Droit international général

On 30 May 2025, the signing of the Convention on the Establishment of the International Organization for Mediation (IOMed)  in Hong Kong marked an advancement in the field of international dispute resolution. Attended by representatives from over 85 countries and 20 international organisations – including the United Nations – the event introduced a treaty-based institutional framework dedicated specifically to mediation.

The IOMed Convention – with equally authentic texts in Arabic, Chinese, English, French, Russian, and Spanish – outlines a structured, treaty-based model of mediation whose scope is deliberately broad, encompassing disputes between States, between a State and nationals of other States, as well as disputes between private parties involved in international commercial relationships (Article 24).

A defining feature of the IOMed Convention is its treatment of the legal effect and enforceability of mediated outcomes. Articles 40 and 41 affirm both the binding nature of settlement agreements resulting from IOMed-facilitated mediation and their enforceability within the domestic legal systems of contracting States. This model of consensual yet normatively binding dispute resolution finds a compelling parallel in – and complements – the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention). The Singapore Convention – which, as of 3 July 2025, counts 58 signatories and 18 parties – reinforces party autonomy while requiring the good faith implementation of mediated settlements. Particularly significant is Article 3 of the Convention, which obliges courts in contracting States to recognise international commercial settlement agreements and to enforce them in accordance with domestic procedures, provided the agreement satisfies the Convention’s requirements. While the Singapore Convention offers a uniform and efficient framework for the enforcement and “invocation” (see Art. 3(2)) of international settlement agreements resulting from mediation, the IOMed Convention contributes by establishing the institutional and procedural framework necessary for the conduct of mediation itself. Together, these instruments enhance both the normative foundation and the practical viability of cross-border mediation, thereby reinforcing its legitimacy in complex international commercial contexts.

Beyond its dispute resolution functions, IOMed also assumes a broader mandate to promote mediation (Art. 5). This includes fostering best practices (Art. 5(b)), organising conferences and training initiatives (Art. 5(c)), and implementing targeted capacity-building programmes (Art. 5(d)). A dedicated Mediation Fund (Art. 44), financed through voluntary contributions, is intended to promote equitable access to services, while a Capacity Building Committee (Art. 43) provides strategic oversight in this domain.

Ultimately, the IOMed Convention does not seek to alter the fundamental character of mediation. Rather, it aims to provide a coherent legal and institutional foundation at the international level. By anchoring mediation within a treaty-based framework, the IOMed Convention offers States and other actors a structured yet flexible environment in which to pursue dialogue-based resolution, with greater predictability, neutrality, and institutional support – while preserving the essential consensual nature that distinguishes mediation from adjudication. While its practical impact will depend on how States and other actors engage with its mechanisms over time, the Convention offers a new platform for exploring the potential of mediation in a variety of international contexts.

Two years have passed since the European Commission published two proposals on the protection of adults in international situations, namely a proposal for a Council Decision that would authorise all EU Member States to become parties of the Hague Convention of 13 January 2000 on the international protection of adults “in the interest of the […]

 

Written by Dr. Meng Yu, lecturer at China University of Political Science and Law, and co-founder of China Justice Observer.

 

ABSTRACT

In around 2019, a Chinese court in Hebei Province refused to enforce a US default monetary judgment from a California court on the grounds that a valid arbitration agreement was in place (Sunvalley Solar Inc. v Baoding Tianwei Solarfilms Co. Ltd. (2019) Ji 01 Xie Wai Ren No. 3). This decision underscored the court’s reliance on the arbitration agreement’s validity, even though a subsequent legislative proposal to include arbitration agreements as an indirect jurisdictional filter in China’s Civil Procedure Law (2023 Amendment) was ultimately not adopted.

 

Key takeaways:

• In around 2019, a Chinese court in Hebei Province refused to enforce a US default monetary judgment issued by a California court, on the grounds of the existence of a valid arbitration agreement between the parties (Sunvalley Solar Inc. v Baoding Tianwei Solarfilms Co. Ltd. (2019) Ji 01 Xie Wai Ren No. 3).
• The Hebei Court held that the arbitration agreement was valid under Chinese law (the law of the seat of arbitration), since the parties did not specify the law governing the arbitration agreement.
• The Chinese company’s failure to appear in the California court did not constitute a waiver of the arbitration agreement, as the Hebei Court ruled that silence does not imply an intention to abandon arbitration.
• The proposed inclusion of “arbitration agreements” as one of the indirect jurisdictional filters in China’s Civil Procedure Law (2023 Amendment) was ultimately not adopted, following legislative review which deemed it inappropriate to override foreign courts’ determinations regarding the validity of such agreements.

 

What happens if a foreign court default judgment was rendered despite an arbitration agreement and is later submitted for recognition and enforcement in China?

A local Chinese court in Hebei Province refused to recognize and enforce such a default judgment issued by a California court in the United States, on the grounds that the US court lacked indirect jurisdiction due to the existence of a valid arbitration agreement (Sunvalley Solar Inc. v Baoding Tianwei Solarfilms Co. Ltd. (2019) Ji 01 Xie Wai Ren No. 3).

Although the full text of the judgment has not yet been made publicly available, a case brief is included in a recent commentary book – Understanding and Application of the Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide[1] – authored by the Fourth Civil Division of China’s Supreme People’s Court (‘Understanding and Application’).

This raises an interesting and complex question: How would Chinese courts assess the indirect jurisdiction of the court of origin today, in particular, when an arbitration agreement is involved?

 

I. Case background

In January 2011, Sunvalley Solar Inc.(“Sunvalley”), a U.S. company, entered into an agreement with Baoding Tianwei Solarfilms (“BTS”), a Chinese company, for the manufacture of solar panels.

Sunvally later allegedly incurred damages due to defective equipment supplied by BTS and subsequently filed a lawsuit against BTS before the Superior Court of California, County of Los Angeles, US (“California Court”).

On 7 Sept. 2017, the California court rendered a default judgment (no. KC066342) in favor of Sunvalley, awarding a total amount of USD 4,864,722.35 against BTS.

In 2019, Sunvalley filed an application before Shijiazhuang Intermediate People’s Court, Hebei Province, China (“Hebei Court”), seeking the recognition and enforcement of the California judgment (“US Judgment”).

 

II. Court’s Reasoning

Upon review, the Hebei Court held that the jurisdiction of a foreign court over a civil case is a prerequisite for courts to lawfully exercise judicial jurisdiction and also forms the basis upon which a foreign civil judgment may acquire res judicata and become entitled to be recognized and enforced in other countries.

In this case, the key issue was whether the arbitration clause agreed upon by the parties was valid, and if so, whether it excluded the jurisdiction of the California Court. This issue was essential in deciding whether the US Judgment could be recognized and enforced by the Hebei Court.

First, the Hebei Court examined the validity of the arbitration clause. In this case, the parties had only agreed on the governing law of the main contract, which was the laws of California, under Art. 15, Paragraph 1 of the “Procurement Contract”., The parties, however, had not specified the law governing the arbitration agreement. Accordingly, the Court deemed the arbitration clause to be governed by the law of the seat of arbitration, which in this case Chinese law.[2] Under Art. 15, Paragraph 2 of the “Procurement Contract”, the parties had clearly expressed their intention to resolve their disputes through arbitration. According to the said provision, disputes arising out of the contract shall be submitted to the China International Economic and Trade Arbitration Commission (CIETAC). As such, the Hubei Court held that the arbitration clause met the requirements of Art. 16 of China’s Arbitration Law and was therefore valid.

Second, the Hebei Court considered whether BTS’s default constituted a waiver of the arbitration agreement. According to Art. II, Para. 1 of the New York Convention, Contracting States are required to respect valid arbitration agreements. Such agreements are not only legally binding on the parties but also have the legal effect of excluding the jurisdiction of national courts. This principle is fully consistent with Art. 5 of China’s Arbitration Law and Art. 278 of China’s Civil Procedure Law (CPL), both of which clearly provide that a valid arbitration agreement excludes court jurisdiction. If the parties intend to waive the arbitration agreement afterward, such waiver must be clear, explicit and mutually agreed upon, in accordance with the general principle of contract modification. Mere non-appearance in court proceedings does not constitute a waiver of arbitration or submission to the jurisdiction of the California Court. In this case, the existence of a valid arbitration agreement remained unaffected by BTS’s failure to respond to the California Court’s summons. Accordingly, BTS’s silence could not be construed as an intention to waive the arbitration agreement. Thus, the California Court was deemed to lack jurisdiction over the case.

Third, the Hebei Court interpreted Art. 289 of the CPL, which provides for the recognition of “[J]udgments and rulings made by foreign courts that have legal effect”. The Court clarified that this refers specifically to judgments rendered by competent foreign courts. Judgments rendered by courts lacking jurisdiction, including in matters that should have been submitted to arbitration, do not qualify. Since the California Court issued its judgment despite the existence of a valid arbitration agreement, and without proper jurisdiction, the resulting US judgment could not be recognized and enforced under Chinese law.

Accordingly, the Hebei Court refused to recognition and enforcement of the US judgment.

 

III. Comments

Clearly, the existence of a valid arbitration agreement was the decisive reason why the Hebei Court found that the California court lacked proper indirect jurisdiction and thus refused to recognize the judgment it rendered.

While it may seem straightforward that a valid arbitration agreement generally precludes litigation before court, the extent to which such an agreement influences the review of a foreign court’s indirect jurisdiction raises a more nuanced and compelling question. This very issue was at the heart of legislative debates during the drafting of China’s recently amended CPL (“2023 CPL”), which entered in force on 1 January 2024.

 

1. The jurisdiction filter once in the draft

Interestingly, the existence of a valid arbitration agreement was initially included as one of the filters for assessing the indirect jurisdiction of foreign courts in the 2023 CPL Draft Amendment (see Art. 303, Para. 4 of the 2022 CPL Draft Amendment on indirect jurisdiction). Similar judicial views pre-dating the Draft can also be found in Art. 47 of the “Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide”, as well as in the commentary on that Article authored by the Fourth Civil Division of the SPC in the Understanding and Application.

However, this proposed filter was ultimately removed from the final version of the 2023 CPL Amendment.

So why was this filter removed? We can find the answer in the legislative review report on the Draft, the “Report on the Review Results of the ‘CPL Draft Amendment’” issued on Aug. 28, 2023, by the Constitution and Law Committee of the National People’s Congress (NPC) to the NPC Standing Committee:

“[S]ome members of the Standing Committee suggested that Paragraph 4 was inappropriate. If the arbitration agreement has been deemed invalid by a foreign court and thus jurisdiction is assumed, Chinese courts should not easily deny the jurisdiction of the foreign court. It is recommended to delete it. The Constitution and Law Committee, after research, suggested adopting the above opinion and making corresponding amendments to the provision.”

 

2. What now?

If this case were to occur today, how would a Chinese court approach it? In particular, if there were a valid arbitration agreement between the parties, would the court still assess the indirect jurisdiction of the foreign court based on that agreement, if so, how?

This brings us back to the current rules on indirect jurisdiction set out Art. 301 of the 2023 CPL. It is important to note that where the foreign judgments originates from a country that has entered into a bilateral treaty on judicial assistance with China, the indirect jurisdiction rules in the treaty – rather than those in the CPL – will govern the recognition and enforcement process.

Related Posts:

• What’s New for China’s Rules on Foreign Judgments Recognition and Enforcement? – Pocket Guide to 2023 China’s Civil Procedure Law (1)
• Thus Spoke Chinese Judges on Foreign Judgments Recognition and Enforcement: Insights from Chinese Supreme Court Justices on 2023 Civil Procedure Law Amendment (4)

Under Art. 301 of the CPL, China adopts a hybrid approach to assessing indirect jurisdiction, one that combines the law of the rendering court and the law of the requested court. Specifically, for a foreign judgment to be recognized and enforced by Chinese courts, the foreign rendering court must meet the following jurisdictional requirements:

(1) it first must have had jurisdiction under its own national laws;

(2) even if a foreign court had jurisdiction under its own national laws, it must also maintain a proper connection with the dispute. If such a connection is lacking, the foreign court will still be considered incompetent for the purpose of recognition and enforcement in China.;

(3) The foreign court will also be deemed incompetent if its exercise of jurisdiction

a) violates Chinese courts’ exclusive jurisdiction under 279 and Art. 34 of the 2023 CPL, or

b) contradicts a valid exclusive choice-of-court agreement between the parties

In the context of the hypothetical scenario involving an arbitration agreement, a Chinese court would primarily examine the situation under Art. 301, Para. 1 of the CPL. This provision requires the court to consider whether the foreign court properly determined the validity of the arbitration agreement in accordance with the law of the country where the judgment is rendered and thereby determine whether it had jurisdiction.

a) If the foreign court determined that the arbitration agreement was invalid and exercised jurisdiction accordingly under its own law, a Chinese court would generally not deny the foreign court’s jurisdiction (unless it finds that the foreign court lacked proper connection with the dispute). This approach is also consistent with the legislative intent expressed by the NPC Constitution and Law Committee.

b) If the foreign court did not consider or address the validity of the arbitration agreement (as may occur, g., in a default judgment like in the Sunvalley case), how should the Chinese court evaluate the agreement’s validity during the recognition and enforcement stage? This raises a key unresolved issue: Should it assess the validity of the arbitration agreement according to the rules of Chinese private international law, or instead refer to the conflict-of-law rules in the State of origin? The 2023 Civil Procedure Law does not provide a clear answer to this question. As such the issue remains to be tested in future cases.

Related Posts:

• China Issues Landmark Judicial Policy on Enforcement of Foreign Judgments – Breakthrough for Collecting Judgments in China Series (I)
• First Case of Reciprocal Commitment: China Requests Azerbaijan to Enforce its Judgment Based on Reciprocity
• US-China Judgments Recognition and Enforcement

 

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[1] The Fourth Civil Division of China’s Supreme People’s Court, Understanding and Application of the Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide [Quanguo Fayuan Shewai Shangshi Haishi Shenpan Gongzuo Zuotanhui Jiyao Lijie Yu Shiyong], People’s Court Press, 2023, pp. 332-333.

[2] Cf. Art. 18, 2010 Law of the People’s Republic of China on Choice of Law for Foreign-related Civil Relationships (2010 Conflicts Act)

The relation between EU private international law and arbitration is notoriously complex. While the arbitration exemption of the Brussels I bis Regulation has rendered both much case law as well as legal debate, less attention has been paid to whether and how the EU conflict of law rules in the Rome I Regulation apply to […]

On 3 July 2025, Advocate General Norkus will deliver his opinion on case C-485/24, Locatrans. The request for a preliminary ruling, from the Cour de Cassation, Chambre sociale (Court of Cassation, Social Chamber, France), concerns the interpretation of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations. ES, the defendant […]

Today the HCCH 2019 Judgments Convention entered into force for the United Kingdom. The UK signed this Convention on 12 January 2024 and filed its instrument of ratification on 27 June 2024.

On 26 March 2025, the UK extended the 2019 Judgments Convention to Scotland and Northern Ireland. Initially, the UK had extended this Convention to England and Wales only. These declarations will take effect on the day the Convention enters into force for the UK in accordance with Articles 25 & 30(3)(4) of the said Convention. For more information, click here.

In particular, the time gap between the declarations requires some clarification. The first declaration with regard to England and Wales takes effect simultaneously with the entry into force of the Convention for the UK (Art. 30(3) of the 2019 Judgments Convention) i.e. 1 July 2025. The second declaration with regard to Scotland and Northern Ireland takes effect “on the first day of the month following the expiration of three months following the date on which the notification is received by the depositary” i.e. 1 July 2025. In the latter case, Article 30(4) of the 2019 Judgments Convention applies and not Article 28(2)(b) of this Convention – which targets territorial units -, because the declaration was made before the Convention entered into force for the UK; nevertheless, the wording of both articles is very similar, with one difference regarding the starting date –  at receipt or after notification is made -, which may in some cases have practical consequences for the counting.

Article 29 of the 2019 Judgments Convention permits States to file a declaration stating that the Convention shall not have the effect of establishing relations between the filing State and another Contracting Party. To date, no State has filed such a declaration. Accordingly, the 2019 Convention will apply between the UK and the 32 Contracting Parties to the Convention (incl. the European Union).

 

 

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

 

H.-P. Mansel: 70 Years of the German Council for Private International Law (1953-2023)

On the occasion of the seventieth anniversary of the founding of the German Council for Private International Law, a conference of the Council was held in Cologne at the invitation of the author as President of the Council, organized by the Institute for Private International and Foreign Law at the University of Cologne. The topic of the conference was “Global Private International Law and 25 Years of Judicial Cooperation in the European Union”. The German Council for Private International Law is an academic institution that advises the Federal Ministry of Justice on German and European legislative projects. Professor Zoltan Csehi, ECJ, gave the opening lecture.

 

Z. Csehi: The approach of the Court of Justice of the European Union to private international law

This article examines the reasons why some scholars, while considering the CJEU’s interpretation of private international law to be correct as to its result, disagree with the CJEU’s reasoning. An analysis of the CJEU’s methodology in this area shows that the approach adopted is not primarily based on the classic principles of private international law. Rather, the focus is on the applicable primary and secondary EU law, in particular the numerous regulations in the area of European judicial cooperation. These instruments are interpreted according to the CJEU’s usual methods, namely by way of autonomous interpretation. Therefore, due account should be taken of this “systemic change” that international civil procedure and conflict of laws rules have undergone as a result of the Europeanization of this area of law.

 

R. Wagner: 25 years of judicial cooperation in civil matters

With the Treaty of Amsterdam entering into force on 1 May 1999, the European Union obtained the legislative competence concerning the judicial cooperation in civil and commercial matters. This event’s 25th anniversary gives ample reason to pause for a moment to briefly appreciate the achievements and to look ahead. This article follows the contributions of the author to this journal in regard to the 15th and the 20th anniversary of the entry into force of the Treaty of Amsterdam (IPRax 2014, 217 and IPRax 2019, 185).

 

C. Budzikiewicz: European international matrimonial law and third countries

The article examines the question of how relations with third countries affect international divorce law, international matrimonial property law and international maintenance law. In the European conflict of laws, the principle of lois uniformes applies. This means that conflict-of-law rules have been established that apply to both EU-related and third-country-related cases. Accordingly, the EU rules on jurisdiction also cover third-country-related cases in principle. Nevertheless, friction and tensions may arise in relation to third countries. This applies, for example, with regard to the primacy of international treaties. But it also covers the creation of limping marriages, the ordre public reservation and conflict-of-law rules relating to form requirements. The fact that both the Rome III Regulation and the European Matrimonial Property Regulation were adopted only by way of enhanced cooperation creates additional conflict potential, as the non-participating Member States are thus third countries, just like the non-EU states. The article deals with the resulting tensions and seeks solutions to overcome them.

 

D. Coester-Waltjen: European International Law on Parent and Child in Relation to Third States

This article aims to analyse problems of determining international jurisdiction and applicable law in matters of parental responsibility as well as recognition of decisions in these matters under European law in connection with third countries. Special focus will be put on EU-Regulation 2019/1111, the 1996 Hague Child Protection Convention and the 1980 Hague Abduction Convention. Whereas those rules of the EU-Regulation 2019/1111 and the 1996 Hague Child Protection Convention, which form lois uniformes, allow a relatively clear and easy determination of international jurisdiction and applicable law even in cases in which the habitual residence of the child – the decisive factor – changed lawfully, the issues become more complicated in cases of child abduction. The EU-Regulation provides some specific rules for that situation concerning jurisdiction, proceedings and enforcement. However, these rules are only applicable if the child had its habitual residence before the abduction in a Member State that is bound by the Regulation and is presumably abducted to another Member State bound by the Regulation. The specific rules do not provide for abduction to or from a third state. For these cases redress should be had to the provisions of the 1996 Hague Convention, the 1980 European Convention on Recognition of Custody Decisions, the 1980 Hague Abduction Convention or the internal national law – possibly intertwined with other rules of the Regulation. Thus, it is complicated to determine the applicable mechanism – even though the concerns – mainly the well-being of the child – are the same in all abduction cases. As time is an issue the complications are counterproductive and may produce inconsistencies.

 

D. Looschelders: European International Succession Law and Third States

The EU Succession Regulation is based on the principles of universal application and unity of succession. Accordingly, it contains only a few provisions that expressly distinguish between cases with substantial connections to two or more Member States and third state situations. The most important exception is the limited relevance of the renvoi in the case of references to third-state law in accordance with Article 34 of the EU Succession Regulation. However, there are numerous other constellations in which the assessment of the succession under the European Succession Regulation in third state situations poses particular difficulties. The article examines these constellations and identifies possible solutions. Finally, the disharmonies arising from the continued validity of bilateral treaties concluded between several Member States, including Germany, and third states are discussed.

 

T. Pfeiffer: The Impact of the Rome I and II Regulations on the Private International Law of Non-Member States and the Hague Principles on Choice of Law in International Commercial Contracts

The article analyzes the influence of the Rome I and Rome II Regs. on the private international law of third countries and on the Hague Principles on Choice of Law in International Commercial Contracts. In doing so, it distinguishes between different ways in which influence is exerted and the varying degrees of influence in individual states or regions, whereby, with regard to the Hague Principles, the exemplary function of certain provisions in the Rome I Reg. can be clearly demonstrated. From an international perspective, the advantage of the Rome Regulations can be seen in the fact that, as European legal acts, they have already passed one, i.e. the European test of international acceptance. A disadvantage of some regulations, on the other hand, is the typical European fondness for detail.

 

H. Kronke: The European Union’s role and its impact on the work of the global private-law-formulating agencies (Hague Conference, UNIDROIT, UNCITRAL)

Focusing, on the one hand, on the European Union’s constitutional competences and, on the other hand, the distinction between categories of instruments (treaties versus soft-law instruments), the author provides an overview of the Union’s participation in and the substantive impact on the negotiation processes over the past decades. While there are examples of highly satisfactory co-operation, there have also been instances of stunning obstruction or unhelpful disinterest. He underscores the role both the relevant Directorates General and individual officials in charge of a dossier may have and calls for better co-ordination of work in the Member States’ ministries and departments.

 

R. Michaels: Private International Law and the Global South

“Modern law’s episteme is inescapably colonial and racist,” says Upendra Baxi, “and private international law cannot escape the, as it were, Original Sin.” With this in mind, I scrutinise for private international law what Nicolaïdis calls EUniversalism: Europe’s claim for universality of its values, spurred by its amnesia about their contingent and colonial origins. How was European private international law shaped against a non-European other? How does private international law today, in its relation, with the Global South, perpetuate colonial hierarchies? To what extent is European private international law an inadequate model for private international law within the Global South itself?

 

L. d´Avout: Explanation and scope of the “right to recognition” of a status change in the EU

The CJEU challenges the legislation of a Member State (Romania) which does not allow the recognition and recording on the birth certificate of a change of first name and gender identity, as lawfully obtained by a citizen of this Member State in another Member State by way of exercising their freedom of movement and of residence. The consequence of this legislation is that an individual person is forced to initiate new legal proceedings with the aim to change their gender identity within this first Member State. The judgment Mirin appears to develop the jurisprudence of the CJEU by confirming the subjective right of transsexual persons to unconditional recognition of their change of civil status in one Member State of the European Union by all other Member States without a supplementary procedure. A contextualised consideration of this judgment enables its significance to be assessed more precisely.

 

K. Duden: Recognition of the change of gender entry: on the home straight to a Union-wide comprehensive status recognition?

The European principle of recognition is becoming more and more important. From company law, it has spread to the law of names, family law and the law of the person. For an increasing number of status questions, the CJEU has established benchmarks from EU primary law for how Member States must treat certain cross-border situations. Mirin is a further step in this development: the CJEU is extending the principle of recognition to a politically highly controversial and salient area – the change of a person’s legal gender entry. In doing so, the court is possibly paving the way for comprehensive status recognition and is setting limits for Member States invoking public policy. Furthermore, the ruling allows interesting insights into the procedural background of the principle of recognition and the object of recognition.

 

A. Dickinson: An Act of Salvage

The sinking of the tanker, ‘The Prestige’, off the Spanish coast more than two decades ago triggered not only an environmental catastrophe, but also a complex chain of legal proceedings that have not yet reached their final destination. This note considers the procedural background to, and substance of, the most recent decision of the English Court of Appeal in Kingdom of Spain v London Steam-Ship Owners’ Mutual Insurance Association Limited [2024] EWCA Civ 1536, considering issues of judgment enforcement under the Brussels I regime and of remedies against a third-party victims pursuing direct actions against insurers without following the dispute resolution mechanisms in the insurance policy.

 

A working group composed of French scholars chaired by Professors Mathias Audit and Sylvain Bollée (both Paris I Panthéon Sorbonne University) has issued a report on the opportunity of the EU lawmaker to include new provisions in the Brussels I bis Regulation on international commercial arbitration (Towards an EU Law on International Commercial Arbitration?). The […]

Following a judgment by the Supreme Court of Greece in 2023, the issue of direct damages was once again brought before Areios Pagos. In a decision that diverged from the ruling of the Court of Justice of the European Union (CJEU) in the Lazar case, the Supreme Court reaffirmed its position. However, one member of the court expressed a dissenting opinion, emphasizing the obligation of national courts to submit a preliminary reference. This judge provided rationale for the Supreme Court’s departure from established case law, highlighting the importance of adhering to the CJEU’s precedents in the context of European legal integration.

 

The facts

In the case under consideration, the plaintiffs, Greek nationals residing in Greece, filed a lawsuit in the Athens Court of First Instance following a fatal traffic accident that occurred in Finland in 2016. The deceased, also a Greek national and resident of Greece, suffered fatal injuries when a German driver, operating a vehicle registered in Finland, collided with him. The insurance company representing the German driver acknowledged its civil liability.

First instance proceedings. The plaintiffs, who included the deceased’s parents and grandparents, sought recognition of their right to compensation for emotional distress stemming from the incident. The Athens Court of First Instance partially accepted their claim under Greek law.

Court of Appeal Proceedings

Following the initial ruling, the defendant, i.e., the German insurance company, lodged an appeal before the Athens Court of Appeal [CoA], contending that Finnish law should govern the case, since the accident occurred in Finland. However, the Court of Appeal determined that Greek law was applicable in accordance with Article 4(1) of Regulation (EC) No. 864/2007 (Rome II). This decision was based on the fact that both the deceased and the plaintiffs were Greek nationals and residents of Greece, thereby qualifying under Article 4(1), which stipulates the governing law as the law of the country in which the damage (here, emotional distress) occurs.

The Court of Appeal concluded that the relatives of the deceased possessed a direct and personal claim against the perpetrator, as the emotional injury constituted a primary and immediate violation of their personal rights. Consequently, the jurisdiction of the court was established based on the residence of the plaintiffs, where they endured emotional distress due to the deceased’s death.

Importantly, the nature of the emotional distress was distinguished as a direct consequence of the wrongful act, independent from the primary injury suffered by the deceased. The court considered that the location of such emotional distress is defined not by where the relatives learned of the death, but rather by their primary residence, where they experience ongoing suffering over time.

Finally, under Article 932 of the Greek Civil Code, financial compensation for emotional distress is expressly recognized for relatives of victims in cases involving wrongful death.

Supreme Court Ruling

The Hellenic Supreme Court upheld the Co A decision, affirming that Greek law applied in this case, and that the CoA accurately interpreted Article 4(1) of the Rome II Regulation. The Supreme Court ruled that the concept of direct damage encompasses the emotional anguish experienced by the relatives, thereby warranting compensation and establishing jurisdiction based on their residence.

In its decision, the majority of the Supreme Court members underscored that a contrary interpretation, which would limit jurisdiction solely to the country where the accident occurred, would conflict with established interpretations by the Court of Justice of the European Union (CJEU). The majority opinion emphasized the importance of recognizing the locality of emotional distress as a legitimate basis for asserting jurisdiction and claims for compensation.

Minority Opinion

One member of the Court expressed the following opinion: According to Article 267 TFEU, the courts of the Member States in which a question of interpretation of primary or secondary law of the European Union arises in a pending case are allowed or even required, when it comes to a court whose decisions are not subject to appeal under the internal law of the relevant Member State, to refer the matter to the CJEU for a preliminary ruling. Thus, with the institution of preliminary reference, a procedure is established between national courts and the CJ EU, with the main goal of ensuring the uniformity of EU law, which also serves the principle of equal treatment of the involved persons, since this principle is surely threatened if the same provisions are applied differently across the Member States of the EU.

The submission of a preliminary question is mandatory when the relevant conditions set by the CJEU are met, which are mainly condensed in the principle of the so-called acte clair. If the CJEU has ruled on the interpretation of provisions of EU law, the national court, particularly the court whose decisions are not subject to appeal, is obliged to comply with it and, if it disagrees, must submit a new preliminary question providing new elements, developing its arguments, and supporting a different interpretation.

In addition, the same member of the Supreme Court dissented, arguing that Article 4(1) of the Rome II Regulation characterizes the damages related to the death of the victim as indirect consequences of the accident when the plaintiffs reside in a different Member State than where the accident occurred. The dissenting opinion cited EU case law (CJEU, case C-350/14, Lazar) to assert that the applicable law in such cases would be the law of Finland, where the direct damage occurred, rather than Greek law.

The minority contended that, as per Finnish law, monetary compensation for emotional distress in cases of wrongful death is only available under specific circumstances, which may unduly limit the recovery of damages for the relatives in question. Accordingly, it proposed the need for a preliminary reference to the CJEU to clarify the legal framework surrounding compensation claims for emotional distress and the corresponding entitlements in light of the applicable law.

Conclusion

The Hellenic Supreme Court reinforced the principle that the emotional distress suffered by relatives of a deceased individual due to wrongful death is direct damage under the Rome II Regulation, warranting compensation. This case highlights the nuanced interplay between jurisdiction, applicable law, and the evolving interpretation of emotional distress in the context of cross-border torts within the European Union.

The Department of International Law (Secretariat for Legal Affairs) of the Organization of American States (OAS) has just published in essay form the lectures delivered during the 49th Course on International Law, which was held on 5 -16 August 2024. For more information, click here.

The book features the following piece: The 50th anniversary of the first Inter-American specialized conference on private international law. The future of private international law in the Americas by Dante Mauricio Negro Alvarado (in English, p. 295-335). This is a must-read for Private International Law academics and lawyers from the region and beyond.

As indicated in the publication, Dante Mauricio Negro Alvarado graduated from the Pontificia Universidad Católica del Perú, where he also pursued postgraduate studies in International Economic Law. He holds a master’s degree in International Law and Human Rights from the University of Notre Dame, Indiana. He has worked at the OAS  (Washington, D.C.) since 1995 and served as Director of the Department of International Law of that Organization since 2006. He is Technical Secretary of the Inter-American Juridical Committee.

Alame & Ors v Shell PLC & Anor [2025] EWHC 1539 (KB) is a milestone in business and human rights /environmental claims litigation, particularly as it pertains to legacy pollution. I reported on earlier developments in the case here, with further links in that post to yet other earlier judgments.

The Alame claim is also known as the Bille and Ogale group claim litigation. It is not to be confused with the ‘Bodo’ claim, in which hearings were concluded at the London courts earlier in June.

Of note is first of all that the judge’s findings are all on preliminary issues (‘PI’) of law. They are not on matters of fact. For instance, and with great importance viz the issue of ‘legacy’ pollution, the judge’s finding [77] that

The experts agree that where trespass is relied on, and as trespass does not require damage to be proved, a new cause of action will arise each day that oil remains on a claimant’s land.

and [180] that

Common law claims for damage caused by oil spills from non-pipeline assets may be brought in negligence, nuisance, Rylands v Fletcher and trespass, in each case depending upon the particular facts.

do not imply that the judge has held that Shell or any of the other defendants have trespassed by not cleaning up the relevant legacy pollution. It simply means that she has found there is such possibility, depending on the facts. Of course the finding is still hugely relevant, seeing also the energy (pun unintended) Shell had invested in fighting such a finding. One of the interesting questions imo for future reference, is how trespass as a promising private law claim to address legacy pollution, functions in the event of divestment by the polluter (such as here: the sale of Shell Nigeria to Renaissance).

The judgment is lengthy but very well structured and Leigh Day, solicitors for claimants, have good summary of the main issues here.

In this post, noblesse oblige, I focus on one specific private international law issue, namely question

PI 5 (1)  Insofar as a party alleges in the context of a claim under section 11 of the OPA that an oil spill was caused by Third Party Interference: What is the applicable law governing the burden and standard of proof?

This is a Rome II question.  [141]

The parties are agreed that the applicable law governing the burden and standard of proof is a matter of English private international law. As to that:

(a) Insofar as the event giving rise to damage occurred on or after 11 January 2009, the choice of law is governed by the Rome II Regulation (“the Regulation”). The parties agree that under Article 22 of the Regulation burden of proof is governed by the law of the claim, here Nigerian law. There is a dispute between them as to what law governs the standard of proof.

(b) Insofar as the event giving rise to damage occurred before 11 January 2009, choice of law is governed by Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”). Both sides agree that, under English choice of law principles, rules of evidence are a matter for the law of the forum, covering both burden and standard of proof: Dicey, Morris and Collins on the Conflict of Laws, 16th Edn. Para 4-034.

[143] explains the relevance:

If the standard of proof is governed by Nigerian law, then both experts agree that the consistent practice of the Nigerian courts is to apply the criminal standard of proof (i.e. beyond reasonable doubt), whether the allegation is made against a party or a nonparty. Under English law, the standard of proof is the civil standard i.e. balance of probabilities.

[144] Therefore the single contentious point for determination under this PI is whether the standard of proof in relation to post-11 January 2009 events, where choice of law is covered by the Regulation, is a matter governed by English law as the law of the forum or by Nigerian law as the law of the claim.

My most recent comment on the issue features in my review of Quilombola v Norsk Hydro at the Dutch courts – yet see also other posts using the tag ‘evidence and procedure’.

The one case on the issue discussed in current judgment is Marshall v MIB [2015] EWHC 3421 (QB) which I review here. Counsel for claimant suggested

that the approach of Dingemans J in Marshall was wrong in principle and should not be followed. She argued that Article 1(3) of the Regulation is concerned with the manner in which matters are proved rather than the standard to which they must be proved, submitting that the degree to which the court must be satisfied of a relevant matter (ie standard of proof) is an indivisible part of the burden of proof and should be regarded as part of the same rule of law under Article 22, applying the law of the claim. Alternatively, if the analysis in Marshall is accepted and standard of proof is to be determined under English common law, she suggested that the court should adopt a flexible approach – referring to the observations of Andrew Smith J in Fiona Trust v Privalov [2010] EWHC 3199 – and apply Nigerian law to both burden and standard of proof where a party raises an allegation of loss caused by [third party interference].

As I flagged in my post on Marshall, I am not convinced by standard of proof following the evidence and procedure carve-out. The precise delineation of burden of proof under Rome II could do with more authority.

I imagine permission to appeal may be sought on a number of issues. Trial on the substance is scheduled for 2027.

Geert.

EU Private International Law, 4th ed, 2024, 4.82 ff.

 

On 17 April 2025, the Court of Appeal of England and Wales delivered a judgment in Hipgnosis SFH 1 Ltd v Manilow ([2025] EWCA Civ 486; Sir Julian Flax C, with LJJ Phillips and Snowden agreeing) on the interpretation and effect of an asymmetric jurisdiction clause. Facts The parties had entered into a contract containing […]

The University of Aberdeen, in collaboration with the University of Osijek and the Royal Society of Edinburgh, will host a two-day webinar on Cross-Border Protection of Children under the 1996 Hague Child Protection Convention: Practical Perspectives from Contracting States. The webinar will take place online on 30 June and 1 July 2025. The webinar will […]

Post prepared by Eduardo Silva de Freitas, PhD researcher Erasmus University Rotterdam and junior researcher at the Asser Institute

 

As part of its 60th anniversary celebrations, the T.M.C. Asser Institute invites abstracts for the panel “Emerging Voices in Private International Law”, to be held on 24 October 2025 in The Hague, at the conference Adapting Private International Law in an Era of Uncertainty.

The panel will feature two early-career scholars (PhD candidates or postdoctoral researchers) presenting original work in the field. Selected participants will also contribute to a forthcoming volume in the Short Studies in Private International Law series.

To apply, please submit a 400-word abstract and brief personal details by 15 August 2025 (24:00 CET) to: e.silva.de.freitas@asser.nl

Full call for abstracts: https://www.asser.nl/media/797989/call-for-abstracts_pil_asser.pdf

The Law Quarterly Review has published an interesting article by Richard Garnett and Ying Khai Liew (Professors at Melbourne Law School), titled Trusts Jurisdiction Clauses: An Analysis. The article can be found in (2025) 141 LQR 357-375 and on SSRN. While jurisdiction clauses, or choice of court agreements, are increasingly utilised in trust deeds, the […]

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

The first issue of the Revue Critique de droit international privé of 2025 has just been released. It gathers six contributions honouring Albert Armin Ehrenzweig and his legacy, as well as seven case notes and numerous book reviews.

The doctrinal part of the volume is devoted to the proceedings of the Albert Armin Ehrenzweig Conference organized in June 2024 at the University of Vienna, fifty years after the passing away of the great author. The contributions commemorate both the man and the scientist, testifying to the relevance of Albert A. Ehrenzweig’s scholarship to contemporary private international law. They are published in French in the printed version of the Revue (also available online here), and will be available shortly in English (here).

The conference opens with Prof. Matthias Lehmann (University of Vienna) personal tribute to Albert A Ehrenzweig – A Giant of the Conflict of Laws. It recalls the dramatic journey through which Professor Ehrenzweig built his legacy as a “communicator between different cultures”:

With Albert Ehrenzweig, Austria lost one of its undoubtably greatest legal talents. But one’s loss was another’s gain, that of the US. This simple zero sum is worth emphasising at a time when the hatred against migrants is rising yet again on both sides of the Atlantic. Ehrenzweig brought to the US plenty of ideas from his native Austria. Among them is the abstract consideration of legal problems and the strictly logical approach to their solution, which is particularly helpful in areas such as conflicts of jurisdiction or conflicts of laws. He also brought with him a great deal of interest and knowledge in the area of psychology, which was en vogue in his days in Vienna.

In the following contribution, Prof. Florian Heindler (Sigmund Freud Privat University, Vienna) reflects on two major lines of the dedicatee’s scholarship, namely the Comparative Method and the Integration of Conflict of Law’s with Jurisdiction. The article is introduced as follows:

Ehrenzweig’s work deserves attention –primarily because of its topicality– beyond its historical-bibliographical interest and its link the question of remedy for past injustices. Two methodological cornerstones of his work on the conflict of law must be emphasised. Firstly, transatlantic dialogue: Ehrenzweig frequently sought to align “European learning and experience” with the “pragmatic approach” and “technique of recording daily experiences”. He was endowed with the particular ability to address discussions in the US and in Europe so as to bridge the gaps between European and US private international law, thus bringing the highly divided US and European legal systems closer together. The second theme is linked to the integrated thinking of Ehrenzweig which shaped his theories in the area of conflict of laws. Indeed, Ehrenzweig was also famous tort lawyer, where he demonstrated out-of-the-box thinking, also characteristic of his way of conducting legal research. Illustrating this talent, most prominently, is his publication on “a proper law in a proper forum” (“jurisdictional approach”).

In the third contribution on Albert Ehrenzweig, Berkeley, and Un-stating Choice of Law, Prof. Andrew D. Bradt (University of California, Berkeley School of Law) pays tribute to Professor Ehrenzweig’s influence on Conflict of Laws in the United States. The abstract reads as follows:

Like his fellow realists, Ehrenzweig eschewed metaphysical dogma, viewing choice of law in a more “pluralistic” way, as a matter for the law of the forum, so that applying a different state’s law to a case is less a choice of foreign law than an expression of forum law and policy. In this respect, his campaign against Restatements of choice of law voices concerns that remain pertinent as the American Law Institute enters its second decade of its efforts to create a Third Restatement.

In the fourth article, Prof. Chris Tomale (University of Vienna) calls for a contemporary reappropriation of the dedicatee’s writings on Datum and Substance – Albert Ehrenzweig’s moral data approach. The contribution is presented as follows:

The changing, almost fluid nature of Ehrenzweig’s legal scholarship between three modalities of claims about the law has opened up his work to much undeserved criticism, which calls for a new and instructive look at the very epistemological substance of his findings. Moreover, the contemporary re-politization of private law could also be a call for its re-moralization, raising exactly the same moral data questions that were on Ehrenzweig’s mind. In this respect, too, Ehrenzweig’s moral data approach offers a helpful heuristic to describe and understand these developments.

Then, bridging the gaps between two continents and two intellectual traditions, Prof. Jeremy Heymann (Université Jean Moulin Lyon 3) delivers though-provoking reflections on Ehrenzweig’s Legacy in European Private International Law. The abstract read as follows:

All too often reduced by his detractors, at least over the European side of the Atlantic, to his plea for the « proper law of the forum » – and all too often misread –, Ehrenzweig’s thinking calls to be reconsidered. His very distinctive unilateralist approach to the conflict of laws is well in tune with the method posited, in numerous judgments, by the Court of Justice of the European Union and more generally by the EU legislator.

The tribute concludes with Dr. David Messner-Kreuzbauer’s (University of Graz) last thinkings on The Argument from “Substantive Evolution” as a Legacy of Albert Armin Ehrenzweig’s Private International Law. Continuities From Vienna to Berkeley. The article’s abstract reads as follows:

Albert Armin Ehrenzweig has been portrayed as a “European Legal Realist”, and is remembered for the fact-oriented data approach as well as a preference for the lex fori. This article presents a slightly different Ehrenzweig: a Viennese judge and academic who went to the United States formed by strong ideas about substantive (tort) law, by the jurisprudence of interests and with a keen sense for moral psychology. His thoughts may have great value in navigating a contemporary task: bringing together contemporary private international law with the evolution of substantive (tort) law in recent decades.

The full table of contents is available here.

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

According to Article 4(1) of the Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters (the ‘Agreement’), Denmark shall not take part in the adoption of opinions by the Committee referred to in Article 26 of Regulation (EU) 2020/1784 on the […]

On 11 and 12 June 2025, the Nordic Group on Private International Law (NGPIL) held a conference in Stockholm. NGPIL is an informal group consisting of lawyers interested in the field of private international law. Founded in Uppsala in 2002, the group enhances the intelligibility of the Scandinavian languages as well as the common legal […]

Last summer, Andrew Dickinson (Professor of the Conflict of Laws, University of Oxford, and former editor of ConflictofLaws.net) delivered a special course at the summer course of the Hague Academy of International Law entitled ‘Natural Justice in Recognition and Enforcement of Foreign Judgments’. It has now been published as Volume 446 of the Recueil des cours / Collected Courses.

The blurb reads as follows:

This special course assesses the utility of ideas of ‘natural law’ and ‘natural justice’ as tools to explain, rationalise and develop the rules governing the recognition and enforcement of foreign judgments currently applied by the world’s legal orders.

After introducing the topic, the first part of the course consider how influential 17th and 18th century accounts of the law of nature sought to account for the relations existing between all human beings, as well as the creation of political societies with law-making powers, the global ordering of those societies and the role of adjudication as a means of resolving disputes within and among them. This provides the historical and intellectual background for what follows.

The principal part of the course considers how writers on the conflict of laws in this period drew upon and utilised these ideas, as the rules that we apply today to regulate foreign judgments began to take shape. This leads to a study of the further evolution of the legal landscape in the 19th century, highlighting the use of natural law reasoning by judges and commentators to explain and justify the effectiveness of individual exercises of adjudicatory authority beyond their original domains, as well as the later rejection of natural law thinking in favour of models centred on ideas of sovereignty and territoriality, which continue to dominate today.

Having completed this historical survey, the course examines the specific legacy of natural law reasoning in the common law world, involving the use of principles of ‘natural justice’ to deny recognition of unjust foreign judgments, as well as the counterparts of these principles in other legal systems and international treaties.

Drawing on the preceding material, the concluding chapter considers the case for renaturalising the law in this area, and the implications of following this path.

More information on the book can be found here.

It is available to subscribers to the Recueil des cours here.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its XLVIII Seminar entitled “Reflections regarding the Inter-American system in the 50th Anniversary of the CIDIP-I and the latest developments of Private International Law in Mexico” (Reflexiones en torno al sistema interamericano en el 50 Aniversario de la CIDIP-I y la actualidad del Derecho Internacional Privado en México) from 22 to 24 October 2025. The venue of the seminar will be the Universidad Autónoma de Querétaro (Querétaro, Mexico).

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by 22 August 2025. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services, but some exceptions may be made by the organisers upon request for presentations in English and Portuguese. For more information on the requirements, click here.