Flux des sites DIP

For anyone who begins studying private international law – particularly from a civil law perspective – one of the first concepts encountered, after Savigny’s ‘Copernican Revolution’, is the American ‘Choice-of-Law Revolution’. Since the late 1950s, American courts and scholars have progressively abandoned the rigid territorial methodology embodied in the First Restatement of Conflict of Laws in favour of more flexible approaches based on standards and policy-oriented analyses. The pioneering contributions of Brainerd Currie, David Cavers, Robert Leflar, and William Baxter, among others, fundamentally reshaped American conflicts law and made the United States a laboratory of modern choice-of-law theory.

In this context, the publication of Professor Linda J. Silberman’s General Course on Private International Law in the prestigious Collected Courses of the Hague Academy of International Law (Volume 456), under the thought-provoking title The Counter-Revolution in U.S. Private International Law: From Standards to Rules?, is a significant event.

Professor Silberman hardly needs any introduction to readers interested in private international law. Emerita Professor at New York University School of Law, she is one of the leading authorities in the field, whose scholarship has profoundly influenced the development of U.S. private international law, particularly in the areas of conflict of laws, transnational litigation, international civil procedure, and the recognition and enforcement of foreign judgments. She has also played a major role in several American Law Institute Restatement projects, served as Reporter for the proposed federal statute on the recognition and enforcement of foreign judgments, and has been closely involved in the work of the U.S. State Department and the Hague Conference on Private International Law.

Professor Silberman’s General Course revisits this well-known narrative from a fresh perspective. Rather than focusing on the revolution itself, she examines whether American private international law is now witnessing a ‘counter-revolution’. Her central thesis is that, after several decades dominated by flexible standards and multifactor balancing, a discernible movement towards more rule-based solutions has emerged in a number of areas of U.S. private international law.

The breadth of the course is particularly noteworthy. Beyond choice of law, Professor Silberman explores the standards-vs-rules debate across a wide range of topics, including party autonomy in contracts, the extraterritorial application of U.S. statutes, judicial jurisdiction, adjudicatory comity (forum non conveniens, lis pendens, and international abstention), human rights litigation, transnational discovery, treaty interpretation, and the recognition and enforcement of foreign judgments. The table of contents alone demonstrates the ambitious scope of her work and its attempt to identify a common methodological trend across the different branches of American private international law. The publication of this General Course is therefore a significant event for both American and comparative private international law, as it does not only provide a comprehensive account of the evolution of U.S. private international law over the past six decades, but also offers an original framework through which to understand its most recent developments.

The general outline of the volume is structured as follows

Biographical Note

Principal Publications

Preface and Acknowledgments

Chapter I. Introduction to the U.S. Legal System and to the Nomenclature of Standards and Rules

Chapter II. The Counter-Revolution from Standards to Rules in Choice of Law: The Example from Torts and the Third Restatement of Conflicts

Chapter III. Party Autonomy in Contracts: From Standards to Rules and the Third Restatement of Conflict of Laws

Chapter IV. Extraterritorial Reach of U.S. Statutes: From Standards to Rules

Chapter V. Judicial Jurisdiction in the Supreme Court: The Move Toward a More Rule-Based Regime

Chapter VI. The Role of Adjudicatory Comity—Forum Non Conveniens, Lis Pendens, and International Abstention—in the Rules vs. Standards Debate

Chapter VII. Human Rights Violations: Suits Against Private Parties in the Age of Statutes

Chapter VIII. Discovery and Judicial Assistance in Transnational Litigation and Arbitration: Of Rules and Standards

Chapter IX. Wherefore Rules and Standards in Treaty Interpretation: The Hague Abduction Convention Example

Chapter X. “Standards” vs. “Rules” in the U.S. Recognition and Enforcement of Foreign Country Judgments: Prospects for the Future

Epilogue: A Summary

Bibliography

In April this year, the Oxford University Press published The Oxford Handbook of Climate Change and Private Law, edited by Douglas A Kysar and Ernest Lim. The Handbook provides a comprehensive and authoritative treatment of the intersection between climate change and private law in general, including private international law (PIL), bringing together contributions from leading […]

While much of Europe slows down for August, there is still some fresh academic news to share: the publication of the second edition of the *Research Handbook on EU Private International Law*, edited by Youseph Farah, of the University of East Anglia and Elisabetta Bergamini, of the University of Udine, and published by Edward Elgar Publishing as part of the *Research Handbooks in European Law* series.

Thoroughly revised and updated, the new edition brings together civil-law and common-law perspectives to examine some of the most important questions and continuing challenges in EU private international law. Alongside the traditional fields of jurisdiction, contractual and non-contractual obligations, the Handbook addresses significant developments in family law, parental responsibility and cross-border succession.

Building on the first edition, the volume includes new contributions on class actions and collective redress, party autonomy, behavioural economics, and the harmonisation of private international law in matters of succession and parental responsibility. It also expands the analysis of the Rome I and Rome II Regulations, including the particularly complex questions concerning the law applicable to defamation and privacy.

Further chapters explore parallel proceedings and the EU rules on lis pendens, the relationship between the Brussels I Recast Regulation and arbitration, anti-suit injunctions before and after Brexit, the determination of the lex arbitri in decentralised blockchain-based arbitration, and the application of EU law principles in the fields of civil jurisdiction and arbitration.

The Handbook comprises 16 substantive chapters written by scholars from a range of jurisdictions and legal traditions. By combining analysis of the existing legal framework with critical assessments and proposals for its further development, the volume provides a valuable resource for researchers, teachers, postgraduate students and practitioners working in private international law, EU law, international dispute resolution, family law and succession law.

The book is available in hardback and electronically, and the opening chapter is available in open access. Further information, including the complete table of contents and access options, is available on Elgaronline webpage.

The Hague Academy of International Law has made known the programme of the summer course of Private International Law of 2027. The course will be opened by Pierre Mayer (Emeritus Professor at the University Paris 1 Panthéon-Sorbonne) with the inaugural lecture entitled Private International Law and Normative Competence of States. The general course, titled International […]

The second issue of the RabelsZ (The Rabel Journal of Comparative and International Private Law) for 2026 has been published. The RabelsZ has announced an overhaul of its governance structure and editorial processes in this issue. Holger Fleischer, Ralf Michaels, and Anne Röthel will be joined by Jens Kleinschmidt of the University of Trier and […]

from Marlene Tiede,  a Research Fellow and PhD Candidate at the Max Planck Institute for Comparative Public Law and International Law.

 

Can one speak of a European society without speaking about private relations? Recent scholarship on European society has largely approached the concept through the lens of public law. Yet societies are constituted at least as much by the horizontal relations between individuals and groups as by public institutions. In the absence of a comprehensive European private law, this blogpost turns to EU private international law (PIL), the principal framework for coordinating interactions between the diverse private laws of the Member States and structuring cross-border private life within the Union. I will argue that EU PIL brings into view the importance of coordination frameworks for organising a mode of integration based not on unification, but on interdependence.

Unity Through Interdependence

The Commission v Hungary judgment refers to “a society in which pluralism prevails” (paras. 551, 556). By placing that formula in the context of the Union and its common legal order (paras. 551, 556) and explicitly invoking European society (para. 554), the judgment leaves little room for doubt that it understands “a society in which pluralism prevails” as denoting a single European society. Yet this raises a fundamental question. If European society is constituted by pluralism – that is, by heterogeneity rather than homogeneity – what holds it together? Much like the Union’s own aspiration to be “united in diversity”, the notion of a single European society defined by pluralism appears almost oxymoronic. How is unity achieved under conditions of diversity?

 

A clue may lie in the particular mode through which European integration has proceeded in important domains. Read against the background of more than seventy-five years of integration, “a society in which pluralism prevails” appears as a fitting description of a European project in which integration has often advanced not by replacing the plurality of national legal orders with a single one, but by weaving them together into an increasingly dense web of legal, economic, and social interdependence. Rather than pursuing unification, integration in many domains has relied on ever closer cooperation between the diverse legal orders of the Member States. The resulting web of relations and interdependencies is sufficiently deep to sustain the idea of a single European society, while leaving intact the plurality of national legal orders. From this view, unity is achieved not through unification, but through interdependence.

I explore this mode of integration through the lens of EU PIL, a field particularly well suited to bringing into view both the horizontal relations between individuals and groups that have largely remained overlooked in accounts of European society and the coordinating structures through which interdependence is organised.

Mutual Trust and the Case for Private International Law

Mutual trust provides the normative foundation for cooperation between the diverse legal orders of the Member States. Although criticised as a judicial construct lacking a clear legal and empirical basis, it has become a structural principle of EU constitutional law. Resting on the presumption that all Member States comply with the values enshrined in Art. 2 TEU, mutual trust is a precondition for the functioning of the Union’s legal order. By requiring Member States to presume the adequacy of one another’s legal systems, it enables them to enter into relations of growing mutual dependence. Its significance is particularly pronounced in areas that remain only marginally harmonised, where cooperation relies less on common substantive standards than on confidence in the adequacy of the legal solutions adopted by the Member States.

Mutual trust occupies a central place within the Area of Freedom, Security and Justice (AFSJ), a policy area based on cooperation rather than unification. Within the AFSJ, the following reflections turn to judicial cooperation in civil matters – better known outside the Treaties as PIL – to investigate more closely how integration through interdependence operates in practice.

Admittedly, one might hesitate before venturing deeper into a field of law famously disparaged as a “dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon”. Yet, before the reader hastily retreats to firmer ground, two considerations make this “swamp” particularly worth exploring. First, accounts of European society, as developed most prominently by Armin von Bogdandy and Loïc Azoulai, have so far focused primarily on its public law dimension, leaving largely unexplored the horizontal relations between private individuals and groups – despite their centrality to any notion of society. Second, PIL brings into view the importance of coordination frameworks for a mode of integration based on interdependence rather than unification.

PIL deals with legal issues arising from private relations connected to more than one legal system and, in doing so, provides a framework for coordinating the interaction between diverse private legal orders. While substantive private law remains only marginally harmonised at the EU level – save for specific areas such as consumer protection, intellectual property, anti-discrimination law, and parts of labour and company law – PIL has been extensively harmonised. The result is a highly integrated coordination framework governing interactions between substantive laws that continue largely to be constituted by the diverse legal orders of the Member States. To return to the “dismal swamp” metaphor, what was once dismissed as an obscure and largely technical discipline has become a framework of central importance for the everyday lives of individuals and businesses throughout the Union. The denser the web of cross-border relations, the more indispensable coordination frameworks become.

In the following two sections, I demonstrate that EU PIL performs a dual function: first, it renders growing social and economic interdependence compatible with the continued plurality of national private laws; second, through the design of conflict rules, it regulates the externalities generated by interdependence.

Mobility Across Private Legal Orders

By facilitating mobility, openness, and cooperation across diverse private legal orders, EU PIL renders the growing density of cross-border relations compatible with the continued plurality of national private laws.

The increasing free circulation of civil judgments provides a prominent illustration of this dynamic. Following the abolition of exequatur – an intermediary procedure under which a judgment rendered in one Member State first had to be declared enforceable by the courts of another in order to be enforced there – judgments rendered in one Member State are, in most cases, recognised and enforced in another under the same conditions as domestic judgments. By rendering the outputs of one national judicial system effective throughout the Union, this closer form of cooperation reduces the costs and uncertainties associated with cross-border litigation and, in doing so, lowers the barriers for individuals and businesses to enter into cross-border relationships.

The growing mobility of individuals within the EU is further reflected in the reconfiguration of the connecting techniques of classical continental PIL. EU instruments have shifted the principal connecting factor from nationality to habitual residence and expanded the scope for party autonomy. By relying on less static connecting factors, EU legislation adapts conflict rules to increasingly transnational patterns of life and facilitates engagement with the private legal orders of other Member States.

Where harmonised PIL rules are absent or prove insufficient to structure cross-border social life within the EU, recognition-based mechanisms grounded in EU primary law have come to complement traditional PIL. Legal statuses validly established in one Member State increasingly circulate throughout the Union by virtue of fundamental freedoms, Union citizenship, and fundamental rights. These recognition-based mechanisms enable legal statuses created under one legal order to produce effects across borders irrespective of the law designated by traditional choice-of-law rules. Prominent examples can be found in both economic and family law: corporationsvalidly incorporated in one Member State must, on the basis of fundamental freedoms, be recognised throughout the Union; same-sex marriages or surnames lawfully established under the law of one Member State increasingly require recognition in other Member States on the basis of Union citizenship. Rather than replacing national private laws with a uniform European law, these recognition-based mechanisms render the private legal orders of the Member States progressively more interdependent by allowing individuals and businesses to carry their legal identities and relationships across borders.

Regulating Interdependence Through Conflict Rules

The growing interdependence of diverse legal orders gives rise not only to new forms of cooperation, but also to new governance challenges. A common concern is that private actors will exploit differences between legal regimes, circumventing regulation and triggering a race to the bottom. Yet, unlike mechanisms based solely on mutual recognition or the country-of-origin principle, which generally privilege the legal order of the Member State of origin, PIL is capable of employing more finely calibrated connecting factors that take account of the regulatory consequences of the applicable law. In this way, PIL does not merely accommodate legal diversity but also governs the externalities generated by interdependence, thereby assuming a regulatory function.

Art. 7 Rome II Regulation provides an instructive example of how conflict rules can be used to pursue substantive policy objectives. The provision allows claimants in environmental damage cases to choose between the law of the place of conduct and the law of the place of injury. Either connecting factor, if applied in isolation, would create opportunities for undertakings to exploit differences in national environmental standards. A pure place-of-conduct rule might encourage undertakings to locate polluting activities in low-protection jurisdictions, while a pure place-of-injury rule could create incentives to establish operations in higher-protection Member States where natural conditions, e.g. downwinds, ensure that the harmful effects are realised elsewhere. By conferring the choice upon the injured party, who is likely to opt for the more favourable law, Art. 7 Rome II seeks to reduce incentives for regulatory arbitrage, thereby aligning the operation of PIL with the Union’s objective of ensuring a high level of environmental protection.

Art. 7 Rome II thus demonstrates that conflict rules are not neutral techniques for allocating claims of regulatory authority. Their design can itself pursue substantive objectives and shape the conditions under which cross-border private relations unfold. More broadly, the extensive incorporation of PIL into the EU legal framework has transferred the design of conflict rules to a supranational level that stands above the legal systems whose interactions it seeks to organise.

 

I would like to thank Iris Canor, whose forthcoming contribution, “In Mutual Trust We Trust – A Structural Principle of a Diverse Union”, in Bast/von Bogdandy (eds.), The Constitutional Core of the Union (OUP, forthcoming), articulated with particular force the idea of European integration as a process driven by interdependence rather than unification. This contribution has greatly benefited from her insights.

 

 

 

This was first published at verfassungsblog.de

The author of this post is  Javier Carrascosa González who is a Professor of Private International Law at the University of Murcia. Dr. Carmen María Noriega Linares has published a book on The Free Cross-Border Circulation of Arbitral Awards and International Public Policy (“Libre circulación transfronteriza del laudo arbitral y orden público internacional“) with Editorial Colex […]

In Kea Investments Ltd v Wikeley [2026] NZSC 97, the New Zealand Supreme Court recently delivered its reasons for reinstating world-wide anti-enforcement orders in relation to a fraudulently obtained default judgment from Kentucky. The judgment, given by Kós J, contains a useful analysis of the principles on anti-suit and anti-enforcement injunctions and offers guidance on the interrelationship between fraud and comity.

The background to the case is set out in previous posts (here, here and here). In summary, Kea Investments Ltd (Kea), a British Virgin Islands company, alleged that the default judgment obtained by Wikeley Family Trustee Ltd (WFTL), a New Zealand company, was based on fabricated claims intended to defraud Kea. The New Zealand High Court found that the defendants had perpetrated a tortious conspiracy. The Court of Appeal upheld the findings of fraud but allowed an appeal against the grant of the injunction, concluding that an injunction could only be granted as a step of last resort, which required Kea to pursue its right of appeal against the Kentucky judgment.

It was not in issue before the Supreme Court that the claim in the Kentucky court formed part of a conspiracy to defraud Kea (at [102]). It was also not in issue that New Zealand was the proper jurisdiction to deal with the claim of fraud (at [102]). In these circumstances, the Court found that comity did not stand in the way of anti-enforcement relief.

 

Relevant principles

The Court considered that the in personam nature of anti-suit and anti-enforcement injunctions remains “fundamental”, even though “the jurisdictional conflict” that arises “may indirectly impinge on the freedoms of the foreign jurisdiction” (at [105]).  The Court also confirmed that the grant of such an injunction “tends to depend on there being something wrongful”, which could be “unconscionable (or vexatious or oppressive) litigation in the foreign state”, such as a fraudulent proceeding, or “the disregard of a right in contract not to be sued in the foreign state” (at [107]).

Turning to anti-enforcement injunctions more specifically, the Court did not think it was helpful to say that they “should only be granted in ‘exceptional circumstances’”, although it would be “a rare case that the conditions for their grant will be met” (at [108], adopting the language of Males LJ in SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599, [2020] 1 CLC 816). Citing Adrian Briggs (Civil Jurisdiction and Judgments (8th ed, Routledge, Oxford, 2025) at 463), the Court noted that the enforcement of a judgment that has been wrongfully obtained “aggravates the original wrong” (at [108]).  However, an applicant would have to be able to explain why there had been no earlier application for an anti-suit injunction; and where the anti-enforcement injunction seeks to prevent enforcement in the country in which the judgment was given, “comity may demand particular restraint” (at [109]).

The Court described comity as “the need for domestic courts to respect the legitimate exercise of jurisdiction by the courts of a foreign state” (at [10], [113], citing Maria Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at [1.29]). It accepted that “comity is a consideration necessitating caution in making anti-suit or anti-enforcement injunctions that cut across the authority of a foreign court acting within its legitimate jurisdiction” (at [116]). However, comity had “a measure of elasticity”; it did not “entail blind deference” (at [116]).

Crucially, the Court considered that fraud “reframes ordinary comity considerations” (at [117]). First, fraud is a “paradigm” case of vexatious and oppressive conduct that justifies an injunction if the fraudster is in the court’s jurisdiction (Ellerman Lines Ltd v Read [1928] 2 KB 144 (CA)) (at [117], [118]-[128]). Second, there is “a mutual interest in both courts to act quickly and effectively to restrain such conduct”. In fact, the Court went so far as to say that “[r]espect by the foreign court for the domestic court’s anti-fraud orders may reasonably be expected” (at [117], [128]-[130]).

Finally, there was no requirement that an applicant exhausts local remedies in the foreign court before applying for an injunction (at [134]). In this sense, anti-suit or anti-enforcement injunctions are not a “measure of last resort”, as the Court of Appeal had considered. The Court accepted counsel’s submission that “the idea that the New Zealand courts should wait and see whether the Kentucky courts do the ‘correct’ thing is ‘not only invidious but the reverse of comity’” (at [134]).

 

This case

Kea was “that rare case” where direct evidence of fraud justified the grant of anti-enforcement relief (at [120]). According to the Supreme Court, the fraud “[set] out to make a fool of both jurisdictions” (at [127]):

One court exerts jurisdiction upon a wholly false premise— both as to jurisdiction and obligations; the other—despite being the proper forum to address the fraud—is then counselled to act with restraint out of a need for comity for the first court.

The courts that were invoked in this case had “a mutual interest in stifling cross-border fraud of this kind”, and their international cooperation was consistent with a commitment to the rule of law (at [128]). From this perspective, the High Court’s anti-enforcement orders “enhance, rather than erode, comity” (at [128]). Expert evidence of US law confirmed that an injunction to stop the continued perpetration of a fraud would be consistent with US notions of comity (at [129]).

The fact that WFTL had been placed in protective interim liquidation also reframed the comity considerations in the case (at [131]). WFTL was controlled by the liquidators, who were subject to the High Court’s personal jurisdiction. An order “requiring them to seek discharge of the default judgment … ought to be within the remedies that Court ought to be able to exercise” (at [132]). The liquidators recognised “that they cannot take any responsible or lawful action other than to have the default judgment discharged” (at [131]) but the orders were still necessary to allow the liquidators to fulfil their duties (at [132], [136]). In these circumstances, the injunctions were “consistent with protecting the Court’s processes and officers” (at [133]).

The Court concluded that the anti-enforcement orders were not only justified but also necessary (at [136]): “If not in this case, then when? If not by the New Zealand High Court, then by whom?” The level of fraud in this case was such that “even requiring a party to apply for a stay or dismissal in the foreign court would be unjust” (at [135], citing Thomas Raphael The Anti-Suit Injunction (2nd ed, Oxford University Press, Oxford, 2019) at [5.45]). The proceedings in the Kentucky courts were “a core operative element of the fraud” (at [135]). If the High Court had not made the interim orders in this case, “control of WFTL, and with it the default judgment … would by now have passed well beyond the New Zealand jurisdiction” (at [135]); the “status quo for both jurisdictions would soon have shifted as part of this swirling, evolving fraudulent enterprise” (at [136]).

 

Comment

The existence of the fraud was not in issue, and neither was the High Court’s conclusion that it had jurisdiction – and that it was the appropriate forum – to determine the claim for fraudulent conspiracy. But the Supreme Court made it clear that the High Court’s approach to jurisdiction, at a time when the existence of fraud was “a strongly arguable possibility”, was “entirely correct” (at [103]). The alleged fraudster was in New Zealand, which made it appropriate for the New Zealand court to become involved, culminating in the grant of anti-enforcement relief once the question of fraud had been finally determined.

Why is it appropriate for a New Zealand court to decide on the right- or wrongfulness of proceedings in a foreign court (see here)? Should such decisions not fall exclusively within the foreign court’s jurisdiction? The Kentucky court in this case had taken the position, at first instance, that the default judgment should stand.

The Supreme Court acknowledged that anti-suit and anti-enforcement injunctions “cut across the authority of a foreign court acting within its legitimate jurisdiction” (at [116]). But in the case of fraudulent proceedings, the fraudster’s jurisdiction, too, is connected to the fraud and has a responsibility to stop it. In fact, comity here requires cooperation to stop the fraud, and within this framing of cooperation, questions about the courts’ relative jurisdictional authority do not arise. If anything, it is the foreign court, the court that entertained the fraudulent proceedings, that may be thought to be interfering with comity if it denies the importance of combatting fraud (see [117]).

While the Court of Appeal had been sceptical of the legitimacy of anti-suit and anti-enforcement injunctions, the Supreme Court recognised them as valid and established tools of the conflict of laws. It pointed to the history of anti-suit and anti-enforcement injunctions as originating in the courts of equity, which granted injunctions to restrain proceedings in the common law courts, to explain why they are “very much a creature of the Anglo-American common law” (at [104], referring to Martin Davies and others Nygh’s Conflict of Laws in Australia (11th ed, LexisNexis, Sydney, 2026) at [9.2]). At the same time, the Supreme Court’s thoughtful analysis of the relationship between fraud and comity may inspire New Zealand courts to tread carefully in future cases. If anti-suit and anti-enforcement injunctions “cut across the authority of a foreign court acting within its legitimate jurisdiction”, there needs to be a convincing reason on the facts of a particular case why they are not, in fact, an undue interference with comity.

 

 

from Marcel Vitor de Magalhães e Guerra

 

On 14 November 2025, the English High Court handed down its Stage 1 judgment in Município de Mariana and others v. BHP Group Plc and BHP Group Limited [2025] EWHC 3001 (TCC), finding the defendants liable — under Brazilian law — for the 2015 collapse of the Fundão tailings dam: over 600,000 claimants, an estimated £36 billion, the largest group litigation in English legal history. This post argues that Mariana exposes a functional interconnection between public and private international law at the stage of determining jurisdiction itself: although doctrinally distinct, the court’s application of a private international law rule required engaging questions of corporate organisation, adjudicatory legitimacy, and transnational responsibility that traditionally belong to public international law.

A jurisdictional rule that was anything but self-executing

The formal basis for the English courts’ competence was straightforward: Article 4(1) of the Brussels I Recast Regulation, under which BHP Group Plc — domiciled in England and Wales, then part of a Dual Listed Company structure with the Australian BHP Group Limited — was subject to mandatory jurisdiction. Yet the rule was anything but self-executing. Turner J struck out the claims (Municipio de Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC)) as an abuse of process, also accepting the Article 34, forum non conveniens and case-management applications on alternative grounds. Only the Court of Appeal’s 2022 judgment ([2022] EWCA Civ 951) — drawing on Owusu (Case C-281/02, [2005] ECR I-1383) and Vedanta ([2019] UKSC 20) — rejected those objections, confirming that complexity could not convert mandatory jurisdiction into a discretionary one.

Even this mandatory rule required the courts to engage with contested questions about the defendants’ identity, group structure, parallel proceedings and manageability — requiring considerably more than a purely procedural inquiry, and engaging the same transnational corporate reality that later informed the liability determination. The jurisdictional inquiry thus already illustrates the interconnection between public and private international law.

The same underlying corporate relationships

The jurisdictional history of Mariana illustrates a phenomenon that has received surprisingly little explicit attention in scholarship. In Private International Law and Global Governance, Horatia Muir Watt and contributors recast private international law as an instrument of transnational governance, allocating and constraining the regulatory authority exercised by private actors, and Ralf Michaels cautions against treating jurisdiction as a single, uniform concept.[1] Alex Mills, in The Confluence of Public and Private International Law, has argued that the two fields increasingly operate as complementary components of a common transnational legal order. The public international law dimension lies not in the jurisdictional rule itself, but in the international legitimacy of projecting adjudicatory authority over conduct occurring partly outside the forum State — a question traditionally analysed through principles governing the permissible bases of jurisdiction. The procedural application of Article 4 in Mariana therefore became inseparable from questions of international jurisdictional legitimacy.

Jurisdiction and liability remain analytically distinct, but such litigation may require successive, asymmetrical reconstructions of the same corporate organisation. Allegations about the coordinated operation of the two BHP parent companies formed part of the factual setting for assessing whether the proceedings were abusive or unmanageable; at the merits stage, Mrs Justice O’Farrell reached a strikingly similar conclusion applying Brazilian law’s “multifactorial and evaluative” approach to indirect polluter liability, finding that BHP, through its control of Samarco, caused or permitted the continued raising of the dam despite known risks.

A caveat: although the corporate reality examined is the same at both stages, the evidentiary burden escalates sharply — from threshold plausibility to proof on the balance of probabilities. The relationship is thus telescopic, not repetitive.

The phenomenon is not confined to environmental litigation. Toussaint Nothias’s recent account of the Kenyan proceedings against Meta describes a comparable problem: Meta contested jurisdiction by relying on its foreign incorporation and moderators’ formal employment status, yet the courts examined its Kenyan operations and subcontractor relationships — relevant both to jurisdiction and to whether Meta was the moderators’ true employer.

Morelli had already asked, in 1953, whether States face limitations in exercising judicial jurisdiction over civil actions.[2]Mariana and the Kenyan litigation reveal how far that interconnection extends today — distinct from the choice-of-law analysis that resolves the merits, since which court may hear a case does not turn on which law governs it. Jurisdictional doctrine cannot be developed in complete isolation from the evidentiary realities of transnational litigation.

That overlap is rarely made explicit in the jurisdiction literature, which treats domicile, service, and forum non conveniensas self-contained inquiries.

A live illustration for the HCCH parallel proceedings debate

This bears on the continuing HCCH debate following the recently concluded consultation on the Draft Text of a future Convention on Parallel Proceedings. As a recent follow-up post on this blog reported, the German Judges Association flags concerns about Articles 9 and 10, which, in bracketed form, would permit courts to assess whether another court is more appropriate — a discretionary test unfamiliar to jurisdictions like Germany’s, trading predictability for a forum non conveniens-style exercise.

Mariana offers a cautionary data point from a jurisdiction where such discretion is already familiar: BHP’s strategy was, in substance, an attempt to secure a comparable reassessment — through forum non conveniens and an abuse-of-process argument that the litigation was “irredeemably unmanageable.” Both succeeded at first instance, reversed only on appeal, years later — precisely what the Association warns a discretionary regime could produce elsewhere. Its concern that such factors could disadvantage claimants given complex, globalised structures maps onto this case: the Dual Listed Company structure at issue is exactly what such a regime would have to unpack before reaching the forum question.

What this means for private international law

The upshot is not that domicile-based jurisdiction under Brussels I Recast should be reopened to substantive scrutiny — the Court of Appeal was right that complexity cannot convert a mandatory rule into a discretionary one. The point is narrower: courts adjudicating cases like this may already be engaging in a sequence of partially overlapping inquiries spanning what doctrine presents as separate stages. Future work might therefore pay less attention to treating these stages as entirely self-contained, and more to understanding how their factual and normative interdependence shapes transnational litigation.

The significance of Mariana extends beyond the relationship between jurisdiction and liability: it shows that determining adjudicatory jurisdiction itself increasingly occupies a space where public and private international law interact functionally, requiring courts to evaluate a common transnational corporate reality before either jurisdictional or substantive questions can be resolved.

Marcel Vitor de Magalhães e Guerra is a Public Defender (Defensor Público) of the State of Espírito Santo, Brazil. He holds a doctorate in International Law from the State University of Rio de Janeiro (UERJ) and is the author of the book Jurisdição Internacional e Efetividade Climática (Conjecturas, 2026).

[1] Ralf Michaels, ‘Some Fundamental Jurisdictional Conceptions as Applied in Judgment Conventions’ in Eckart Gottschalk, Ralf Michaels, Giesela Rühl and Jan von Hein (eds), Conflict of Laws in a Globalized World (Cambridge University Press 2007) 29–62.

[2] Gaetano Morelli, Diritto processuale civile internazionale (2nd edn, CEDAM 1953) 87.

Call for Papers: 3rd International Seminar “The Challenges of Private International Law in Contemporary Society” – Belo Horizonte, Brazil, 4-6 November 2026

 

 

This Call for Papers has been kindly shared with us by Inez Lopes / University of Brasilia (UnB) and Fabricio B. Pasquot Polido / University of Minas Gerais (UFMG)

Following the previous editions hosted by the University of Brasilia in 2019 and 2024, the Third Seminar “The Challenges of Private International Law in Contemporary Society”, will be held from 4 to 6 November 2026 at the Faculty of Law of the Federal University of Minas Gerais, Brasil. The theme of the 2026 edition is:

“Jurisdiction and Transnational Access to Justice between New Technologies and ‘The Human Side of Artificial Intelligence’”

The event forms part of a continuing initiative developed by Brazilian and international research networks in the field of Private International Law. It is articulated with academic groups and networks devoted to Private International Law, international civil procedure, international judicial cooperation, digital technologies and artificial intelligence, including the Research Group “Private International Law in Brazil and International Fora”, the Latin American Research Network on International Civil Procedure, the CNPq research project “Digital Technologies as Tools for International Judicial Cooperation, Private International Law and Comparative Law”, the Brazilian National Forum on Law and Artificial Intelligence, and members of the American Association of Private International Law – ASADIP.

The 2026 edition aims to foster interdisciplinary debate on the impact of emerging technologies and artificial intelligence on the foundations of Private International Law, domestic and regional legal systems, transnational litigation, transnational access to justice, and mechanisms of international judicial cooperation. In addition to the Working Group sessions, the Seminar will feature thematic academic panels addressing contemporary challenges of Private International Law, new technologies, artificial intelligence, international judicial cooperation and access to justice.

The Scientific Committee invites submissions of draft papers and extended abstracts, in Portuguese, Spanish or English, for presentation in the following Working Groups:

• The Human Side of Artificial Intelligence, Domestic Courts and Private International Law;
• Foundations of Private International Law and Digitalisation;
• Complex Cross-Border Litigation in Data, Technologies and Artificial Intelligence;
• International Judicial Cooperation, Digitalisation and AI;
• Artificial Intelligence and Transnational Access to Justice on a Global Scale.

The selected draft papers/extended abstracts will be presented in person during the Working Group sessions, which will take place as part of the Seminar in Belo Horizonte.

The deadline for submissions is 10 September 2026, at 11:59 pm Brasília time. Results will be announced by 30 September 2026.

Submissions must be made through the electronic form: https://forms.gle/8rknWFYgueAqdELJ9

The full Call for Papers, including submission guidelines, and information on presentations in the Working Groups, is available in the event documents folder.

For further information, please do not hesitate to contact the Committee (rdip.ufmg@gmail.com) and follow the news and updates on the PIL Seminar at https://pos.direito.ufmg.br/noticias/noticias/

 

The European Commission (EC) has just closed the procedure in which it assessed complaints concerning incompatibility of French compensatory levy of Article 913(3) French Civil Code with the Succession Regulation. French compensatory levy mechanism In 2021, the French Civil Code was amended by adding the third paragraph to its Article 913. This provision reads as […]

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its XLIX Seminar entitled “Towards a new codification of Private International Law in Mexico” (Hacia una nueva codificación del Derecho Internacional Privado en México) from 15 to 16 October 2026. The venue of the seminar will be the Universidad Autónoma de Yucatán (Mérida, Mexico).

This edition of the seminar will primarily focus on the draft bill on Private International Law for the state of Yucatán, an initiative presented by AMEDIP to the authorities of that state. This draft breaks from previous practice, according to which state PIL rules are contained in civil codes, by suggesting the adoption of a standalone Act (available here).

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by 3 August 2026. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services, but some exceptions may be made by the organisers upon request for presentations in English or Portuguese. For more information on the requirements, click here.

 

The Hague Academy Centre for Studies and Research of 2027 will be held from 16 August to 3 September 2027. The 2027 edition of the Centre will focus on International Law on Mineral Exploration and Mining. The Directors of Research will be Diana Correa (Externado University of Colombia) and Arnaud de Nanteuil (Paris-Est Créteil University). […]

On 27 July 2026, the UK Supreme Court released three judgments of relevance for private international law, thereby providing a lot of interesting material to read over the summer. Collectively, the three judgments concern state immunity, jurisdiction and the effects of foreign judgments. This post briefly outlines the facts, issues and decisions in these three […]

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.

CJEU Judgment in C-232/25 [Idziski] has already been commented on eloquently by others, whom I shall refers to below. My review of the Opinion of Rantos AG is here.

I have mentioned elsewhere that the current review of the Brussels Ia Regulation ought to consider the nuclear option: that statute itselfs corrects the CJEU injection of locus damni jurisdiction viz Article 7(2) BIa in CJEU Bier, and bring it back to locus delicti commissi jurisdiction only. Judgment in Idziski will add fuel to the argument that such a move would most certainly assist with clarity (is is unlikely though to get much traction).

The CJEU held first of all that e-Date centre of interests full jurisdiction does not extend to terrestrial broadcasting. Claimants in these kinds of cases continue to depend on Shevill locus damni, mozaik jurisdiction. (I for one am waiting for the next case where someone claims for libel following from the YouTube airing of an initially terrestrial broadcast. Giacomo Marola predicts this complication, too).

As for the online airing, the CJEU applies Mittelbayerischer Verlag to deny centre-of-interests jurisdiction for the individual who claimed (Z.R.), however then confirms it for the representative association (‘Ś’): [55] ff

In the light of the objective of predictability of the rules of jurisdiction and the objective of legal certainty […] the criterion relating to the indirect identification of persons claiming that their personality rights have been breached by content published on the internet requires that it be possible to identify those persons with certainty by reason of attributes which are specific to them and which distinguish them from all other individuals.

By contrast, as a limited group whose members constitute a closed category of persons, unit X is, unequivocally, directly identified by the series at issue broadcast on the internet. Thus, the content of that series contains objective and verifiable elements making it possible to identify that group directly by distinguishing it from any other. (emphasis added)

[58] the court summarises

the court of the place of the centre of interests of a legal person, whose principal purpose is to defend the interests of a limited group whose members constitute a closed category of persons, has jurisdiction to hear, in respect of the entirety of the alleged damage, an action for damages brought by that legal person, where the audiovisual content broadcast on the internet contains objective and verifiable elements making it possible to identify, directly or indirectly, that group by distinguishing it from any other.

Giacomo Marole notes that the Idziski requirement of identification of individuals “with certainty”, would seem a tightening of the rule in Mittelbayerischer, where the Court held [46]

Article 7(2) of Regulation No 1215/2012 must be interpreted as meaning that the courts of the place in which the centre of interests of a person claiming that his or her personality rights have been infringed by content published online on a website is situated have jurisdiction to hear, in respect of the entirety of the alleged damage, an action for damages brought by that person only if that content contains objective and verifiable elements which make it possible to identify, directly or indirectly, that person as an individual. (emphasis added)

‘Directly or indirectly’ is confirmed however only for legal persons /a group of individuals.

This leaves the issue of the scope of the Polish court’s jurisdiction viz Z.R.’s claims. Giacomo Marola summarises this part of the judgment as follows

For television broadcasting, the Polish courts may hear both the claim for compensation for the damage allegedly suffered in Poland and the non-pecuniary remedies sought by the claimants, provided that those remedies are limited, in their effects, to Polish territory.

The position is different for online dissemination. In line with its previous case law treating the rectification of online content as a single and indivisible remedy, the Court holds that the Polish courts’ “mosaic” jurisdiction is limited to compensation for the non-material damage allegedly suffered in Poland. It does not extend to a non-pecuniary remedy aimed at securing the rectification of information placed online.

Generally, Giacomo flags the potential that geoblocking and geolocation may have to vary the CJEU’s eDate’s premise. Seeing as eDate is based on a presumption of ubiquitous internet, technologies which make the internet less ubiquitous, might impact the findings of eDate (held in October 2011).

Tobias Lutzi called the ruling ‘underwhelming, yet not surprising’. I agree. The judgment continues a long line of authorities presenting the CJEU’s Article 7(2)’s jurisdiction as somehow coherent and logical. It is not, it is a muddle and unless the radical option of statutory dismissal of locus damni be adopted, I suppose we somehow just work our way through it.

Geert.

 

The legal confrontation between the European Union and the Russian Federation over the effects of restrictive measures continues to intensify. In recent months, the interaction between sanctions law, private international law and national countermeasures has become increasingly complex, as both sides have adopted instruments aimed at protecting the effectiveness of their respective legal frameworks. On […]

This post was contributed by Antonio Mariconda, who is a postdoctoral researcher at the University of Naples Federico II. In cross-border legal relationships, it is not uncommon that individuals’ expectations about the legal treatment of their situations are not matched by reality. This has to do with the fact that parties to cross-border situations are […]

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.

A quick note on CJEU Case C‑346/25, Fibo Markets (Fido Markets LTd v JP) which was held mid June. The judgment concerns Article 6(4)d Rome I. This Article in short carves out financial instruments from Rome I’s protective provisions for consumer contracts (essentially resurrecting therefore lex voluntatis under Article 3, and the cascade of Article 4 should parties not chose an applicable law . However the formulation of the provision, to use the words of Michael Wilderspin in the late professor Mankowski’s commentary (Rome I, Sellier, 2017, p.471) leads to a provision that is “utterly bewildering and in its meaning opaque” to the uninitiated (and I wonder how many of those initiated there truly are).

The provision reads in full

Article 6(4).      Paragraphs 1 and 2 shall not apply to:…

(d)      rights and obligations which constitute a financial instrument and rights and obligations constituting the terms and conditions governing the issuance or offer to the public and public take-over bids of transferable securities, and the subscription and redemption of units in collective investment undertakings in so far as these activities do not constitute provision of a financial service;

One learns from the wording that B2C ‘financial services’ are fully included in the protective provisions, and that ‘financial instruments’ might not be. The recitals (but not the actual statutory provisions) link this to a number of EU secondary laws, in particular Directive 2004/39 (see also the CJEU judgment for detail). Michael summarises the provisions by referring to financial derivatives, which do not consist of tangible money but rather are a set of promised that can be executed at a later stage (my late father in law would have called that ‘Fairy Money’). They tend to be transactioned (is that a verb?)  with investors in many different countries, and applying different sets of consumer rules to them, Michael Wilderspin explains, would be inappropriate.

The instrument at issue in current case is a financial contract for differences (‘CFD’), which FSMA tell me is a is a “derivative financial product that allows investors to take a long or a short position in an underlying asset.” They are highly speculative.

[34] the CJEU refers to the EC explanation to specify that CFS

are contractual in nature. They are cash settled derivative contracts, the purpose of which is to transfer to the investor the exposure to fluctuations in the value of an underlying asset. The transaction between the parties is based on the difference between the prevailing value of the underlying asset at the time of the conclusion of the contract and its value at the time of sale.

Referring to the use, in Article 6(4)d of the expression “rights and obligations which constitute a financial instrument” (emphasis added) in 22 of the 23 official language forms of the Regulation, in contrast with 1, the German one, which uses “in relation to” (im Zusammenhang mit einem Finanzinstrument), the Court notes [44] that that provision does not cover all the rights and obligations connected to a financial instrument, but  only those which form that instrument strictly speaking.

[46] by contrast

terms which stipulate how the professional is to receive, process, execute or modify the order placed by the consumer do not, in the light of the wording of Article 6(4)(d) of the Rome I Regulation alone, come within the scope of the rights and obligations constituting the financial instrument itself.

[51] limiting the expression “‘rights and obligations which constitute a financial instrument” to the rights and obligations that define the CFD strictly speaking is held to be consistent with the objective of consumer protection pursued by A6(4) Rome I.

In the case at issue this means that Clause 8.10 of the framework contract, which provided that FIBO reserved the right, in the event of a technical failure on that platform, not to execute the transaction as instructed by J.P, that is to say, not to conclude the corresponding CFD or, as the case may be, to execute it on different terms, in particular at a price other than that indicated in J.P.’s order, is NOT caught by the carve-out and fully subject to the protection of the laws of the consumer’s habitual residence.

In conclusion, only financial instruments strictly speaking are excluded from the consumer carve-out, and not contracts which govern their acquisition and related transactions.

Geert.

 

The publisher’s blurb, including a discount code, is as follows:

Private International Law and Children’s Rights Law  

Conflicts in International Child Abduction Cases

Tine Van Hof

This book examines the relationship between two legal fields when courts decide on cross-border child abduction. While private international law prioritises the child’s prompt return and applies the best interests principle in abstracto, children’s rights law demands an in concreto, individualised assessment of the child’s best interests. These differing approaches can lead to legal friction in practice.

Through a detailed analysis of legal instruments and supranational case law, the book explores how these conflicts arise and how they might be resolved.

Offering clear recommendations for lawmakers, international organisations, and courts, the book provides a roadmap for fostering constructive relationships between legal fields. It is an essential resource for scholars of private international law, judges and practitioners in cross-border family law, and policymakers working at the intersection of international law and children’s rights.

 

Tine Van Hof is a legal researcher at the University of Antwerp, Belgium.

 

Jun 2026   |   9781509977055   |   288pp   |   Hbk   |    RRP: £90

Discount Price: £72

Order online at www.hartpublishing.co.uk  – use the code GLR BD8 to get 20% off!

Sign up to our email list to receive updates about our new titles.

 

This post has kindly been provided by Markus Lieberknecht (University of Osnabrück).

It is our great pleasure to bring to readers’ attention the publication of the article “The Reasons Highest Courts Give: England, France, Germany; 1880–89 and 2007–16”, co-authored by Holger Spamann (Harvard Law School), Stefan Vogenauer and Jasper Kunstreich (MPI Hamburg), Heinrich Nemeczek (Scalable Capital) and Markus Lieberknecht (Osnabrück University), in The Journal of Legal Studies.

One of the core debates in comparative law concerns the characteristics, extent, and development of the common/civil law divide. In this context, it is a familiar trope that common and civil lawyers reason differently, but that the systems are converging. However, the empirical basis for such claims is thin to nonexistent. To address this paucity of data-backed research, we present the first systematic quantitative comparison of three paragon jurisdictions of common law (England) and civil law (France and Germany), and across two centuries (1880–89 vs. 2007–16). Specifically, we analyze the use of legal authorities (cases, statutes, and literature) in 40 representative opinions of each apex court in each of the two decades we surveyed.

Our findings challenge some conventional wisdoms. Take the claim of fundamental differences: Our findings suggest that England and Germany differ only in degree, not in kind. For instance, most German opinions were already citing and distinguishing precedent in the 1880s. There is nothing that one court does, that the other does not do at all. Nonetheless, English courts engage with prior cases more closely than the German courts. Overall, the odd one out in this trio is France, not England. The convergence thesis does not fare well in light of our data either: We observed no such development but instead noted the opening of a new chasm with regard to legal literature, which only the modern German court engages extensively.

Naturally, our study can only pose a challenge, not a refutation, of engrained beliefs that common and civil law systems are fundamentally different but that they have been converging.  It is, however, a rather strong challenge, relying on data from the three arguably central jurisdictions on the bread-and-butter object of legal studies (opinions of apex courts). We invite further research based on our sampling and coding scheme, which is scalable and can be applied to other jurisdictions and time periods.

The article – Spamann/Kunstreich/Lieberknecht/Nemeczek/Vogenauer, 55 J. Leg. Stud. 365 (2026) – can be accessed here or obtained from the author of this post.