Droit international général

 

This post was kindly prepared by Sai Ramani Garimella, Associate Professor, Faculty of Legal Studies, South Asian University.

 

A judgment-creditor is often concerned about the enforcement of foreign court orders, and that concern is not completely misplaced in India. The Supreme Court’s decision in Messer Griesheim v Goyal MG Gases is a useful illustration of the law governing the enforcement of foreign court orders and of the discussion of their finality and binding nature. Twenty-three years after the underlying loan transaction, and after much litigation, the Court has finally closed the chapter, refusing to enforce a 2006 English court’s summary judgment for roughly USD 5.8 million. Along the way, it has also clarified two recurring questions that often come up whenever a foreign money decree is sought to be executed in India:

• (i) When does a summary or “leave to defend” judgment qualify as a judgment “on the merits” under Section 13(b) of the CPC, and
• (ii) What is the real effect of a conditional RBI/foreign-exchange approval on the enforceability of a decree?

A JV was contracted between a German company, Messer Griesheim GmbH (hereinafter, Messer Griesheim) and Goyal MG Gases (hereinafter, Goyal), an Indian company engaged in the industrial gases business, in 1995. To fund capital expenditure, Goyal arranged an External Commercial Borrowing (ECB) of USD 7 million from Citibank, London, with Messer Griesheim standing as guarantor. The Foreign Exchange Regulation Act, 1973 (FERA), required both the Government of India and the Reserve Bank of India (the Central Bank) to approve borrowing and guarantees. The RBI’s approval letter dated 3 September 1997 imposed conditions, amongst others, that “in case of invocation of guarantee, no liability whatsoever will extend to the Indian company.” When Goyal defaulted, Citibank invoked the guarantee in 2001, and Messer Greisheim paid USD 4.78 million. It then sought reimbursement from Goyal by way of contractual subrogation. Goyal refused, asserting that the payment had been adjusted against its own unrelated claims against Messer (arising from alleged breaches of the JV and non-compete arrangements), claims it said were worth roughly Rs. 500 crore. Unable to recover amicably, Messer Greisheim sued in England.

 

The English Court Proceedings

1. 2003: Messer Greisheim obtained an ex parte default judgment after Goyal failed to appear.
2. Ill-advised on the difficulty of enforcing such orders in India, Messer Greisheim applied to have it set aside and sought a summary judgment instead.
3. Goyal responded that it had genuine defences, including three alleged oral side-agreements under which Messer Greisheim had supposedly agreed not to seek recourse against Goyal or to absorb the loan liability as part of a settlement.
4. On 7 February 2006, the English Court rejected Goyal’s defences as lacking a “real prospect of success” and entered summary judgment for approximately USD 5.8 million, plus interest and costs. Goyal did not appeal.

 

The Indian Execution Proceedings

Messer Greisheim applied to the Indian court for execution of the said order under Section 44A of the Code of Civil Procedure, 1908. The journey through the Indian courts was itself convoluted:

1. The Single Judge of the Delhi High Court (2013) held the judgment enforceable.
2. The Division Bench (2014) of the DHC ruled against jurisdiction as per the requirements of Section 44A.
3. The judgment-creditor appealed to the Supreme Court, which held that the DHC possessed jurisdiction in its original civil capacity and sent the matter back for a decision on the merits.
4. On remand, the DHC’s Division Bench finally refused enforcement, holding that the English court’s order violated Section 13 of the CPC, both for failing to be a judgment “on the merits” and for disregarding the RBI’s conditional approval.

5. On appeal, the Supreme Court agreed with the Division Bench of DHC (though for partly different reasons), bringing the saga to a close.

 

The Statutory Framework: Section 13 read with Section 44A, CPC

Under Section 44A CPC, an order from the competent court of a “reciprocating territory” (the UK is one such) can be applied for execution before a district court in India. However, such enforcement may be denied if it is hit by the exceptions listed in CPC, S 13: absence of jurisdiction, judgment not on merits, incorrect view of international law or refusal to recognise Indian law, violation of natural justice, fraud, or a claim founded on breach of Indian law.

The Supreme Court reaffirmed that these exceptions must be construed narrowly, in keeping with the principle of comity of courts; such a narrow construction may not be interpreted as against scrutiny at all.

 

Issue I: Was the English Summary Judgment “On the Merits”?

Pivoting upon jurisprudence from the Privy Council (Daniel Thomas Keymer v P. Viswanatham Reddi (AIR 1916 PC 121) and L. Oppenheim and Co. v. Hajee Mahomed Haneef Sahib (AIR 1922 PC 120)) as well as Indian decisions such as International Woollen Mills v Standard Wool (UK) Ltd, Middle East Bank v Rajendra Singh Sethia (AIR 1991 CAL 335), and K.M. Abdul Jabbar v Indo-Singapore Traders Pvt Ltd. (1980 SCC OnLine Mad 186) the Supreme Court held that a judgment entered merely because a defendant was refused leave to defend, without any real investigation into the rival contentions, cannot be treated as a judgment “on the merits” within Section 13(b).

Significantly, the Court did not treat “summary judgment” as a dirty word. It referred to the English law on summary judgment (Civil Procedure Rules 24.2, and the decisions in Easyair v Opal Telecom and Swain v Hillman). The Court noted that the English law required the defence to lead evidence of only a “realistic,” not a “fanciful,” prospect of success, and that a court should hesitate to finally decide a case without trial wherever a fuller investigation of the facts could affect the outcome. The point of the analysis was not that English procedure is somehow defective, but that this very test, properly applied to Goyal’s defences, should have led to a trial rather than summary disposal.

The Court found that Goyal’s defences were not fanciful:

1. There were contemporaneous statutory documents, board-approved Balance Sheets for FY 2001-02 and FY 2002-03, and Minutes of Board Meetings recording that Goyal owed nothing to Messer and that the loan repayment had instead been adjusted against Goyal’s own claims. These were signed by Messer Greisheim’s own nominee director, Mr Winfrid Schmidt, who had also seconded the relevant resolutions. Under Sections 194, 210, 211, and 215 of the Companies Act, 1956, such board-approved financial statements carry presumptive evidentiary value.
2. An e-mail dated 20 February 2003, in which Goyal disputed the claimed liability, did not appear to have been placed before or weighed by the English Court at the summary stage.
3. Goyal’s defence rested on disputed oral agreements, exactly the kind of factual controversy that, in the Court’s view, calls for cross-examination and a full trial rather than summary adjudication.

Importantly, the Supreme Court was careful to state that it was not adjudicating the merits of these defences itself; it addressed only whether they crossed the threshold of being “triable.” Having found that they did, the Court held that denying Goyal leave to defend amounted to a denial of fair trial, attracting both Section 13(b) (not on merits) and Section 13(d) (violation of natural justice) of the CPC. This alone was sufficient to dismiss the appeal and refuse enforcement.

86. […] The adjudication by way of summary judgment in the presence of bona fide triable issues renders the judgment one not delivered on merits within the meaning of Section 13(b).

The Court also revisited the Indian “leave to defend” jurisprudence under CPC, Order XXXVII (IDBI Trusteeship v Hubtown; B.L. Kashyap v JMS Steels), reiterating that denial of leave to defend is meant to be the exception, reserved for cases where the defence is frivolous or vexatious — not the default response to a contested claim.

 

Issue II: The FERA Angle; Adjudication vs Enforcement

1. Section 47(1)/(2): A contract that evades FERA cannot be enforced, but a contract conditioned on obtaining RBI/Government permission is not itself invalid merely because permission is pending.
2. Section 47(3): This provision states that nothing prevents legal proceedings from being brought in India to recover sums otherwise due; however, “no steps shall be taken for the purpose of enforcing any judgment or order” except to the extent permitted by the RBI/Central Government.

The Court  interpreted Section 47 as creating a clear two-stage scheme:

1. Stage 1-Adjudication: Courts may determine liability and order a decree without any prior RBI clearance. There is no bar on access to justice at this stage.
2. Stage 2-Enforcement: Before the execution of such a decree under Order XXI CPC, the RBI/Government permission becomes a precondition.

The Court held that the 1997 RBI condition operated as a regulatory precondition to execution, not a substantive defence that extinguishes the underlying liability. To that limited extent, the Court reversed the Division Bench’s reasoning on this specific point of law.

 

The Takeaways from Messer Greisheim

1. Summary and default judgments travel poorly across borders. A foreign judgment valid in its home jurisdiction could fail the Section 13(b) “merits” test in India only if the foreign court did not substantively engage with a defendant’s documented, triable defences. Foreign claimants strategising for default-to-summary judgments (switching from default judgment to summary judgment to improve enforceability) are alerted to the risk of failure. However, Messer Greisheim rejected the idea of inherent suspicion against summary judgments, the Court held that a 13(b) hit applies only when the record of the case establishes an unfair truncation of a legitimate dispute.

40. At the same time, the jurisdiction to grant summary judgment is not intended to convert the proceeding into a “mini-trial”, but rather to enable cases where there is no real prospect of success to be disposed of summarily.

1. Contemporaneous corporate records can defeat a foreign decree at the enforcement stage, even years later.
2. Foreign exchange regulatory permissions regulate execution, not adjudication. The judgment offers welcome clarity that conditional RBI approvals do not operate as a permanent shield against liability. They instead govern the timing and quantum of actual remittance once a decree is to be executed, a sensible accommodation between access to justice and India’s exchange-control regime.

 

Conclusion

Does the Indian law appear to allow a merits examination, a revision au fond? Messer Greisheim answered that in the negative. It was observed that by relying strictly on a summary procedure to dismiss a genuinely triable defence, the English court bypassed a full trial on the merits. A reading of CPC, S 13, indicates that Indian courts are prohibited from conducting a revision au fond.

• The executing court cannot act as an appellate court.
• It cannot re-examine the substantive facts, reweigh the evidence, or substitute its own view on the merits for that of the foreign judge.

Messer Griesheim is ultimately a cautionary tale about procedure trumping substance. Messer Greisheim may have had a sound claim under the loan agreement’s subrogation clause. But by obtaining a summary judgment that bypassed Goyal’s triable defences instead of testing them at trial, it ended up with a decree that, twenty years and several rounds of litigation later, wasn’t enforceable in India. For foreign judgment creditors eyeing Indian assets, the lesson is unambiguous: a decree obtained without the Indian defendant being allowed a genuine opportunity to contest disputed facts is a fragile asset in the Indian execution courts, however efficiently it may have been obtained abroad. Section 13(b) thus speaks loud and clear – such summary judgment becomes suspect when it appears to have been entered solely to bypass a highly contested matter. Courts in India can review the record, as Messer Greisheim observed, only to identify whether the decision related to a summary procedure was indeed based upon sound reasons and wasn’t aimed at truncating an otherwise triable dispute.

On 10 September 2026, the University of Ljubljana, Faculty of Law, together with the Institute for Comparative Law, will host the Second Private International Law Conference, a unique regional event dedicated to contemporary developments in private international law. The conference will gather distinguished academics, judges, attorneys, arbitrators, and legal practitioners from Slovenia and Europe to […]

Gralf-Peter Calliess and Moritz Renner have edited the fourth edition of Rome Regulations: Commentary published by Wolters Kluwer. The volume provides an article-by-article analysis of the three Rome Regulations and takes account of developments that have occurred since the publication of the previous edition in 2020. These include recent case law of the Court of […]

The following call for papers has kindly been shared with us by the editors of The Journal of Law, Market & Innovation (JLMI).

The Journal of Law, Market & Innovation (JLMI) welcomes submissions for its second issue of 2027.

The Call for Papers for this second issue is devoted to European Regulatory and Supervisory Bodies in the Digital Realm.

You can find the call with all the details at the following link:

A NEW CONSTELLATION OF EU STATE REGULATORY AND SUPERVISORY BODIES IN THE DIGITAL REALM

Prospective articles should be submitted in the form of full papers to submissions.jlmi@iuse.it within 1 December 2026. The publication of the issue is set for the end of July 2027.

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

Visit our website to read the full announcement.

This post was written by Giacomo Marola (PhD). On 18 June 2026, following AG Rantos’ Opinion, discussed on this blog, the CJEU delivered its judgment in Case C-232/25, Idziski, concerning jurisdiction under Article 5(3) of the Brussels I Regulation, now Article 7(2) Brussels I bis, over personality rights infringements. Facts of the Case Idziski arises […]

In case C-14/25, Thüringer Aufbaubank, a request for a preliminary ruling lodged on 15 January 2025, the Oberster Gerichtshof (Supreme Court, Austria) is asking the Court to interpret several provisions of Regulation 805/2004 creating a European Enforcement Order for uncontested claims: Is Article 21(2) in conjunction with Article 25 of Regulation No 805/2004 […] to be interpreted […]

For those (like myself) who view private international law as we know it today as essentially a European invention of the 19th century it is fascinating to see examples of earlier and non-European regimes. One example is Article 48 (on ‘Infringements between peoples outside civilization’) of the Tang Code (653 CE) which reads:

For the people outside [our] civilisation, if infringements occur between those of the same kind, they will be judged by their customary law. If they are of different kinds, then the law [of our empire] shall be applied.
諸化外人, 同類自相犯者, 各依本俗法; 異類相犯者, 以法律論

There has long been a debate of whether this is a true conflicts rule, much of which rests on how broadly to define what conflict of laws actually is and presupposes (for earlier discussion see, e.g. Qingkun Xu, The Codification of Conflicts Law in China: A Long Way to Go, 65 Am. J. Comp. L. 919, 925-6 (2017) with references).  Thảo Anh Hoàng (Huế University, Vietnam), in a new article, sides with those who view this as a true conflict of laws rule and also discusses its reception and application in Vietnam and elsewhere in Asia. (Thảo Anh Hoàng, Early conflict-of-laws rules: Vietnam’s Lê Code (1483) in East Asian and global contexts, 14 Comp. Leg. Hist. 29–54(2026). In addition, she  provides a fascinating and enlightening discussion of the risks of applying modern concepts to ancient phenomena that is instructive to everyone interested in private international law beyond its black letters. Based on parts of her doctoral thesis currently being written at Montpellier under the supervision of Carine Becharef Jallamion, the article is a tribute to both the productive potential of comparison beyond Europe and North America, and the promising young researchers from Asia.

 

Thảo Anh Hoàng, Early conflict-of-laws rules: Vietnam’s Lê Code (1483) in East Asian and global contexts, 14 Comp. Leg. Hist. 29–54 (2026).

This post was contributed by Dr. Augustin Gridel, who is associate professor at the Faculty of law of Nancy, University of Lorraine, France. On 4 June 2026, in Terve v Intesa (C-791/24), the Court of Justice ruled for the first time on the allocation of jurisdiction under the Brussels I bis Regulation in the field of […]

The Faculty of Laws of University College London is looking to appoint as Research Fellow in Law one or more outstanding candidates with research interests in law and related fields. This Post Doctoral Research Fellowship provides a development opportunity for early career researchers in law who have exceptional potential, for a fixed and non-renewable term of two years. While the Fellowship is not limited to any particular area of legal study, conflict of laws is one of the areas in which applications are particularly welcome. UCL Laws is a world-leading academic institution, with a long tradition of private international law research and teaching, which is currently led by Professor Alex Mills, Professor Ugljesa Grusic and Joshua Folkard. The deadline for applications is 1 July 2026. More information about the post is available here. If you have any specific questions about this post and/or the duties attached to it, please contact Professor Colm O’Cinneide, Vice-Dean (Research).

The proceedings of the 18th Jornadas ASADIP in Rio de Janeiro 2025 have been published. María Mercedes Albornoz César González, Jaime Moreno-Valle and Verónica Ruiz Abou-Nigm as editors have collected no less than 46 contributions (plus a prologue and a foreword) by authors from Latin America and elsewhere to the 800 page tome entitled “Imaginario regional – resonancia global. El derecho internacional privado interamericano y el escenario mundial”. Most  are in Spanish or Portuguese, a few in English. They cover a vast array of topics, doctrinal and/or theoretical, structured along seven themes: (i) foundations, (ii) normative structure, (iii) procedure, (iv) substantive protections, (v) digitization, (vi) human rights, (vii) teaching of private international law. The volume  once again demonstrates both the ambition and the  high quality of private international law reasoning on the continent. It can, as can many other excellent OAS publications, be downloaded  free of charge from the OAS website.

The Faculty of Laws of University College London is looking to appoint as Research Fellow in Law one or more outstanding candidates with research interests in law and related fields. This Post Doctoral Research Fellowship provides a development opportunity for early career researchers in law who have exceptional potential, for a fixed and non-renewable term […]

On 15 and 16 October 2026 the EUSuccess Project will host a conference entitled EU Succession Regulation: First Decade of Application, Strengths, Challenges, Future Outlooks taking place at the Faculty of Law and Administration of the Jagiellonian University in Kraków (Poland).  The event will bring together academics and practitioners to discuss functioning in practice of the […]

As announced previously, the next Journal of Private International Law Conference will take place in Zurich on 1–3 April 2027. With the deadline for submitting proposals for papers to present at the conference, 30 June 2026, approaching fast, the organizers would like to remind everyone of the opportunity to submit a proposal. The same deadline also applies for the travel grants offered by the University of Zurich.

More information can be found on the conference website.

Earlier today, the Court of Justice rendered its decision in Case C-232/25 Idzinski, essentially confirming its previous case law, combined with a restrictive reading of its infamous decision in Joint Cases C-509/09 and C-161/10 eDate.

The facts of the case (which was given the entirely fictitious name Idzinski) are eerily similar to those of the Court’s 2021 decision in Case C-800/19 Mittelbayrischer Verlag. Just like in that earlier case, they involved a claim by Polish claimants against a German media outlet regarding the correction of, and damages for, the publication of content that allegedly violated their personality rights, including their national dignity. Only two elements of the facts were different: first, the content complained of was broadcasted on television, in addition to being published online; second, the claimants were (1) a private person who was part of a Polish military unit during World War II, which the German broadcaster had allegedly portrayed as ‘anti-Semitic and nationalistic and as having collaborated with the Nazis in the Holocaust’, and (2) an association bringing together members of that unit.

After two decisions against the defendants (to varying degrees), the Polish Supreme Court had submitted two questions relating to the international jurisdiction of the Polish courts.

Centre-of-Interests Jurisdiction

First, the court wanted to know whether the claimants could rely on Art 7(2) Brussels Ia in the interpretation developed by the CJEU in eDate to establish the (full) jurisdiction of the Polish courts as the courts of the claimants’ centre of interests, even with regard to the content broadcasted on television and even though neither of the claimants had been named in the broadcast.

Dismissing the claimants’ argument that any distinction between online content and a TV broadcast would be largely meaningless given how much the lines between the two formats have blurred, the CJEU reaffirms the narrow scope of the centre of interests criterion (see already eDate, [48]), which remains only available with regard to online content:

[44] That said, the television broadcast of audiovisual content in several Member States must be distinguished from the dissemination of such content on the internet. The placing online of content on a website is to be distinguished, generally, from the regionalised distribution of media in that it is intended, in principle, to ensure the ubiquity of that content. That content may be consulted instantly by an unlimited number of users throughout the world, irrespective of any intention on the part of the person who placed it as regards its consultation beyond that person’s Member State of establishment and outside of that person’s control […].

[45] Those considerations do not apply to the broadcasting of audiovisual content on television. Such broadcasting is not, in principle, available instantly and worldwide, but is regionalised, limited to the geographical area in which the television signal is received.

Regarding the fact that neither of the two claimants had been mentioned by name in the broadcast in question, which could be seen as falling short of the requirement for centre-of-interests jurisdiction developed in Mittelbayrischer Verlag, namely that the content complained of must containt ‘objective and verifiable elements which make it possible to identify, directly or indirectly, [the claimant] as an individual’, the CJEU draws a distinction between the two claimants. The first claimant did not pass the threshold of identifiability as the broadcast

[54] […] does not make it possible to identify individually the applicants in the main proceedings inasmuch as it is a work of fiction which recounts the conduct of a group of soldiers – members of unit X – without it being possible to ascertain the true identity of the members depicted in the series.

The second claimant, however, whose members were all part of that group of soldiers, passed the test and could thus bring a claim at its centre of interests, as far as the online publication of the series is concerned.

Mosaic Jurisdiction

As a second question, the referring court also inquired (again – see also Cases C-194/16 Bolagsupplysningen and C-251/20 Gtflix Tv) about the extent to which jurisdiction could be based on the mosaic approach to Art. 7(2) Brussels Ia. Indeed, for all claims of the first claimant as well as for the claims of the second claimant regarding the TV broadcast, jurisdiction could only be based on the fact that the content had been made available in Poland, which traditionally only creates jurisdiction for a proportion of the overall harm. In Bolagsupplysningen, the CJEU had essentially restricted this type of jurisdiction to damage awards.

In Idzinski, the CJEU simply reiterates its earlier decisions (see [63]). In particular, it confirms that mosaic jurisdiction remains unavailable for any kind of injunction requiring the defendant to display specific information before the series (both online and on TV) – a remedy, of course, with limited chance of being enforced in Germany anyway (for reasons explained here).

Conclusion

Ultimately, the CJEU simply reaffirms its previous case law. While any revirement de justice in that area would have been highly surprising, especially after the decision in Gtflix Tv, the decision may well be seen as another indication that the area is ripe for legal reform.

International Symposium | 9–10 October 2026 | Faculty of Law, University of Coimbra (Portugal)

The University of Coimbra Institute for Legal Research (UCILeR), in collaboration with the Associação de Estudos Europeus de Coimbra (AEEC – Coimbra Association of European Studies), is organizing the International Symposium “Crossing Dialogues, Disciplines and Borders: How far can Private International Law go?”, to be held on 9 and 10 October 2026 at the Colégio da Trindade, Coimbra, Portugal.

Organised by Dulce Lopes and Afonso Patrão , the event brings together leading scholars, early-career researchers, and practitioners to debate the evolving role and limits of Private International Law (PIL) in novel situations that increasingly challenge its traditional scope.

About the Symposium

Private International Law is undergoing a period of deep transformation. The boundaries between substantive and procedural law have become more fluid and porous; fundamental rights and freedoms permeate classical conflict-of-laws reasoning; and adjacent disciplines — constitutional law, human rights law, immigration law, and register law — are reshaping the very foundations of PIL doctrine and methodology.

The symposium is structured around five thematic panels:

• Constitutional Law(s) and PIL — exploring the constitutionalisation of conflict-of-laws rules and comparative approaches to the interface between national constitutionalism and PIL;
• Human Rights Law(s) and PIL — examining the role of regional human rights frameworks, the recognition of same-sex unions, and the treatment of personal status in cross-border disputes;
• Immigration Law(s) and PIL — addressing unilateralist trends in migration regulation, the PIL status of migrants, and new developments in cross-border family relations;
• Procedural and Register Law(s) and PIL — covering matrimonial property regimes, gender identity and self-determination, and the human rights dimensions of cross-border litigation;
• Call for Papers session — open to contributions from scholars and researchers (see below).

Confirmed speakers include  Ilaria Viarengo (University of Milan), Stéphanie Francq (UCLouvain), Yuko Nishitani (Kyoto University), Laura Carballo Piñero (University of Vigo), Rosario Espinosa Callabuig(University of Valencia),  Guillermo Palao Moreno (University of Valencia), Gustavo Monaco (University of São Paulo), Antonia Duran Ayago (University of Salamanca), Dário Moura Vicente (University of Lisbon), Luís de Lima Pinheiro (University of Lisbon), Rui Moura Ramos (University of Coimbra), and many others.

The full program is accessible on-line: https://ucpages.uc.pt/fduc/ij/agenda-ij/crossing-dialogues-disciplines-and-borders-how-far-can-private-international-law-go/

Attendance, whether in person or online, is free of charge but subject to registration: https://ls.uc.pt/index.php/395373?lang=pt&

Call for Papers

The organising committee invites abstract submissions from scholars and practitioners wishing to present papers at the symposium. Contributions may address any of the following themes (non-exhaustive):

• The role of PIL in addressing emerging forms of personal and family status
• Intersections between PIL and Human Rights Law
• The impact of constitutionalisation on conflict-of-laws rules
• The interplay between procedural mechanisms and substantive outcomes
• The relationship between immigration law and PIL
• The relevance of register law in cross-border legal situations
• The limits of traditional PIL doctrines in atypical or innovative cases

Submission requirements:

• Abstract of no more than 250 words
• Short bio with contact details (max. 100 words)
• Submissions must be sent through the following link: https://ls.uc.pt/index.php/263595?lang=en&

Key dates:

Abstract submission deadline 18 July 2026 Notification of acceptance 31 July 2026 Draft papers due 9 October 2026

Presentations will take place in a hybrid format on 9 October 2026. A peer-reviewed publication of the proceedings is planned following the event.

We look forward to welcoming submissions from researchers working at the intersection of PIL and the many disciplines with which it increasingly dialogues.

This Call for Papers was shared with us by Procedural Law Unit of the University of Nicosia, Cyprus.

The Procedural Law Unit is a research unit within the School of Law at the University of Nicosia, focusing on civil procedure, private international law, and broader developments in judicial process and court reform. Each year, the Unit hosts its Annual Courts and Justice Conference, which brings together academics, practitioners, judges, and policymakers to discuss contemporary issues in procedural law and justice systems.

This year’s conference, the Annual Courts and Justice Conference 2026, is themed “The Algorithmic Courtroom: Trust, Accountability, and the Future of Justice”, and will examine the implications of artificial intelligence in adjudication and court processes.

From 1 July to 31 December 2026, Ireland will hold the Presidency of the Council of the European Union. Beyond its broader political and institutional priorities, the programme of the Irish Presidency also addresses aspects of private international law. Operating under the motto Ní neart go cur le chéile – Strength with unity, the Irish […]

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.

Like all my posts, this post is entirely AI free.

Marion Ho-Dac reported a short while back on the French Supreme Court’s decisions 24-21.790 and 24-21.422 ECLI:FR:CCASS:2026:C100235. The facts of the case involve the Lebanese banking crisis, the jurisdictional implications of which have been reported on the blog before. The lower courts had held (and the SC does not second-guess that finding) that the activities of the bank where not directed at France and that the consumer title of Brussels Ia did also not otherwise apply.

In the absence of other jurisdictional anchors in Brussels Ia, jurisdiction therefore was left to be decided under residual French rules. As Marion reports, the SC has now extended its rule in employment contracts (jurisdictional arrangements pointing away from France, cannot deprive employees employed in France of the international and territorial jurisdiction of the French labour courts) to consumer contracts: French substantive consumer law ringfences jurisdiction for French courts. Marion cites the relevant provisions:

According to Article R. 631-3 of the French Consumer Code, “the consumer may bring proceedings either before one of the courts having territorial jurisdiction under the Code of Civil Procedure, or before the court of the place where he was resident at the time the contract was concluded or the harmful event occurred”. Furthermore, according to Article R. 632-1 of the same Code, “the court may, of its own motion, apply all the provisions of this Code in disputes arising from its application”.

In essence, the French SC dropped the direction of activities criterion of BIa and CJEU Pammer Alpenhof, leading to a more universal jurisdiction for French courts for parties qualifying as consumers and with habitual residence in France.

Now, I am not going to repeat professor Ho-Dac’s analysis, which is excellent both viz its French and EU PrivIntLaw angles. What I wanted to add (over and above emphasising Marion’s point that the issue needs to, and will be addressed in the review of Brussels Ia), is the difference between these cases and CJEU Roi Land Investments. In that case the CJEU held inter alia that more protective national rules (in Roi Land: a direct right to sue the “successor in title” of the employer) cannot trump Brussels Ia’s jurisdictional provisions for the  protected categories. However that is ‘more protective’ in cases where Brussels Ia’s protected categories title is engaged. In current case, the protective title is not engaged at all, neither are other parts of Brussels Ia, hence giving Member States free range in their jurisdictional space (subject to any relevant Hague or bilateral instruments, of course).

Geert.

 

 

 

 

The Catholic University of the Sacred Heart in Milan invites young scholars to present the outcome of their doctoral research on any topic within the field of private international law, transnational law or the law of international arbitration, at a dedicated seminar to be held in Milan (the MECSI Seminar). Each MECSI Seminar will revolve […]

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.

Like all my posts, this one is entirely AI free.

In Case C‑43/25 SML Maschinengesellschaft mbH v AK, the CJEU reminded us end of March of the narrow opportunity which Article 16 of the European Insolvency Regulation – EIR offers to escape claw-back by the insolvency practitioner with use of an insulating lex contractus. Yet its ruling leaves open an important question on the lex cause for shareholder loans.

I realise that for the uninitiated, the intro above is a bit puzzling. Readers may want to refer to my post on CJEU Lutz or Nike to appreciate the context.

The Court essentially held that Article 16’s insulation mechanism does not extend to actions related to the relative ranking of claims in the collectivity.

Context is [31] “whether the Article may be relied on by a person who has received repayments in respect of a shareholder loan, which are regarded as detrimental to all of the creditors, in response to a request for restitution submitted by the insolvency administrator of the company that is the debtor of the loan where that request seeks to ensure compliance with the ranking of claims that is laid down in the legislation of the State of the opening of the insolvency proceedings.”

In other words the kind of debt at issue is a shareholder loan. These are commonly used as  way to finance a business. Arie van Hoe and Melissa Vanmeenen flagged some of the issues already in 2011 .

[33] the CJEU effectively handles the question of insulation with the use of Article 16 EIR, by simply referring to the need to apply Article 16 restrictively, as an exception to (now) Article 7 EIR, and [35] it concludes from that restrictive angle that “[Article 16’s] scope is limited to the situation envisaged in the latter provision, namely where what is at issue are the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors, and not the rules relating to the claims to be lodged against the debtor’s estate or their ranking.”

This is a pretty sec statement, made without AG Opinion. Sec, because while the shareholder’s action at issue did not indeed directly see to a pauliana scenario, the context of ranking is evidently one of (escaping) clawback.

As Arie notes in his review (in Dutch) of the judgment, the affirmative reply to the first question (the ranking request does not fall under A16), cancelled out an opportunity to respond to the second and further questions, These included the issue of determination of lex causae for shareholder loans: are these subject to Rome I’s lex voluntatis; or are they necessarily covered by lex incorporationis.

More questions are therefore to be expected…..

Geert.

EU private international law, 4th ed. 2024 (5th ed forthcoming 2027), Chapter 5.