Droit international général

This post was contributed by Dr. Mohammed Rakib-ul-Hassan who is currently serving as a Professor at Geneva Business School. The digitalisation of commerce has fundamentally altered the landscape of cross-border disputes. Traditional private international law (PIL), built upon territorial connecting factors such as domicile, habitual residence, and place of performance, is increasingly strained in addressing […]

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

I fear this post is fairly anorak, meant for the die hard conflicts nerd. In X v Y ECLI:NL:RBMNE:2026:1482 (the usual anonymisation nonsense), essentially a claim by a Dutch consumer against a set of BVI companies, the Rechtbank Midden-Nederland, in interlocutory proceedings, ordered the BVI companies to surrender relevant data on the holder of a wallet in their crypto exchange. The wallet allegedly holds ia the crypto currencies financed by X, following a ‘boiler room’ fraud.

My reason for flagging it lies in the interesting approach of the court towards using, or not, Brussels I authority in its application of the residual space: national private international law that fills the gap where EU law does not apply. Of course whether or not to do so is the prerogative of the Member States: EU law has no bearing on it.

Here, the court [3.7] generally holds that seeing as what was A5(3) of the Brussels Convention and the Brussels Ia Regulation, served as a model for the Dutch residual rule of Article 6e CPR, CJEU authority may be used as guidance for the interpretation of the Dutch rules.

However it then [3.9] holds that the very qualification of a claim as in in tort, must not so use CJEU authorities, instead relying on lex fori: “It is not obvious that the definition of the term ‘tort’ should be aligned with the much broader interpretation given to this term by [the CJEU]”: one assumes it is thinking here of the CJEU Kalfelis formula, where the Court of Justice held [17] that ‘matters relating to tort, delict and quasi-delict’ “covers all actions which seek to establish the liability of a defendant and which are not related to a ‘contract’ within the meaning of Article [7](1).”

[3.11] the court refers to Dutch substantive lex fori to qualify the claim as one in tort.

Article 6e CPR allocates jurisdiction to the Dutch courts insofar as the “place where the harmful event occurred” took place in The Netherlands. Here the court [3.13] holds that CJEU authority can fully play, subsequently referring to CJEI Bier’s locus delicti commissi /locus damni distinction, and placing the locus damni in The Netherlands (in particular the loss of the opportunity, were the data not surrendered, of claiming compensation etc from the fraudsters.

I m not sure whether there is a PhD in the application of BIa to residual PrivIntLAw in the Member States. But there most certainly is a good paper in it.

Geert.

 

This post was written by Lorène Anthonioz, who is PhD candidate in Private International Law at the University of Geneva and a Research and Teaching Assistant in Private International Law at UniDistance. On 15 September 2025, the Swiss Federal Supreme Court issued a judgment in case 4A_129/2024. Applying the CJEU case law, the Court ruled, for […]

A new extensive handbook on European Civil Procedure (eds. Xandra Kramer, Stefaan Voet and Adriani Dori) was just published by De Gruyter Brill. This book offers a comprehensive overview of the overarching themes shaping civil justice in Europe, an overview of key instruments and a broader outlook on the future of European civil procedure.

The book is divided into three parts. Part I deals with the general themes regarding the development of European civil procedure, including the EU competence, historical perspectives, the principles of mutual trust and access to justice as foundational principles, the interaction between European and national civil procedure and innovation and the role of digitalisation in civil procedure. Part II deals with key topics of litigation and other means of dispute resolution. It starts with the service of documents as this is usually the first step in initiating litigation, and following the sequence of the procedure discusses the international jurisdiction, taking of evidence and the recognition and enforcement based on the general EU instruments. Two chapters address international jurisdiction and enforcement in family matters, maintenance, matrimonial property and succession. Uniform debt collection procedures, asset preservation, insolvency proceedings and specialised courts are discussed in separate chapters. The last three chapters focus on ADR and ODR as alternative pathways, collective redress and legal aid, costs and funding of civil litigation. Part III is dedicated to general and future outlooks on European civil procedure, including harmonisation through soft law, the EU enlargement process (Albania, Serbia and Ukraine) and perspectives from non-European jurisdictions (China, South Africa, the United States and Brazil) and wider challenges of European civil procedure. A hybrid launch event, organised by the European Civil Justice Centre, will be held at Leuven University on 25-26 June (information to follow). More information available at the publisher’s website here.

Part I: Introduction and General Perspectives on European Civil Procedure
Chapter 1  Xandra Kramer, Stefaan Voet, and Adriani Dori  – Introduction to European Civil Procedure
Chapter 2  Eva Storskrubb – Civil Justice and EU Competence
Chapter 3  Cornelis Hendrik van Rhee – The History of Civil Procedure in Europe
Chapter 4  Matthias Weller – Mutual Trust
Chapter 5  Burkhard Hess – Access to Justice as a Fundamental Principle of European Union Procedural Law
Chapter 6  Alain Ancery and Bart Krans – EU Law and National Civil Procedural Law: A Much Greater Area than at First Glance
Chapter 7  Anna Nylund – Innovation and Digitalisation

Part II: Litigating and Other Means of Dispute Resolution in Europe 
Chapter 8  Wendy Kennett – Getting Started: Service of Documents
Chapter 9  Geert van Calster – International Jurisdiction: Fundamental Issues and ‘Principles’ of EU Private International Law
Chapter 10  Pietro Franzina – International Jurisdiction in Civil and Commercial Matters

Chapter 11  Jachin Van Doninck and Wannes Vandenbussche – Taking of Evidence
Chapter 12  Fernando Gascón Inchausti – Recognition and Enforcement: Fundamental Issues
Chapter 13  Wolfgang Hau – Recognition and Enforcement of Civil and Commercial Judgments
Chapter 14  Apostolos Anthimos – International Jurisdiction and Recognition and Enforcement in Family Matters and Maintenance
Chapter  15  Anna Wysocka-Bar – International Jurisdiction and Recognition and Enforcement in Matters of Property Regimes and Succession
Chapter 16  Elena D’Alessandro – Debt Collection and Special Procedures: Small Claims and Orders for Payment
Chapter 17  Carlos Santaló Goris – Asset Preservation and Provisional Measures
Chapter 18  Vesna Lazic – Insolvency Proceedings
Chapter 19  Georgia Antonopoulou – Specialised Courts: The Unified Patent Court and International Commercial Courts
Chapter 20  Emma van Gelder – Alternative Pathways: ADR/ODR
Chapter 21  Eva Lein – Collective Redress
Chapter 22  John Sorabji – Legal Aid, Costs and Funding

Part III: Outlooks on European Harmonisation and Beyond
Chapter 23  Emmanuel Jeuland – Harmonisation Through Soft Law, Common Standards, and Best Practices
Chapter 24  Monika Canco, Ana Harvey, and Iryna Izarova – European Civil Procedure and the EU Enlargement Process
Chapter 25  Magdalena Tulibacka, Peter C.H. Chan, Mohamed Paleker and Eduardo Silva de Freitas – European Civil Procedure From a Non-European Perspective
Chapter 26  Alan Uzelac – Wider Challenges: The EU, Europe, and the World

 

The author of this post is Ulf Maunsbach who is a professor of private international law at Lund University. On 5–6 March 2026, the Swedish Network for International Family Law (SNIF) organized a conference in Lund on cooperation in international family law. SNIF is a newly established network intended to serve as a meeting place […]

On 15 December 2025, a French Report on the Applicable Law to Generative AI Models Available in the European Union has been published under the auspices of the advisory body to the French Minister of Culture on intellectual property (CSLPA). Tristan Azzi (University of Paris 1 Panthéon-Sorbonne, Sorbonne Law School) and Yves El Hage (University […]

On 20 March 2026 the Supreme Administrative Court in Poland handed down the decision following Cupriak-Trojan case (C-713/23, commented on this blog within an on-line symposium here, here, here, here, here and here; and additionally here; Opinion of the AG de la Tour in this case was also commented on the blog – here). Facts […]

The Court of Justice will resume its work on Monday 13th, after the Easter break.  On Thursday 16th, it will deliver its judgment in joined cases C-672/23, Electricity & Water Authority of the Government of Bahrain e.a. and C-673/23, Smurfit Kappa Europe e.a. A hearing had taken place on January 2025; Advocate general J. Kokott’s […]

The Universitat Rovira i Virgili (Tarragona, Spain), in collaboration with the Institut Català Internacional per la Pau (ICIP) and the Centre d’Estudis de Dret Ambiental de Tarragona (CEDAT), has launched a call for abstracts for the international conference SLAPP, Activism and Human Rights: Legal and Social Challenges in the Defense of the Environment, to be […]

This post was written by Birgit van Houtert and Marco Pasqua, co-Chairs of the EAPIL Working Group on Anti-SLAPP Directive Transpositions, as report of the Working Group’s third meeting. This post follows up on the report (Part I). The third meeting of the Working Group continued with an in-depth discussion structured around a case study, […]

This post was written by Birgit van Houtert and Marco Pasqua, co-Chairs of the EAPIL Working Group on Anti-SLAPP Directive Transpositions. It is the first part of a report on the Working Group’s third meeting. This post continues with the report (Part II). On 19 March 2026, the EAPIL Working Group on Anti-SLAPP Directive Transpositions […]

The following call was kindly shared with us by the editors of TDM.

We are pleased to announce a forthcoming Transnational Dispute Management (TDM, ISSN 1875-4120, www.transnational-dispute-management.com) special issue on “Project Finance in International Arbitration” This Special Issue will be edited by Seabron Adamson and Tiago Duarte-Silva, both of Charles River Associates.

This call for papers can also be found on the TDM website:
https://www.transnational-dispute-management.com/news.asp?key=2118

 

Background

Project finance is used in many of the world’s largest energy, mining, infrastructure, telecommunications, and digital infrastructure projects. Many of the most complex commercial and investor-State arbitrations involve project financed businesses. However, the financial logic of special-purpose vehicle (SPV) structures, lender controls, cashflow waterfalls, and project financeability remains under-examined in arbitration writing. This special issue invites contributions on how project finance shapes jurisdiction, liability, causation, valuation, and remedies across both commercial and treaty disputes.

The sectors in which project finance is predominantly used — energy, mining, infrastructure, and telecommunications — are also the sectors that generate the greatest volume of international arbitration disputes. According to 2024 statistics, energy and construction matters collectively account for a substantial majority of ICC commercial arbitration cases, while energy and mining-related disputes represent nearly half of all ICSID cases. Project finance structures are therefore routinely at the heart of some of the most complex and high-value arbitrations in the world.

Despite this convergence, the specific financial mechanics of project finance remain under-explored in the international arbitration literature. The structural features of project-financed transactions (the SPV architecture, cashflow waterfalls, lender step-in rights, covenant frameworks, and heavily negotiated risk allocations) create a distinct legal and economic context that shapes how disputes arise, how liability is assessed, and how damages are quantified. Even modest disruptions to revenues or operations can trigger cascading contractual consequences that may wipe out equity value entirely, even when the underlying asset continues to function. Quantifying the full extent of such losses increasingly requires a sophisticated understanding of project finance mechanics by arbitration tribunals and practitioners.

Disputes in project-financed transactions frequently arise from governmental actions that may impair project economics or bankability (including permit delays, regulatory changes, and expropriation), counterparty failures (whether by offtakers, EPC or O&M contractors, or co-investors), or unforeseen operational disruptions. In the investor-State context, the interplay between treaty protections and the rights of lenders raises fundamental questions about who has standing to claim, what losses are recoverable, and how reparations should be structured. In commercial arbitration, multi-party, multi-contract disputes are common, involving intricate questions of risk allocation under construction contracts, power purchase agreements (PPAs), concession agreements, and financing documentation.

This special issue seeks to bring together leading practitioners, academics, and experts to examine the intersection of project finance and international arbitration in depth. Contributions from practitioners with experience in the field (whether as counsel, arbitrators, damages experts, or other specialists) are particularly welcome.

Topics

We invite submissions addressing one or more of the following topics, or any other relevant issues at the intersection of project finance and international arbitration:

Project Finance Structure and Arbitration

• The SPV structure and its implications for jurisdiction, standing, and enforcement in arbitration
• Lender rights in arbitration: step-in rights, direct agreements, and the role of lenders as parties or third parties to disputes
• Multi-party arbitration in project finance: aligning disputes across the contractual matrix (EPC, O&M, offtake, financing)
• Confidentiality and disclosure of financing documents in arbitral proceedings
• Arbitration clauses in project finance agreements: drafting considerations, potentially problematic clauses, and interaction between dispute resolution tiers
• The impact of political risk insurance
• Corruption and cronyism in project development

Investor-State Disputes Involving Project Finance

• Bankability and the fair and equitable treatment standard: when do regulatory changes cross the line?
• Stabilization clauses in concession agreements and their interaction with treaty protections
• Standing, nationality and attribution issues in investor-State claims involving SPVs, HoldCos, lending and sponsor syndicates and lender-controlled structures
• Force majeure, necessity, and hardship in project-financed infrastructure and energy disputes
• Government actions affecting project bankability: permit delays, regulatory creep, and currency restrictions
• The role of export credit agencies (ECAs), political risk insurers and multilateral development banks (MDBs) in shaping dispute outcomes
• Managing the risk of conflicting decisions across arbitral and judicial disputes involving separate claimants
• Political risk in project development and operation

Damages and Financial Analysis

• Quantifying losses in project-financed disputes: the role of the cashflow waterfall and financial model
• The “binary” nature of project finance equity losses: implications for damages methodology
• DCF and comparables-based valuation in early-stage, construction-phase, and operational project finance disputes
• Financeability as a damages issue: was the project realistically bankable, and how should that be assessed?
• Mitigation obligations and lender enforcement tools (waivers, cure periods, restructuring) in the damages analysis
• Loss of chance and causation in complex, multi-causal project finance disputes
• The impact of liability limits in project contracts

Sector-Specific Issues

• Renewable energy project finance disputes: PPAs, curtailment, and the energy transition
• Mining and natural resources: concession agreements, offtake disputes, and royalty financing in arbitration
• Infrastructure projects: PPP structures, availability-based payments, and government termination rights
• Oil and Gas project finance: production sharing agreements, joint operating agreements, and contractor disputes
• Digital infrastructure and data centres: emerging project finance disputes in a rapidly growing sector
• Disputes involving Islamic finance structures used in project financing

Procedural and Practical Considerations

• Interim measures and the protection of project assets and revenues pending arbitral proceedings
• Expert evidence in project finance disputes: financial modelling, engineering, and sector expertise
• Enforcement of project finance arbitral awards against States and SPVs
• Third-party funding in project finance arbitrations
• Insolvency, restructuring, and arbitration: managing distressed project finance disputes
• Dispute avoidance and management clauses in project finance documentation

Submissions

We invite all those with an interest in the subject to contribute articles or notes on one of the above topics or any other relevant issue. Proposals for papers (150–200 words) should be submitted to the editors by June 30th publication is expected final quarter 2026/first quarter 2027.

Please address all questions and proposals to the editors at sadamson@crai.com and tduarte@crai.com and CC info@transnational-dispute-management.com when submitting your materials.

Articles accepted for publication before this deadline will also go through TDM’s on-line advance publication process, allowing your work to reach its target audience as soon as the paper completes peer review and the editing process.

Guest Editors Seabron Adamson
Charles River Associates
View profile

* sadamson@crai.com Tiago Duarte-Silva
Charles River Associates
View profile

* tduarte@crai.com Submission Guidelines

The minimum word count for articles is 5,000 words (excluding footnotes, endnotes, appendices, tables, summary etc.). Articles must include a short summary of the key points addressed and any conclusions drawn (150–200 words).

The layout of the articles should conform to TDM’s submission guidelines, available at: www.transnational-dispute-management.com/contribute.asp (more information available upon request).

For citations, please follow OSCOLA (4th Edition): www.law.ox.ac.uk/research-subject-groups/publications/oscola

This call for papers can also be found on the TDM website:
https://www.transnational-dispute-management.com/news.asp?key=2118

Bilkent University Faculty of Law is pleased to invite you to an upcoming conference titled “Private International Law and Sustainable Development.”

We are honored to host a panel of world-renowned experts to discuss the evolving role of Private International Law in achieving Sustainable Development Goals (SDGs).

Date: 13th April 2026, Monday
Time: 13:30 – 15:30
Venue: FFB 2

Moderator: Prof. Dr. Bilgin Tiryakio?lu

Distinguished Speakers:
Prof. Dr. Ralf Michaels (Max Planck Institute) – The Place of Private International Law in Sustainable Development
Prof. Dr. Veronica Ruiz Abou-Nigm (University of Edinburgh) – Sustainable Consumption and Production (SDG 12): Circularity in Fashion
Prof. Van Loon Hans (Former Secretary General of the HCCH) – The Role of the Judge in Climate Cases (SDG 13)
Assoc. Prof. Dr.Gulum Özçelik (Bilkent University) – Recognition of Personal Status Acquired Abroad (SDGs 5, 10, 16)

The conference will be live-streamed on our official YouTube channel: @bilkentuniversitesihukuk.

The event will be held in English.
All interested participants are welcome.

Students who attend the event will be awarded GE 250/251 points.

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

Stichting Offlimits v X.AI llc,. X Corp, X Internet Unlimited Company ECLI:NL:RBAMS:2026:310, in which the courts at Amsterdam issued an injunction yesterday, echoes some of the themes of SEOK v Hammy Media. Of relevance to the blog of course are the jurisdictional issues.

X.AI is domiciled at Palo Alto, X Corp at Texas, and X Internet Unlimited Company ‘XIUC’ at Dublin.

[4.1] The Stichting’s claim serves two purposes, namely 1) to ensure that Grok and X no longer offer functionality that allows for the generation and  distribution of images depicting naked, existing individuals without their consent (‘non-consensual nude images’), and 2) to ensure that it is no longer possible to use Grok and X to generate and distribute child sexual abuse material ‘CSAM’.

The Stichting’s claim has a dual cause of action: the GDPR viz image generation of existing people; and tort (under Dutch law) viz CSAM (because it may also involve non-existing individuals. This has an impact on jurisdiction.

The court applies a textbook approach to jurisdiction [4.4] ff. It first assesses jurisdiction against XIUC (‘processor’ within the meaning of the GDPR): for the claim viz non-consensual nude images The Netherlands per A79(2) GDPR [as I detail here]:

Proceedings against a controller or a processor shall be brought before the courts of the Member State where the controller or processor has an establishment. Alternatively, such proceedings may be brought before the courts of the Member State where the data subject has his or her habitual residence, unless the controller or processor is a public authority of a Member State acting in the exercise of its public powers.

The Netherlands is Off Limits’ habitual residence. Territorial jurisdiction is determined by Dutch civil procedure rules – CPR and rests with the courts at Amsterdam.

For the claim viz CSAM also The Netherlands, as locus damni per A7(2) Brussels Ia.

[4.7] the court accepts jurisdiction viz the US entities on the basis of the joinder and anchor defendant rules in Dutch CPR (A8 Brussels Ia does not apply to non-EU domiciled defendants); the claims are clearly related to the Dutch claims.

[4.8] Applicable law is determined as the GDPR for the non consensual images claim and Dutch law as lex voluntatis per A14 Rome II.

Privacy lawyers will be interested to read the remainder of the judgment with the court being unimpressed with X’s argument that GROK has been fixed to avoid generation of both types of images. Claimant produced stills showing the exact opposite.

In an echo of  the right to be forgotten, the court then limits its injunction (a ban on offering GROK with the relevant functionality) viz the US entities re the non-consensual images, to offering the functionality to individuals domiciled in The Netherlands (because the US entities do not themselves offer services in The Netherlands). That limitation is not extended to XIUC: here the court orders XIUC to simply block the offer on X, of GROK with the relevant functionality.

Conclusion: the court in essence

[5.1.] prohibits X.AI from generating and/or distributing sexual imagery insofar as this involves the use of functionality whereby persons are partially or fully undressed without having given their express consent, insofar as this concerns persons domiciled in the Netherlands;

[5.2.] prohibits X.AI from producing, distributing, offering, publicly displaying and/or possessing sexual imagery in the Netherlands insofar as this involves the use of functionality whereby imagery is generated that qualifies as child pornography under Dutch law;

[5.3.] orders X.AI to confirm in writing to Offlimits that and how it has complied with the prohibitions under 5.1. and 5.2.;

[5.4.] orders X. AI to pay Offlimits a penalty of €100,000.00 for every day or part thereof that it fails to comply with (one of) the prohibitions under 5.1. or 5.2., or with the order under 5.3., until a maximum of €10,000,000.00 has been reached,

[5.5.] prohibits X from offering the functionality of Grok as part of the X platform for as long as Grok acts in breach of the prohibition under 5.1.;

[5.6.] orders X to confirm in writing to Offlimits that and how it has complied with the requirement under 5.4.;

[5.7.] orders X to pay Offlimits a penalty of €100,000.00 for every day or part thereof that it fails to comply with the prohibition in 5.5. or the requirement set out in 5.6. is met, up to a maximum of €10,000,000.00,

[5.8.] prohibits XIUC from offering the functionality of Grok as part of the X platform for as long as Grok acts in breach of the prohibitions set out in 5.1. and 5.2.;

[5.9.] orders XIUC to confirm in writing to Offlimits that and how it has complied with the prohibition under 5.6.;

[5.10.] orders XIUC to pay Offlimits a penalty of €100,000.00 for every day or part thereof that it fails to comply with the prohibition under 5.8. or the order under 5.9., up to a maximum of €10,000,000.00

Geert.

 

 

The Governing Bodies of the European Association of Private International Law are about to be renewed. As announced a few weeks ago, elections will be held for both the Board of Administration and the Scientific Council of the Association in accordance with the EAPIL Statutes in the run up to the the next EAPIL Conference, […]

The following announcement was shared with us by the conference organizers, Aleksandrs Fillers (Riga Graduate School of Law, Latvia), Adrian Rycerski (SWPS University in Poznan, Poland).

Please save the date: 19 November 2026

We are pleased to invite you to an international scientific conference devoted to modern problems of Private International Law, with particular attention to the impact of new technologies.

We hope the event will provide an excellent opportunity for the exchange of views, experiences, and in-depth discussion.

The conference will be held online and will bring together students, PhD candidates, and experienced experts.

The organizers plan a post-conference publication.

We welcome abstracts addressing any aspect of Private International Law, especially those focusing on modern issues and emerging challenges.

Abstracts (in English, max. 1500 characters) should be submitted to:
Aleksandrs.Fillers@rgsl.edu.lv and arycerski@swps.edu.pl

Submission deadline: 31 May 2026

Notification of acceptance: by 30 June 2026

Participation in the conference is free of charge.

We look forward to your contributions!

Aleksandrs Fillers, PhD
Associate Professor at Riga Graduate School of Law

Adrian Rycerski, PhD
Assistant Professor at SWPS University in Poznan

The University of Udine, together with its partners, has announced two exciting opportunities for students, researchers and practitioners interested in European consumer and market law, with a particular focus on sustainability and the circular economy.

The first call invites participants to register for the Summer School “Consumer and Market Law in the European Circular Economy” to be held at the University of Udine, from 8 to 17 July 2026. This programme offers a unique chance to engage with leading scholars and experts, explore the evolving legal framework surrounding sustainable markets and deepen understanding of how EU law is adapting to support the transition toward a circular economy. The Summer School promises an interdisciplinary and international learning environment, making it especially valuable for those looking to expand both their academic knowledge and professional networks. The organisers have provided the Call for applications – Udine Summer School 2026 and the Brochure – Udine Summer School 2026.

In parallel, a second call has been launched for abstracts for the Workshop “Judicial Protection and Enforcement of ‘Green’ Rights in the EU”. This workshop aims to bring together researchers and practitioners to discuss critical issues related to environmental rights enforcement, judicial protection mechanisms and the role of courts in advancing the EU’s green transition. Contributors are encouraged to submit abstracts that engage with current challenges and emerging developments in this rapidly evolving field. The workshop will be held at the University of Udine, on 14 July 2026. The organisers have provided the Call for Abstracts – Workshop Udine Summer School 2026.

Registration is now open for the Summer School, and interested participants are encouraged to apply promptly. At the same time, those wishing to present at the workshop can submit their abstracts for consideration.

Both initiatives reflect a growing commitment within the European academic and legal community to address sustainability challenges through legal innovation and collaboration. For more information on the programmes, application procedures and deadlines, please visit the official project website.

Activities are co-funded by the EU Erasmus+ Programme.

This post was written by Lorène Anthonioz, who is PhD candidate in Private International Law at the University of Geneva and a Research and Teaching Assistant in Private International Law at UniDistance. With effect from 1 January 2026, Switzerland amended its declaration under the 1970 Hague Convention on the Taking of Evidence Abroad in Civil and […]

Introduction

Hilton v Guyot, is the most influential case in the United States—and perhaps globally—on the use of comity as a basis for recognising and enforcing foreign judgments. In that case, Justice Gray of the United States Supreme Court defined comity as follows:

“No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent of which the law of one nation… shall be allowed to operate within the dominion of another nation, depends upon… the “comity of nations”…”

Comity in the legal sense is neither a matter of absolute obligation, on one hand, nor a mere courtesy and goodwill, on the other; it is the recognition which one allows within its territory to the legislative, executive or judicial act of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under protection of its laws…”

By contrast, under English common law, the dominant basis for recognising and enforcing foreign judgments is the theory of obligation. Blackburn, J in the English case of Schibsy v Westenholz  stated that the true principle is that,

“…the judgment of a court of competent jurisdiction over the defendant, imposes a duty or obligation on him to pay the sum for which the judgment is given, which the courts in this country are bound to enforce…”

And further on in his judgment, Blackburn J. makes it plain that the doctrine of “comity” is incorrect. Thus, no question of reciprocity could arise in an action brought upon a foreign judgment.”

The theory of obligation is applied in many Commonwealth and Anglophone African countries. Interestingly, an emerging but underexplored trend is the growing consideration—and in some instances, application—of the principle of comity by courts in these jurisdictions, with several African judges expressly citing Hilton v Guyot.

This blog highlights selected cases illustrating this development, focusing on Liberia, Kenya, Uganda, Tanzania, South Africa, and Nigeria. The discussion is limited to the common law framework and does not address statutory regimes or international conventions.

 

Liberia

Liberia is a former colony of the United States located in West Africa. In  Turner v Burnette, the Liberian Supreme Court firmly established the principle of comity in the recognition and enforcement of foreign judgments, drawing particular support from Hilton v Guyot. The Court further explained—by reference to another U.S. authority—that:

“The application of comity does not rise [sic] to the effect of establishing an imperative rule of law; it has the power to persuade but not command. Comity being voluntary, and not obligatory, rests in the discretion of the tribunal of the forum and is governed by certain more or widely recognized rules.” Generally, greater force and dignity will be given to judgments of foreign courts when parties have had their day in a court of competent jurisdiction, after due service of process or after an entry of appearance, and have had a full and impartial hearing upon the merits of their case; unless it can be shown that the proceedings were tainted with fraud.”

Andrew Moran and Anthony Kennedy, conclude on the basis of the above Liberian Supreme Court decision that, “It seems, therefore, that any foreign judgment may be enforceable in Liberia at common law as a matter of comity between nations. The procedure appears to be that a suit commenced on the foreign judgment, in the same way as an action is commenced at common law in other jurisdictions.”

Kenya

Kenya is a former colony of the United Kingdom located in East Africa. Nevertheless, Kenyan courts apply both the theory of obligation and the principle of comity in recognising and enforcing foreign judgments at common law.

In ABSA Bank Uganda Limited (Formerly Known as Barclays Bank of Uganda Limited) v Uchumi Supermarkets PLC, the Kenyan High Court held at paragraph 5 that,

In the absence of a reciprocal enforcement arrangement, a foreign judgment was enforceable in Kenya as a claim in common law. Where a foreign court of competent jurisdiction had adjudicated a certain sum to be due to another, a legal obligation arose to pay that sum, on which an action of debt to enforce the judgment could be maintained. In deciding whether a foreign court was one of competent jurisdiction, the courts would apply not the law of the foreign court itself but English rules of private international law. The competence of the foreign court was the competence of the court in an international sense, that was, its territorial competence over the subject matter and the defendant. Its competence or jurisdiction in any other sense was not material.”

However, in a more recent case, the Kenyan Supreme Court, relying on Hilton v Guyot, applied the principle of comity in determining whether to recognise and enforce a locus inspection order from Scotland (see Anam Abdul Majid and Chukwuma Okoli). After quoting the key passage from Hilton v Guyot with approval, the Court stated at paragraph 60 that:

“This approach prioritizes citizen protection while taking into account the legitimate interests of foreign claimants. This approach is consistent with the adaptability of international comity as a principle of informed prioritizing national interests rather than absolute obligation, as well as the practical differences between the international and national contexts.”

Uganda

Uganda is a former colony of the United Kingdom located in East Africa. Nevertheless, Ugandan judges apply both the theory of obligation and the principle of comity in recognising and enforcing foreign judgments at common law. More recently, Ugandan courts have justified the recognition and enforcement of foreign judgments by reference to the theories of obligation, comity, and reciprocity. In the very recent case of Brianna v Mugisha, Justice Nagawa, after a careful consideration of Ugandan case law authorities and Hilton v Guyot, stated that:

 

“5.4 However, I have observed that despite the absence of a statutory
reciprocal arrangement, Ugandan courts have recognized and
enforced foreign judgments under the common law principles of
obligation, reciprocity, and comity.

5.5. These doctrines provide a legal foundation for cross-border judicial
cooperation, particularly in the absence of a formal treaty or statutory
framework, such as in the case of Uganda and the United States.

 

5.6. The doctrine of comity is based on mutual respect between sovereign
states. It allows a court to recognize and enforce a foreign judgment
not as a matter of strict legal obligation, but out of respect to the
foreign court’s authority and fairness in its proceedings. Courts apply
comity where: the foreign court had competent jurisdiction over the matter and the parties, the proceedings were conducted fairly, with
due process observed and enforcing the judgment would not be
contrary to public policy in the recognizing jurisdiction.

 

5.7. The obligation theory treats a valid foreign judgment as creating a legal
duty on the judgment debtor to comply, similar to a contractual
obligation. This approach holds that once a court of competent
jurisdiction has determined a party’s liability, that decision should be
respected and enforced in other jurisdictions unless there is a
compelling reason not to do so, such as: Fraud in obtaining the
judgment, Violation of natural justice, or a fundamental defect in
jurisdiction.

 

5.8. Under reciprocity, a foreign judgment will only be enforced if courts in
the originating country would likewise enforce judgments from the
enforcing country. This principle ensures mutual legal cooperation
between jurisdictions.”

It must, however, be noted that the acceptance of reciprocity as a basis for the recognition and enforcement of foreign judgments at common law marks a significant departure from the position in other Anglophone and Commonwealth African countries, as well as Commonwealth jurisdictions more broadly.

Tanzania

In Tanzania, a significant number of recent cases have used foreign judgments to preclude new actions on grounds of res judicata, obligation, and comity (Exim Bank (COMORES) SA vs Costa Sari;  Standard Chartered Bank (Hong Kong) Limited & Another vs Independent Power Tanzania Limited & Others)

South Africa

South Africa, located in Southern Africa and formerly colonised by both Britain and the Netherlands, is a mixed legal system drawing from Roman Dutch law and the common law. The theory of obligation remains the dominant basis for the recognition and enforcement of foreign judgments. This position was affirmed by the Supreme Court of Appeal in Jones v Krok, where the Court endorsed the English authority of  Nouvion v Freeman as support for applying the obligation theory in recognising and enforcing foreign judgments

However, in Government of the Republic of Zimbabwe v Fick,, the Constitutional Court referred to the principle of comity to justify the development of the common law framework for recognising and enforcing judgments from international courts, signalling a limited but notable openness to comity based reasoning.

Nigeria  

Nigeria is a former colony of the United Kingdom and is located in West Africa. Under the common law regime, it applies the theory of obligation in the recognition and enforcement of foreign judgments (Alfred C Toepfer Inc v Edokpolor).

However, some Nigerian judges at the Supreme Court have proposed comity, jurisdictional reciprocity, and the facilitation of international trade and commerce as additional bases for enforcing foreign judgments (Grosvenor Casinos Ltd v Ghassan Halaoui (2009) 10 NWLR 309, 338–39 (Oguntade JSC)), but there has been no reported case where these proposals have been implemented in practice.

 

Conclusion

The purpose of this post is to highlight how selected Commonwealth and Anglophone African courts have received and applied the principle of comity in the recognition and enforcement of foreign judgments under the common law, particularly as articulated in Hilton v Guyot.

At present, Liberia is the only jurisdiction that fully applies the principle of comity as advanced in Hilton v Guyot, arguably influenced by its historical ties to the United States.

Kenya applies the doctrine of obligation alongside the principle of comity, while Uganda adopts a similar approach and has recently gone further by recognising reciprocity as an additional basis for enforcement.

South Africa primarily follows the doctrine of obligation, although a few cases have considered comity in the context of recognising and enforcing foreign judgments, albeit without concrete application.

In Nigeria, courts continue to rely principally on the doctrine of obligation at common law. Although some Supreme Court justices have proposed comity as a possible basis for enforcement, this has not been implemented in practice.

Overall, the doctrine of obligation remains the dominant common law basis for the recognition and enforcement of foreign judgments across Anglophone and Commonwealth Africa. Nonetheless, the principle of comity, as developed in Hilton v Guyot, continues to play an important role in shaping the jurisprudence of a limited number of African jurisdictions.

 

 

The author of this post is Lino Bernard, post-doctoral researcher at the University of Mainz, Germany. He developed the following thoughts in the course of his PhD thesis on parallel proceedings and jurisdiction agreements and has recently published a note on the preliminary reference of the German Federal Supreme Court in EuZW (European Journal of […]