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Guest post by Professor YEO Tiong Min, Yong Pung How Chair Professor of Law, Yong Pung How School of Law, Singapore Management University

Much has been in the news about governmental endeavours to protect children from the ills of social media, which has partially eclipsed the equally important issue of social media being used to cause online harms to both the young and not so young alike. The Online Safety (Relief and Accountability) Act 2025 (OSRAA) came into effect in Singapore on 29 June 2026, with the objective to strengthen the protection of victims against various types of emerging online harm, including intimate image abuse, image-based child abuse, doxxing, online harassment, and online stalking. The statute established the Online Safety Commission that can make orders to hold accountable those who post harmful content (Communicators), control the hosting of the harmful content (Administrators), or host the harmful content (Platforms).

In addition to regulatory orders, the OSRAA provides civil law relief to victims by imposing duties on: (a) Communicators (not to communicate, publish or engage in conduct relating to specified online harm); (b) Administrators (not to create, set up, or administer online locations that facilitate the conduct of online harm with intention or knowledge that such harm would ensue, and to take reasonable measures to address such harms upon notification); and Platforms (to take reasonable measures to address specified online harms upon notification). Victims can seek civil remedies, including damages and injunctions, from the Singapore court.

Online harms inevitably happen in the borderless world of electronic communications. Of significance to private international law are the following provisions in the OSRAA:

Tort treated as taking place in Singapore

101. For the purposes of any proceedings for a tort under Part 10, 11 or 12, that tort is to be treated as having taken place in Singapore if any act or omission or any part of an act or omission that is an element of the tort —

(a)         was initiated or occurred in or from Singapore;

(b)         is perceived by one or more persons in Singapore; or

(c)         caused damage, loss or harm suffered in Singapore.

 

Limits to exclusion of liability

102.—(1)  This Act has effect despite any provision or term to the contrary in any contract, agreement or notice and any provision or term in a contract, agreement or notice is void if and to the extent that —

(a)         it is inconsistent with Part 11 or 12;

(b)         it purports to exclude or limit the jurisdiction of the courts of Singapore for a  claim made under Part 11 or 12; or

(c)         it purports to prevent a person from making a claim under Part 11 or 12.

(2)  Subsection (1) does not apply to a provision or term of a contract, agreement or notice that is fair and reasonable having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract, agreement or notice was made.

(3)  In determining for the purposes of subsection (2) whether a provision or term of a contract, agreement or notice is fair and reasonable, the court is to take into consideration the prescribed matters.

(4)  To avoid doubt, section 26(1) of the Electronic Transactions Act 2010 (which relates to the limitation of liability of network service providers) does not apply in relation to any liability under the provisions of Part 12 or 13 in relation to the liability of an online service provider.

Section 101

Section 101 is clearly intended to affect private international law, since the concept of the place of the tort has no legal significance within Singapore domestic law. The substantive tortious duties are enumerated in Parts 10 (Communicators), 11 (Administrators) and 12 (Platforms). Section 101 situates the relevant statutory tort within Singapore upon the occurrence of any one of the disjunctive connections in subsections (a), (b), and (c). The connections in (a) and (c) are standard ways to measure the connections of a tort to a particular jurisdiction, but there is no weighing of these factors against countervailing factors pointing elsewhere. Further, the connection in section 101(b) can be pretty tenuous. There is clear intention to locate the tort in Singapore so long as there is some connection with Singapore. Section 101 has significant implications for both jurisdiction and choice of law analysis.

The Singapore court has in personam jurisdiction over defendants who are served in Singapore, or who are served outside Singapore with the permission of the court. Permission for service out of jurisdiction may be granted when: (a) the claim has sufficient nexus with Singapore; (b) Singapore is the forum conveniens; and (c) there is a serious issue to be tried on the merits. Locating the tort in Singapore immediately secures a sufficient nexus with Singapore by reinforcing the tort gateway (which strictly only requires a tort to occur partially in Singapore), although sufficient nexus can already be established simply by invoking a power of the court under a Singapore statute (which will be the case here). Moreover, it triggers a presumption that Singapore is forum conveniens. This is not a legal presumption but a factual one arising from the likelihood of the location of the events, evidence and witnesses as well as the applicable law (more on this below) being of significance in the evaluation of the forum conveniens question. Thus, this presumption may not be a high hurdle to the defendant who wishes to object to the Singapore court exercising jurisdiction if the connections to Singapore are otherwise fragile. The legislative intention of the scope of protection of the administrative measures (ie, orders made by the Online Safety Commission) is clear: only Singapore citizens, permanent residents, and persons with a prescribed connection with Singapore (eg, legal migrant workers in Singapore) can raise a complaint to the Commission. It is indicative, however, that even though there is no express limitation in the statutory tort provisions, the primary legislative target of protection by the tortious duties are people connected with Singapore. Forum conveniens becomes the critical tool for the Singapore court to sieve out cases with minimal connections with Singapore, in particular cases where a foreigner is opportunistically seeking to take advantage of the Singapore statute to make OSRAA tort claims against another foreign entity.

Under Singapore private international law, the choice of law rule for torts is double actionability subject to a flexible exception. The claim must succeed as a tort under domestic law (in this case, OSRAA), and civil liability in respect of the same claim must also be made out under the law of the place of the tort. Where section 101 applies to deem Singapore to be the place of the tort, the second limb of double liability will be tested under Singapore law. The result is that Singapore law will apply exclusively to the tort so long as one of the connections under section 101 is made out under the general rule of double actionability. Given especially the span of section 101(b), it will be a rare case brought before the Singapore court that will not trigger section 101. In such a rare case, the common law test of substance of the tort will determine where the tort occurred instead. This requires an evaluation of the connections of the events constituting the tort to determine where in substance the tort occurred. If even the section 101 connections are not satisfied, then it is highly unlikely that the tort will be found to have occurred in substance in Singapore. In the eventuality that the tort is found to have occurred outside Singapore (assuming it is not already filtered out through forum non conveniens), double actionability will require civil liability to be satisfied under the foreign law of the place of the tort in addition to the OSRAA under Singapore law (as the law of the forum), and it will be unlikely that Singapore law can displace foreign law under the flexible exception given the paucity of connections with Singapore. The result is that the claimant can only recover the common denominator between the law of the forum and the law of the foreign place of the wrong.

Insofar as the tort is located in Singapore, there remains the possibility of the flexible exception being invoked to apply the law of a foreign country with the closest connection to the parties and the tort, displacing Singapore law. The flexible exception will be invoked only in exceptional circumstances where the connections with Singapore are so fortuitous that the application of the general rule of double actionability will lead to serious injustice to the parties. Thus, in most cases involving victims with connections in Singapore, the Singapore court is likely to have and exercise jurisdiction, and to apply OSRAA to the facts.

This is consistent with the intention of Parliament to protect residents of Singapore. The operation of section 101 appears to have the practical effect of imbuing the OSRAA torts with the character of overriding forum mandatory rules that will apply to all cases with specified connections to Singapore, albeit under the cloak of connecting factor design. This technique, rather than a straightforward forum mandatory rule approach, leaves a safety valve for the courts to apply foreign law in exceptional cases. Thus, the important work of drawing the limits to the extraterritorial reach of the OSRAA is left to the judiciary applying private international law, at both the jurisdictional (forum conveniens) and the choice of law (exception to double actionability) levels.

This deliberate general overriding effect over otherwise connected foreign legal systems arises from a powerful legislative concern to protect victims of online harms, as well as a legitimate concern that foreign laws may not have adequate rules to protect victims of online harm given the novelty and scale of such harms committed using new technologies. However, one problem that could emerge in the future is where a connected foreign law provides stronger protection to the victim than the OSRAA. In such a case, Section 101 will result in the lower level of protection under Singapore law being afforded to the victim, even if the foreign law would be applicable under the common law if the section had not existed (provided the law of the place of the wrong applies to the exclusion of the law of the forum under the flexible exception, or if the Singapore court decides to excise the law of the forum limb of double actionability in an exercise of judicial law reform). The simple solution is to sue outside Singapore, but this type of choice of law arbitrage requires wherewithal beyond the means of most victims. Second, in endorsing – albeit impliedly – the place of the wrong as the connecting factor for torts, the legislation may impede further judicial development of this aspect of the common law choice of law rule. It will not be an obstacle to the removal of the law of the forum limb (as the Canadian and Australian courts have done), but it may prevent further consideration of alternatives to the place of the tort as a connecting factor (even though it remains as the sole connecting factor in Canadian and Australian torts choice of law). A connecting factor relying on the concept of locating a tort in a physical place appears increasingly out of touch with the realities of human interactions in the modern world.

Another possible interpretation of section 101 is that it sets out the connecting factors for a unilateral choice of law rule for the application of the OSRAA torts, displacing the common law multilateral approach to the extent that the statute applies. This will also lead to the application of Singapore domestic law once any connection in section 101 is found. However, there is no flexible exception in this statutory choice of law rule. The language of the provision does not direct the application of Singapore law; it modifies the meaning of the connecting factor of the place of the tort by replacing the common law test of the substance of the tort with a statutory test, a connecting factor which has been clearly established as part of Singapore private international law for torts. The statutory language is more consistent with legislative intention to ride on the common law multilateral choice of law approach, and there is nothing in the Parliamentary materials to suggest the contrary.

Section 102

Section 102 is directed at the issue of Administrators and Platforms excluding or limiting potential liability under the OSRAA by the use of contractual terms or non-contractual notices. Beyond standard exclusion of substantive liability clauses and notices, the section also catches exclusions practically effected by means of an arbitration clause, an exclusive choice of foreign court agreement or even a mediation agreement that takes the dispute out of the reach of the Singapore courts (section 102(1)(b)). Whether this is indeed the effect will depend on what remedies are available in the alternative forum, and whether mediation agreements which normally only impose temporary restraint on recourse to courts will have that effect may depend on the terms of the agreement and the underlying factual matrix. Exclusion cannot, however, be done using a choice of foreign law clause as party autonomy is not recognised under the Singapore torts choice of law rule in its present form. Section 102 also prevents Administrators and Platforms from invoking the protection, found in the Electronic Transactions Act, against liability as a network service provider. Nevertheless, section 102 allows for exclusion or limitation of liability where it is fair and reasonable in the circumstances at the time of the contract or notice, taking into account the relative bargaining positions of the parties and the extent to which the term or notice makes it more convenient or cost-effective to resolve the dispute between the parties (as prescribed pursuant to section 102(3)).

The question arises whether Section 102 applies when the contract containing the relevant term excluding or limiting liability is governed by foreign law. Nothing in Section 102 expressly renders the provision to be an international or overriding mandatory rule that will apply irrespective of the relevance of foreign law by choice of law analysis. The concept of evasion has very limited application in Singapore private international law. A contract is governed by the law expressly or impliedly chosen by the parties provided the choice is legal, bona fide and not against public policy. In the absence of party choice, a contract is governed by the system of law objectively most closely connected with the contract. Circumvention has a residual role in contract choice of law where a choice of law by the parties may not be given effect to if the sole purpose of the choice is to evade the rules of the otherwise applicable foreign law (ie, a non-bona fide choice). This limitation has never been applied in Singapore law, as it is improbable that parties’ choice has only a single and evasive purpose. In any event, the likely consequence is that the contract will be governed by the objective proper law rather than the law of the forum.

The choice of law approach to contractual defences against tortious liability lacks clarity under Singapore private international law. The general approach to the contractual exclusion or limitation of tort liability was advocated in O. Kahn-Freund, “Delictual Liabiity and the Conflict of Laws” (1968) 11 Hague Recueil 1 at 142-145 and endorsed in P.M. North, “Contract as a Tort Defence in the Conflict of Laws” (1977) 76 ICLQ 914 at 922 et seq: whether tort liability allows for exclusion or limitation at all is a question of admissibility of the contract defence which is a tort issue, while the validity of the contract term in question raises a contract issue. On the premise of Singapore law applying to the substantive tort liability, whether liability under the OSRAA can be limited or excluded raises a question of tort governed by Singapore law, so Section 102 is engaged as the applicable law to the issue. This is clearly the correct approach when it is a notice rather than a contract term that is the agent of exclusion or limitation. However, in the case of contractual exclusion or limitation, the applicable law of the contract is still relevant to govern the validity of the clause. This in turn raises the further characterisation question: do the conditions of validity under section 102 (reasonableness) raise questions of admissibility or validity? That they set limits to party autonomy might incline towards a contractual characterisation, but the limits are dictated by policies in tort law. Arguably they go to the admissibility of the defence to the extent that they are designed to safeguard the principles of tort liability (Kahn-Freund, supra, at 144). On this view, foreign law has limited significance under section 102. The only role for foreign law would be to determine contractual validity per se (ie, whether subject to duress, misrepresentation, etc), and there is no need to resort to forum mandatory rule reasoning to apply section 102.

On the other hand, the Singapore court may take a leaf from the majority of the English Court of Appeal in Sayers v International Drilling Co NV [1971] 1 SLR 1176 to characterise the contractual defence to tort liability as a contractual issue, and apply the proper law of the contract. This may be a compelling argument in the case of a dispute resolution clause because the exclusion will clearly arise from a contractual promise not to sue in the Singapore court. It is uncontroversial under Singapore private international law that the validity of a choice of court or arbitration clause is governed by the law applicable to the clause as a contract issue (except under the Hague Convention on Choice of Court Agreements 2005 where the private international law of the chosen court applies). On this approach, Administrators and Platforms might rely on dispute resolution clauses governed by foreign law to take themselves out of the reach of OSRAA by taking the case out of the Singapore jurisdiction. Outside of international conventions, two responses are possible. First, the effect of a jurisdiction agreement on the jurisdiction of the Singapore court is a matter of procedure governed by the law of the forum and thus section 102 applies. Second, section 102 may be interpreted as a mandatory and overriding provision, or as a source of fundamental public policy, in order to give effect to the strong protective policy of the OSRAA. Thus, the Singapore court is likely to test any dispute resolution clause that has the practical effect of limiting or excluding tort liability under the OSRAA for enforceability under Section 102, in addition to assessing its contractual validity under the law applicable to the clause.

Finally, international conventions may also be engaged in the application of Section 102. The Singapore Convention on Mediation (2018) is not relevant at this point because it only applies to the resulting settlement agreements and not to the validity or enforcement of mediation agreements. The Hague Convention on Choice of Court Agreements (2005) is unlikely to be activated by a choice of court agreement in this context because consumer contracts are out of scope. Singapore did not make a reservation to exclude non-commercial cases in acceding to the New York Convention (1958), so it can apply. In the rare case that the Hague Convention should apply, and in a case where the New York Convention applies, recourse will likely be made to Singapore public policy to justify applying section 102 to determine whether the clause is null and void. Non-arbitrability arguments may be also invoked in the case of the New York Convention, but it is unlikely that Parliament intended to exclude arbitration of OSRAA tort disputes altogether given the possibility of upholding the clause within the bounds of Section 102. In any event, under Singapore private international law, arbitrability at the jurisdiction stage is governed by the law applicable to the arbitration agreement and the law of the seat (though non-arbitrability may also arise as a defence at the subsequent enforcement stage). For a foreign-seated arbitration agreement governed by foreign law, the only practical argument for the victim is that the agreement is null and void for contravention of the public policy of the forum. Statute can be a source of common law public policy. Whether Singapore public policy is actually contravened on the facts will however depend on the parameters in section 102.

This post was contributed by Felix D. Pollmann (University of Münster) and draws on a chapter written with Jonathan L. T. Chu (Downing College, University of Cambridge) on “Standard Terms in Business-to-Business Contracts under English and German Law”, in Heiderhoff/Queirolo, Private International Law and the European Union: Developments in Contemporary Private Law (Editoriale Scientifica 2026), […]

I. The Apostille Convention

The HCCH has recently announced that “[o]n 9 July 2026, the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (1961 Apostille Convention) entered into force for the People’s Democratic Republic of Algeria following the deposit of its instrument of accession on 5 November 2025.” With Algeria’s accession, the 1961 Apostille Convention now has 130 Contracting Parties, making it by far the most successful of all HCCH Conventions in terms of global participation.

The reason for this success appear to be straightforward: the Convention replaces the cumbersome and often costly chain of diplomatic and consular legalisations with a single formality: the issuance of an Apostille by the competent authority of the State from which the public document originates. Therefore, by considerably simplifying the circulation of public documents across borders, the Convention reduces both the time and expense involved in having documents recognised abroad, and significantly contributes to facilitating international mobility and cross-border legal transactions for individuals, businesses, and public official documents, including judgments, notarial deeds and authentic instruments alike.

 

2. The situation in Africa

However, a closer look at the list of Contracting Parties reveals that only 17 African States have so far ratified the Convention. These are, Algeria, Botswana, Burundi, Cabo Verde, Eswatini, Lesotho, Liberia, Malawi, Mauritius, Morocco, Namibia, Rwanda, Sao Tome and Principe, Senegal, Seychelles, South Africa and Tunisia (countries in bold characters are HCCH Member States). In other words, only about 31% of the continent’s 54 sovereign States currently benefit from the simplified authentication procedure established by the Apostille Convention. This is the lowest rate in the world, as the following table clearly shows (AI generated table):

 

Region Contracting Parties Total States Coverage rate Europe 46 46 100.0% North America (incl. Central America & Caribbean) 20 23 87.0% South America 12 12 100.0% Oceania 9 14 64.3% Asia 26 49 53.1% Africa 17 54 31.5% Total 130 198 65.7%

Yet, a closer look at judicial practice across Africa demonstrates beyond doubt the practical need for wider adherence to the Convention. Courts throughout the continent are frequently confronted with issues relating to the authentication and legalisation of foreign public documents, often resulting in delays, additional costs, and, in some cases, the refusal to admit or give effect to such documents because the applicable formal requirements have not been satisfied. Indeed, in a number of African states, particularly civil law jurisdictions, proof of the authenticity of a foreign judgment is one of the requirements for its enforcement. This is particularly the case in countries including Benin, Burkina Faso, Burundi, the Democratic Republic of Congo (DRC), Rwanda, and Mozambique, where authenticity is an independent requirement for the enforcement of foreign judgments. In some other African countries, notably Cameroon, Gabon, Guinea, Mali, and Senegal, while authenticity is not listed among the requirements for the enforcement of foreign judgments, reference to it is included in the list of documents to be submitted in support of the application for enforcement. More importantly, available case law shows that, where the Apostille Convention is not applicable, authentication is likely to become an issue in many jurisdictions.

 

III. Examples of judicial practice – The Rwandan High Commercial Court’s decision on the enforcement of a Congolese judgment

The difficulty stemming from the absence of a simplified method of authentication can be illustrated by a case decided by the High Commercial Court of Rwanda decided on 18 November 2021, which shows how how formal authentication requirements may become decisive in enforcement proceedings(*).

(*) Many thanks to Boris Awa (Kigali Independent University ULK, Kigali, Rwanda) for kindly sharing the text of the decision

 

1) Underlying facts

This case concerns the enforcement in Rwanda of a Congolese judgment. The background is rather complex, involving proceedings in both the DRC and Rwanda. It began with a successful action brought by X against his sister, Y, in the DRC, in which the court ordered Y to pay X a certain amount of money. X subsequently sought to enforce that judgment in Rwanda. Y opposed the enforcement on the ground that she had never been notified of the proceedings and had only become aware of the judgment when enforcement proceedings were initiated against her assets in Rwanda. The Rwandan courts, however, rejected her challenge and allowed the enforcement of the Congolese judgment (Judgment 1). Y then challenged the original judgment before the Congolese courts and succeeded in having it set aside in its entirety. She subsequently sought to enforce this second Congolese judgment in Rwanda so that the original judgment could no longer be enforced there.

 

2) Parties’ allegations

X eventually challenged the enforcement of the second Congolese judgment on the ground, inter alia, that it did not satisfy the requirement of authenticity. Y argued that there was no issue as to the judgment’s authenticity, since it bore the Congolese enforcement formula, certification by the Congolese Ministry of Foreign Affairs, certification by the Rwandan Embassy in the DRC, notarisation, certification by the Congolese Embassy in Rwanda, and authentication by the Rwandan Ministry of Foreign Affairs. According to Y, these certifications clearly established the authenticity of the judgment.

For his part, X argued that the copy of the judgment was not authentic because not all of its pages bore the required signatures and official stamps, as required by the standard practice in Rwanda. In particular, he maintained that affixing signatures and stamps only to the last page of a judgment of more than ten pages did not satisfy the applicable legal requirements.

 

3) The Court’s reasoning

The High Commercial Court refused to enforce the foreign judgment, holding that there was no proof that the chain of diplomatic certifications actually related to the judgment submitted for enforcement. In reaching this conclusion, the Court compared the judgment with another Congolese judgment in the case file (Judgment 1) and noted that every page of that judgment bore the complete chain of legalisation, including certification by the court, the Congolese Ministry of Foreign Affairs, the Rwandan Embassy, a Congolese notary, the Congolese Embassy in Rwanda, and the Rwandan Ministry of Foreign Affairs. The Court regarded this as the ordinary practice for Congolese judicial documents. Since the appellate judgment had not been authenticated in the same manner, it concluded that the applicant had failed to establish its authenticity.

 

IV. Insights

The Rwandan case is a good illustration of the practical difficulties associated with the traditional chain of legalization and authentication, particularly where questions arise as to whether the chain of authentications was physically attached to, and clearly identifiable with, the judgment itself. The decision illustrates the burden that the traditional system of diplomatic legalisation places on litigants. Had both Rwanda and the DRC been parties to the HCCH Apostille Convention, the lengthy chain of diplomatic and consular certifications that became the central issue in this case would likely have been replaced by a single Apostille certificate. This could have avoided the type of formal dispute that led to the refusal of exequatur.

The importance of authentication for the enforcement of foreign judgments is also illustrated by the available judicial practice in Mozambique, although the case law reflects a less rigorous approach. Indeed, according to the available decisions of the Mozambican Supreme Court, the authenticity of a foreign judgment is generally verified through the process of legalisation required by Article 540 of the Code of Civil Procedure. Where the required legalisation is not included in the initial application, the Supreme Court generally allows the applicant to submit the necessary documents at a later stage (see eg the Mozambican Supreme Court, Ruling of 5 October 2011, in which the Mozambican Supreme Court held that an English judgment could not proceed to review (recognition and enforcement) because it had not been recognised or authenticated by the Mozambican consular authorities in the United Kingdom, as required by Article 540 of the Code of Civil Procedure. The Court accordingly invited the applicant to cure the defect, but the proceedings were later dismissed after the applicant failed to comply).

Such practices vividly illustrate why African States should give greater consideration to joining the 1961 Apostille Convention. The increasing movement of persons, investment, trade, and family relationships within Africa and beyond requires foreign public documents to be produced before domestic authorities and courts with growing frequency. Yet, the traditional system of diplomatic and consular legalisation remains cumbersome, costly, and prone to disputes over formal requirements, often delaying or even preventing the recognition of documents whose authenticity is not genuinely in doubt. By replacing this complex chain of authentications with a single Apostille certificate, the Convention enhances legal certainty, reduces costs and delays, and facilitates access to justice. Wider adherence to the Convention would therefore represent a significant step towards improving cross-border judicial cooperation and promoting legal and commercial integration, both within Africa and with the rest of the world.

This situation also highlights the important role that the HCCH should continue to play in promoting the Convention across Africa. Much has already been done, but further efforts are needed to encourage wider adherence to the Convention.

The European Court of Human Rights has accepted the referral of Z and Others v. Finland (no. 42758/23) to the Grand Chamber. The case concerns a Russian father who abducted his sons from their mother in Russia to Finland in 2022. As has previously been reported for the blog (see here), the Finnish Supreme Court […]

The latest issue of RabelsZ has just be released. It contains the following articles as well as an editorial with important information regarding the journal’s future governance structure and publication process. All content is Open Access: CC BY 4.0.

 

EDITORIAL

New Governance Structure and Double-Blind Peer Review, pp 225–228, https://doi.org/10.1628/rabelsz-2026-0020

 

ESSAYS

Sören Segger-Piening,Grundstrukturen des Kollisionsrechts der Digitalisierung am Beispiel von DSGVO, Data Act, DSA, DMA und KI-VO. „Europe Rules the Waves?“, [The Private International Law Dimensions of Digitalization. »Europe Rules the Waves?«], pp 229–292, https://doi.org/10.1628/rabelsz-2026-0012

The private international law of the digital single market is characterized by unilateral scope rules. This article analyses multiple pieces of legislation from the perspective of both private and public international law. In terms of substantive law, there is a substantive duality between private law and public law. With regard to connecting factors and principles, the market location principle dominates, but there are considerable differences in the details of each piece of legislation, particularly between the GDPR, the Data Act, and the AI Regulation on the one hand and the DSA and the DMA on the other hand. From the perspective of public international law the goal of a global regulation can be identified, even though the hoped-for »Brussels effect« may have the opposite impact. While the scope rules do have an impact in private international law, they hardly fit into the existing system; recognized goals such as decisional harmony and party autonomy are not being achieved. De lege ferenda, there are options for achieving justice under private international law while also attaining global applicability.

 

Tobias Lutzi, Arvid Kerschnitzki, Streitgegenstand und Rechtskraft. Perspektiven für einen autonomen Streitgegenstandsbegriff in der EuGVVO [Subject-Matter and Res Judicata. The Prospects of an Autonomous Concept of Subject-Matter under the Brussels Ibis Regulation], pp 293–322, https://doi.org/10.1628/rabelsz-2026-0011

While the debate on the reform of the Brussels Ibis Regulation is well underway, the concepts of lis pendens and res judicatahave thus far received little attention, despite constituting some of the Regulation’s core mechanisms. In fact, there has long been a structural mismatch between the autonomously defined »subject-matter« of a dispute – underpinning the rules on lis pendens and the grounds for refusal of recognition – and a concept of res judicata that remains determined by national law. This incongruence may lead to unsatisfactory outcomes, e.g. where the lis pendens rules successfully prevent parallel proceedings but the resulting judgment produces only a limited preclusive effect, creating the potential for (further) decisions that will be incapable of circulation within the EU. Against this background, the present article explores the prospects of developing an autonomous concept of subject-matter under the Brussels Ibis Regulation. It advocates harmonization based on the doctrine developed by the ECJ in its interpretation of Art. 29 Brussels Ibis. A more far-reaching harmonization – one which could include an extension of the rules on lis pendens – would also seem useful, but for now it appears unlikely to receive sufficient support.

 

Saloni Khanderia, From Domestic Courts to Transnational Justice. An Examination of India’s PIL within a Comparative Asian Framework, pp 323–358, https://doi.org/10.1628/rabelsz-2026-0018

India, with its vast population, economic presence, and historical prominence in constitutional and human rights jurisprudence, has profoundly shaped international legal discourse. However, it has lagged in developing its PIL rules, chiefly due to its particularistic views favouring national law and its focus on international commercial arbitration. Judicial efforts striving to pace the country’s economic policies post-liberalization are insufficient without concomitant efforts by the Parliament and the Law Commission of India. Using Singapore, China, Japan, and South Korea as examples, the study suggests that modernising India’s framework predominantly involves relaxing restrictions on foreign legal practitioners, empowering the judiciary to investigate foreign law ex officio, and overhauling the recognition and enforcement regime to align with international standards. Pending comprehensive codification, interim guidelines drawn by the highest court should encapsulate case law to ensure consistency. The author contends that India’s PIL cannot be internationalized by courts alone. Rather, the effort will require a collective of institutional perspectives – spanning the legislature, the Law Commission, and the judiciary – to foster sustainable growth.

 

Jürgen Samtleben, Das Internationale Privatrecht Kolumbiens. Tradition und Vision, [The Private International Law of Colombia. Tradition and Vision], pp 359–384, https://doi.org/10.1628/rabelsz-2026-0019

The private international law of Colombia follows in the territorialist tradition of the Chilean Civil Code of 1855, which Colombia adopted in 1873/1887. But Colombia opted for an even more rigid territorialist conception, under which Colombian law applies to all domestic transactions. Colombian nationals abroad continue to be subject to Colombian law as their personal statute inasmuch as their activities have effects in Colombia. Foreign law is entertained only as an exception under a vested-rights theory for transactions concluded abroad. Subsequent legislation has done hardly anything to alter this archaic system despite unabated criticism in the Colombian legal literature. Two recent proposals by Colombian scholars have breathed new life into the discussion. These proposals are based on a bilateral conception of the domiciliary principle and show the influence of modern tendencies in the conflict of laws. This article compares and contrasts the current law with the newly proposed rules and thereby shows the deficits of the existing rules. The new proposals so far have not elicited any official response.

 

BOOK REVIEWS

This issue also contains several reviews of literature in the fields of comparative private and private international law and on related topics (pp. 385–409).

by Toussaint Nothias, NYU

This post provides a brief overview of three lawsuits currently ongoing in Kenya against Meta Inc. It is based on remarks delivered during the Decolonial+Digital Law conference at the University of Montreal (26 March 2026).

The whistleblower case (Motaung v Samasource Kenya EPZ Limited t/a Sama & 2 others)

The first lawsuit is brought by the South African Daniel Motaung  – a former content moderator for a company called Sama, which Meta had sub-contracted to establish its first content review center in sub-Saharan Africa in Nairobi, Kenya. The lawsuit alleges human trafficking and unreasonable work conditions, including irregular pay, inadequate mental health support, union busting, and violations of workers’ privacy and dignity. With the support of a legal team in Kenya – Nzili and Sumbi Advocates – and a UK-based nonprofit specializing in Big Tech accountability – Foxglove –, Motaung filed the lawsuit in May 2022 against Meta and its subcontractor Sama.

In a court hearing one month later, lawyers for Facebook and Sama called for a gag order on Motaung, arguing that his speaking to the press risked prejudicing the case. In response, Motaung received the support of some 80 nonprofit organizations, including anchor organizations in the human rights and digital rights space.

At the heart of the grievances is a call for much more robust mental health support for content moderators. Practically, this would imply providing similar support to Kenyan employees as Facebook offers employees in other countries.

The first step for the Kenyan Employment and Labour Relations court was to rule on whether Facebook could be sued in Kenya. In its submission to the court, the company argued that being incorporated in the US and Ireland, it falls outside the court’s jurisdiction. However, in February 2023, Justice Jacob Gakeri ruled against removing Meta Platforms Inc (US) and Meta Platforms Ireland LTD from the case. Part of the argument used by Motaung’s legal team that convinced the judge was that Meta has extensive operations in Kenya: “they have offered their products (Facebook, Instagram, WhatsApp, Market place, Facebook pay) to the public for commercial gain within the jurisdiction of this court,” and they “draw revenue from use of their products in Kenya from advertising on the various platforms”.[1] The employment contract may have been primarily between Motaung and Samasource. However, since Samasource is a subcontractor to Meta, Motaung’s team successfully argued that Meta was a party to the employment contract.

Meta challenged this ruling, arguing that the company was not carrying business in Kenya. This statement obviously contradicts the experiences of millions of Meta product users in Kenya. Nevertheless, this argument reveals how the lack of formal registration in a country allows tech companies to dematerialize themselves, being both fully present and strategically absent. One of the main goals of Meta challenging this decision was essentially to stall, leadingto a year-long process of technical legal exchanges around the admissibility status and notarization processes. In January 2024, Justice Gakeri came out with a response to Meta’s challenge: “The petitioner has demonstrated that this is a proper case for the grant of leave for service out of Kenya”[2]. In other words, this decision allowed Motaung and his team to serve Meta in the US and Ireland.

The content moderators case (Motaung v Samasource Kenya Epz Ltd t/a Sama & 2 others)

While Motaung’s lawsuit progressed, Meta decided in January 2023 to close its East African content moderation hub, run by Sama, resulting in the loss of over 200 staff positions and leaving many employees without work permits. In March 2023, 183 content moderators filed a lawsuit alleging unfair dismissal and discriminatory hiring practices. The workers argued that Meta had directed their new subcontractor for content moderation, Majorel, not to hire former Sama content moderators. The lawsuit was supported by the same team, comprising the UK-based Foxglove and the Kenyan law firm Nzili and Sumbi Advocates.

Again, Meta argued that it could not be sued because it was not based in Kenya and because Meta does not directly employ its moderators. And again, a judge from the Employment and Labor Relations court ruled against this, holding Meta to be the “true employer” of the content moderators, in part because the moderators used proprietary Facebook software to review content.

As the case progressed, the court ruled that Sama should continue to pay moderators and stop redundancies and that Facebook should provide “medical, psychiatric, and psychological care for Facebook content moderators”.[3] Under both legal and public pressure, Meta agreed in August 2023 to enter mediation to settle the dispute with the moderators confidentially, with Kenya’s former Chief Justice, Willy Mutunga, slated to mediate the process. Meta had 21 days to settle, but the mediation failed. According to lead attorney Mercy Mutemi, this proved to be yet another way to stall. She stated: “The respondents were buying time and not being genuine. We kept waiting for them to participate…only for them to keep asking for an extension of time and then come back every time to refuse to take accountability”. The case went back to the court. The plaintiffs asked the court to hold Meta in contempt, a request that, in December 2023, the court refused to grant.[4]

In September 2024, the Kenyan Court of Appeal dealt a significant blow to Meta on both the whistleblower and content moderators cases. The appellate judges turned down Meta’s appeal to prevent the moderators from pursuing their claim against the company. The judges found “it was proper and within the jurisdiction of the Employment and Labor Relations Court (ELRC) to intervene”. In other words, both cases had jurisdiction to continue to trial in Kenya.

The hateful content victims case (Arendse & 182 others v Meta Platforms, Inc & 3 others)

In the third lawsuit, the plaintiffs argued that Facebook actively fueled ethnic violence in Ethiopia’s civil war by amplifying hateful and dangerous content, then not moderating that content fast enough, or sometimes at all.

Whereas the first two lawsuits were filed in Kenya’s Employment and Labor Relations Court, this lawsuit was filed in Kenya’s High Court. This court has jurisdiction over fundamental rights and freedom. The petitioners include a Kenyan human rights group (Katiba Institute) and two Ethiopian researchers, Abraham Meare and Fisseha Tekle. Fisseha previously worked as a researcher for Amnesty International; he received death threats on Facebook after authoring an independent report on violence committed by all sides during the Tigray conflict. In addition to these petitioners, the case also listed major human rights organizations as interested parties, including Amnesty International, Article 19, the Kenyan Human Rights Commission, and Global Witness.

The lawyer leading the case was, again, Mercy Mutemi from Nzili and Sumbi advocates with support from Foxglove. Their request, so to speak, is for Facebook to prevent and demote viral hateful content, employ sufficient competent content moderators with the necessary linguistic skills and socio-cultural understanding, and, most importantly, create a restitution fund of 1.6 billion for the victims of hateful online content. This lawsuit was filed in December 2022, a few months after Motaung filed his and a few months before the content moderators. In April 2023, unable to determine a location in Kenya for Meta, the Kenyan court allowed the petitioners to serve the company in California.

As the case progressed in the Kenyan court, several publications came out, providing further support for the core grievances at the heart of the case. In September 2023, the United Nations Human Rights Council expressed concernsover the prevalence of incitement to violence on social media, though without mentioning Facebook specifically. In October 2023, Amnesty International published a report titled “Meta’s Contribution to Human Rights Abuses in Northern Ethiopia”, which called on the company to compensate victims of Ethiopia’s Tigray conflict. That same month, the internal Facebook documents leaked by whistleblower Frances Haugen became publicly available through the website fbarchive.org. In her testimony to the US Congress two years earlier, Haugen stated that “Facebook is fueling ethnic violence in Ethiopia’s civil war” and argued that her documents revealed that the company did little to stop the spread of the violence. Unsurprisingly, Meta reiterated its argument that the case couldn’t be heard in Kenya. In April 2025, the Kenyan High Court rejected this argument. Like the two other cases, the case can now proceed to trial in Kenya.

[1] Motaung v Samasource Kenya EPZ Limited t/a Sama & 2 others (Petition E071 of 2022) [2023] KEELRC 320 (KLR) (6 February 2023) (Ruling)

[2] Motaung v Samasource Kenya Epz Ltd t/a Sama & 2 others; Kenya National Human Rights and Equality Commission & 9 others (Interested Parties) (Petition E071 of 2022) [2024] KEELRC 7 (KLR) (23 January 2024) (Ruling)

[3] June 2, 2023 interim orders by Justice Byram Ongaya.

[4] Arendse & 182 others v Meta Platforms, Inc & 3 others; Kenya Human Rights Commission & 8 others

(Interested Parties) (Constitutional Petition E052 of 2023) [2023] KEELRC 3381 (KLR) (7 December 2023) (Ruling)

The world is experiencing a growing number of interconnected crises. Armed conflicts, democratic backsliding, climate change, and human rights violations in global supply chains increasingly transcend national borders and expose the limitations of legal systems designed primarily within territorial frameworks. Private international law, traditionally perceived as a technical and neutral discipline, is therefore confronted with […]

At the recent Geneva Conference, EAPIL’s members were called to elect new officers to serve on the Board and the Scientific Council of the Association until 2030. Congratulations and thanks to the fellow members who will take over from the previous governance. Board of Administration Agnieszka Frackowiack-Adamska, President Agnieszka is a professor at the Department of […]

 

Professor Christopher F. Forsyth is undoubtedly one of the leading figures in private international law in Africa, particularly in Southern Africa, where his scholarship has had a profound and lasting influence. His seminal work, Private International Law – The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts (5th ed., Juta, 2012), is not only an indispensable reference for scholars and researchers, but also an authoritative work before Southern African courts, where it is frequently cited with approval.

 

It is therefore a great pleasure to bring to readers’ attention the publication of the Festschrift in honour of Professor Forsyth, celebrating his remarkable scholarly legacy: Commercial Private International Law in Southern Africa – Comparative and International Perspectives: Essays in Honour of Professor Christopher F. Forsyth KC, edited under the able guidance of Professor Jan L. Neels and Professor Easa A. Fredericks, with the assistance of Dr Solomon Okorley. Thanks to the generosity of the editors and the approval of the publisher, UJ Press, the volume is available in open access, making this outstanding collection of essays freely accessible to readers around the world.

 

The book’s blurb reads as follows:

This book contains a collection of essays in honour of Professor Christopher F Forsyth KC, emeritus Sir David Williams Professor of Public Law, sometime Professor of Private International Law, and Life Fellow of Robinson College, University of Cambridge.

The essays focus on Professor Forsyth’s contribution to the development of commercial private international law in Southern Africa, particularly through his monograph Private International Law. The Modern Roman-Dutch Law (five editions between 1981 and 2012). This standard text is authoritative in Botswana, Eswatini, Lesotho, Namibia, South Africa, Sri Lanka and  Zimbabwe.

The essays are written from a variety of comparative and international perspectives, but all focus on the further development of commercial private international law in the Southern African region. The authors are from Austria, Belgium, Botswana, Canada, China, the Democratic Republic of the Congo, Germany, Ghana, Japan, Malawi, Mauritius, the  Netherlands, New Zealand, Nigeria, Portugal, South Africa, Switzerland, Tunisia, the United Kingdom and the United States of America.

 

One aspect of Professor Forsyth’s scholarship that I have found particularly stimulating is his emphasis on the “comparative ethos”, including his observation that English courts do not engage sufficiently in what he called “comparison as virtue” (CF Forsyth, “The Value of the Comparative Ethos to the Judicial Process in the Conflict of Laws”, in C. Visser (ed.), Essays in Honour of Ellison Kahn (Juta, 1989), 154). Equally noteworthy is his emphasis on the theoretical foundations of private international law and his commitment to pursuing the objective of decisional harmony, an objective that, regrettably, seems to have been relegated to the background in more recent years. This is particularly reflected in his frequent citation of a remarkable passage from Professor Otto Kahn-Freund’s General Problems of Private International Law (1976), 323–324 (also published in Collected Courses of the Hague Academy of International Law, 1974-III, 469–470), a passage that appears to serve as a reminder of one of the primary objectives of private international law:

 “The pursuit of harmony is the principal task of those who make it their concern to think about private international law …. An immense intellectual effort has been invested in this discipline for many centuries. If any result commensurate with this effort is ever to be achieved, a clear vision of the ideal of harmony must be combined with an equally clear insight into the social facts which will ever prevent it from being attained. Only those advance society – this is a commonplace – who combine the qualities of Don Quixote with those of Sancho Panza. Many will never be able to see more than a tilt at windmills …. Sometimes they may even be right. But one hopes that there will always at least be some who can see that these hazards are giants of injustice, and who will, as best they can, try to overcome them.”

 

Readers will also greatly enjoy the heartfelt tributes paid to Professor Forsyth in Part I (Laudatio) and Part II (Personal Reflections). These chapters highlight many dimensions of his outstanding contribution to legal scholarship while sharing personal anecdotes that reflect not only his enduring academic legacy but also his warmth, generosity, and cheerful personality.

 

The table of contents include the following:

 

Preface

Redson Edward Kapindu

 

Part I: Laudatio

The Contribution of Professor Christopher F Forsyth KC to the Development of Southern African Private International Law: A career in a world of influence rather than power

Jan L Neels, Eesa A Fredericks

 

Part II: Personal Reflections

 

Tribute to Christopher Forsyth

Tom Bennett

 

Gulliver’s (Conflicts of Law) Travels: The Act of State Doctrine as a Source of Private International Law in Canada and South Africa

George Douvelos

 

A Time to Remember

Rajendra Parsad Gunputh

 

“Our England is a Garden”: Some Reflections on Christopher Forbes Forsyth in Cambridge

Ivan Hare KC

 

Christopher Forsyth’s Links to an African University

Letlhokwa George Mpedi

 

Personal Tribute to Christopher Forsyth

Nicola Peart

 

Christopher Forsyth: A Good Friend and a Man of Many Talents

J T Pretorius

 

A Diceyan Contribution to Scholarship across Fields and Continents: A Personal Tribute to the Work of Christopher Forsyth

Geo Quinot

 

Reflections on the Conceptual Reasoning of Christopher Forsyth

Johann Schiller

 

Christopher Forsyth: An Outsider’s View

James Weinstein

 

An Unforgettable and Beautiful Memory of Professor Forsyth

Weidong Zhu

 

Part III: Academic Essays

 

Party Autonomy in South African Private International Law: A Comparison with Article 2 of the Hague Principles on Choice of Law in International Commercial Contracts

Faadhil Adams

 

Expanding Jurisdiction for Fundamental Rights Violations by Businesses: South African Law and the Role of an International Treaty

David Bilchitz

 

Tacit Choice of Law in International Commercial Contracts: The Position in Ghanaian, Kenyan, Nigerian and South African Private International Law

Garth J Bouwers

 

The African Principles and Mauritian Private International Law: What Lessons to be Learned?

Robin Cupido

 

The Law Applicable to Arbitrability in Lusophone Legal Systems

Rui Dias

 

Developing the Forum Non Conveniens Doctrine in South African Law: A Comparative Perspective

Sieg Eiselen

 

The African Principles on the Law Applicable to International Commercial Contracts: Proposal to Include a Provision on the Ex Officio Application of the Foreign Law

Beligh Elbalti

 

Enforcing Trade-Related Contractual Claims in South Africa

Gerhard Erasmus

 

Contractual Capacity in South African Private International Law

Eesa A Fredericks

 

Mixed Dispute Resolution Clauses in International Commercial Transactions

Daniel Girsberger

 

From Louisiana, to India, to Africa: The Strange Journey of India’s Foreign Judgments Rules

Christopher Jenkins

 

Reforming Party Autonomy in African Private International Law: The Need for Clear and Effective Exceptions

John Kiggundu

 

Jurisdiction in International Civil Cases: How Many Links are Enough?

Thalia Kruger

 

The IncotermsR 2020 by the International Chamber of Commerce (ICC): Evolution and Practical Application with Specific Reference to Containerisation

Michael G Martinek, Eesa A Fredericks

 

Unmitigated Exorbitance of Assumed Jurisdiction under Malawian Private International Law

Richard Mlambe

 

Direct International Jurisdiction under OHADA Law

Justin Monsenepwo

 

Novel Aspects of the Proposed African Principles on the Law Applicable to International Commercial Contracts

Jan L Neels

 

Commercial Private International Law in Mozambique, Angola and Beyond: The Portuguese-Speaking States in Southern Africa Compared to Brazil

Carl Friedrich Nordmeier

 

The Sheriffs and Civil Processes Act Does Not Apply to the National Industrial Court of Nigeria

Chukwuma Samuel Adesina Okoli

 

Reforming Private International Law in African Countries: Looking Inward and Outward

Richard Frimpong Oppong

 

Arbitration, Court Adjudication or Via Media?: The Eruption of Hybrid Bodies for the Resolution of International Commercial Disputes – A Path for Southern Africa?

Marta Pertegas Sender

 

Prospects and Options for Recovery of “Heritage Art” in the Oeuvre of Irma Stern

Christa Roodt

 

Forum Selection Clauses and the Waning Legacy of The Eleftheria

Genevieve Saumier

 

Online Defamation in the Conflict of Laws

Sierd J Schaafsma

 

The Spiliada in South Africa: Sailing into the Future

Elsabe Schoeman

 

The New South African International Arbitration Act: Signalling the End of the Road for the Protection of Businesses Act?

Marlene Wethmar-Lemmer

 

Part IV: In Memoriam Professor Christian Schulze

Jan L Neels, Eesa A Fredericks

 

Part V: African Principles on the Law Applicable to International Commercial Contracts

 

African Principles on the Law Applicable to International Commercial Contracts

Jan L Neels

 

Arabic Translation of the African Principles on the Law Applicable to International Commercial Contracts

Jan L Neels, translated by Beligh Elbalti

 

Arabic Translation of the African Principles on the Law Applicable to International Commercial Contracts (with references)

Jan L Neels, translated by Beligh Elbalti

 

Part VI: List of Publications by Prof C F Forsyth

Compiled by Jan L Neels, Solomon Okorley

 

Photo Section

By order No. 5656/2026, the First Civil Chamber of the Italian Supreme Court referred to the Joint Chambers (Sezioni Unite) a question of “particular importance” concerning the recognition in Italy of children born abroad through surrogacy. More specifically, the Court asked whether the legislative model governing the recognition of children born from incestuous relationships may […]

Recently, a decision of the German Federal Court of Justice (Bundesgerichtshof or BGH) was published on the recognition of a judgment in a case of international surrogate motherhood. An unmarried German woman had entered into a surrogacy arrangement in Mexico City. Unlike in previous cases decided by the court, donated eggs and donated sperm were […]

In this post, Julie Esquenazi (University of Paris 1 Panthéon Sorbonne) presents the key findings of her doctoral thesis, recently published with Bruylant Larcier Intersentia on Equality of Arms in Cross-Border Civil Litigation. The research aims at analysing and determining whether and to what extent European rules of international jurisdiction effectively ensure equality of arms. […]

Registration is now open for the already announced conference on “International Filiation Law in the EU” dealing with questions of filiation law resulting from the EU Parenthood Proposal. More information and the registration link can be accessed at the website of the conference. Registration is esp. important for the conference dinner as spots are limited and will be provided on a first come basis.

Everybody interested in legal questions of cross-border filiation is welcome. More information can be found at this website. Participation is free, but registration will be required (esp. for the dinner, see above). Any further inquiries can be directed to international.filiation (a) jura.uni-bonn.de.

(c) Lannert, Uni Bonn

The Conference International Filiation Law in the EU Programme reads:

Day 1: 24.09.2026

13:00

Martin Böse, Dean of the Law Faculty, University of Bonn: Welcome Address
Susanne Gössl, University of Bonn: Introduction
Ilaria Pretelli, Swiss Institute for Comparative Law: The EU Commission’s Parenthood Proposal (Overview)

14:15

Ulrike Kjestina Janzen, German Federal Ministry of Justice and Consumer Protection: The Commission’s Parenthood Proposal – Considerations and Policy Interests and Expectations from a Member State’s Perspective
Alina Tryfonidou, University of Cyprus: Filiation and EU Primary Law: The Portability of the Parent-Child Status in CJEU Case-law

15:00

Velina Todorova,  University of Plovdiv & Ilaria Pretelli, Swiss Institute for Comparative Law: The Human Rights Frame in International Filiation Law (1): The Rights of the Child, esp. the Right to Know One’s Origins
Rachele Zamperini, Swiss Institute for Comparative Law: The Human Rights Frame in International Filiation Law (2): LGBTIAQ* Rights and Women’s Rights

16:45

Patrick Wautelet, University of Liège: Many Faces of Birth Certificates in International Filiation Law
Nicolas Nord, ICCS: Filiation Certificate and a Central Registry in the EU

Day 2: 25.09.2026

09:30

Laima Vaige, University of Uppsala: Scope of the EU Parenthood Proposal and Relationship to Other International and EU Instruments
Cristina González Beilfuss, University of Barcelona: Which Rules of Jurisdiction for International Filiation?

11:15

Martina Melcher, University of Graz: How Should the Law Governing International Filiation be Determined?
Susanne Gössl, University of Bonn: Recognition of Court Decisions and the Public Policy Exception in International Filiation Law

12:30

Final Remarks and Conclusions

This post was contibuted by Mathilde Mathilde Codazzi-Nodet, who is a PhD candidate at Paris II Panthéon-Assas University. On 3rd July 2026, in two major decisions, the plenary assembly (assemblée plénière) of the French Supreme Court (Cour de cassation), its most solemn chamber which includes the president of the court and the president of all […]

We are delighted to welcome two new editors to the Blog’s Editorial Board.

Janaína Albuquerque Azevedo Gomes is an attorney admitted in Brazil and Portugal focusing on international family law. She has experience across numerous countries and sectors, including the Brazilian government and the Hague Conference on Private International Law (HCCH).

Gustavo Ferraz de Campos Monaco is professor of private international law at the University of São Paulo, where he works at the intersection of private international law and general legal theory.

We are looking forward to their contributions.

On 8 July, King&Spalding will be hosting a webinar on the new ICC Arbitration Rules, which entered into force last month.

The webinar will feature contributions from multiple members of the firms arbitration practice as well as a Q&A.

More information and an option to register can be found here.

This post was written by Birgit van Houtert (Assistant Professor, Maastricht University) and Marco Pasqua (Examiner, Catholic University of the Sacred Heart of Milan), co-Chairs of the EAPIL Working Group on Anti-SLAPP Directive Transpositions as report of the Working Group’s fourth meeting. This post follows up on the report (Part I). The fourth meeting of […]

This post was written by Birgit van Houtert (Assistant Professor, Maastricht University) and Marco Pasqua (Examiner, Catholic University of the Sacred Heart of Milan), co-Chairs of the EAPIL Working Group on Anti-SLAPP Directive Transpositions as report of the Working Group’s fourth meeting. On 4 June 2026, the EAPIL Working Group on Anti-SLAPP Directive Transpositions held […]

On 8 September 2026 Andrea Bonomi and the Centre for Comparative, European and International Law of the University of Lausanne are organizing a conference titled „Wills substitutes” in comparative and private international law.

Speakers include: Michael W. Galligan (New York), Edward Reed (London) and Jeffrey Talpis (Montreal), Charlotte Wendland (Munich), Sophie Lambert (Aix-Marseille), François Derème (Mons), Angelo Chianale (Turin), Francesco Schurr (Liechtenstein) and Julien Perrin (Lausanne).

Discussions will be held partly in French and partly in English.

The full programme is available here.

Participants may join onsite in Lausanne or online. The registration form can be found here. University scholars may contact the organizer for discounted rates (at andrea.bonomi@unil.ch).

This note has been co-authored with Dr. Samuel Vuattoux-Bock, LL.M. (Kiel). It is based on a legal expert opinion for White and Case LLP, Frankfurt. A more comprehensive version – in German – is forthcoming in the Zeitschrift für Internationales Wirtschaftsrecht (IWRZ).

 

I. Introduction
International enforcement regarding the performance of actions that may be taken by others pursuant to Section 887 of the German Code of Civil Procedure (ZPO) raises complex questions within the Brussels Ibis Regulation. These issues concern the correct classification of such enforcement measures, the legal status of a third-party debtor in the context of the enforcement of monetary claims, and potential grounds for refusing enforcement that may arise with respect to international jurisdiction and any defects in service of process. Currently, French courts are seized of the question as to whether a German judgment—in which the German creditor of a Russian debtor was awarded an advance on costs pursuant to Section 887(2) ZPO—can be fully enforced in France by means of a garnishment order directed against a French third-party debtor.

II. The facts of the case
The Creditor (C) is Germany’s largest gas importer and supplies energy providers as well as major industrial customers nationwide with gas. Pursuant to long-term contracts, it sources a significant portion of its imports from the Debtor (D), a company belonging to a corporate group controlled by the Russian state. The agreed place of delivery in each instance was located in Bavaria. However, on June 14, 2022, D largely suspended its gas deliveries to C. On July 22, 2022, the Regional Court of Weiden ordered D to continue supplying C with gas for a further three months. The Regional Court rejected a motion filed by C seeking authorization to have the existing contracts fulfilled by a third party of its choice. Following an immediate appeal lodged by C, the Higher Regional Court (OLG) of Nuremberg issued a ruling on September 12, 2022, authorizing C to have the performance owed by D—within the scope of fulfilling the contracts concluded between the parties—rendered by a third party of C’s choice at D’s expense; furthermore, pursuant to Section 887(2) ZPO, the Court ordered D to make an advance payment to cover the costs incurred in rendering said performance. Subsequently, on November 17, 2022, the Higher Regional Court of Nuremberg issued a certificate regarding this decision pursuant to Art. 53 of the Brussels Ibis Regulation, in which the order for the advance payment was classified as a decision on the substance of the matter (Field 4.6.1). On May 9, 2023, C initiated the garnishment of claims held by D against a French third-party debtor (F) in order to recover a partial amount of the advance payment owed by D. Notice of this attachment was served upon D on May 17, 2023, by means of a letter addressed to the competent authority of the Russian Federation, pursuant to the Hague Service Convention; a copy thereof was sent via registered mail with return receipt requested. On December 21, 2023, F filed a lawsuit against C before the Tribunal Judiciaire de Nanterre seeking the lifting of the measures taken against it. This lawsuit was dismissed on December 20, 2024. D subsequently lodged an appeal against this decision with the Cour d’appel de Versailles, which was granted on January 8, 2026. Cassation proceedings are currently pending before the Cour de Cassation.

III. Enforcement by Substitute Performance
The compulsory enforcement of claims requiring an act, toleration, or forbearance is governed under German law by Sections 887 et seq. ZPO. These provisions apply to all acts that do not relate to the settlement of a monetary claim, the surrender of a specific object, or the submission of a declaration of intent. Specifically, a distinction is drawn between actions that may be taken by others—to which Section 887 ZPO applies—and actions where this is not the case, the enforcement of which is governed by Section 888 ZPO. Actions may be taken by others if they can be performed not only by the debtor personally but also by a third party. This clearly applies to the gas deliveries at issue in the present case. In such instances, the creditor is not compelled to force the debtor personally to render the performance owed. Rather, pursuant to Section 887(1) ZPO, the creditor may apply to the court of first instance for authorization to have the act performed by a third party at the debtor’s expense. Concurrently, the creditor may request that the debtor be ordered to make an advance payment to cover the costs that will be incurred in performing the act (Section 887(2) ZPO). In the case at hand, the OLG Nuremberg granted such an advance payment of costs to the creditor.

IV. A “judgment” within the meaning of Art. 2(a) of the Brussels Ibis Regulation
“Judgments” within the meaning of Art. 2(a) of the Brussels Ibis Regulation—as distinguished from mere enforcement measures—are characterized by the fact that they do not yet result in the final satisfaction of the creditor but rather still require compulsory enforcement. Already in 2009, the Federal Court of Justice (BGH) held that the granting of an advance on costs pursuant to Section 887(2) ZPO constituted a decision within the meaning of Art. 32 of the Brussels I Regulation, which could be recognized and enforced abroad. This view is further supported by the fact that the BGH compared the enforcement of fungible acts under Section 887(2) ZPO with the cross-border enforcement of coercive fines which today is governed by Art. 55 of the Brussels Ibis Regulation. Notwithstanding the position of Section 887(2) ZPO within German procedural law, it should be noted that the rule is structured identically to comparable obligations to make advance payments for substitute performance under substantive law (e.g., under the law of contracts for work and services). Such claims may, of course, be recognized and enforced pursuant to the Brussels Ibis Regulation. Moreover, in the well-known Realchemie case, the CJEU ruled that a decision imposing a coercive fine to enforce an obligation to act or to refrain from acting (Section 890 ZPO) may be enforced pursuant to the Brussels I Regulation. However, the distinction between Section 887(2) ZPO and Section 890 ZPO can, in individual cases, prove quite difficult. Particularly in the case of continuing obligations—such as the ongoing supply of parts or raw materials—the boundary between a substitutable act (Section 887 ZPO) and an obligation to refrain from acting (Section 890 ZPO) is fluid: depending on the wording of the operative part of the judgment, the same factual situation can be framed either as a positive obligation to perform or as an obligation to refrain from interrupting delivery, and enforced accordingly. This practical interchangeability of enforcement methods illustrates how inappropriate it would be to treat the resulting enforcement orders differently at the European level.
In addition, an argumentum a fortiori applies: since, according to the case law of the CJEU (Realchemie), an order imposing a coercive fine under Section 890 ZPO –which constitutes merely a sanction without a compensatory function – qualifies as a “judgment” within the meaning of the Brussels Ibis Regulation, then this must apply all the more to an order for an advance on costs under Section 887(2) ZPO, because the latter decision is based on a judicial assessment of the anticipated costs of substitute performance and thus qualifies as a judgment on the merits unlike a mere coercive fine. It would therefore be inconsistent to characterize a decision imposing a coercive fine as an enforceable “judgment” within the meaning of Art. 2(a)(1) of the Brussels Ibis Regulation, while denying this classification for a decision ordering an advance payment pursuant to Section 887(2) ZPO.
Nor does Art. 2(a)(2) of the Brussels Ibis Regulation preclude the classification of this ruling as a “judgment”; this provision contains specific stipulations regarding the classification of provisional measures as judgments within the meaning of Chapter III of the Brussels Ibis Regulation. Pursuant to this provision, where a decision has been rendered without the defendant having been summoned, the decision embodying the measure must have been served on the defendant prior to enforcement. In this regard, it is important to emphasize that an order to pay an advance on costs does not constitute a mere ancillary ruling to the preceding provisional injunction, but rather a procedurally independent order to pay, possessing its own distinct substantive content. In particular, following the issuance of the decision regarding the advance payment, a distinct enforcement proceeding is conducted pursuant to Section 794(1) No. 3 ZPO in conjunction with Sections 803 et seq. ZPO; this proceeding adheres to the provisions governing the enforcement of monetary claims and is independent of the enforcement of the preliminary injunction.
Furthermore, in the present case, the French courts—with regard to the classification of the Nuremberg decision as a “judgment” within the meaning of Art. 2(a) of the Brussels Ibis Regulation—must observe the binding effect of the certificate issued pursuant to Art. 53 of the Brussels Ibis Regulation, in which the decision on the advance payment was characterized as a judgment on the substance (Field 4.6.1). Art. 53 of the Brussels Ibis Regulation provides that the court of origin shall issue a certificate to enable the enforcement of the judgment in the requested Member State. This certificate confirms that the judgment is enforceable and must be submitted to the courts of the requested Member State (see, in particular, Art. 37(2), Art. 42(1)(b), and Art. 43(1) of the Brussels Ibis Regulation). In this respect, the Cour d’appel de Versailles rightly held that the classification of the decision at issue as a judgment on the merits within the meaning of Art. 2(a)(1) and Art. 39 of the Brussels Ibis Regulation may not be called into question by the French court. In order to clarify the binding nature of the Art. 53  certificate, the Federal Court of Justice recently referred this question to the CJEU. In light of the pertinent conclusions of the Advocates General in preceding cases, a positive answer is expected. As AG Bobek explained in the Salvoni case, “[t]he purpose of the Art. 53 Certificate is to authoritatively [!] state that the judgment is enforceable. […] Whereas, in the system established by [the Brussels I Regulation], production of the certificate in question was not required, it became obligatory with the entry into force of [Brussels Ibis]. That is because the new regulation, doing away with the need for an exequatur, provides for a simplified procedure based on the principle that a decision issued in a Member State should be treated as if it had been issued in the Member State addressed.” And AG Pikamäe was even more explicit in the case of J v H Limited: “[I]t is common ground that the court of origin drew up and issued the certificate on the basis of its order of 20 March 2019, which therefore falls within the scope of Regulation No 1215/2012. Under these circumstances, there is indeed, a priori, an enforceable judgment given in a Member State within the meaning of Art. 2(a) and Art. 39 of Regulation No 1215/2012 that comes within the system of direct enforcement laid down in that regulation, a factual reality that is binding upon the court addressed.”

V. The Legal Status of the Third-Party Debtor in the Enforcement of Claims
Enforcement proceedings may also—particularly in cases of attachment of claims—involve third-party debtors. In this regard, the question arises as to whether such parties can avail themselves of the mechanisms provided by the Brussels Ibis Regulation for the refusal of the enforcement of a judgment. In this context, a distinction must be drawn between the refusal of recognition (Art. 45 Brussels Ibis Regulation) and the refusal of enforcement (Art. 46 Brussels Ibis Regulation). With regard to the refusal of enforcement of a foreign judgment, Art. 46 of the Brussels Ibis Regulation stipulates: “On the application of the person against whom enforcement is sought, the enforcement of a judgment shall be refused where one of the grounds referred to in Art. 45 is found to exist.” The German version of Art. 46 is even clearer, unequivocally speaking of “an application of the debtor” (“auf Antrag des Schuldners”). The wording of this provision thus excludes third-party debtors or other interested third parties. Consequently, based on a grammatical interpretation, standing to apply is vested exclusively in the debtor—i.e., the person against whom enforcement is sought —or, where applicable, their legal successor.
The legislative history corroborates this interpretation. Already under Art. 43 of the Brussels I Regulation, all remedies that national procedural law made available to interested third parties against the authorization of enforcement were excluded. While the enactment of the Brussels Ibis Regulation did indeed abolish the requirement for exequatur—and thus the separate procedure for declaring a judgment enforceable in the requested Member State (Art. 39 of the Brussels Ibis Regulation)—this reform was intended solely to further facilitate and expedite the cross-border enforcement of claims (see Recital 26 Brussels Ibis). Conversely, this measure was not intended to expand the powers of third parties to invoke grounds for refusal of enforcement pursuant to Art. 46 of the Brussels Ibis Regulation. This is evidenced by the fact that a proposal submitted by the Spanish delegation—seeking to extend the scope of Art. 46 of the Brussels Ibis Regulation to cover “any interested party”—was not adopted during the legislative process.
Finally, when interpreted systematically, this is also confirmed by an a contrario argument based on the wording of Art. 45 of the Brussels Ibis Regulation, given that it refers there not solely to the debtor, but to “any interested party”. Since Art. 46 of the Brussels Ibis Regulation was deliberately drafted more narrowly than Art. 45 of the Brussels Ibis Regulation with regard to standing to apply, it is impermissible to allow a third-party debtor to invoke the grounds for refusal of recognition under Art. 45 of the Brussels Ibis Regulation in the guise of national enforcement law. To do so would allow national enforcement law to frustrate the clear intention of the European legislature. In this respect, the principle remains that the procedure for the refusal of enforcement under the Brussels Ibis Regulation constitutes an autonomous and self-contained system. Consequently, Art. 46 of the Brussels Ibis Regulation precludes legal remedies that national law makes available to interested third parties against the authorization of enforcement.

VI. The International Jurisdiction of German Courts
A potential ground for refusing enforcement could arise under Art. 46 in conjunction with Art. 45(1)(e)(ii) of the Brussels Ibis Regulation. This would be the case under two conditions: First, international jurisdiction to decide an advance on costs (Section 887(2) ZPO) would have to derive from the exclusive jurisdiction established in Art. 24(5) of the Brussels Ibis Regulation; and second, that provision would have to preclude the recovery, in another Member State, of an advance on costs awarded in Germany. However, the decision rendered pursuant to Section 887(2) ZPO does not, in itself, exert any coercive effect upon the debtor. According to the Federal Court of Justice, such an effect would be a prerequisite for classifying the advance order as an enforcement measure. Even in a purely domestic context, a decision regarding an advance on costs constitutes merely an enforceable judgment within the meaning of Section 794(1) No. 3 ZPO—one that is enforced, like an ordinary monetary claim, in accordance with Sections 803 et seq. ZPO. The exclusivity of international venues in the matters specified in Art. 24(5) of the Brussels Ibis Regulation applies invariably only to the adjudicatory proceedings, and not to the subsequent enforcement of a resulting judgment regarding a monetary claim. Furthermore, this would result in an objectively unjustified disparity in the treatment of obligations to advance costs, depending on whether such obligations are governed by substantive law (e.g., Section 637(3) of the German Civil Code – BGB) or by the respective procedural code (e.g., Section 887(2) ZPO).

VII. Effective Service
A further ground for refusing enforcement could arise from Art. 46 in conjunction with Art. 45(1)(b) of the Brussels Ibis Regulation. In this regard, the Versailles Court of Appeal based its reasoning on the following findings: The debtor D had not been formally summoned to appear before the Nuremberg Higher Regional Court; instead, this Court had dispensed with formal service via mutual legal assistance “for reasons of expediency” and had simply transmitted the documents by email on 9 September 2022; D had been granted a period of only three days (including a weekend) to submit a response, even though the matter involved a claim amounting to € 5.7 billion; and the certificate issued under Art. 53 of the Brussels Ibis Regulation noted that the decision had been rendered in default proceedings but left blank the field for the date of service of the document instituting the proceedings.
The CJEU has recognized that service by public notice, effected in accordance with national law, does not infringe Union law, provided that the requested court has satisfied itself that all inquiries required by the principles of diligence and good faith have been carried out to locate the defendant. This reasoning also applies to a situation where, despite the creditor and the court of origin knowing the debtor’s address, it is practically impossible to effect service in the debtor’s State due to a lack of cooperation from local authorities. This is the case where the court of origin has attempted to effect service on the debtor in accordance with national and international law (specifically the Hague Service Convention) and where—as in the present case—the success of that service was thwarted by the authorities of the State that exercises legal and economic control over the debtor company. The effective protection of a creditor who has obtained a judgment enforceable within the EU against a debtor established in a third State would be disproportionately jeopardised if the mere refusal—potentially in bad faith—of a third State to effect service were to prevent any enforcement within the Union in a State other than that of the court of origin.
Moreover, since the debtor company had become aware of the content of the order in good time, it could also have lodged an objection based on a breach of the right to be heard pursuant to Section 321a ZPO. However, it failed to do so; consequently, refusal of enforcement on the grounds of a defect in service is precluded under Art. 46 in conjunction with Art. 45(1)(b), final clause, of the Brussels Ibis Regulation. According to established case law of the CJEU, this ground for refusal is excluded if the defendant could have challenged the decision in the State of origin but failed to do so. The concept of a legal remedy is to be interpreted autonomously and broadly; it encompasses any measure capable of subsequently affording the defendant the right to be heard, expressly including an application for restoration of the status quo ante.

VII. Summary
German judgments regarding the payment of an advance on costs for a substitute performance pursuant to Section 887(2) ZPO—much like decisions concerning cost advances based on substantive law—may be enforced abroad pursuant to Art. 39 Brussels Ibis Regulation; these constitute “judgments” within the meaning of Art. 2(a) Brussels Ibis. If the court of origin has certified, pursuant to Art. 53 Brussels Ibis, that the original decision falls within the scope of Art. 2(a) in conjunction with Art. 39 Brussels Ibis, the requested court is bound by that certification; this is likely to be confirmed by the CJEU in the reference proceedings initiated by the German Federal Court of Justice. The exclusive jurisdiction established under Art. 24(5) Brussels Ibis does not preclude the cross-border enforcement of a judgment regarding an advance on costs by means of the attachment of claims.
The fact that Art. 46 Brussels Ibis limits the standing to invoke grounds for refusal of enforcement solely to the debtor is based on a deliberate legislative decision to expedite the cross-border enforcement of claims. This underlying policy must not be undermined by third-party debtors invoking grounds for refusal of recognition under Art. 45 Brussels Ibis while ostensibly acting under the guise of national enforcement law. This applies in particular to grounds for refusal intended solely to safeguard the principal debtor’s right to be heard (Art. 45(1)(b) Brussels Ibis).
Furthermore, when examining potential defects in service, it must be taken into account whether a third state has delayed or frustrated service requested by the creditor pursuant to the Hague Service Convention; this behaviour must not operate to the detriment of a creditor seeking to enforce, under the Brussels Ibis Regulation, a judgment regarding an advance on costs obtained within the EU. If the mere refusal of judicial assistance by a third state were to result in a judgment validly obtained in Germany being incapable of full enforcement in other EU Member States, the effectiveness of European enforcement law vis-à-vis debtors in third states would be at stake.