Agrégateur de flux

Dès lors que le premier appel est irrégulier, faute d’avoir été remis au greffe de la cour par voie électronique, est recevable le second appel, formé dans le délai d’appel et avant le prononcé de l’irrecevabilité du premier appel. C’est donc à tort que la cour d’appel, sur déféré, a prononcé l’irrecevabilité de l’appel pour défaut d’intérêt.

en lire plus

Dans le cadre de l’appréciation de la validité d’une clause attributive de juridiction, les griefs tirés du caractère prétendument imprécis ou déséquilibré de cette convention doivent être examinés non pas au regard des critères relatifs aux causes de « nullité quant au fond » de cette convention, définis par le droit des États membres conformément à l’article 25.1 du règlement (UE) 1215/2012 Bruxelles I bis, mais à l’aune de critères autonomes qui se dégagent de cet article.

Ce faisant, est valide une clause attributive de juridiction en vertu de laquelle l’une des parties à celle-ci ne peut saisir que le seul tribunal qu’elle désigne, tandis qu’elle permet à l’autre partie de saisir, outre ce tribunal, toute autre juridiction compétente, dans la mesure où : (1) elle désigne les juridictions d’un ou de plusieurs États membres de l’Union européenne ou parties à la Convention de Lugano II du 30 octobre 2007 ; (2) elle identifie des éléments objectifs suffisamment précis pour permettre au juge saisi de déterminer s’il est compétent ; (3) elle n’est pas contraire aux dispositions des articles 15, 19 ou 23 du règlement (UE) 1215/2012 Bruxelles I bis et ne déroge pas à une compétence exclusive au titre de l’article 24 de celui-ci.

en lire plus

Today the European Commission published its eagerly awaited Commission Report on the application of the Brussels Ia Regulation (also referred to as Brussels I-bis), No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). The Report is accompanied by a Staff Working Document, detailing a number of selected topics addressed in the Report. The documents rely in particular on the extensive Evaluation Study that was published in January 2023 as well as the findings of the JUDGTRUST project and the resulting book.

The Report states that it is ‘generally agreed that the Regulation is a highly successful instrument’ and that the enhancements, including the abolition of the exequatur, have strengthened judicial cooperation in civil and commercial matters. Its overall ‘clear and simple’ rules are ‘highly appreciated amongst practitioners. The Report also emphasizes the essential role of the CJEU case law in interpreting and applying the rules. While several complex issues require clarification, given the ‘general satisfaction with the operation of the Regulation, any modifications should respond to real practical difficulties and should not lead to an overhaul of the well functioning system of the Regulation’, according to the Commission.

The Report addresses the scope of application laid down in Art. 1  (in particular the exclusion of arbitration) as well as a number of issues in applying Arts. 2 and 3, including definitions (in particular the term ‘judgment’ in relation to provision and protective measures, and definition of ‘court’ referring to the Pula Parking judgment, see here).

As regards the scope of the jurisdiction rules, the much debated issue of the (non) application to third-country defendants and possible extension is addressed. Topics pointed out in relation to the special, alternative jurisdiction rules in Arts. 7-9 include the increasingly broad interpretation of ‘matters relating to a contract’, determining the place of performance  of contractual obligations (Art. 7, para 1), and as regards torts (Art. 7, para 2) the often problematic determination of the place of damage of pure financial loss (similar to Rome II Regulation, see also here) and the application of the mosaic principle in cases regarding the violation of privacy rights. As to the latter, reference is also made to the (negative) implication in SLAPP cases and the Anti-SLAPP directive, which was adopted in 2024. A number of issues are pointed out in applying the consumer protective rules in Arts. 17-19, including the notion of ‘consumer’, the phrase ‘directing of commercial activity’, the exclusion of transport contracts as well as their non-applicability in collective redress actions, where cases are brought by a representative organisation. A few minor (formulation) issues in the application of Art 24 on exclusive jurisdiction are pointed out.

As regards the rules on recognition and enforcement, it is concluded that the system of the recast Regulation, which abolished the declaration of enforceability (exequatur) works generally well in practice and has had a positive effect on the costs and workload of courts. The Report refers to a number of CJEU rulings on the application of the public policy exception, including in the cases Diageo Brands, H Limited and most recently, the Real Madrid. The CJEU upheld the restrictive application of the public policy exception, though created room for its application in the latter case in which the violation of a fundamental right under the EU Charter of Fundamental Rights (freedom of press) was at stake.

Lastly, the Report reflects on the relationship with other instruments (Arts. 67-74), referencing in particular the Lugano Convention, the New York Convention, bilateral conventions of Member States with third states, and the establishment of the “United” (this should be “Unified”) Patent Court.

A number of important horizontal issues that are pointed out are that of the potential problematic application in collective redress cases, as is also clear from a number of rulings of the CJEU, and the impact of digitalisation, including the increase of digital content and blockchain technologies, and the digitalisation of judicial procedures.

In conclusion, the Commission will initiate ‘a formal review of the Regulation in order to consider and potentially prepare a proposal to amend or recast the Regulation in accordance with the Better Regulation rules’. Highlighted topics in this context are:

• (once again) the extension of the rules of jurisdiction to cover defendants not domiciled in a Member State
• provisions on the scope and definitions, in particular the exclusion of arbitration, the notion of ‘court or tribunal‘ and ‘provisional, including protective, measures‘
• simplifying and enhancing the effectiveness of the provisions on jurisdiction, in particular Arts. 7(1) on contracts and 7(2) on torts, as well as those on consumer contracts
• further streamlining and simplifying the rules on recognition and enforcement
• necessary procedural tools in relation to collective redress
• coordination between the Regulation and international instruments, and
• ways to modernise and simplify procedures as part of the digital reform of civil justice systems

To be continued!

Conflictoflaws will organise an online roundtable on designated topics of the report, following the succesful roundtable on Rome II – Stay tuned

The European Commission has made public its Report on the application of the Brussels I bis Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (COM(2025)268 of 2 June 2025), together with a Staff Working Document providing further analysis of the issues discussed in the Report (SWD(2025)135). Consistent with […]

The 20th Anniversary Conference of the Journal of Private International Law will take place at the Faculty of Laws of University College London between 11 and 13 September 2025.A

The conference organizers, Ugljesa Grusic (UCL) and Alex Mills (UCL), and the editors of the Journal, Paul Beaumont (University of Stirling) and Jonathan Harris (King’s College London), are pleased to announce that the conference programme is now available on the conference website.

The conference will include, in the customary manner, a mixture of parallel panel sessions (on Thursday afternoon and Saturday morning) and plenary sessions (on Friday).

A limited number of non-speaker tickets and conference dinner tickets are available via the conference website, with early bird fees until 1 July 2025.

An opinion and two hearings are scheduled in June 2025 in relation to requests for preliminary rulings on private international law instruments. On Thursday 12 June, Advocate General N. Emilou will deliver his opinion in case C-77/24, Wunner. The Oberster Gerichtshof (Supreme Court, Austria) has referred two questions to the Court of Justice of the […]

EDITORIAL

In an increasingly globalized world—and especially within the framework of a unified market founded on economic freedom and the free movement and establishment of individuals and businesses—international sales have emerged as a cornerstone of the legal and economic order. They are not merely instruments for the acquisition of assets across borders; they also function as a key mechanism for fostering business growth and enhancing competitiveness through the expansion of commercial activity and client networks.
Given their fundamental role, international sales are subject to a broad and multi-layered legal framework at the international level. This complex regulatory landscape gives rise to a number of interpretative and practical challenges, particularly with regard to the interaction and prioritization of overlapping legal norms.
With these considerations in mind, our journal hosted an online event on 1 October 2025, aiming to shed light on the central legal issues surrounding international sales in the current international context. The scholarly contributions presented during that event are now published in this issue, enriched with doctrinal analysis and case law references, in the hope of contributing meaningfully to ongoing academic and professional discourse. It opens with a study by Professor Michael Sturner, Chair of Civil Law, Private & Procedural International Law and Comparative Law at the University of Konstanz and Judge at the Karlsruhe Court of Appeal, entitled “The Right to Repair: A New Paradigm in EU Sales Law”. Judge Dimitrios Koulaxizis contributes an article examining “The United Nations Convention on Contracts for the International Sale of Goods (CISG) in Relation to the Rome I Regulation on the Law Applicable to Contractual Obligations”; Prof. Anastasios Valtoudis, Professor of Civil Law at the Aristotle University of Thessaloniki, addresses “Issues Concerning the Preconditions for the Application of the CISG – Delimitation in Light of Directive 2019/771 and Articles 534 et seq. of the Greek Civil Code”; Prof. Eugenia Dacoronia, Professor of Civil Law at the Faculty of Law of the University of Athens, offers a critical reflection on “The UNIDROIT Principles of International Commercial Contracts – 30 Years On: Their Significance and Comparison with the Provisions of the Greek Civil Code”. The volume also includes the contribution of Associate Professor of Civil Law at the Aristotle University of Thessaloniki Timoleon Kosmidis, who explores “Natural Gas Supply: National Legislation and International Commercial Practice”.
The Praefatio of the issue hosts the valuable reflections of Professor Silvia Marino of the University of Insubria/Italy, on the complex issue of lis pendens and related actions in the context of family property disputes under European Union Private International Law (“Lis Pendens and Related Actions in European Union Private International Law on Family Property Issues”).
The case law section features a number of significant judicial decisions. Notably, it includes the important judgment of the Court of Justice of the European Union (CJEU), 4 October 2024, C-633/22, Real Madrid Club, addressing public policy as a ground for refusing the enforcement of a foreign judgment on account of an infringement of freedom of the press (commented by R. Tsertsidou). Also presented is the ruling of the German Federal Court of Justice (BGH), 29 November 2023, VIII ZR 7/23, which deals with the application of domestic mandatory rules even in the presence of a contractual choice of law, where the contractual relationship lacks a substantial connection to a foreign legal system (commented by N. Zaprianos). From the Greek courts, this issue includes: Athens Court of First Instance, judgment no. 3155/2022, concerning the possibility of reviewing the parties’ freedom to choose the competent court under the rule (Art. 281 grCC) prohibiting of abuse of rights (commented by S. Karameros); Athens Court of Appeal (Single-Member), judgment no. 2435/2024, concerning the recognition of a foreign adoption judgment issued in favor of a same-sex couple (commented by M. Gerasopoulou); and Piraeus Court of First Instance (Single-Member), judgments no. 3355/2023 and 11/2022, regarding the applicable law for the appointment of a special guardian to initiate a paternity challenge, pursuant to the 1996 Hague Convention (commented by G.-A. Georgiadis).
The scientific section of this issue includes a study by Associate Professor V. Kourtis (Aristotle University of Thessaloniki), entitled “Issues of Intertemporal Law in Cross-Border Maintenance Claims within the European Area”. It also features the academic contribution of Judges P. Kapelouzos, St. Krassas, and M. Martinis, submitted in the context of the Themis Competition 2023, under the title “May I ‘book’ my forum delicti? Or else: The Objective Limits of Jurisdiction Clauses in Tort Cases”. The issue concludes with the regular quarterly review of the CJEU’s case law covering the period July–September 2024, edited by A. Anthimos.
Lex&Forum renews its scientific appointment with our readers for the next, 16th issue, with the central topic (Focus) on “Cross-border matrimonial and registered partnership property regimes”.

The Journal of Law, Market & Innovation (JLMI) welcomes submissions for its first issue of 2026.

The Call for Papers for this second issue is devoted to Tariffs: Emerging challenges in global trade.

You can find the call with all the details at this link.

Prospective articles should be submitted in the form of an abstract (around 800 words) or draft articles to submissions.jlmi@iuse.it within 10 July 2025. The publication of the issue is set for the end of March, 2026.

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

Delighted to have been asked by Arie Van Hoe to post on the Lliuya v RWE climate ruling. See the link below to Corporate Finance Lab.

Geert.

Lliuya v RWE. Germany’s historic climate ruling: A pyrrhic loss for claimants?

At the occasion on 5 June of the PhD Defence of Leontine Bruijnen on How can Private International Law bridge the Gap between the Recognition of Unknown Family Relations such as Kafala and Child Marriage for Family Law and Migration Law Purposes? , we are organising an expert seminar at the University of Antwerp and online:

Child marriage: root causes and questions of recognition:

11.00: Welcome and introduction by Thalia Kruger, University of Antwerp

11.10: The Role of Customs and Traditions in Addressing Child Marriages in Tanzania: A Human Rights-Based Approach, by Esther Kayamba, Mzumbe University and University of Antwerp

11.25: The link between climate change and child marriage in Tanzania, by Agripina Mbilinyi, Mzumbe University and University of Antwerp

11.40: Socio-cultural factors that Sustain Child Marriage at Quarit Wereda, Amhara Region, Ethiopia by Yitaktu Tibetu, Human Rights Lawyer, Senior Gender Adviser and councillor psychologist

12.00: Perspective from Europe by Bettina Heiderhoff, University of Münster and Trui Daem, PhD researcher Ghent University

12.20: Debate and Q&A

12.50: End

To register, please contact Thalia Kruger

Registrations are open for the 2025 edition of the Summer School on Transnational litigation organized by Michele Lupoi with Marco Farina. The Summer School will run from 13 to 19 July 2025 at the Ravenna Campus of the University of Bologna. Online attendance is also possible. The lectures will cover a broad range of topics […]

The second issue of LMCLQ was recently published.

It contains the following conflict of laws works,

 

David Foxton, “The Applicable Law of an Arbitration Agreement: Floating or on the Rocks?”

 

Marcus Teo and Kah-Wai Tan, “Territoriality over Universalism”

 

Adrian Briggs, “Submission to a Russian Court”

Mathieu Combert and Jérémy Heymann are the editors of a book on the Circulation of Companies under EU Law (La circulation des sociétés en droit de l’Union européenne). The purpose of the book is to take stock of the case law of the CJEU and recent EU legislation in the field of company law from […]

On Tuesday, June 3, 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. (CEST). Professor Michael Karayanni (Hebrew University of Jerusalem) will speak, in English, about the topic

“Voice and Exit in Private International Law: The Case of the Israeli Inter-religious Regime”

Private international law can play a significant role in countries with inter-religious legal regimes by offering individuals an option to “exit” their personal religious law in favor of secular law in effect in a foreign country. My presentation will examine the development of the lex loci celebrationis choice of law rule within Israel’s inter-religious regime. Additionally, it will investigate whether this development has empowered individuals with an adequate “voice” to challenge community-based religious norms.

 

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.

The author of this post is Antonio Leandro, Professor of Public and Private International Law at the University of Bari (Italy). On 23 January 2025, the German Federal Court of Justice (Bundesgerichtshof) submitted a request for a preliminary ruling to the Court of Justice of the European Union concerning Article 6(1) of Regulation (EU) 2015/848 […]

Written by George Jacob, Incoming Associate, Bombay Law Chambers

Globalisation has led to a rise in cross-border disputes, making international service of summons increasingly relevant. While domestic service in India is straightforward, sending summons to foreign defendants involves complex legal procedures. Proper service ensures that the defendant is duly notified and can respond, embodying the principle of audi alteram partem. Until recently, the procedure for international service in India was unclear. This ambiguity was addressed by the Kerala High Court in Charuvila Philippose v. P.V. Sivadasan.[1] This blog outlines the legal frameworks for international service, revisits the earlier Mollykutty[2] decision, and analyses the broader implications of Charuvila Philippose.

Process of Overseas Service of Summons in India – the Methods

Theoretically, serving of summons abroad should be straightforward. However, in India, the mechanism for international service of summons is tangled due to a patchwork of legal frameworks ranging from international treaties – such as the Hague Service Convention and Mutual Legal Assistance Treaties, to government routes such as Letters Rogatory and even provisions under the Indian Code of Civil Procedure, 1908. This section unpacks the various routes for international service from India; it lays the groundwork for understanding why the Charuvila Philippose case and the confusion it sought to resolve, matters.

 

1. Letters Rogatory and Mutual Legal Assistance Treaty (MLAT) Route

 

Traditionally, Indian courts have relied on letters rogatory for service abroad. A letter rogatory is a formal request issued by a court in one country to the judiciary of another, seeking assistance in serving judicial documents – in the absence of a binding treaty. This method was relied on situations when there were no specific agreements between countries.

 

In cases where bilateral Mutual Legal Assistance Treaties (MLATs) exist, the process becomes more structured. MLATs provides a treaty framework for cooperation on international service and other matters. Indian currently has MLATs with 14 countries. However, the abovementioned routes are cumbersome and slow.

 

2. The Hague Service Convention Routes – Article 2, 8 and 10

 

The rise in the number of cross-border disputes led to the development of the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965 (henceforth “Hague Service Convention” or “HSC”). India acceded to the treaty in 2006 and ratified it in 2007. Under Article 2 of HSC, India has designated the Ministry of Law and Justice as the Central Authority responsible for receiving and forwarding summons to the relevant authority in the foreign country where the defendant resides. Once received, the foreign Central Authority effects services on the defendants and returns proof of service. The HSC also permits alternate methods of service through Article 8 and Article 10. However, these routes are subject to each country’s reservations. Article 8 of HSC allows service through consular or diplomatic agents provided the receiving state has not objected. For example, Indian courts can serve a defendant in Canada directly through its consular or diplomatic agents in Canada as Canada has not opposed such a route. This is in contrast with People’s Republic of China which has opposed the Article 8 route, preventing India from serving a Chinese defendant through India’s diplomatic/consular agents in China. Article 10 of HSC allows service via postal channels, subject to whether the receiving country has not objected. For example, an Indian court may send a summons directly by post to a defendant in France, which permits such service. But this route is unavailable for defendants in Germany, as it has formally opposed service through postal channels under Article 10.

 

Indian Code of Civil Procedure Routes

 

In addition to international instruments for service, the Code of Civil Procedure, 1908 (henceforth “CPC”) provides a domestic legal framework for overseas service under Order V through Rules 25, 26 and 26A.

 

Rule 25 allows courts to serve summons via post, courier, or even email if the defendant has no agent in India authorized to accept service. Rule 26 provides for service through political agents or courts specifically appointed by Central Government in a foreign territory. However, this provision remains obsolete as no political agents or courts have been appointed till now. Rule 26A enables service through an officer appointed by a foreign country (and recognized by the Central Government). In this process, the summons is routed through the Ministry to the designated officer abroad. If the officer endorses the summons as served, such endorsement is treated as conclusive proof of service.

 

In conclusion, the issuance of summons abroad from India becomes complex because of the multiplicity of legal frameworks surrounding summons. The provisions of CPC coupled with the distinct HSC routes and the foundational mechanism of MLAT and letters rogatory significantly muddies the water.

 

Dissecting Service – Three Connected Principles

 

Understanding the various legal routes for service is only the first layer of the issue. To fully understand why the procedure of service matters, it remains essential to look deeper into three distinct, but interconnected principles related to service. The three principles are: the act of service, the court’s recognition of service and the consequences flowing from such recognition. These principles are foundational to any well-functioning legal system’s procedural laws concerning service. And they are present in both HSC and CPC. These three principles are crucial to understand the judicial debate that unfolded in Mollykutty and later in Charuvila Phillipose.

 

 

No. General Process Hague Service Convention

  Indian CPC 1. The specific process of service by the court i.e., modality of service (e.g.: postal, email etc.)

  HSC Article 2-5, Article 8 or Article 10 Order V Rule 9(1) and 9(3) [for domestic service]

 

Order V Rule 25, 26 and 26A [for service abroad] 2. Once service of summons is done, there is a declaration of service. This is important as it recognizes that service of summons to the defendant has been accomplished. i.e., the defendant has been provided sufficient notice of the case against them.

  Expressly: In the form of acknowledgement certificates or endorsements that prove delivery of summons. This is vital as it indicates that the defendant had the opportunity to understand the case made against them.

   

 

HSC Article 6  

 

Order V Rule 9(5) Implicitly: In case there are no acknowledgement certificates or endorsements to prove delivery of summons. The court is occasionally permitted to assume that summons was served (“deemed service”).

   

 

 

HSC Article 15 Paragraph 2  

 

 

Order V Rule 9(5) Proviso 3. Issuing decrees – once declaration of service is done, the parties are given time to respond and make their case before the court. If the defendant does not appear, then an ex-parte decree is issued.

 

This is done on the assumption that despite proper service or best efforts to undertake proper service, the defendant did not appear.

   

 

 

 

HSC Article 15 Paragraph 1

 

 

   

 

 

 

Order IX Rule 6

 

 

Background of the Mollykutty Dispute

 

Although India has ratified HSC and issued multiple notifications appointing the Ministry of Law and Justice as the Central Authority under Article 2 of HSC. The HSC provisions have not been legislatively incorporated into CPC. This has resulted in a fragmented legal framework where both HSC and CPC had overlapping legal regimes which diverged on the three connected principles of service – modality of service, declaration of service and issuing of decrees.

 

The coexistence of this diverging regimes came to a head in the Mollykutty case, a seminal decision of the Kerala High Court. The case concerned a suit in which the defendant resided in the United States. The trial court issued summons directly via registered post to the US defendant – a method permitted under Order V Rule 25 of CPC. However, it failed to obtain any acknowledgement of service. Due to this, the court invoked proviso to Rule 9(5) which allows court to declare deemed service if summons was “properly addressed, pre-paid and duly sent by registered post”. This raised concerns across all three foundational principles connected to service.

 

Act/Modality of Service – the trial court’s reliance on registered post conflicted with the procedure set out in HSC which mandates transmission of service through the Central Authority as the main route. The Mollykutty judgement held that in cases involving service abroad to a HSC signatory country, compliance with the HSC’s Central Authority route was mandatory.

 

Declaration of Service – the trial court declared deemed service based on the Proviso to Rule 9(5) which permits assumption of service if the summons was “properly addressed, pre-paid and duly sent by registered post”. The High Court in Mollykutty held that deemed service can be declared only as per the conditions stipulated in Article 15 of HSC.

 

Issuance of Decree – the High Court set aside the trial court’s ex parte decree since the method of service and the declaration of deemed service was improper.

 

The Mollykutty judgment mandated strict compliance with the HSC’s Central Authority for sending summons abroad. However, this strict interpretation of HSC, in the absence of legislative incorporation into CPC was concerning. Several High Court benches found the Mollykutty judgement to be overtly rigid and referred the issue to a larger bench in Charuvila Phillipose. The central question before the larger bench was whether, despite the lack of amendment to CPC, will HSC provisions concerning international service override the corresponding provisions in CPC? Or will CPC based routes for international service remain as valid alternatives?

 

The Charuvila Philippose Case

Arguments Raised

 

The parties primarily debated whether legislative amendment to the CPC is necessary when implementing an international instrument like the Hague Service Convention (HSC). The Amicus Curiae submitted that no such amendment is required unless the treaty affects the rights of citizens or conflicts with municipal law. Given that CPC is procedural in nature, the Amicus argued that litigants do not possess vested rights over specific modes of service and therefore, no individual rights are compromised. Furthermore, the Amicus contended there is no inconsistency between the CPC and the HSC: Order V Rule 25 fails to ensure proof of service; Rule 26 is largely ineffective; and Rule 26A is neutral, aligning with Mutual Legal Assistance Treaties. The Amicus also pointed to various memorandums and notifications to demonstrate the widespread administrative implementation of the HSC across India.

 

In response, the respondents emphasized that Article 253 of the Indian Constitution mandates parliamentary legislation to implement international treaties domestically. They argued that the CPC does confer substantive rights—such as appeals—and that certain HSC provisions, including Articles 15 and 16, impact citizens by altering domestic rules on ex parte decrees and limitation periods. Addressing criticisms of Order V Rule 25, the respondents asserted that uncertainties in proof of service also exist under the HSC, as enforcement depends on mechanisms in the receiving country, beyond India’s control. The respondents further maintained that India’s ratification of the HSC does not render Rule 25 obsolete and stressed that mere executive notifications cannot amend statutory provisions. Citing Article 73 of the Constitution, they concluded that executive action cannot override areas governed by existing laws.

 

Court’s Analysis

 

1. Regarding International Law and its Application in India

 

The court’s analysis centered around whether the Parliament needs to legislatively amend CPC for implementing an international convention like HSC. Since this concerns the question of application of international law to a domestic legal system. The court contrasted monistic and dualistic approaches to international law in the Indian legal system. Article 253 of the Indian Constitution states that “…Parliament has the power to make any law…for implementing a treaty or international convention….”. This article provides support for a dualistic approach as it empowers the Parliament to make laws for implementing treaties or international conventions. Conversely, monism is supported by Article 51(c) of the Indian Constitution, a directive principle, which encourages respect for international law and treaty obligations. In this case, the court balances dualism and monism by stating that Article 253 is “enabling” or provides the Parliament with the power to make laws for implementing treaties/conventions, only if necessary.

 

According to the court, Article 253 of the Constitution is by no means mandating the Parliament to make laws, for implementing every treaty or convention.

 

To support this balanced position, the court then proceeded to examine several precedents including Maganbhai Ishwarbhai Patel etc. v Union of India and Anr.[3] and Karan Dileep Nevatia v Union of India, through Commerce Secretary & Ors[4]. The position that emerges is as follows: –

 

“…(iv) The Parliament needs to make laws in respect of a treaty/agreement/convention when the treaty or agreement restricts or affects the rights of citizens or others or modifies the law of India. (v) If the rights of citizens or others are not affected or the laws of India are not modified, then no legislative measure is needed to give effect to such treaties/agreement/conventions.”

 

Since the Parliament is only required to legislatively implement those treaties/agreements/conventions that are either – (i) restricting or affecting the rights of citizens or others, (ii) or modifies the law of India; the court’s subsequent analysis examines these exceptions in detail.

 

• Whether Rights of Citizens or Others are Restricted or Affected? No, They Are Not!

 

The court held that parties to a litigation have no vested right in procedural mechanism as settled in BCCI v Kochi Cricket Pvt. Ltd.[5] And through Sangram Singh v Election Tribunal and Anr[6], it emphasized that Hague Service Convention merely addresses procedural aspects of CPC without affecting any substantive rights of parties.  On this basis, the court concluded that the HSC does not affect or restrict the rights of citizens or others.

 

• Whether the HSC Modifies the Law of India? The Answer is a Little Complex!

 

If the court found that HSC “modifies” the existing laws of India, then it would be forced to hold that the Parliament needs to legislatively amend CPC to incorporate HSC into the Indian legal system. However, relying on Gramophone Company of India v Birendra Bahadur Pandey and Ors[7], the court held that the standard of “modifies” the laws of India has been significantly tightened. The Gramophone case established that Parliamentary intervention is required only where an international convention is “in conflict with” domestic law, not merely if it “modifies” existing provisions.

 

Moreover, courts are under an obligation to interpret municipal statutes in a way that avoids confrontation with international law. A harmonious approach to interpreting international law and domestic law is encouraged in the Gramophone case. Since the focus is on procedural law rather than any substantive law, the court held that it will not readily infer a conflict between HSC and CPC.

 

Due to the new higher threshold, the court then proceeded to examine if HSC covenants are “in conflict with” the CPC provisions.

 

2. Whether HSC covenants are “in conflict with” CPC provisions regarding service abroad?

 

The rigor when examining the standard of “in conflict with”, is less for procedural law as compared to substantive law. Since the case hinges on whether the HSC methods for international service are in conflict with the CPC methods. The court examined each of the CPC methods – Order V Rule 25, 26 and 26A with HSC.

 

To recap, Rule 25 allows summons to be issued to the defendant by post or courier or email if the defendant does not have an agent empowered in India to receive service. Rule 26 pertains to service through a political agent or court in a foreign country. Rule 26A provides for service of summons through an officer appointed by the foreign country as specified by the Central Government.

 

• Are HSC covenants “in conflict with” Order V Rule 26A?

 

Article 2 and 3 HSC concerns the appointment of a Central Authority by each signatory state for enabling cross-border service. Under this route, service is sent to the requisite authority of the originating state which then forwards the service to the Central Authority of the destination state.

 

According to the court, the only difference between HSC and Rule 26A is that there is a Central Authority rather than a judicial officer (as laid down in CPC) through which service is to be sent abroad. Since this was the only difference, the court held the Central Authority route in HSC to be close and proximate to Rule 26A. And HSC was not “in conflict with” Rule 26A of CPC.

 

• Are HSC covenants “in conflict with” Order V Rule 26?

 

The court did not examine this provision in detail as the Government has not appointed any political agent or courts in any foreign country. Due to this, the question of whether HSC is in conflict with Rule 26 does not arise in the first place.

 

• Are HSC covenants “in conflict with” Order V Rule 25?

 

Article 10 of the Hague Service Convention (HSC) permits alternate methods of serving summons abroad, including through postal channels, subject to the receiving state’s acceptance. India, however, has expressly reserved against these methods, declaring its opposition to the provisions of Article 10. The court clarified that India’s reservation applies specifically to incoming service—i.e., documents sent from other HSC contracting states to India—not to outbound service, from India to states that do not object to direct postal channels.

 

Based on this, the court held that Order V Rule 25 CPC, which governs service of summons abroad, remains unaffected by the HSC. Article 10 HSC and Rule 25 CPC are not in conflict, as the former itself legitimizes postal service to foreign states that permit such service under HSC.

 

Nevertheless, the court noted practical challenges with ensuring effective service under Rule 25, particularly when using post or email, as there is often no reliable mechanism to confirm service, which is an essential safeguard to protect the defendant’s right to a fair hearing. Recognizing this, the court stressed that all courts must endeavor to attempt to secure effective service on the defendant.

 

To reconcile the CPC and HSC, the court endorsed a harmonious interpretation. Courts may proceed under Rule 25 for service abroad – if confirmation of service is received or the defendant appears in response. If so, service under Rule 25 is valid. However, if no confirmation is obtained or the defendant fails to appear within a reasonable period, courts must resort to the Central Authority mechanism prescribed under the HSC.

 

Reference Questions and their Answers

 

The court based on its analysis, concluded that: firstly, HSC is enforceable without a corresponding legislation since it is neither in conflict with provisions of CPC nor affecting the rights of citizens or others. Secondly, HSC does not foreclose CPC Order V Rule 25 route for service, as Article 10 HSC itself contemplates service through postal channels. Thirdly, the law laid down in Mollykutty, which prescribes strict adherence to the procedure prescribed in HSC (Central Authority route) to the exclusion of alternate methods of serving summons, is overruled.

 

Case Analysis

The Change in Jurisprudence

In addition to the factors identified by the court in Charuvila Phillipose, the decision in Mollykutty suffers from a significant omission. The judgment failed to account for the fact that Article 10 of the Hague Service Convention (HSC) permits service through postal channels, and the United States (the destination state in the Mollykutty case) does not object to inbound service via this route. This is a glaring oversight since none of the government memorandums/notifications specifically address the use of Article 10 for service abroad. A detailed judicial consideration of this aspect was required.

 

Despite these limitations, prior to Charuvila Phillipose, several High Courts had blindly relied on the reasoning in Mollykutty to broadly hold that the HSC provides the exclusive mechanism for serving summons outside India. With Charuvila Phillipose now having expressly overruled Mollykutty, courts are presented with two possible approaches: either to adopt the updated and nuanced reasoning in Charuvila Phillipose, which permits the coexistence of the HSC and CPC procedures for service abroad; or to adhere to the dated and restrictive reasoning in Mollykutty, which confines service exclusively to the Central Authority route prescribed under the HSC.

 

This divergence creates the possibility of conflicting High Court judgments on the issue of service abroad—an inconsistency that can ultimately only be resolved through authoritative pronouncement by the Supreme Court, unless the other High Courts also adopt the approach in Charuvila Phillipose.

 

Potential Legal Challenges Following Charuvila Phillipose

 

The Charuvila Phillipose decision may give rise to further litigation on two unresolved legal questions. First, whether the use of methods under Order V Rule 25—such as service by email—would be inconsistent with a destination state’s objection under Article 10 of the Hague Service Convention (HSC). Second, whether Articles 15 and 16 of the HSC, which pertain to ex parte decrees and limitation periods, are “in conflict with” existing provisions of the Civil Procedure Code (CPC).

 

• Compatibility of email service under CPC Rule 25 and HSC Article 10 objection.

 

Article 10 of HSC permits the use of “postal channels” to send summons to persons directly abroad, unless the destination state objects to it. Suppose a destination state has made an objection under Article 10 HSC. In such cases, courts are free to take either a broad or a narrow approach to interpret the scope of “postal channels”.

 

The broad approach to interpretation would entail construing “postal channels” to encompass modern means of communication including social media and email. This approach relies on Article 31 of the Vienna Convention on the Law of Treaties (VCLT), which requires treaty terms to be interpreted in terms of their object and purpose.[8] Under this approach, if a state objects to Article 10 of HSC, it is understood to oppose all alternate channels including email/social media, for direct service abroad.

 

Conversely, the narrow approach construes “postal channels” restrictively – to include direct post only. It excludes modern means of communication such as email and social media. This view draws from the fact that the HSC was concluded in 1965, prior to the advent of electronic communication. This interpretation considers an Article 10 HSC objection by a state, as a bar, only on postal service. It perceives a state objection under Article 10, to not bar service by email/social media, thus validating electronic service under Order V Rule 25.[9]

 

In Charuvila Phillipose, the Kerala High Court endorses a narrow interpretation of Article 10 postal methods by stating “…we take the call to limit the same…” in reference to postal channels. This allows litigants in India to send service abroad via email. However, this interpretation carries significant legal risks.

 

Countries oppose direct “postal channels” under Article 10 HSC for various reasons such as due process concerns, desire for reciprocity or efficiency of Central Authorities. However, certain civil law jurisdictions such as Japan, China and Germany consider service of process as an exercise of judicial sovereignty. They oppose Article 10 HSC on the basis that service is a function exclusively belonging to the state by virtue of its sovereignty.[10] Proceeding with electronic service (through the narrow approach), despite a specific objection, might be perceived as a challenge to a nation’s judicial sovereignty.

 

A further challenge may arise at the enforcement stage. A foreign court may refuse to recognize or enforce an Indian judgment on the ground that service by email was not compliant with proper service under HSC.[11] While such email service might serve the purpose of adequate notice to the defendant, its legality remains contested. For instance, in Lancray v Peters, the Court of Justice of the European Union (CJEU) refused to recognize a foreign judgment due to improper service, even though the defendant had actual notice.[12]

 

• Whether Article 15 and 16 of HSC is “in conflict with” CPC?

 

One of the arguments canvassed to argue that HSC provisions were in conflict with CPC were Article 15 and 16 of HSC. These provisions concern the setting aside of ex-parte judgements and the extension of limitation periods, areas already governed by CPC. It was argued that these provisions significantly alter the existing procedures under CPC

 

The court however, sidestepped the issue, noting that this was not one of the questions referred for determination. Nevertheless, the court, recognizing the possibility of a conflict, clarified that its harmonious construction between CPC and HSC was limited to provisions concerning service of summons and cannot automatically result in compatibility between HSC and Indian law for all the other provisions. Since this question remains unresolved, it is likely to be subject to future litigation. The court’s avoidance of this issue is particularly notable given that Mollykutty held that a deemed declaration of international service to an HSC signatory state could be made only upon satisfaction of the conditions under Article 15 of the Convention. This however went unaddressed in Charuvila Philippose.

 

• Recognition of Problems with HSC Route

 

The judgment implicitly acknowledged the practical difficulties associated with serving summons abroad via the Central Authority route under HSC. These include significant delays, often ranging from six to eight months and the risk of non-service. Additionally, the costs associated with the Central Authority route impose a heavy financial burden, particularly on individual litigants and smaller entities. In light of these challenges, the court’s harmonized approach serves a dual purpose – it resolves an inconsistency between HSC and CPC and, simultaneously offers an alternate route for service of summons that eases the burden on litigants.

 

One hurdle that prevents reliance on Rule 25 is the absence of an express mechanism to prove summons was served abroad. The court adopts a practical approach where service is deemed valid under Rule 25 – if the postal authorities of the destination state provide acknowledgement of successful service, or if the defendant voluntarily appears before the court. This is only a temporary fix to address a procedural lacuna in CPC. However, modern technology can prove to be an effective fix. While regular email offers speed, efficiency and accessibility compared to service by post, it is difficult to conclusively prove whether the email was received, opened or read by the defendant. To address these limitations, “certified email” platforms offer an alternative. Such platforms provide encryption, verifiable delivery tracking, time-stamped acknowledgements along with confirmation of when and whether the recipient opened the message. It provides a comprehensive digital trail similar to postal service, while providing a higher evidentiary value. Incorporation of such tools could significantly improve reliability of international service under Order V Rule 25 of CPC.

 

In conclusion, the Charuvila Philippose judgement is a progressive shift in the law concerning service. The judgement performs a dual function. It overrules the faulty reasoning in Mollykutty while simultaneously harmonizing the HSC and CPC provisions for international service. The judgement provides litigants with alternate channels for international service that is less cumbersome than the Central Authority mechanism. However, there are a set of hurdles that the judgement unfortunately does not resolve. This includes whether email service is compatible under Article 10 HSC with a destination state’s objective, the potential conflict between Article 15 and 16 HSC with Indian procedural law and the likelihood of divergent interpretations by other High Courts. These issues remain ripe for further litigation. While the judgement is clearly a step in the right direction, there is a need to further simplify and clarify the law concerning international service in India.

 

[1] Charuvila Philippose Sundaran Pillai and Ors v. P.N Sivadasan and James W Thomas v. Fr. Jose Thomas S.J and Ors., 2024/KER/84933

[2] Mollykutty v Nicey Jacob and Ors, 2018/KER/67412

[3] (1970) 3 SCC 400

[4] (2010) SCC OnLine Bom 23

[5] (2018) 6 SCC 287

[6] AIR 1955 SC 425

[7] (1984) 2 SCC 534

[8] Nicolás Lozada Pimiento, “From Physical Location to Electronic Address: Omnipresence in the era of the Internet” in The HCCH Service Convention in the Era of Electronic and Information Technology, Page 90-93. Available at: https://assets.hcch.net/docs/24788478-fa78-426e-a004-0bbd8fe63607.pdf.

[9] See the following US case laws – Gurung v. Malhotra [279 F.R.D. 215] and Philip Morris USA Inc. v. Veles Ltd. [2007 WL 725412].

[10] Huang, Jie (Jeanne), Can Private Parties Contract Out of The Hague Service Convention? (July 01, 2024). Journal of Private International Law, volume 20, issue 2, 2024[10.1080/17441048.2024.2369366], Available at SSRN: https://ssrn.com/abstract=5157959.

[11] Id.

[12] Case C-305/88 Lancray v Peters 1990 E.C.R. I-2742, at § 22-31

 

Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine was from the very beginning doomed to undergo frequent amendment. The first text contained only 14 articles. After the last modification in February 2025 (the thirty-fifth in a row), the number has more […]

On 11–12 June 2025, a conference organized by the Nordic Group for Private International Law (NGPIL) will take place at the Stockholm University. The topic is the politicization of private international law. NGPIL is a network that brings together the shared legal traditions of the Nordic countries, while also embracing the mutual intelligibility of the […]

I. Introduction:

In 2024, the Dubai Supreme Court rendered a significant decision concerning the issue of indirect jurisdiction under UAE law (see my comments here). In that comment, I noted that the decision offered “a welcomed, and a much-awaited clarification regarding what can be considered one of the most controversial requirements in the UAE enforcement system” (italic in the original).

The decision commented on here touches on the same issue. Yet rather than confirming the direction suggested in the above-mentioned decision, the Court regrettably reverted to its prior, more restrictive approach. This shift raises doubts about whether a consistent jurisprudence on indirect jurisdiction is taking shape, or whether the legal framework remains fragmented and unpredictable.

 

II. The Case

 

1. Facts

The facts of the case can be summarized as follows:

The appellants (X) filed a petition before the Enforcement Judge seeking the enforcement (exequatur) of a judgment rendered by the Business and Property Courts in Manchester, UK. The judgment, issued against the respondent (Y), ordered the seizure of a luxury penthouse located in Dubai.

The Enforcement Judge declared the English judgment enforceable. However, this decision was overturned on appeal, on the grounds, among others, that UAE courts have jurisdiction over the matter, given that the immovable property in question was located in Dubai.[1]

Dissatisfied with the appellate ruling, X challenged the Court of Appeal’s decision before the Supreme Court of Dubai.

Before the Supreme Court, X argued that provision relied on by the Court of Appeal (Art. 21 of the 2022 Federal Civil Procedure Act) does not confer exclusive jurisdiction in matters of provisional measures. They also argued the enforcement of such orders is permissible under international and bilateral treaties concluded by the UAE, and the Letter addressed by UAE Minister of Justice authorizing Dubai courts to enforce English judgments under the principle of reciprocity.[2]

 

2. The Ruling: Dubai Supreme Court, Appel No. 156/2025 of 24 April 2025

After referring to the relevant provisions governing the enforcement of foreign judgments in the UAE (article 222, article 225 of the 2022 Federal Civil Procedure Act), the Supreme Court rejected the appeal on the following grounds (with slight modifications; underline added):

“As consistently held by this Court, when the UAE has neither acceded to an international convention nor concluded a treaty with a foreign state concerning the enforcement of judgments, UAE courts must ensure that all the conditions set out in article 222 of the Federal Civil Procedure Act are met before ordering enforcement. Among these conditions is the requirement that UAE courts should not have jurisdiction over the dispute on which the foreign judgment was passed, in accordance with the rules of jurisdiction set forth in the Civil Procedure Act.

Under the applicable provisions on international jurisdiction (articles 19, 20, 21, and 24[3] of the 2022 Federal Civil Procedure Act), as consistently held by this Court, procedural matters, including questions of jurisdiction, are governed by the law of the forum before which the proceedings are initiated.[4] [In this regard], Dubai courts have jurisdiction to hear the disputes brought before them if the defendant is a foreign national residing or domiciled in Dubai, except for actions in rem concerning immovables located abroad.[5] Dubai courts also have jurisdiction to issue protective and provisional measures to be executed in the UAE, even if they do not have jurisdiction over the main claim.[6] Any agreement to the contrary shall be deemed null and void.[7] Where any of the grounds for jurisdiction as defined by the law are satisfied, UAE courts cannot decline jurisdiction, as matters of jurisdiction concern public policy (al-nizam al-’âm).[8]

That said, given the absence of any treaty between the UAE and the United Kingdom regarding the enforcement of judgments, and considering that the bilateral agreement with the UK on extradition and mutual legal assistance does not address the enforcement of judgments,[9] it is therefore necessary to refer to the conditions stipulated in Article 222 of the 2022 Federal Civil Procedure Act.

In the present case, X filed a petition seeking the enforcement of an English judgment ordering the seizure of an immovable located in Dubai. Accordingly, under the above-stated applicable legal provisions, the Dubai courts have jurisdiction over the case. In this respect, the ruling under appeal correctly applied the law when it rejected the enforcement of the foreign of the foreign judgment.

This conclusion is not affected by X’s argument that the enforcement order should have been issued based on the principle of reciprocity. This is because the applicability of the reciprocity principle depends on whether UAE courts lack jurisdiction over the dispute and the foreign court properly assumes jurisdiction. As previously stated, this issue concerns public policy.

Accordingly, the grounds of appeal are without merit, and the appeal must be dismissed.

 

III. Comments

The decision comment on here is another illustration of the significance of indirect jurisdiction, which I previously described as “one of the most controversial requirements in the UAE enforcement system.” On this point, the Court’s reasoning and choice of formulation are somewhat disappointing, particularly in comparison with its previous decision on the same issue (Dubai Supreme Appeal No. 339/2023 of 15 August 2024).

In that earlier case, the Court clearly held that “unless UAE courts do not have exclusive jurisdiction over the dispute in which the foreign judgment to be declared enforceable was rendered. Therefore, in case of concurrent jurisdiction between UAE courts and the foreign rendering court, and both courts are competent to hear the dispute, this does not, by itself, prevent the granting of the enforcement order.”

In contrast, in case commented on here, the Court reverted to its traditional, more stringent approach,[10 holding that the jurisdiction of the foreign court should be denied whenever UAE courts have jurisdiction under UAE law, without distinguishing, as the new wording of the applicable provisions adopted since 2018 requires,[11] between cases falling under the exclusive jurisdiction of UAE courts and those that do not.

Instead of reverting to its old, questionable position, the Court could have approached the issue in one of two possible ways:

First, the Court could have considered that the English judgment ordering the seizure of a property located in Dubai constituted in fact an order of “protective measures”, which by nature is temporary and therefore not final and conclusive in the meaning of article 222(2)(c) of the 2022 Federal Civil Procedure Act.

Second, the Court could have found that ordering “protective measures” relating to the seizure of property in Dubai falls within the exclusive jurisdiction of Dubai court.[12] On this basis and applying the same reasoning it adopted in its abovementioned decision of 15 August 2024, the Court could have denied the indirect jurisdiction of English courts.

Such an approach is preferable, as it clearly defines the impact of UAE jurisdictional rules on the indirect jurisdiction of foreign courts, rather than suggesting (imprecisely or overbroadly) that the mere taking of jurisdiction by the UAE courts would automatically exclude the jurisdiction of foreign courts.[13]

In any case, the way the Court framed its reasoning reflects the continuing influence of its long-standing approach to jurisdiction. It also suggests that the more flexible view adopted in the 15 August 2024 decision may still take time to gain a firm footing in judicial practice.

That said, given the lack of clarity in the law itself about what exactly falls within the exclusive jurisdiction of UAE courts, it is perhaps not surprising that judges sometimes fall back on familiar ground when deciding whether to refuse enforcement of foreign judgments.

Still, even if the outcome can be understood, the reasoning remains open to criticism. It risks adding further uncertainty to an area where greater consistency and predictability are badly needed, especially if the UAE seeks to consolidate its position as a global center for international dispute resolution.

 

———————————————

[1] Various issues were raised in this case, notably the question of the notification of the decision, the validity of which was examined by the courts. However, these aspects will not be discussed here.

[2] On this Letter, see my comments here and here.

[3] The Court erroneously cited Article 24; it is likely that Article 23 was meant instead.

[4] This rule is actually found in the 1985 Federal Act on Civil Transactions (article 21) and not the provisions cited in the decision.

[5] See Article 19 of the 2022 Federal Civil Procedure Act. For an example of a case in which the UAE courts declined jurisdiction on the ground that the case concerned an in rem right over an immovable located abroad, see the Abu Dhabi Supreme Court, Appeal No. 238/2017 of 25 March 2018.

[6] In one case, it was declared that “the jurisdiction of national courts to order protective or provisional measures is not contingent upon the court’s jurisdiction over the merits of the case, nor is it linked to the nationality of the parties or the existence of a domicile or residence within the country, but it is due, in addition to the general principle of territoriality of judicial jurisdiction, to the fact that requiring parties to await the outcome of proceedings before a foreign court may be detrimental to their interests”. See Federal Supreme Court, Appeal No. 693/24 of 9 October 2005.

[7] Therefore, choice-of-court agreements are deemed null and void in the UAE. For a very recent application of this rule, see Dubai Supreme Court, Appeal No. 875/2024 of 24 September 2024. The rule applies even to choice-of-court agreements between different Emirates within the UAE. See, e.g., Dubai Supreme Court, Appeal No. 21/2010 of 31 May 2010, in which the Court held that jurisdictional rules cannot be derogated from by agreeing to the courts of another Emirate. The rule also applies when the parties agree to submit to the jurisdiction of a UAE court. See, e.g., Dubai Court of Appeal, Appeals Nos. 162 and 623/2022 of 8 June 2022. This principle has implications for the indirect jurisdiction of foreign courts, particularly where the foreign court assumes jurisdiction on the basis of a choice-of-court agreement between the parties. See, e.g., Dubai Supreme Court, Appeal No. 52/2019 of 18 April 2019, where the Court refused to enforce an English judgment on the grounds that the English court had assumed jurisdiction pursuant to the parties’ choice-of-court agreement.

[8] For examples of cases in which the courts refused to decline jurisdiction, particularly on the grounds that the parties had agreed to the jurisdiction of a foreign court, see Dubai Supreme Court, Appeal No. 86/1996 of 6 April 1997. For a more recent case, see Dubai Supreme Court, Appeal No. 1176/2024 of 4 March 2025.

[9] Courts have ruled in the same manner in the past. See, e.g., the decision of the Dubai Court of First Instance, Case No. 574/2017 of 28 November 2017, cited here.

[10] On this approach with some examples, see the brief overview outlined here.

[11] On the legislative evolution of the applicable rules, see here and here.

[12] Comp. with Article 8(4) of the Tunisian Code of Private International Law of 1998, according to which “Tunisian courts shall have exclusive jurisdiction: (4) If the action concerns a request for protective or enforcement measures against properties situated in Tunisia”. For a translation of the relevant provisions, see Béligh Elbalti, “The Jurisdiction of Foreign Courts and the Enforcement of Their Judgments in Tunisia: A Need for Reconsideration” (2012) 8(2) Journal of Private International Law 221-224.

[13] For some examples on this approach, see my previous comment here and here.

In Litasco SA v Banque El Amana SA [2025] EWHC 312 (Comm) Hutton DJ engaged (on an application for summary judgment) ia with an issue that one does not see all too often in litigation: a change in governing law under Article 3(2) Rome I; and with the application of Article 9 Rome I’s overriding mandatory law aka lois de police provision.

On the first issue, Litasco as claimant argue that the effect of a SWIFT message (SWIFT being an inter-bank electronic messages platform) was to change the applicable law for the relevant StandBy Letter of Credit – SBLC, into English law, pursuant to A3(2) Rome I, which permits the parties to “agree to subject the contract to a law other than that which previously governed it”.

[15] both parties seemingly agreed that “whether the SWIFT message was effective to make that change should be resolved as a matter of English law (whether as the putative applicable law, by reference to Article 10 of Rome I, or as the lex fori, which it said was supported by the Supreme Court’s analysis in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] 1 WLR 4117 at [33]).” In that para the SC held

In our view, it is both consistent with authority and sound in principle to apply English law as the law of the forum to ascertain whether the parties have agreed on the law which is to govern their contract (and, if not, what law governs it in the absence of agreement). To apply any other law for this purpose would introduce an additional layer of complexity into the conflict of laws analysis without any clear justification and could produce odd or inconsistent results. As the authors of Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012) observe, at para 32-036 , by reference to a case in which subsequent conduct was taken into account to construe a contract found to be governed by Chilean law because it was admissible under that law:

Under a proper Rome I analysis however (reminder that Rome I is assimilated UK law) in my opinion there is CJEU authority for neither the lex fori approach nor the putative law approach (clearly post Brexit [Enka was a pre-Brexit case] there binding character of the CJEU is more complicated). In Nikiforidis a role for A10’s putative law was discussed viz the question of temporal application of Rome I and a role for said putative law on that issue was not the outcome.

For the specific claim at issue the question is arguably less relevant seeing as parties agree, therefore the determination of the lex causae to settle the effectiveness of the change arguable may a considered as having been done per Article 3(1) Rome I.

On the facts at issue, [22] the judge holds that advancing an argument that the lex contractus was not amended by the relevant SWIFT message, would not have a real prospect of success.

[23] ff deal with the issue whether Mauritian civil proceedings may be recognisable in England and have an impact on current claim. However [28] it is held that claimant in current claim did not submit to those proceedings and that as such they are clearly not recognisable for current purposes. [29] ff ff hold the same viz relevant criminal proceedings.

[43] ff then discuss the application of the Ralli Bros principle and lois de police. I have discussed in my review of Banco San Juan Internacional Inc v Petroleos De Venezuela SA why in my opinion the application of lois de police may be considered to have been exhaustively regulated by Rome I, hence displacing any application of Ralli Bros. The alternative view is that Ralli Bros continues to apply as a principle of the applicable lex contractus, English law.

In current case, the judge fully conflates Article 9 Rome I with Ralli Bros, taking [6] it seems defendant’s counsel cue:

BEA instead relies on orders made by the Mauritanian courts as providing a defence to Litasco’s claim, originally pursuant to the rule in Ralli Brothers v Compania Naviera Sota y Aznar [1920] 2 KB 287 (CA) and also pursuant to Article 9(3) of the Rome I Regulation but in the skeleton for this hearing, Mr Power (counsel for BEA) indicated that BEA was content to proceed on the basis that Article 9(3) adds nothing to the Ralli Bros principle (which he noted was the view taken by Cockerill J in Banco San Juan Internacional Inc v Petroleos de Venezuela SA [2021] 2 All ER (Comm) 590 at [118]).

– this is a similar route as the one taken in Celestial Aviation Services, and while the substantive outcome may be the same as if one had pursued an Article 9 Rome I analysis, the shortcut still does not convince me.

[84] the conclusion is that a Ralli Bros defence has no reasonable prospect of success and summary judgment is granted.

An interesting judgment.

Geert.

European Private International Law, 4th ed. 2024, 3.90.

 

https://x.com/GAVClaw/status/1891417588841750955