that the arbitration agreements were governed by French substantive rules and that England was not the appropriate forum—whereas the Court of Appeal reversed this decision by granting a final anti-suit injunction requiring RCA to terminate its Russian proceedings.

The November 2024 UK Supreme Court’s Decision

The Supreme Court addressed the sole issue of whether the English court had jurisdiction over UniCredit’s claim by examining (i) whether the arbitration agreements in the bonds were governed by English law (the Governing Law issue) and (ii) whether England and Wales was the proper place to bring the claim (the Proper Place issue). Ultimately, the Supreme Court upheld the Court of Appeal’s decision, reaffirming that the arbitration clause is governed by English law and that England is the proper forum to enforce the parties’ agreement, thereby confirming the English courts’ willingness to restrain foreign proceedings brought in breach of such arbitration agreements.

Importantly for the present note, the Supreme Court, in the last paragraphs of the November 2024 decision, also considered (as part of its discretion) the availability of similar relief from the arbitral tribunal or the French courts (as courts of the seat). The Court explained that arbitration awards lack the coercive force of court orders—they merely create contractual obligations without enforcement powers such as contempt sanctions—so relying on arbitration to restrain RusChem would be ineffective. Evidence at trial showed that French courts would not have the authority to enforce any arbitral order preventing RusChem from pursuing Russian proceedings. Furthermore, such an award would also be unenforceable in Russia. Consequently, the Court concluded that neither the French courts nor arbitration proceedings would provide an effective remedy, and that England and Wales is the proper forum to enforce UniCredit’s contractual rights through an anti-suit injunction.

Parallel Proceedings in Russia and the Grant of an Anti Anti-Suit Injunction

The English anti-suit injunction was instigated by proceedings brought by RusChem against UniCredit in the Russian courts, seeking €448 million under the bonds. The jurisdiction of the Russian courts was established despite the French-seated arbitration clause, as Russia had enacted a law that confers exclusive jurisdiction on Russian Courts over disputes arising from foreign sanctions. In November 2023, the Russian courts dismissed UniCredit’s application to dismiss the claim, ruling that the dispute falls under the exclusive competence of the Russian courts, though the proceedings were stayed pending the outcome of the anti-suit proceedings in England.

Later in 2024, RusChem was successful in getting the Russian courts to seize assets, accounts, and property, as well as shares in two subsidiaries of UniCredit in Russia amounting to €462 million.

RusChem had initially committed to being bound by the final injunctive relief of the English court and to respecting its orders, but following the UK Supreme Court’s decision of November 2024, RusChem secured a ruling from the Russian courts on 28 December 2024. This ruling—effectively an anti anti-suit order—restricted UniCredit from initiating arbitrations or court proceedings against RusChem over the bonds outside the Russian courts, and prevented any ongoing proceedings or judgment enforcement outside of Russia, while also mandating that UniCredit take all necessary steps to cancel the effects of the English court’s order within two weeks of the ruling coming into force, failing which UniCredit would have faced a court-imposed penalty of €250 million.

The February 2025 Court of Appeals Decision

UniCredit applied to the English courts, seeking a variation of the order it had finally secured just a few months earlier. The Court of Appeal considered that UniCredit faced a real risk of incurring a substantial financial penalty if the English injunction remained in force, given the Russian court’s ruling that could impose a €250 million penalty. In addition, the Court of Appeal examined whether UniCredit had been effectively coerced into making the application by RCA’s actions in obtaining a ruling in Russia, and whether that coercion should weigh against granting the application. The Court concluded that, while the declaratory parts affirming the English court’s jurisdiction should remain, the injunctive components should be varied. In fact, the Court of Appeals was very cautious in saying in the last paragraph of the decision [44]: ‘I have decided that I would vary, not discharge, the CA’s Order. It seems to me that it would be unsatisfactory to discharge the parts of the order that reflect the decisions on jurisdiction made by the Court of Appeal and the UKSC. There is no need to do so. Under English law, this court did indeed have jurisdiction to determine what it determined and its final order reflecting that decision must stand’.

Comment

This case underscores a critical point: the effectiveness of an anti-suit injunction can shift dramatically depending on the defendant’s asset base and geographic ties. When the Supreme Court decided to confirm the English courts’ jurisdiction in such cases, it considered whether an equivalent remedy from French courts or the arbitral tribunal would be effective (and ruled them ineffective), but it did not consider the effectiveness of the English remedy itself.

Anti-suit injunctions from English courts have long been hailed as a powerful weapon. However, where the defendant has no assets or connections with England, the practical effectiveness—the “bite”—of such remedies is extremely limited, rendering the injunction “toothless.” By contrast, when the English applicant has assets in another jurisdiction—especially one where local courts, such as the Russian courts, are prepared to issue countervailing anti anti-suit injunctions backed by substantial penalties—the balance can swiftly tilt, obliging the applicant to seek the revocation of the order it obtained in the first place.

In a broader sense, this dynamic highlights the interplay between different jurisdictions’ willingness to grant anti-suit injunctions, potentially leading to a spiralling effect of competing orders—so-called “injunction wars”—that impose significant strategic and economic burdens on litigants. Ultimately, it is clear that the location of assets and the readiness of local courts to enforce relief with penalties determines just how strong the bite of an anti-suit injunction truly is.

Workshop on Cross-border Protection of Cultural Property Agenda

2025.2.28, UTC 8:00 – 12:15 (London Time)

 

 8:00 – 8:05 Opening Remarks Zheng Tang professor of Law, editor in chief, Chinese Journal of Transnational Law; Associate Dean, Wuhan University Academy of International Law and Global Governance 8:05 – 8:45 Keynote Address Christa Roodt Senior Lecturer of History of Art, University of Glasgow Zhengxin Huo Professor of Law, China University of Political Science and Law Panel 1: Legal Mechanisms of Cross-Border Cultural Property Protection 8:45 – 9:00 Elena Moustaira The contribution of Postcolonial Theory to the cross-border protection of Indigenous cultural heritage 9:00 – 9:15 Yehya Badr Restitution of stolen foreign cultural property and hurdles in choice of law 9:15 – 9:30 Maggie Fleming Cacot Forfeiture and freezing orders in transborder cultural property litigation 9:30 – 9:50 Commentary and Discussion Panel 2: Regional Practices and Challenges in Cultural Property Restitution 9:50 – 10:05 Andrzej’s Jakubowski Moving People, Shifting State Borders and the Return of Cultural Property: The Case of Poland 10:05 – 10:20 Miroslaw Michal Sadowski From freedom to restitution (with special focus on Central and Eastern Europe and the Lusophone community) 10:20 – 10:35 Ekin Omeroglu The Issue of Applicable Law in Disputes Arising from Violations of Private Law Regulations on Cultural Properties: The Case of Turkiye 10:35 – 10:50 Ruida Chen Restitution of cultural property in China: In search of a new paradigm for cross-border cultural property claims 10:50 – 11:10 Commentary and Discussion Panel 3: Looking to the Past and the Future 11:10 – 11:25 Dabbie De Girolamo The Relevance of ADR for transnational cultural property disputes: A Survey and Analysis of China’s experience 11:25 – 11:40 Andreas Giorgallis Restitution of cultural objects unethically acquired during the colonial era: The intersection of Public and Private International Law 11:40 – 11:55 Evelien Campfens Evolving Legal Models of Restitution 11:55 – 12:15 Commentary and Discussion

Join Zoom Meeting:

https://zoom.us/j/87424891864?pwd=8rHX72dmzi7FCDWWnm7F2n1OLIOFaC.1

Meeting ID: 874 2489 1864 Password: 574150

The second issue of 2024 of Giustizia consensuale (published by Editoriale Scientifica) has just been released, and it features:

Tommaso dalla Massara (Professor at Università Roma Tre), Per un’ermeneutica della certezza nel processo civile romano: tra regula iuris e determinazione pecuniaria (For a Hermeneutics of Certainty in the Roman Civil Process: Between Regula Iuris and Pecuniary Determination; in Italian).

This contribution offers a reflection on procedural certainty, starting from the Roman classical process. In particular, crucial is the idea that, in this procedural system, certainty is to be related to the rule of ‘condemnatio pecuniaria’. Thus, certainty is translated into the determinacy of the pecuniary sentence. What emerges is a peculiar way of understanding judicial activity, which is characterised by the alternativeness between the groundedness and groundlessness of the claim (si paret/si non paret oriented to a certum), as opposed to the hypothesis in which the assessment is left entirely to the judge.

Beatrice Ficcarelli (Associate Professor at the University of Florence), L’acquisizione di informazioni e «prove» nella negoziazione assistita da avvocati: la tessera che mancava (The Acquisition of Information and ‘Evidence’ in Negotiation Assisted by Lawyers: The Missing Piece of the Puzzle; in Italian).

The recent reform of ‘negoziazione assistita’ (attorney-assisted negotiation procedure) introduces within the procedure a so-called out-of-court instruction, through the acquisition of statements from third parties on facts relevant to the subject of the dispute and the request to the other party to declare in writing the truth of facts unfavorable and favorable to the requesting party. This is a striking innovation that opens up new scenarios in the establishment of facts also for the purpose of the possible future judgment in case of an unsuccessful negotiation. The absolute protagonists of the proceedings are the attorneys, on the unfailing prerequisite of the duties of good faith and loyalty incumbent on them to amicably resolve their clients’ dispute. The main purpose of the new rules is to enable them to acquire all the information that can lead, in the best way, to the settlement of the dispute.

Antonio Maria Marzocco (Associate Professor at the Università degli Studi della Campania Luigi Vanvitelli), Tentativi obbligatori e facoltativi di conciliazione nell’ecosistema digitale regolato dall’AGCom (Mandatory and Optional Attempts at Conciliation in the Digital Ecosystem Regulated by AGCom; in Italian).

Technological developments have broadened the competences of the Communications Authority (AGCom) and the extent of its conciliatory function. This function is no longer limited to the electronic communications sector (in particular for disputes between users and operators), but extends to other sectors of the digital ecosystem, such as audiovisual media services and video-sharing platforms. The essay identifies the main sources that have assigned AGCom the task of regulating procedures for extrajudicial dispute resolution: the law establishing the AGCom (Law No. 249 of 1997), the electronic communications code (CCE) and the consolidated text on audiovisual media services (TUSMA). The Author points out that these sources represent the basis of several mandatory or voluntary conciliation attempts. Their regulatory discipline is converging in parallel with the technological convergence among the various sectors of the digital ecosystem.

Alessandro Fabbi (Associate Professor at the University of Catania), Contratto e processo nella nomina congiunta dell’esperto ex art. 473 bis.26 c.p.c. (Contract and Process for the Joint Appointment of an Expert Pursuant to Art. 473 bis (26)of the Italian Code of Civil Procedure; in Italian).

The article analyses the newly introduced joint-appointed expert, in the context of the proceedings for families and individuals, referred to in article 47 -bis(26) of the Italian Civil Procedure Code. The contribution deals with its operational aspects, particularly centered on the core of the agreement, as well as with – formulating proposals on – the dubious nature of the tool at issue, placed in the dynamical context of the civil process, but undoubtedly representing a private contract between the parties and the expert.

 

Observatory on Legislation and Regulations

Mauro Bove (Professor at the University of Perugia), La domanda di mediazione (The Petition for Mediation; in Italian).

The Author examines the content of the mediation request, comparing it with the content of the judicial application, to identify structural differences and differences in their legal ‘reading’. Starting from the exclusion of the paradigm of invalidity from the field of mediation, practical implications are drawn taking into account the different points of view that the crisis of cooperation entails: while mediation looks at the human relationship, seeking to mend its breakdown, judicial proceedings focus on the infringement of a substantive right and the respective ascertainment.

Edoardo Borselli (Research Fellow at the University of Florence), Mediazione e processo civile riformato: quando il giudice dispone l’invio? (Mediation and the Reformed Civil Procedure: When Does the Judge Order the Case to Be Sent to Mediation?; in Italian).

This article investigates the time frames in which a judge can order the referral to mediation, both when the parties have not satisfied the procedural condition required by law and when the judge intends to use court-ordered mediation. In particular, the article focuses on the possibility that such a referral takes place, within the procedure introduced by the Cartabia reform and amended by the Law No 164/2024, following the preliminary checks under Article 171-bis of the Italian Civil Procedure Code, when the judge finds that the procedural condition required by law has not been satisfied. The conclusion supports the admissibility of such a procedural approach, promoting a systematic and teleological interpretation of the introductory phase of the trial, in line with the decision No 96/2024 of the Constitutional Court, prevailing doctrinal orientations, and practices developed within judicial offices. Furthermore, the article analyzes the relationship between referral to mediation and opposition proceedings to injunction orders, and it concludes by discussing the stay of the trial during the extrajudicial process.

 

Observatory on Practices

Silvana Dalla Bontà (Professor at the University of Trento), Silvia Toniolo (Coordinator of German language courses at the University of Trento Language Centre) and Federica Simonelli (Accredited mediator at the Chamber of Commerce of Bolzano, JAMS Diversity Fellow), La mediazione come strumento di integrazione. Potenzialità e sfide dell’insegnamento interdisciplinare e bilingue della mediazione (Mediation as an Integration Tool. Potential and Challenges of Interdisciplinary and Bilingual Mediation Teaching; in Italian).

The paper focuses on the ADR teaching experience hosted at the Istituto di Diritto Italiano/Institut für Italienisches Recht (Institute for Italian Law) of the Universität Innsbruck. Offered in a unique context – i.e, in the context of the European Region Tyrol-South Tyrol-Trentino, a European Grouping of Territorial Cooperation with European legal personality – the course on Alternative Dispute Resolution Mechanism, with a specific focus on Mediation, is bilingual (Italian and German). By adopting an interdisciplinary and practice-oriented approach, the two teachers of the course – one, a full professor of Civil Procedure; the other, a translator in Italian/German and expert in cross-culture communication – walked students through the complexity conflict management with a view to reaching a sustainable solution via mutual agreement. Against this background, on the one hand, knowledge of effective communication fundamentals and soft skills has proven essential to deal with multi-linguistic and multi-cultural disputes. On the other hand, mediation has proven to be an effective method to foster cohesion and resilience in a society which is increasingly complex, multi-faceted and, thus, challenging.

Alessandro Triolo (Doctoral Candidate at the Università di Roma Tor Vergata), Tra decisione algoritmica e mediazione robotica (Between Algorithmic Decision and Robotic Mediation; in Italian).

By examining the theoretical applications of Artificial Intelligence (AI) in civil justice, in the two concepts of ‘artificially intelligent judgment’ and ‘intelligent organisation of judgment’, this paper assesses AI’s applicability to the field of Alternative Dispute Resolution (ADR). Starting with the hypothesis of a ‘robot mediator’ capable of facilitating conflict management among parties, the analysis leads to the irreconcilability of such a model with the typical function of mediation, thus highlighting the need for the re-humanization of dispute resolution methods. The potential extension of AI systems could be applied to evaluation tools, which, although currently underutilized in the Italian legal system, might – in a de iure condendo perspective – encourage parties to settle disputes extrajudicially based on a forecast of the dispute’s outcome, indirectly contributing to the deflation of litigation.

 

Conference Proceedings

Matteo Lupano (Associate Professor at the University of Turin), Il futuro della mediazione familiare (The Future of Family Mediation; in Italian).

This paper draws on the introductory remarks to the Conference ‘The Future of Family Mediation. The Mandatory Mediation in France and in Italy after the Cartabia reform of Civil Justice’, held at the University of Turin on 19 January 2024. The contribution highlights the effectiveness of family mediation in facilitating the consensual resolution of conflicts, particularly in cases of separation and divorce, by reducing conflict and safeguarding minors. The Author summarizes the key aspects of the debate on the mandatory nature of the process, emphasizing the need for proper training for lawyers and mediators and for ensuring the quality of the service.

Marc Juston (Magistrat honoraire; formateur et médiateur inscrit auprès des Cours d’Appel de Nîmes, Grenoble et Aix en Provence), La mediazione familiare in Francia: sullo slancio della giustizia del XXI secolo (Family Mediation in France: On the Momentum of 21st Century Justice; in Italian).

Drawing on the speech delivered at the Conference ‘The Future of Family Mediation. The Mandatory Mediation in France and in Italy after the Cartabia reform of Civil Justice’, held at the University of Turin on 19 January 2024, the paper analyses the importance and use of family mediation in France as part of 21st-century justice. It outlines the regulatory foundations of mediation, its voluntary nature, and, in some cases, its encouragement by the judge or obligatory implementation. The Author highlights the role of the Juge aux Affaires Familiales and the effectiveness of mediation in resolving family conflicts, reducing litigation, and promoting the well-being of children. The adoption of mediation is proposed as a fundamental step toward a more humane judicial system, focused on empowering the parties and promoting co-parenting.

Filippo Danovi (Professor at the University Milano Bicocca), Il presente e il futuro della mediazione familiare in Italia (The Present and Future of Family Mediation in Italy; in Italian).

Drawing on the speech delivered at the Conference ‘The Future of Family Mediation. The Mandatory Mediation in France and in Italy after the Cartabia reform of Civil Justice’, held at the University of Turin on 19 January 2024, the paper explores the present and future of family mediation in Italy, contextualising it within the framework of consensual justice. Following a legal analysis, including the measures introduced by the Cartabia reform, the Author highlights the role of mediation in resolving family disputes through interdisciplinary and dialogic approaches aimed at rebuilding strained relationships. The discussion delves into the limitations of mediation, such as its inadequacy in cases of domestic violence, and outlines prospects, emphasizing the need for structured training to ensure the effectiveness of this tool in family disputes.

Isabella Buzzi (Researcher in Psychology, Pedagogist, Consultant and Family Mediator), La mediazione familiare, come è diventata una professione (How Family Mediation Became a Profession; in Italian).

Drawing on the speech delivered at the Conference ‘The Future of Family Mediation. The Mandatory Mediation in France and in Italy after the Cartabia Reform of Civil Justice’, held at the University of Turin on 19 January 2024, this paper traces family mediation’s evolution as a profession in Italy. It analyses historical roots and international influences, particularly from North America and Europe. It highlights the role of key regulations in defining training standards, ethics, and skills. The Author emphasizes its complexity, which requires legal knowledge, psychological skills, and practical abilities, as well as the importance of integrated and interdisciplinary training programs, so as to ensure the needed professional support to families, in a mindful and respectful management of their own conflicts.

 

Chronicles

Elena Zucconi Galli Fonseca (Professor at the Alma Mater University of Bologna), Digitalisation of ADR: A New Category?

The paper analyses the impact of digitisation on alternative dispute resolution (ADR). It starts from the pre-existing fragmentation of the ADR category, highlighting the differences between autonomous and heteronomous methods. The advent of digital, initially seen as a category in its own right (ODR), is now seen as a cross-cutting element that modifies the use of ADR tools, but does not change their essence. New forms of ADR are then explored, such as blockchain-based ‘On-chain Dispute Resolution’, with its advantages and disadvantages, and the use of artificial intelligence (AI) to improve the efficiency of ADR processes, while raising ethical and security issues. Finally, it concludes by reaffirming the importance of the human factor (‘Human Dispute Resolution’ or HDR) in dispute resolution, despite technological advancement.

Roberta Tiscini (Professor at the Università di Roma Sapienza), La dialettica verità/certezza alla prova della negozialità nel processo (The Truth/Certainty Dialectic Put to the Test of Negotiability in the Process; in Italian).

The Author addresses the objectives of the trial, in the perspective of the search for material truth, according to new (applicative and normative) experiences that increasingly place the negotiation in the dynamics of the trial itself. This happens not only in the framework of alternative dispute resolutions, but also through experiences, such as those of contractualised justice or differentiated jurisdictional protection, contexts in which it is not so much the achievement of the truth that constitutes the ultimate goal, but the pacification of the contenders.

 

Finally, this issue features the following Book Reviews

A book review by Antonia Menghini (Associate Professor at the University of Trento): Valentina BONINI (a cura di), La giustizia riparativa (d.lgs. n. 150/2022 – d.lgs. n. 31/2024), Giappichelli, Torino, 2024, I-XX, 1-335.

A book review by Rachele Beretta (Ph.D): William URY, Possible: How We Survive (and Thrive) in an Age of Conflict, Harper Business, New York, 2024, 1-368.

A book review by Pietro Ortolani (Professor at Radboud University): Elena D’ALESSANDRO and Davide CASTAGNO, Handbook on cross-border litigation, Wolters Kluwer, Milano, 2024, I-XXV 1-238.

Benedikt Schmitz (University of Groningen) has shared the following call for participants with us:

Quo Vadis Preferential Law Approach? A Survey on the Interpretation of Article 6(2) Rome I Regulation Across EU Member States

Project description:

The Rome I Regulation plays a crucial role in determining the applicable law in cross-border consumer contracts within the European Union. Article 6(2) Rome I Regulation allows parties to choose the governing law while ensuring that consumers do not lose the protection granted by mandatory provisions of the law that would apply in the absence of such a choice. Despite its significance, the interpretation of this provision varies across Member States, leading to questions about its practical coherence and effectiveness.

Existing research on Dutch and German law suggests diverging approaches in legal scholarship. In the Netherlands, academic literature strongly relies on the protection principle approach, which means that the non-derogable rules of the consumer’s habitual place of residence apply at all times – regardless of their content. German scholars, by contrast, follow the preferential law approach that requires a comparison between the chosen law and the consumer’s home law to determine the most protective outcome. The non-derogable rules of the consumer’s habitual place of residence only apply in so far as they protect the consumer better than the chosen law. However, it remains unclear whether these trends are unique to these jurisdictions or reflect broader tendencies across the EU.

This preliminary phase of a potentially larger study aims to map how Article 6(2) Rome I Regulation is understood in academic literature across all EU Member States. Through a structured review of national legal scholarship, it will identify prevailing interpretations, key theoretical arguments, and the extent to which doctrinal debates align or diverge across jurisdictions. The main research questions include:

• How do scholars across the EU interpret Article 6(2) Rome I Regulation?
• Is there a dominant academic preference for the preferential law approach, the protection principle approach, or another framework?

If the findings indicate that Member States follow different approaches, the study will be expanded to include an in-depth examination of national case law.

Interested in participating?

Legal scholars across the EU are invited to contribute from their respective jurisdictions. The results of this preliminary phase will provide a foundation for potential further collaborative research which may then result in a joint publication and/or workshop examining the role and future of Article 6(2) Rome I Regulation.

At this preliminary phase of the study, actual time commitments are limited. Participants will be provided a questionnaire (click here) with three questions:

• How does national scholarship interpret Article 6(2) Rome I Regulation?
• Please list at least five national scholarly works supporting your previous answer.
• Do divergent scholarly opinions exist? If so, please explain and provide references.

Please contact the coordinator of this study directly to express interest in participating (see below).

Academic outcomes

As mentioned previously, this preliminary phase merely aims at mapping the current national legal landscape around Article 6(2) Rome I Regulation. If the submitted results differ to an appreciable extent, the goal is to work on a joint report on all EU MS, including a review of national literature and national case law.

Contact and coordination

This study is coordinated by Benedikt Schmitz.

If you have any questions about the study or want to participate by providing a country report, please contact him directly.

• Benedikt Schmitz, LL.M., Assistant Professor of Private International Law, University of Groningen
• Email address: schmitz@rug.nl

We are happy to share the following call for papers by the Journal of Law, Market & Innovation (JMLI):

The JLMI invites contributions on the subject of “Regulatory Initiatives on Ecodesign and Sustainable Products”, to explore the legal frameworks, challenges, and opportunities related to ecodesign, with the goal of fostering an in-depth understanding of how it can influence economic growth and how it will be integrated in the current legal framework. This Special Section invites scholarly contributions examining the role of emerging sustainability initiatives, introducing new sustainability requirements and responsibilities, particularly in the EU regulatory framework.

The concept of ecodesign is defined by Regulation 1781/2024 as “the integration of environmental sustainability considerations into the characteristics of a product and the processes taking place throughout the product’s value chain”.

Regulation 1781/2024 is one of the pillars of the new European legislation to improve the sustainability of the economy and is part of the EU Strategy for sustainable products. It includes product policy principles and provides a Digital Product Passport, performance and information requirements, producer responsibility for sustainability with impact assessment, mandatory sustainability labelling and technical standards for sustainability. It complements the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD), which impose transparency and due diligence obligations on corporate activities.

We welcome original articles that provide insights into the legal dimensions of ecodesign and explore, but are not limited to, the following topics:

• Contracts and Ecodesign: how ecodesign interferes with the creation and supply of products and regulatory challenges connected to this transformation.
• Legal Design and Legal Tech: analysis of the new Digital Product Passport and its role in the governance of information duties and supply chains.
• Sustainable Supply Chains and Global Trade: legal challenges in ensuring that ecodesign principles are upheld throughout global supply chains, particularly in light of international trade laws and cross-border environmental regulations.
• Product Liability and Environmental Impact: legal perspectives on product liability in the context of ecodesign, focusing on the implications of design decisions that determine a product’s environmental impact.
• Consumer Protection and Ecodesign: balance between consumer rights, safety, and environmental responsibility. How consumer protection laws can be adapted to support sustainable product design while ensuring consumer interests are met and the role played by extended producer liability.
• Intellectual Property and Ecodesign: how intellectual property law (patents, trademarks, and design rights) intersects with ecodesign. Considerations for protecting eco-friendly innovations and the challenges faced by businesses in this domain.
• Corporate Responsibility and Accountability: legal expectations for corporations in adhering to environmental standards and sustainable practices. An examination of laws regulating corporate reporting on environmental performance and the role of ecodesign in meeting Corporate Social Responsibility (CSR) obligations.
• Case Studies: analysis of legal precedents, case studies, or legal battles related to ecodesign, illustrating how legal frameworks have been applied or challenged in the context of sustainable product design.

We welcome theoretical, empirical, and case-based approaches that provide a deeper understanding of ecodesign, its practical applications, its challenges and consequences for the economy and its implications within the current regulatory framework.

The Editorial Board will select articles based on the quality of research and writing, diversity, and relevance of topic. The novelty of the academic contribution is also an essential requirement.

Prospective articles should be submitted in the form of abstracts (around 800 words) or draft articles (see below) to submissions.jlmi@iuse.it by 21 February 2025. Authors will be notified of the outcome of their submission by 3 March 2025.

Final articles shall be delivered by 3 June 2025 and should conform to the journal style guide that is based on OSCOLA.

Typically, the JLMI accepts contributions within the range of 10.000-15.000 words, including footnotes, but both shorter and longer articles will be considered. Submitted articles will undergo a rigorous double-blind peer-review process. Prior to submission, prospective authors are invited to check the JLMI Authors’ guidelines (also with regard to simultaneous submission to other journals) and Code of Ethics. For further information, or for consultation on a potential submission, please email us at editors.jlmi@iuse.it.

Authors are required to disclose if they have submitted their article elsewhere, both in case of negative and pending reviews, and promptly update the editorial board of any changes in this regard, throughout the whole editorial process with the JLMI.

More information can be found in the full call.

An impressive Italian monograph of more than 400 pages on jurisdiction in internet cases (‘Il foro dell’obbligazione nata in internet’) has just been published.

The author has kindly provided the following summary:

The book addresses the topic of civil jurisdiction over disputes arising on the Internet, observing it from different perspectives. In the first chapter the Author delves into the United States case law on the so-called “Internet torts”, reaching the conclusion that solutions based on the targeting test could be usefully employed to draft an international convention with the aim of establishing rules in the current confusing scenario. In the second and third chapters the doctrine of forum non conveniens and the phenomenon of libel tourism are explored in-depth. The fourth chapter examines the main decisions issued by the CJEU concerning jurisdiction over contractual and extracontractual liability (including cases such as eDate, Bolagsupplysningen, Pammer, etc.), while the fifth chapter is focused solely on Italian procedural rules and case law. In the last two chapters, starting from the assumed need to ensure the effectiveness of judicial remedies, the problems of the extraterritorial scope of online content removal orders as well as important EU Regulations (mostly the Digital Services Act and the GDPR) are examined, with finally a part on the “Schrems saga” and the EU-US agreements on the transfer of personal data (including the EU-US Data Privacy Framework).

 

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

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

• Globaler Klimaschutz und Internationales Privatrecht
  Meik Thöne on climate change and private international law: The consequences of climate change are perceptible worldwide and increasingly reflected in serious cases of damage. If the question is raised whether and how these cases should be compensated, the answer requires the determination of the applicable law but also to consider the relevance of permissions under public law and to determine the limits of private law solutions in order to thereby balance the affected individual rights and public welfare concerns.
• On the Run from the Danish Social Authorities – An Analysis of the Danish Regulations causing a Cross-Border Flight Phenomenon to Evade Social Services’ Interference in Family Life
  Anne Mørk and Hanne Hartoft on the situation in Denmark causing parents to cross borders to evade social services: Some pregnant women are fleeing Denmark to avoid their children being placed in foster care immediately after birth and possibly adopted without their consent. This raises the question of whether Danish legislation is too extreme and at odds with basic human rights principles. In this article, the Danish legislation is analysed in light of the case law from the European Court of Human Rights. The conclusion is that the errors and shortcomings in the processing of cases give reason to be concerned.
• Gründungstheorie qua Niederlassungsfreiheit – eine sehr versteckte Kollisionsnorm? Urteil des EuGH vom 25. April 2024
  Maria-Teresa Kratzer comments on the decision by the ECJ in Edil Work 2, addressing the law applicable to companies.
• Konkludente bzw. fiktive Rechtswahl – Zu den Anforderungen nach Art. 22 II Alt. 2 EuErbVO bzw. Art. 83 IV EuErbVO
  Thomas Sagstetter discusses a decision of the Higher Regional Court of Karlsruhe on the choice of law in succession matters.

 

The Centre for Private International Law and Transnational Governance of the University of Aberdeen is pleased to announce that it is now accepting submissions for the 3rd Postgraduate Law Conference of the Centre for Private International Law which will take place online on 6 June 2025.  

 Conference Theme: New Dimensions in Private International Law

Original research that addresses the following themes is welcome:

• Commercial Activities and Private International Law

Moderators: Prof Justin Borg Barthet and Prof Burcu Yüksel Ripley

Exploring novel private international law challenges in international commerce and business transactions, including (but not limited to) e-commerce, fintech, and global supply chain governance

• Family life and Private International Law

Moderators: Prof Katarina Trimmings and Mr Le Xuan Tung

Addressing the private international law dimension of family disputes, including (but not limited to) international child custody, adoption, marriage, and succession issues.

• Private International Law in the Digital Age

Moderators: Dr Patricia Zivkovic and Dr Michiel Poesen
Examining the private international law issues that result from advances in digital technology including (but not limited to) AI and digital platforms.

• Maritime Law and Private International Law

Moderator: Ms Luci Carey
Investigating the private international law dimension of maritime governance. 

• Sustainability and Corporate Responsibility

Moderators: Dr Nevena Jevremovic and Dr Francesca Farrington
Evaluating the role of private international law in advancing sustainable development, corporate accountability across borders, and sustainable consumption and production.

 

Eligibility requirement

 The Centre welcomes submissions by current postgraduate law students (LLM, PhD) and recent LLM or PhD graduates who have not yet undertaken postdoctoral studies.

Submission Guidelines

Submissions should be no longer than 500 words. Applicants should identify the panel they wish to apply to. There is no requirement to submit a paper, and we welcome scholars at the early stages of their research.

The deadline for submissions is 20 March 2025.

For more information and submission guidelines, please see the Centre’s website or contact Mr Le Xuan Tung lexuantung.22@abdn.ac.uk.

With the trend of globalization, legal exchange and cooperation, even competition and conflict between nations have become the norm. The demand for legal services in cross-border investment, international trade, and transnational dispute resolution is also sharply on the rise. As the world’s second-largest economy, China’s legal system is playing an increasingly significant role in cross-border legal services. However, the international legal community generally does not have much understanding of China’s foreign-related legal system and practice. There is a need for a platform that can, systematically and timely, provide information for the Chinese foreign-related legal development including updating China’s foreign-related legal policy, explaining the making and amending of relevant Chinese laws and reporting Chinese foreign-related cases etc.

For this purpose, we, Everwin Law Firm, the first legal firm in China appointed by the Ministry of Justice as “one with special focus on foreign-related economic and trade legal affairs”, take the responsibility to launch this English Bulletin titled “Chinese International Lawyers”, which is hopefully to be further developed as a legal journal in the future.

We are committed to the mission of “Telling China’s Foreign-related Legal Story, Sharing China’s Foreign-related Legal Wisdom and Promoting Global Legal Exchange.” By providing accurate and timely updates, high-quality analytical reviews, in-depth case studies and forward-looking insights, we aim at offering the international legal community a panorama on the distinctive feature and practical achievements of China’s foreign-related legal affairs.

We sincerely invite researchers and practitioners working in the field of foreign-related laws, from China and abroad, to submit their work to us and your contribution is highly appreciated.

We look forward to working together with you!

I. Main Contents to Be Covered

Generally, this Bulletin will cover the contents as listed below with the possible addition of other relevant interesting materials:

1.Analytical Readings of China’s Foreign-Related Legal Policies;

2. Introduction and Comments on China’s Latest Foreign-Related Legislations, Regulations and Their Amendments;

3. Reports on Typical Chinese Foreign-related Cases and Professional Practices;

4. Chinese Perspectives on Topical International Legal Issues;

5. Presentations on Legal Cooperation between China and Other Countries including Those along the Line of “Belt and Road Initiative”.

II. Submission Guidelines

As mentioned, we welcome submissions from scholars and practitioners working in the field of foreign-related laws including researchers from universities, think tanks and research institutes and judges, lawyers, notaries and government officers etc.

Submissions can be made in English or Chinese but must be written in clear, precise and professional language. Chinese submissions will be translated into English by us with due recognition of the author’s and translator’s copyright.

The word limit for each submission shall be within 15,000 words in English (including footnotes) and 25,000 words in Chinese (including footnotes) and shall comply with the general standard format. For English submissions, please refer to the Oxford Standard for the Citation of Legal Authorities (OSCOLA); for Chinese submissions, please refer to the general standard published by the China Law Society.

Please submit your manuscript via email to CIL@everwinlawyer.cn with a cover letter containing a brief biography and contact details of the author.

Editorial Board
Chinese International Lawyers Bulletin

Albausy (Case C-187/23 issued on January 25, 2025) evolves around the question of competence to submit a request for preliminary ruling under the Succession Regulation (Regulation 650/2012 on matters of succession and the creation of a European Certificate of Succession).

Although the CJEU finds that the request in that case is inadmissible, the decision is noteworthy because it confirms the system of the Succession Regulation. Within the regulation, the competence to submit questions for preliminary ruling is reserved for national courts that act as judicial bodies and are seized with a claim over which they have jurisdiction based on Succession Regulation’s rules on jurisdiction.

The opinion of Advocate General Campos Sánchez-Bordona is available here.

Essence

Under the Succession Regulation, national courts resolve disputes by issuing a decision; the decisions circulate in the EU following the regulation’s Chapter IV rules on enforcement. Meanwhile, a broader number of national authorities apply the regulation and may have the competence to issue issue a European Certificate of Succession (see primarily Recitals 20 and 70). A European Certificate of Succession circulates in the EU based on the regulation’s Chapter VI. It has primarily an evidential authority as one of an authentic act.

In Albausy, the CJEU confirms that if a national court’s task in a specific case is confined to issuing a European Certificate of Succession, this court (within this task) has no competence to submit questions for preliminary ruling to the CJEU. This is so even if the court has doubts relating to the regulation’s interpretation, and this is so despite the fact that a court is, in principle, part of a Member State’s judicial system in the sense of art. 267 TFEU.

Facts

The facts of this case are as follows. A French national, last domiciled in Germany, died in 2021. The surviving spouse applied for a European Certificate of Succession. The deceased’s son and grandchildren challenged the validity of the will. They questioned the testamentary capacity of the deceased and the authenticity of their signature. The referring German court (Amtsgericht Lörrach) found these challenges unfounded.

However, given the challenges raised, the court had doubts about the way proceed. It has submitted four questions to CJEU. The questions have remained unanswered, because the CJEU considered the request inadmissible. Still, several points regarding the Court’s considerations are noteworthy.

‘Challenge’

In the motivation part of the ruling, the CJEU addresses the concept of ‘challenge’ under art. 67(1) of the Succession Regulation. The CJEU defines it broadly. It can be a challenge raised during the procedure for issuing a European Certificate of Succession. It can also be a challenge raised in other proceedings. The concept includes even challenges that ‘appear to be unfounded or unsubstantiated’, as was the case in the view of the referring court. The court warned in particular against frivolous challenges that might impede legal certainty in the application of the regulation.

According to the CJEU, any challenge to the requirements for issuing a European Certificate of Succession raised during the procedure for issuing it precludes the issuance of that certificate. In the event of such a challenge, the authority must not decide on their substance. Instead, the authority should refuse to issue the certificate

Meanwhile, the CJEU reminds that the concept of ‘challenge’ within the meaning of art. 67(1) of the Succession Regulation does not cover those that have already been rejected by a final decision given by a judicial authority in (other) court proceedings. If and when a decision to reject a challenge becomes final (in proceedings other than the issuing of a European Certificate of Succession), this challenge does not preclude the issuing of a European Certificate of Succession.

Redress

The CJEU elaborates on one option available in the situation where the issuing of the certificate is refused because of a challenge. One can use the redress procedure provided for in Article 72 of the Succession Regulation. It allows to dispute the refusal of the issuing authority before a judicial authority in the Member State of the issuing authority. Within the redress procedure, the judicial authority handling the redress procedure may examine the merits of the challenges that prevented the certificate from being issued. If the challenge is rejected through this redress procedure, and the decision becomes final, it no longer precludes the issuance of the European Certificate of Succession.

The ruling and earlier case law

In Albausy, the CJEU follows the line of its earlier case law. This is namely not the first time the CJEU has dealt with cognate questions, as reported inter alia here. The Court has already clarified that although various authorities in Member States apply the Succession Regulation, not any authority may submit a question for a preliminary ruling regarding the interpretation of the regulation. For instance, a notary public may in most cases not submit questions for preliminary ruling. Notaries are not part of the judicial system in most Member States within the meaning of the art. 267 TFEU (possible complications or deviations admitted by the Succession Regulation being addressed in Recital 20 of the Succession Regulation).

The Court’s reasoning in Albausy confirms that this bar also covers requests for preliminary rulings from national courts that act only as ‘authority,’ not as judicial body in the regulation’s application. Thus, a double test is to be performed: the test of the Succession Regulation’s system and definitions (authority or judicial body, without forgetting the Recitals 20 and 70, still somewhat puzzling in this context) and the test of art. 267 TFEU.

This post was written by Lukas Petschning, University of Vienna.

Conflict of laws is one of the most complex and disputed subject areas in international arbitration. An abundance of academic works has examined the issue and proposed widely diverging solutions. Yet, these studies frequently focus on isolated issues and lack overall consistency. Equally, they are often overly theoretical, lacking practical guidance useful to the average arbitrator or judge.

Forging a path toward more legal certainty, the International Law Association has established a new Committee on Conflict-of-Laws Issues in International Arbitration. It is chaired by Dr Nikolaus Pitkowitz and Ms Wendy Lin, with Professor Matthias Lehmann and Dr Mariel Dimsey acting as co-rapporteurs.

The Committee plans to exercise its mandate in three phases from 2025 to 2030. Initially, a general methodology for the resolution of conflict-of-laws issues faced by arbitrators and supervisory courts will be developed. In the second phase, the Committee will transform this methodology into draft principles, which shall provide a harmonious approach to all or most conflict-of-laws issues which may arise in the context of international arbitration. The principles will be sufficiently precise to enable their citation as soft law by arbitral tribunals or courts on specific subject matters. In a third phase, the Committee will explore the advisability of developing hard law rules, e.g. in the form of treaties, model laws, or amendments to existing institutional rules.

The Committee is excited to announce its first webinar, introducing its mandate, the envisaged timeline of the Committee’s work, and the principal issues likely to be discussed. All interested individuals are expressly encouraged to participate via the following Zoom links; prior registration is not necessary.

The webinar will be held in two sessions on 18 February 2025, to enable participation from most time zones:

Session 1 (Asia, Oceania, EMEA): 8am (London) / 4pm (Hong Kong) / 7pm (Sydney)
Session 2 (Americas, EMEA): 8am (US Pacific) / 11am (US Eastern) / 4pm (London)

The Committee can be reached via email at ILA-CLC-Committee@pitkowitz.com.

More information on the Committee’s work can be found here.

As part of Hart’s Studies in Private International Law – Asia, Min Kyung Kim, Judge at the Incheon District Court in Korea, just published her new book on Overriding Mandatory Rules in International Commercial Disputes: Korean and Comparative Law.

The impressive monograph, just shy of 200 pages, takes a comprehensive look at the role of overriding mandatory rules in international commercial litigation and arbitration, using Korea as a vantage point. It takes a close look at a large variety of (mainly European) sources in order to interpret and critically discuss the Korean Act on Private International Law, with a particular focus on the treatment of third-country mandatory rules. The book also identifies a range of potentially overriding mandatory provisions in Korean law.

The book is available open access at the publisher’s website.

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

EDITORIAL

M.H. ten Wolde / p. 626-628

ARTICLES

A. Mens, De kwalificatie en de rechtsgevolgen van de erkenning van een kafala op grond van het Nederlandse internationaal privaatrecht/ p. 628-649

Abstract

This article focuses on the qualification and legal consequences of recognising a kafala under Dutch private international law. A kafala is a child protection measure under Islamic law, which entails an obligation to care for, protect, raise, and support a child, but without any implications for lineage or inheritance rights. The main conclusion is that a kafala generally constitutes both a guardianship and a maintenance decision. Consequently, the recognition of a foreign kafala in the Netherlands essentially entails the recognition of both the guardian’s (kafil) authority over the child (makful) and the recognition of the guardian’s maintenance obligation towards the child.

B. van Houtert, The Anti-SLAPP Directive in the context of EU and Dutch private international law: improvements and (remaining) challenges to protect SLAPP targets / p. 651-673

Abstract

While the scope of the Anti-SLAPP Directive is broad, this paper argues that the criteria of ‘manifestly unfounded claims’ and the ‘main purpose of deterrence of public participation’ may challenge the protection of SLAPP targets. The Real Madrid ruling should nonetheless play an important guiding role in all Member States; the legal certainty and protection for SLAPP targets will increase by applying by analogy the factors of the Real Madrid ruling established by the CJEU to assess whether there is a manifest breach of the right to freedom of expression. Although the Anti-SLAPP Directive provides various procedural safeguards for SLAPP victims, it does not prevent SLAPP targets from being abusively sued in multiple Member States on the basis of online infringements of personality rights or copyrights. The recast of the Brussels Ibis and Rome II should alleviate this negative effect of the mosaic approach by adopting the ‘directed activities’ approach.
While the public policy exception in Dutch PIL already has a great deal of potential to refuse the recognition and enforcement of third-country judgments involving a SLAPP, the grounds in Article 16 Anti-SLAPP Directive provide legal certainty, and likely have a deterrent effect on claimants outside the EU. As EU and Dutch PIL generally do not provide a venue for SLAPP targets to seek compensation for the damage and costs incurred regarding the third-country proceedings initiated by the SLAPP claimant domiciled outside the EU, the venue provided by Article 17(1) Anti-SLAPP Directive improves the access to Member State courts for SLAPP targets domiciled in the EU. However, although Articles 15 and 17 Anti-SLAPP Directive aim to facilitate redress for SLAPP victims, the re-sulting Member State judgments may not be effective in case these are not recognised and enforced by third states. Hence, international cooperation is important to combat SLAPPs worldwide.

V. Van Den Eeckhout, Rechtspraak van het Hof van Justitie van de Europese Unie inzake internationaal privaatrecht anno 2024. Enkele beschouwingen over de aanwezigheid, de relevantie en de positie van internationaal privaatrecht in de rechtspraak van het Hof. Een proces van inpassing? Over de gangmakersfunctie van het ipr / p. 675-693

Abstract

With the increase in the number of European regulations on Private International Law, increasing attention has been paid by scholars to issues of consistency between different private international law regimes. The foregoing also includes attention to the position of the Court of Justice of the European Union with regard to (un)harmonised interpretation when answering preliminary questions on the interpretation of those regimes.
This contribution examines a number of current developments concerning the ‘PIL case law’ of the Court, viewed from the perspective of consistency, albeit in a broad sense: it examines aspects of judgments of the Court that lend themselves to highlighting various facets and dimensions of consistency. As a matter of fact, current case law and developments invite those who wish to pay attention to issues of consistency regarding the Court’s PIL case law to adopt a broad perspective and, while discussing aspects of consistency, to highlight points of attention regarding the presence, the relevance and the position of PIL in the Court’s case law, going along with issues of ‘fitting in’ of case law.
The paper includes a discussion of aspects of, i.a., C-267/19 and C-323/19 (joined cases Parking and Interplastics), C-774/22 (FTI Touristik), C-230/21 (X v. Belgische Staat, Refugiee mineure mariee), C-600/23 (Royal Football Club Seraing), C-347/18 (Salvoni) and C-568/20 (H Limited).

M.H. ten Wolde, Oude Nederlandse partiële rechtskeuzes en het overgangsrecht van artikel 83(2) Erfrechtverordening / p. 695-702

Abstract

On 9 September 2021, the ECJ ruled in case C-277/20 (UM) that Article 83(2) of the Regulation on succession does not apply to a choice of law made in an agreement as to succession in respect of a particular asset of the estate. Such a choice of law does not concern the succession in the estate as a whole and therefore falls outside the scope of the said provision, the Court stated. The question arises whether such partial choices of law made before 17 August 2015 have been voided with the CJEU’s ruling now that they likewise concern only certain assets and not the estate as a whole.

CASE NOTE

B. Schmitz, Artikel 6 lid 2 Rome I-Verordening en het Duitse Bundesgerichtshof. Bundesgerichtshof 15 mei 2024 – VIII ZR 226/22 (Teakbomen) / p. 703-709

Abstract

The German Federal Court of Justice (BGH) has ruled in its recent decision that Article 6(2) Rome I Regulation contains the preferential law approach. In its reasoning, the court specifically refers to three recent CJEU judgements to support this view. However, this case note argues that these CJEU judgements are not a valid basis for such reasoning. Instead, the BGH should have turned to Article 8 Rome I Regulation and its case law to apply the Gruber Logistics ruling by analogy.

LATEST PHDS

B. Schmitz, Rethinking the consumer conflict rule – Article 6(2) Rome I Regulation and party autonomy in light of principles, efficiency, and harmonisation (dissertation, University of Groningen, 2024) (Summary) / p. 711-714

BOOK ANNOUNCEMENT

M.H. ten Wolde, book announcement: Chr. von Bar, O.L. Knöfel, U. Magnus, H.-P. Mansel and A. Wudarski (eds.), Gedächtnisschrift für Peter Mankowski [A Commemorative Volume for Peter Mankowski], Tübingen: Mohr-Siebeck 2024, XIV + 1208 p. / p. 715-717

A recent study by the Law Commission of England and Wales has resulted in proposed amendments to the Arbitration Act 1996 that include a default rule that an arbitration agreement will be governed by the law of England and Wales if the arbitration is seated in that territory. Given the importance of London as an arbitration center, this has implications for many international commercial contracts.

In his new article, Professor Ron Brand from the University of Pittsburgh School of Law challenges the premise behind the proposed amendment that there is a single “law of the arbitration agreement.” Instead, he demonstrates that there are multiple laws applicable to an arbitration agreement. He explains this multiplicity of applicable laws by considering the possible grounds for challenge of jurisdiction of an arbitral tribunal based on the arbitration agreement. Such an analysis demonstrates that very different laws may apply to questions of the existence, formal validity, substantive validity, scope, and exclusivity of an arbitration agreement. He reviews these issues in the broader context of choice of forum clauses generally, including both arbitration and choice of court agreements, and then considers a hypothetical international commercial transaction in which questions might arise about the first four of these five jurisdictional questions – demonstrating both the problems with the idea of a single “law of the arbitration agreement,” as well as the practical impact and importance of well-drafted choice of forum agreements, including provisions on choice of law. Although prompted by the proposed change in English law, this discussion has implications for the law in every jurisdiction regarding agreements to arbitrate, indicating that both transaction planners and dispute resolution lawyers need to be cognizant of the laws applicable to arbitration and choice of court agreements.

The article is available here.

The thirty-eighth annual survey on choice of law in the American courts is now available on SSRN. The survey covers significant cases decided in 2024 on choice of law, party autonomy, extraterritoriality, international human rights, foreign sovereign immunity, adjudicative jurisdiction, and the recognition and enforcement of foreign judgments.

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

Conventions & Instruments

On 1 January 2025, the 2005 Choice of Court Convention entered into force for Switzerland. At present, 36 States and the European Union are bound by the 2005 Choice of Court Convention. More information is available here.

On 12 January 2025, the 2007 Child Support Convention entered into force for Cabo Verde. At present, 52 States and the European Union are bound by the 2007 Child Support Convention. More information is available here.

 

Meetings & Events

On 10 January 2025, representatives from 19 French-speaking African States, along with a delegate from the Organisation internationale de la Francophonie, convened in Brussels for a meeting focused on exploring the benefits of membership in the HCCH and the Permanent Court of Arbitration. More information is available here.

On 24 January 2025, the Working Party on Cross-Border Family Mediation in the Context of the Malta Process met online. During the meeting, participants discussed the future trajectory of the Working Party, taking into consideration the results of the questionnaire circulated in 2024 and the discussions held at the Malta V conference in October 2024. More information is available here.

 

Vacancies

Applications are now open for the position of Administrative Assistant. The deadline for the submission of applications is 22 February 2025. More information is available here.

Applications for a remote Communications and Outreach Internship will open next week. More information will soon be available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

The fourth issue of 2024 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Francesca C. Villata, Professor at the University of Milan, On the Track of the Law Applicable to Preliminary Questions in EU Private International Law [in English]

Silenced, if not neglected, in (most) legislation and practice, the issue of determining the law applicable to preliminary questions is a constant feature in the systematics of private international law (“p.i.l.”). In legal doctrine, in a nutshell, the discussion develops along the traditional alternative techniques of (i) the independent connection (or disjunctive solution, based on recourse to the conflict rules of the forum even for preliminary questions), (ii) the dependent connection (to which both the so-called “joint” solution and the “absorption” solution are attributable, for which, respectively, the conflict rules of the lex causae or, directly, the substantive law of the latter are relevant), or, finally, (iii) the approach which emphasises the procedural dimension of preliminary questions and leads them back to the substantive law of the forum. In these pages, an attempt is made to ascertain whether, in the absence of EU rules explicitly intended to determine the law applicable to preliminary questions, there are nevertheless indications within the EU Regulations containing uniform conflict rules that make it possible to reconstruct, at least in selected cases, an inclination, if not adherence, of the European legislature to a specific technique for resolving preliminary questions. To this end, particular attention will be paid to the rules defining the material scope of application of the various EU p.il. Regulations in force and in the making, to those establishing the “scope” of the applicable law identified by these Regulations, and to those concerning the circulation (of points) of decisions on preliminary questions. This approach will concern both the preliminary questions the subject-matter of which falls ratione materiae within the scope of those Regulations and those that do not. On the assumption that at least in some areas, if not in all, the EU legislator does not take a position on the law applicable to preliminary questions, leaving this task to the law of the Member States, the compatibility of the traditional alternative techniques used in the law of the Member States (or in practice) with the general and sec-toral objectives of EU p.i.l. and with the obligation to safeguard its effectiveness will be assessed. Finally, some considerations will be made as to the appropriateness, relevance and extent of an initiative of the EU legislator on this topic, as well as the coordinates to be considered in such an exercise.

Sara Tonolo, Professor at the University of Padova, Luci e ombre: il diritto internazionale privato è strumento di contrasto allo sfruttamento della povertà o di legittimazione dell’ingiustizia? [Lights and Shadows: Is Private International Law a Tool for Combating the Exploitation of Poverty or Legitimising Injustice?; in Italian]

The relationship between private international law and poverty is complex and constantly evolving. It is a multifaceted issue in which private international law plays an ambivalent role: on the one hand, as a tool to combat the exploitation of poverty, and on the other, as a means of legitimizing injustice. The analysis of the role of private international law in countering the exploitation of poverty often intersects with other fields, such as immigration law, due to the relevance that private law institutions have on individuals’ status and their international mobility, which is significantly affected in the case of people in situations of poverty.

Lidia Sandrini, Professor at the University of Milan, La legge applicabile al lavoro mediante piattaforma digitale, tra armonizzazione materiale e norme di conflitto [The Law Applicable to Labour through a Digital Platform, between Material Harmonisation and Conflict of Law Rules; in Italian]

This article explores the phenomenon of platform work in the legal framework of the European Union from the methodological point of view of the relationship between substantive law and conflict-of-law rules. After a brief examination of the text of the Directive (EU) No. 2024/2831 “on improving working conditions in platform work”, aimed at identifying its overall rationale and the aspects that most directly reverberate effects on the EU conflict-of-law rules, the article investigates its interference with Regulation (EC) No. 593/2008 (Rome I), proposing an assessment of the solutions accepted from the point of view of the coherence between the two acts and their adequacy to their respective purposes.

This issue also comprises the following comments:

Stefano Dominelli, Associate Professor at the University of Genoa, A New Legal Status for the Environment and Animals, and Private International Law: Tertium Genus Non Datur? Some Thoughts on (the Need for) Eco-Centric Approaches in Conflict of Laws [in English]

Traditional continental approaches postulate a fundamental contraposition between (natural and legal) ‘persons’ – entitled to a diverse range of rights – and ‘things’. Conflict of laws is methodologically coherent with an anthropocentric understanding of the law. Yet, in some – limited – cases, components of the environment are granted a legal personality and some rights. Narratives for animals’ rights are emerging as well. This work wishes to contribute to current debates transposing in the field of conflict of laws reflections surrounding non-human legal capacity by addressing legal problems a national (Italian) court might face should a non-human-based entity start proceedings in Italy. The main issues explored are those related to the possibility of said entity to exist as an autonomous rights-holder and thus to start legal proceedings; to the search for the proper conflict-of-laws provisions as well as to the conceptual limits surrounding connecting factors developed for ‘humans’. Furthermore, public policy limits in the recognition of non-human-derived autonomous rights-holders will be explored. The investigation will conclude by highlighting the possible role of private international law in promoting societal and legal changes if foreign legal personality to the environment is recognised in the forum.

Sara Bernasconi, Researcher at the University of Milan, Il ruolo del diritto internazionale privato e processuale nell’attuazione del «pacchetto sui mercati e servizi digitali» (DMA&DSA) [The Role of Private International and Procedural Law in the Implementation of the ‘Digital Markets and Services Package’ (DMA&DSA); in Italian]

In line with the goal to achieve a fair and competitive economy, Regulation (EU) 2022/1925 of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) and Regulation (EU) 2022/2065 of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) – composing the so called Digital Services Act Package – aim at introducing a uniform legal framework for digital services provided in the Union, mainly protecting EU-based recipients, companies and the whole society from new risks and challenges stemming from new and innovative business models and services, such as online social networks and online platforms. Namely, the ambition of the abovementioned regulations is, on the one hand, to regulate, with an ex ante approach, platform activities so to reduce side-effects of the platform economy and therefore ensure contestable and fair markets in the digital sector and, on the other hand, to introduce EU uniform to grant a safe, predictable and trustworthy online environment for recipients (e.g. liability of providers of intermediary services for illegal contents and on obligations on transparency, online interface design and organization, online advertising). Despite expressly recognising the inherently cross-border nature of the Internet, which is generally used to provide digital services, DMA and DSA do not contain any private international law rule or provide for any provision on the relationship between the two sectors, but only state that their rules do not prejudice EU rules on judicial cooperation in civil and commercial matters. Therefore, the present article will discuss the role of private international law rules in the daily application of DMA and DSA to cross-border situations. Accordingly, after having ascertained the so called extraterritorial effects of the new rule on digital markets and digital services and assessed their overriding mandatory nature, the author first investigates the role that conflict-of-laws provisions could possibly play in the application of DMA and DSA, by integrating such regimes, and then suggests a possible role also for rules on jurisdiction in a private enforcement perspective, highlighting potential scenarios and possible difficulties arising from the need to coordinate two different set of rules (i.e. substantive provisions on digital markets and digital services, on the one hand, and private international rules, on the other hand).

Finally, the issue features the following book review by Gabriella Venturini, former Professor at the University of Milan: INSTITUT DE DROIT INTERNATIONAL, 150 ans de contributions au développement du droit international: Livre du sesquicentenaire de l’Institut de Droit international (1873-2023)/150 Years of Contributing to the Development of International Law: Sesquicentenary Book of the Institute of International Law (1873-2023), Justitia et Pace, edited by Kohen, van der Heijden, Paris, Editions A. Pedone, 2023, p. 1053.