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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.

Commission / Courtois e.a.
Droit institutionnel
L’obligation de la Commission de divulguer l’identité des membres de l’équipe de négociation pour l’achat anticipé de vaccins contre la Covid-19 est suspendue provisoirement, dans l’attente de l’arrêt de la Cour

Keren
Espace de liberté, sécurité et justice
Protection internationale : le droit de l’Union ne s’oppose pas, sous certaines conditions, à ce que les bénéficiaires d’une protection internationale doivent réussir un examen d’intégration civique

The Court of First Instance of Mytilene (Greece) ruled on 16 May 2024 on an application filed by the mother of child against the child’s father. Acting on behalf of the child, the mother requested injunctive relief for child support (judgment No 161/2024, published in the Thessaloniki Bar Rewiew ‘Armenopoulos’ 2025, pp. 1497 et seq.) […]

Asociația Inițiativa pentru Justiție / Commission
Adhésion de nouveaux Etats
État de droit : le recours d'une association professionnelle de procureurs roumains contre la décision de la Commission abrogeant la décision instituant le mécanisme de coopération et de vérification est rejeté comme irrecevable

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.

Those interested in EU private international law may want to follow the hearing in case C-77/24, Wummer, on 5 February. The Oberster Gerichtshof (Austria) has referred to the Court of Justice two questions on the interpretation of the Rome II Regulation pursuant to Article 267 TFEU: 1. Must Article 1(2)(d) of [the Rome II Regulation] […]

The European Commission published on 31 January 2025 its long-awaited report (COM(2025) 20 final) on the application of Regulation No 864/2007 on the law applicable to non-contractual obligations (Rome II). The report is based on Article 30 of the Regulation. The latter provision required the Commission to submit to the European Parliament, the Council and […]

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.

 

The latest issue of the Journal of Private International Law (Volume 20, Issue 3) is a special issue in honour of Professor Trevor C Hartley. It features an introduction, Professor Hartley’s bibliography and 11 articles: Jacco Bomhoff, Uglješa Grušić and Manuel Penades Fons, Introduction to the special issue in honour of Professor Trevor Hartley, 501-508 […]

Dans cette chronique de rentrée, nous vous proposons un tour d’horizon du nouveau paysage institutionnel européen pour la mandature 2024-2029. Cet épisode vous présente « qui fait quoi » sur la scène européenne en 2025 ; il vous permettra d’y voir plus clair dans l’écosystème institutionnel européen.

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The next meeting of the Council on General Affairs and Policy (CGAP) of the Hague Conference on Private International Law (HCCH) is scheduled to take place on 4-7 March 2025. According to the meeting’s draft agenda, the CGAP will deal, among other things, with the project on Voluntary Carbon Markets (VCMs), following last year’s meeting, […]

This post has been written by Michiel Poesen, lecturer in private international law at the University of Aberdeen. The author asks the question whether the territorial scope of the European AI Act and the Revised Product Liability Directive are consistent. Both instruments are intended to work in tandem. While the former sets out the obligations […]

The European Law Institute (ELI) Extra-Judicial Administration of Justice in Cross-Border Family and Succession Matters project is organising its dissemination conference in Vienna on 14 February. At this all-day event (9.00 to 18.00) experts will present their country reports, comparative findings and policy recommendations, in order to discuss these with the audience.

The project investigated the phenomenon that family and succession law matters are increasingly submitted to other authorities than courts. It seeks a to establish a harmonised concept of “courts” in the EU, taking into account the CJEU case law.

More information and the registration form are available on the ELI website.

ASG 2
Concurrence
Réparation du préjudice causé par une entente : une réglementation nationale empêchant une action groupée en recouvrement peut enfreindre le droit de l’Union

Engagement solennel de la présidente et des membres de la Commission européenne devant la Cour de justice de l’Union européenne

Monika Wałachowska (Nicolaus Copernicus University, Toruń), Mariusz Fras (University of Silesia, Katowice) and Pierpaolo Marano (University of Malta) edited Insurance in Private International Law. Insurance and Reinsurance in Private International Law, Jurisdiction and Applicable Law with Springer. The book is part of the AIDA Europe Research Series on Insurance Law and Regulation. Structured into two […]

On Tuesday, February 4, 2025, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CET). Professor Pietro Franzina (Catholic University of the Sacred Heart) will speak, in English, about the topic

“EU Private International Law at a Time of ‘Broken Multilateralism’ and Growing Geo-Political Tensions”

 

Multilateralism is in crisis. The role of world organisations in international politics and law-making is increasingly being questioned, as some key actors in the global arena no longer consider cooperation and collective action the best way to address common concerns. While multilateralism is not obsolete, let alone ‘dead’, as some claim, there is a growing consensus that current governance schemes need profound reconsideration. The EU, multilateralism’s staunchest defender, is especially exposed to these developments. While the evolution of multilateralism is set to affect all areas of international cooperation, each field has, arguably, its specificities. What features does cooperation in the field of private international law display in this regard? How can the crisis of multilateralism influence the way in which the EU deals with judicial cooperation, be it through its legislation, in the relations with its neighbours and at the global level? What structural changes are under way in global fora, such as the HCCH, and what is their impact on the EU’s own agenda and methods of work?

 

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

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

This post was written by Ottavia Cazzola, a PhD candidate at the University of Barcelona Barcelona participating in Action Grant “Towards Universal Parenthood in Europe (UniPAR)” (JUST-2023-JCOO; Project ID: 101137859). On 4 December 2024, the Spanish Supreme Court issued a decision stating that the recognition of a foreign judgment establishing filiation regarding the commissioning parents […]