Flux des sites DIP

Building on the success of the three previous editions (here; here and here), the third edition of the EAPIL Winter School is currently being organised by the European Association of Private International Law and the Department of Law, Economics and Cultures of the University of Insubria in Como, in cooperation with the Law Faculty of the University […]

(AI-generated picture)

 

Many thanks to Boris Awa (Kigali Independent University ULK, Kigali, Rwanda) for the tip-off

 

I. Introduction

The recognition and enforcement of foreign judgments in Francophone African countries remains a largely underexplored subject in the literature, including in French-language scholarship. The laws of many countries have not yet been systematically analysed from a comparative perspective, and in several jurisdictions access to even the most basic information is itself a considerable challenge. This note aims to raise awareness of African private international law, in particular in Francophone Sub-Saharan African countries. The case discussed here concerns the enforcement of a New York judgment in Côte d’Ivoire. It provides an opportunity to present the Ivorian system of recognition and enforcement of foreign judgments and to examine some of the key issues addressed by the Ivorian court.

 

II. Facts and Procedural Developments

The case involved a dispute between X (an American company) and Y (an Ivorian company). The American company sought the enforcement in Côte d’Ivoire of a U.S. judgment rendered by the New York Supreme Court, ordering Y to pay a certain sum of money. To that end, X brought an action before the Abidjan Commercial Court.

In support of its application, X argued that the foreign judgment satisfied the legal requirements for enforcement under Ivorian law, in particular that:

• the foreign judgment was rendered by a court having jurisdiction under New York law;
• the decision had become final and irrevocable (passée en force de chose jugée), as evidenced by a certificate of non-appeal;
• the dispute arose from the non-performance of a commercial contract and did not fall within the exclusive jurisdiction of Ivorian courts;
• reciprocity was established, since Ivorian judgments may be enforced in the United States, on the ground that both the United States and Côte d’Ivoire are contracting states to the 1993 HCCH Adoption Convention.

By an interlocutory default judgment (jugement de défaut avant dire droit) dated 6 June 2024, the Court invited X to supplement its application, finding in particular that

• it had not been established that the laws of the State of New York provide that a mere certificate of non-appeal is sufficient to render a judgment enforceable;
• given that service of the foreign judgment on Y had been effected by electronic means, it had not been demonstrated that, under New York law, service of a judgment may validly be effected by electronic mail.

Subsequently, X brought a new action, this time against the Public Prosecutor attached to the Abidjan Court of First Instance, seeking enforcement of the same foreign judgment.

By an interlocutory civil judgment rendered after adversarial proceedings (jugement contradictoire avant dire droit) dated 30 October 2025, the Abidjan Commercial Court again invited X to submit:

• the complete original judgment in English, together with a French translation prepared by a sworn translator; and
• evidence that the foreign judgment had become final and binding and that it had been duly served on the judgment debtor.

X was also invited to summon Y to join the proceedings by way of compulsory intervention (intervention forcée).

X complied with the Court’s requests. Following Y’s intervention, Y contested the enforcement of the American judgment, arguing inter alia that reciprocity was not established with the United States. In response, X contended that a convention existed between the two countries, arguably referring to the 1993 HCCH Adoption Convention.

 

III. Ruling

By a judgment rendered after adversarial proceedings (jugement contradictoire) dated 15 January 2026, the Abidjan Commercial Court declared the American judgment enforceable in Côte d’Ivoire, ruling as follows (summary).

First, the Court recalled the legal regime governing the enforcement of foreign judgments in Côte d’Ivoire, referring to the relevant statutory provisions (see below, Comment).

Applying this framework to the case at hand, the Court found, upon examination of all the documents in the case file, that:

• Y had been duly notified of the existence of the proceedings conducted in the United States that resulted in the judgment at issue;
• the time limits for lodging an appeal had expired; and
• no element in the case file established that judgments rendered in Côte d’Ivoire could not be enforced in the United States.

 

IV. Comments

 

1. Applicable framework

The enforcement (exequatur) of foreign judgments in Côte d’Ivoire is governed by Articles 345 to 350 of the 1972 Code of Civil, Commercial and Administrative Procedure (CCCAP), which establishes the legal framework under which foreign judgments may be declared enforceable in Côte d’Ivoire. The applicable provisions may be succinctly summarized as follows:

Article 345 lays down the principle that foreign judgments have no legal effect in Côte d’Ivoire unless they are declared enforceable by an exequatur decision.

Article 346 determines both the nature of the exequatur procedure and the court having jurisdiction to hear applications for enforcement.

Articles 347 and 348 set out the conditions that must be satisfied for a foreign judgment to be declared enforceable in Côte d’Ivoire.

Article 347 specifies the substantive and procedural requirements, which include in particular that:

• the foreign judgment was rendered by a court having jurisdiction under the law of the State of origin;
• it has become final and enforceable under that law;
• it was rendered in proceedings in which the defendant was properly summoned and afforded an opportunity to present a defence;
• the dispute does not fall within the exclusive jurisdiction of Ivorian courts;
• the foreign judgment does not conflict with a prior final judgment rendered by an Ivorian court between the same parties concerning the same cause and object; and
• its does not violate Ivorian public policy.

Article 348 adds reciprocity as an additional requirement, providing that foreign judgments may be enforced in Côte d’Ivoire only if judgments rendered in Côte d’Ivoire may likewise be enforced in the State of origin.

Finally, decisions granting or refusing exequatur are subject to the ordinary remedies available under domestic law (Article 349), and, once declared enforceable, foreign judgments are executed in Côte d’Ivoire in accordance with Ivorian law (Article 350).

 

2. Significance of the case

 

The case discussed here provides several significant insights into the manner in which foreign judgments may be enforced in Côte d’Ivoire.

Two are of particular relevance.

 

a) Exclusive jurisdiction.

First, contrary to what is often asserted in the literature, Ivorian courts do not necessarily claim exclusive jurisdiction in disputes involving Ivorian nationals. In this respect, it is commonly submitted that Articles 14 and 15 of the Ivorian Civil Code, inherited from the French Civil Code, have traditionally been interpreted as conferring exclusive jurisdiction on Ivorian courts. Accordingly, the exclusive character of Articles 14 and 15 of the Ivorian Civil Code would prevent the enforcement of foreign judgments rendered against Ivorian defendants.

Interestingly, the present case shows that the Ivorian nationality of the judgment debtor neither prevented the enforcement of the American judgment on grounds of exclusive jurisdiction nor gave rise to any argument to that effect by the parties.

 

b) Reciprocity

The second concerns the reciprocity requirement and its operation in Côte d’Ivoire.

The commented case is consistent with the available judicial practice, according to which the following elements may be identified:

i) Enforcement does not depend on the existence of a treaty between Côte d’Ivoire and the rendering State. Accordingly, the absence of a treaty does not lead to the refusal of enforcement of foreign judgments in Côte d’Ivoire. Several cases, including the one presented here, show that even in the absence of a treaty, foreign judgments have been declared enforceable.

ii) Reciprocity requires a showing that judgments rendered in Côte d’Ivoire may be enforced in the rendering State. This does not depend on demonstrating that the courts of the State of origin have in fact enforced an Ivorian judgment (de facto reciprocity). Available case law, however, shows that the party seeking enforcement sometimes submits such decisions as evidence to establish reciprocity.

In the present case, interestingly, the American company argued that a treaty exists between Côte d’Ivoire and the United States, referring to the HCCH 1993 Adoption Convention. This argument is not really convincing for two reasons: (i) reliance on the Convention is misplaced given its limited scope, which is confined to adoption matters; and (ii) even assuming that the Convention were applicable, it does not address the enforcement of adoption decisions as such, but instead it focuses on recognition.

Despite the parties’ arguments concerning the relevance of the existence of a treaty for the purpose of establishing reciprocity, the Abidjan Commercial Court merely held that no element in the case file shows that Ivorian judgments could not be declared enforceable in the United States. While the Court adopted a relatively liberal approach, it must be acknowledged that its position is not entirely clear. In particular, it remains uncertain whether the Court sought to treat a federal State such as the United States, which is composed of autonomous legal units with their own legal and judicial systems, as a unified legal system. In line with the Court’s position, one may wonder whether, for the purpose of challenging reciprocity, it would be sufficient to show that an Ivorian judgment was denied enforcement in a particular U.S. state, given that some states do require reciprocity, albeit as a discretionary ground for refusing enforcement. In any event, the available judicial practice, together with the present case, suggests that, despite certain remaining uncertainties (including, inter alia, the question of burden of proof), reciprocity does not appear to constitute a serious practical hurdle in Côte d’Ivoire.

The organizers of the VII Foro de Derecho Internacional Privado have issued a call for papers for the next edition of the Forum, which will take place at the University of Alcalá (Madrid, Spain) on 29–30 October 2026.

The Foro Europeo de Derecho Internacional Privado (FEDIPr) is a permanent seminar devoted to the study of issues arising from transnational private relationships through regular meetings focused on discussion and debate. The Forum aims to contribute to legal scholarship and scientific progress through an empirical, comparative, functional, and multidisciplinary methodology, while serving as a meeting place for specialists in Private International Law.

This year’s Forum will address new trends in the following thematic areas:

• General International Law
• Private International Law concerning persons, family, and succession
• International Business Transactions
• Alternative Dispute Resolution methods
• Nationality and Migration Law

Comparative and geographically diverse perspectives are expressly welcome. Submissions in English, French, Italian or Portuguese are accepted.

The Forum is open to academics and practitioners wishing to participate through papers and communications. Abstracts should be submitted by 15 June 2026 to Professor Ana Fernández Pérez (a.fernandezperez@uah.es) and Noelia Fernández Avello (n.fernandeza@uah.es). Submissions should include the title of the proposed paper together with a short abstract.

Selected participants will be notified on 18 June 2026. The Scientific Committee will evaluate proposals on the basis of relevance, quality, and originality.

Final versions of accepted papers must be submitted by 15 September 2026. Contributions may be written in Spanish, English, or French and should not exceed 25 pages (double-spaced, Times New Roman 12 pt for the main text and 10 pt for footnotes).

Accepted papers will be considered for publication in the Anuario Español de Derecho Internacional Privado (Scopus and ESCI indexed), LA LEY Mediación y Arbitraje, Revista LA LEY Unión Europea, or a collective volume published by Aranzadi LA LEY, depending on the subject matter and following the relevant peer-review procedures.

Further information concerning formatting requirements and style rules may be obtained from the organizers.

On 25 March 2026, in two judgments (24-21.790 and 24-21.422), the French Supreme Court for civil and criminal matters (Cour de cassation) established a mandatory rule of international jurisdiction in favour of French courts in international consumer disputes falling outside the scope of Brussels I bis Regulation. More precisely, the Court ruled that a clause […]

The third issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) for 2026 was published on 1 May. The following abstracts have been kindly provided by the editor of the journal. B. Heiderhoff/C. Rüsing, Dealing with parallel proceedings in Third Countries – from Germany via Brussels to The Hague? (German) The extent to which civil […]

Here is the link for the forthcoming Asian Private International Law Academy (APILA) monthly online meeting on Tuesday 26 May 2026 at 7 pm JST:

Topic: APILA Monthly Online Meeting on Tuesday 26 May 2026 at 7 pm JST
Time: May 26, 2026 07:00 PM Osaka, Sapporo, Tokyo
Join Zoom Meeting
https://us02web.zoom.us/j/89849901085?pwd=FUgb34HqwyIhxkFU92lygqFSw6Ll3I.1

Meeting ID: 898 4990 1085
Passcode: 132732

Professor Tu has provided the following abstract of his talk:

Abstract: China’s recent adoption of the Law of the People’s Republic of China on Foreign State Immunity marks a major shift from the principle of absolute state immunity to that of restrictive state immunity. Largely motivated by the desire to align more closely with the norms of the international community, this move has raised some fundamental issues in the legal arrangements between the Chinese Central Author­ity and Hong Kong and Macau, its two special administrative regions (SAR), which are administered under the ‘One Country, Two Systems’ formula. Before the adoption of the Chinese Foreign State Immunity Law (CFSIL), the principle of absolute immunity, which was used in Mainland China, was introduced into the SARs through a lawsuit in Hong Kong. With the adop­tion of the new law, a number of questions have arisen regarding its implementation in Hong Kong and Macau and the legal arrangements between the Chinese Central Authority and the two SARs.

The European Commission has established an expert sub-group on the Brussels Ia Regulation composed of 28 members representing as widely as possible the Member States and including some scholars based in Switzerland and England. The sub-group’s tasks shall be: to assist DG JUST in the preparation of legislative proposals/policy initiatives in the field of jurisdiction and […]

News from the Australasian Associate of Private International Law:

We are pleased to share the updated flyer for our forthcoming event, A Long-Awaited Reform: Papua New Guinea’s New Arbitration Law — A Conversation with Michael Henao, taking place on 9 June. We are delighted to confirm that Cara North will be joining Michael Henao for what promises to be a timely and engaging discussion on this significant development in the region’s arbitration landscape.

This is an excellent opportunity to hear first-hand insights into Papua New Guinea’s new arbitration framework from a highly respected practitioner. We very much look forward to welcoming you on the day and encourage you to circulate the attached flyer among interested colleagues. Further details can be found in the flyer enclosed:

AAPrIL June 2026

 

By Cara North, Counsel, Ashurst

The intersection of foreign State immunity and the enforcement of international arbitral awards has been a hotly contested issues in recent years. First the question was whether a State has waived immunity from court processes concerning recognition and enforcement of arbitral awards by ratifying the 1965 Convention of Settlement of Investment Disputes (ICSID Convention) – to which the answer has been yes in Australia and the  England and Wales (among other jurisdictions). More recently, the question has been whether a State’s ratification of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) constitutes an implicit waiver of sovereign immunity, to which the High Court of Australia most recently held no.

In CCDM Holdings, LLC v The Republic of India [2026] HCA 9, the High Court of Australia unanimously held that ratification of the New York Convention does not, of itself, waive foreign State immunity under the Foreign States Immunities Act 1985 (Cth). The decision aligns Australia with the current position in the United States, Canada, and England and Wales, reinforcing an emerging common law consensus in that regard.

Factual and Procedural Background

The dispute arose from an investment by Mauritian companies in an Indian Government-owned corporation. In 2011, the Indian Government annulled the underlying agreement on public policy and national security grounds. The investors commenced arbitral proceedings against India under Article 8 of the India-Mauritius bilateral investment treaty (BIT), which contemplated ICSID arbitration. As India is not a Contracting State to the ICSID Convention, the arbitration proceeded under UNCITRAL Rules.

In 2020, the tribunal rendered an award of US$111 million. The award creditors sought enforcement in Australia under the New York Convention. India resisted, invoking immunity under section 9 of the Foreign States Immunities Act 1985 (Cth).

The Waiver Question in the Lower Courts

At first instance, Jackman J held that India had waived immunity by ratifying the New York Convention, finding a “clear” and “unmistakable” implication—particularly from Article III, read with Articles I(1) and II(1)—that ratification involved waiver and submission to the jurisdiction of other Contracting States.

On appeal, the Full Federal Court did not decide the waiver question definitively. It assumed ratification constituted a waiver, but held that India’s reservation—limiting the Convention to disputes “considered commercial under the Law of India”—circumscribed any such waiver. Finding the dispute was not commercial under Indian law, it held that India had not waived immunity in respect of the award.

The High Court’s Analysis

The High Court addressed the fundamental question directly: whether ratification of the New York Convention is capable of constituting a waiver of foreign State immunity.

The governing principle is that any waiver in an international agreement must be “clear and unmistakeable”, derived from the express words of the agreement, including necessary implications.

The High Court observed that the text of the New York Convention contains no express reference to foreign State immunity. The travaux préparatoires revealed an intention to preserve immunity in the courts of other States—a consideration militating against implied waiver.

Crucially, the Court examined Article III, which requires Contracting States to recognise awards as binding and enforce them “in accordance with the rules of procedure of the territory where the award is relied upon”. The High Court held this phrase encompasses foreign State immunity rules, qualifying the enforcement obligation by reference to immunity rules in the relevant forum.

The Court also considered subsequent State practice under Article 31(3)(b) of the Vienna Convention on the Law of Treaties. It found that decisions from the United States, Canada, and England and Wales pointed in the opposite direction: ratification of the New York Convention is not, by itself, a sufficient act of waiver.

Distinguishing the ICSID Convention

The appellants sought to draw an analogy with Kingdom of Spain v Infrastructure Services Luxembourg Sàrl [2023] HCA 11, where Spain was held to have waived immunity by ratifying the ICSID Convention. The High Court rejected this analogy, identifying material distinctions:

• First, the ICSID Convention is expressly concerned with disputes to which a State is a party, and its travaux préparatoires addressed foreign State immunity in detail.
• Second, Article 55 of the ICSID Convention preserves immunity only from execution—implying waiver of immunity from recognition and enforcement. Article III of the New York Convention supports preservation of immunity from jurisdiction altogether.

 

• Third, the International Law Commission materials relied upon by the appellants did not equate the two Conventions in any dispositive way.

Implications for Enforcement Against States

CCDM Holdings provides an authoritative demarcation between the two principal conventions. For ICSID awards, Kingdom of Spain establishes that enforcement against a Contracting State in Australia will not be barred by claims of immunity from jurisdiction. For non-ICSID awards—including investment treaty awards under UNCITRAL or other rules—enforcement against an unwilling State under the New York Convention is foreclosed absent clear and unmistakeable waiver.

Investors must give careful consideration to the availability of ICSID arbitration when contracting with States. Where unavailable, parties should seek clear waivers of immunity if enforcement in Australia or similar jurisdictions is contemplated.

Conclusion

The High Court’s unanimous decision brings welcome clarity. Ratification of the New York Convention does not, of itself, waive foreign State immunity, aligning Australia with the United States, Canada, and (subject to the pending appeal) England and Wales.

For practitioners in cross-border dispute resolution, the message is clear: the choice of arbitral regime and the presence of an express waiver are matters of critical importance warranting attention from the earliest stages of investment planning.

This post is written by Timon Milan Solár, Doctoral researcher, Faculty of Law, Trnava University, Slovakia.

In October 2025, the High Court of England and Wales (King’s Bench Division) handed down its judgment in Hamilton v Barrow [2025] EWHC 2593 (KB). The case concerned a failed unregulated investment scheme that collapsed in 2017, leaving investors without the possibility of recovering their investments, which ranged from £2,930 to £410,969. At first glance, the decision discusses important procedural questions, including abuse of process and champerty. However, on closer inspection, it also raises an interesting issue of English private international law that has gone overlooked. Can courtroom attendance be a factor in the forum conveniens test?

Facts of the Case

The defendants were all allegedly involved in a fraudulent investment scheme, under which investors from all over the world paid money to a ‘currency club’. Those funds were then supposed to be traded in foreign currency by one of the defendants who was based in Malaysia. Following the collapse of the scheme, the aggrieved investors alleged that the defendants made fraudulent misrepresentations to obtain investments and that the defendants were in breach of contract in their handling of the scheme. It was alleged that the currency club operated as a ‘Ponzi’ scheme and defrauded the investors.

This was a follow-on action arising from a successful test case by the claimant, a former English solicitor residing in Cyprus, against three of the present defendants. The claimant has now brought proceedings against a wider group of 12 defendants, acting under 101 separate assignments from other investors. The assignments provided that the assignors are entitled to 60% of the proceeds from the litigation.

Legal Issues

At this stage, the High Court was tasked with answering multiple preliminary legal issues, summarised by the judge (at para 15) as follows:

• Are the courts of England and Wales the appropriate forum for the trial (ie, is England and Wales the forum conveniens)?
• Are the assignments to the claimant void for being champertous agreements (‘meaning the claimant has no title to bring the claim’)?
• Are the proceedings an abuse of process?
• Should the claims against some of the defendants be summarily struck out?
• Should the claimant be allowed to amend his Particulars of Claim?

The Court ruled for the claimant, allowing the claim to proceed. A substantial part of the judgment related to the champerty and abuse of process issues. Looking at the case as a whole, the judge held that the assignments were not void as being champertous, nor did the proceedings constitute an oppressive abuse of process. On the contrary, voiding the assignments would deny the assignors an opportunity to be heard by a court, which the judge refused to allow given the prima facie evidence of fraud (at para 123).

Importantly, from a conflict of laws perspective, the interesting issue remains the Court’s application of the forum conveniens test.

Forum Conveniens

Setting out the relevant provisions of the forum conveniens test, the judge cited Lord Briggs’s judgment in Vedanta Resources Plc v Lungowe [2019] UKSC 20, which in turn refers to Lord Goff’s speech in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL): ‘The task of the court is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice…’. This includes the crucial consideration of all factors that connect the claim with a particular jurisdiction.

The judge then moved to his consideration of the proper forum for this litigation. It was submitted by multiple defendants that Malaysia rather than England is the forum conveniens. Ultimately, the judge concluded that the appropriate forum is England, for seven listed reasons (at para 70):

• The claimant has already conducted a trial in England, is familiar with the forum, and has family in London who could provide him with accommodation during the trial; he would also lack the capacity to pursue this case in Malaysia;
• More than half of the key witnesses, the assignors, are located in the United Kingdom, whilst none in Malaysia;
• Only 2 of the 12 defendants are outside the United Kingdom and prefer Malaysia as the forum;
• The claimant’s three important witnesses all appear to be located in England and Wales and most of the claimant’s documentary evidence is available and in electronic form;
• Most of the participants in the trial will be English speakers, documents will be largely in English, and it does not appear that any participants speak Malay;
• Whilst there may be some difficulties in obtaining Malaysian banking material, this would not be impossible should the trial proceed in England, and the claimant has already shown that he was successful in obtaining Malaysian bank materials from HSBC Global; other banks can be approached in a similar way.

The final factor listed by the judge, however, introduces a rather unusual consideration of the forum conveniens test. At point (g), the judge noted:

‘although I do not give significant weight to this factor and the claimant did not rely on it, I note that a significant number of people attended the hearing and sat in the public gallery. This suggests that there is significant active interest in these proceedings from people resident in the United Kingdom.’

Discussion

Reliance on courtroom attendance in the judge’s forum conveniens analysis should strike every conflict of laws scholar or practitioner. It may appear benign; after all, the judge explicitly stated that he did not give that factor significant weight and it was not pleaded by the claimant. In hindsight, however, what the judge was essentially doing was considering a public, rather than a private, interest under the forum conveniens test. Indeed, this is an approach taken on the other side of the Atlantic, where the United States courts regularly take public interest factors into account. In this regard, the English High Court’s reasoning seems implicitly analogous to the Supreme Court of the United States’s decision in Gulf Oil Corp v Gilbert, 330 U.S. 501 (1947), where Justice Jackson opined that the test should also take into account public considerations such as holding the trial within the view and reach of the affected persons or having localised controversies decided at home. The High Court treated the interest of the members of the English public as somewhat justifying holding the trial in England rather than in Malaysia. It is unfortunate that the judge did not elaborate further on why noting the public attendance should matter.

Crucially, considering public interest factors under the Spiliada test was decidedly rejected in England by the highest judicial authority in Lubbe v Cape Plc [2000] 1 WLR 1545 (HL). As Lord Hope held (at para 53):

‘…if the interests of all parties and the ends of justice require that the action in this country should be stayed, a stay ought to be granted however desirable it may be on grounds of public interest or public policy that the action should be tried here.’

Considering the interest of the people residing in the United Kingdom in the litigation seems to be in clear contradiction with this ruling.

Not only does such an approach represent a doctrinal problem, its relevance for determining an appropriate forum seems questionable notwithstanding the well-established precedent. The investment club operated worldwide, and evidence suggested that there were thousands of investors from various countries. The proposition that the United Kingdom audience possesses any uniquely stronger active interest in the proceedings than an audience elsewhere is highly questionable. While this factor may have appeared to point clearly to England when contrasted solely against Malaysia (to which even the traditional connecting factors were missing), applying this logic to less clear-cut cases could easily lead to arbitrary results.

Conclusion

The judgment in Hamilton v Barrow should not be understood as an authority bringing public interest factors into the Spiliada test. Indeed, the judge tried to downplay its significance for the forum conveniens calculus. The other connecting factors the judge relied on, particularly the location of litigants and witnesses, are non-controversial and were sufficient on their own to justify holding the trial in England in the absence of other factors pointing towards Malaysia. Nevertheless, the mere mention of the public interest in the trial is problematic. Forum conveniens being a discretionary doctrine, it is not necessarily clear how the overall balance of connecting factors plays out when the judge looks at the case ‘holistically’. Any creeping in of public interest factors should therefore be viewed with scepticism. The law is clear on rejecting public interest factors from the Spiliada analysis. Such a structural change would need to come from the highest authority, an intervention which appears unlikely.

 

 

Trustpilot is a platform which presents itself as the world’s largest independent customer feedback platform which empowers people to share their feedback, while businesses benefit from their customers’ genuine experiences. At a certain point in time, Trustpilot, which is headquartered in Denmark, operated through a Danish company and its contractual documentation included a choice of […]

This year is marked by growing discussions about revisions of the core EU private international law documents. The 2nd edition of the Riga Private International Law Conference aims to reflect on the possible changes to be encouraged and those to be discouraged. The 2nd edition of the Riga Private International Law Conference will mostly focus […]

As part of the DFG- and AHRC-funded Fashion’s PLACE project, there will be a workshop on Private International Law, Sustainability and Fashion at the Geneva Graduate Institute on 18 June 2026 (11:00–13:00 CEST), just prior to the EAPIL conference. The event will bring together perspectives from law, sustainability and the fashion industry, with short presentations and space for discussion. If you are in Geneva and interested in the intersection of private international law, circular economy and fashion, consider coming. No sign-up necessary.

This post was written by Oliver Lücke, LL.M., who is lawyer in Germany. The Court of Justice has been asked to clarify a question of considerable practical importance for cross-border enforcement between Switzerland and EU/Lugano Convention states: can a Swiss Zahlungsbefehl (payment order) issued in ordinary, titleless debt enforcement proceedings qualify as a “judgment” within […]

In recent years, the case law of both international and national courts addressing some of the most complex and consequential issues in Private International Law has continued to shape the trajectory of the discipline’s doctrinal and practical development. Through these judicial decisions, PIL demonstrates its capacity to respond to the profound transformations affecting the transnational […]

This post was written by Hannah Buxbaum, Martin Luther King Jr. Professor of Law, UC Davis School of Law. The post is cross-posted from the Transnational Litigation Blog with kind permission.

In 2019, Energy Transfer, the developer of the Dakota Access Pipeline, sued Greenpeace International, a Dutch foundation, in North Dakota state court. Last year, Greenpeace responded with an anti-SLAPP (Strategic Litigation Against Public Participation) lawsuit against Energy Transfer in Dutch court. In the latest twist in this lengthy dispute, the North Dakota Supreme Court issued an antisuit injunction last week blocking (partially) that anti-SLAPP suit.

The injunction is unusual in two respects. First, it does not actually bar Greenpeace from pursuing the Dutch action; rather, it purports to limit the issues that Greenpeace can raise in that litigation. Second, it was entered after judgment had already been reached in the North Dakota lawsuit.

Background

In 2016, the planned construction of the 1,000-mile Dakota Access oil pipeline engendered significant and sometimes violent protests near the Standing Rock Sioux Reservation in North Dakota. Greenpeace International was among the many civil society organizations that advocated against the pipeline project.

The U.S. Litigation

In 2019, Energy Transfer L.P. sued Greenpeace and its two U.S. affiliates, along with other environmental rights groups, in federal court in North Dakota. Energy Transfer alleged that Greenpeace had engaged in criminal activity violating the Racketeer Influenced and Corrupt Organizations Act (RICO). It also asked the court to exercise supplemental jurisdiction over a range of additional state law claims. This lawsuit was dismissed in its entirety for failure to state a claim—the racketeering claims with prejudice, and the state law claims without prejudice.

A week later, Energy Transfer filed a second lawsuit in North Dakota state court alleging defamation, tortious interference with business, and conspiracy under state law. On March 19, 2025, a jury found Greenpeace liable, concluding that it had supported the protests that delayed construction of the pipeline. It awarded Energy Transfer more than $650 million in compensatory and exemplary damages. In February 2026, the trial court finalized the judgment in Energy Transfer’s favor, though it reduced the total damages to $345 million. Greenpeace is currently seeking a new trial in that case.

The Netherlands Litigation

Greenpeace characterizes both the proceedings in North Dakota federal court and the proceedings in North Dakota state court as SLAPP suits. It contends that Energy Transfer filed these claims in order to block Greenpeace from exercising its right to participate in public debate regarding the pipeline. In July 2024, it sent Energy Transfer a notice of liability stating that the U.S. litigation constituted an abuse of its rights under Dutch and EU anti-SLAPP law. It demanded that Energy Transfer withdraw its U.S. claims against Greenpeace and “accept liability and responsibility for payment of all damage (including costs)” that Greenpeace suffered as a result of the proceedings.

Energy Transfer did not agree to these demands, and in February 2025, shortly before trial began in the North Dakota case, Greenpeace filed a summons initiating litigation in the District Court of Amsterdam. It seeks compensation for costs and damages, including reputational damage, and a declaratory judgment that Energy Transfer acted tortiously and abused Greenpeace’s rights by commencing the U.S. lawsuits.

Greenpeace’s suit in the Netherlands invokes the EU’s Anti-SLAPP Directive, which entered into force in May 2024. The goal of the Directive is to protect journalists and civil society actors from “manifestly unfounded claims or abusive court proceedings” initiated in order to chill their participation in public debate.

While the Directive’s primary objective was to address SLAPP suits initiated in European courts, it specifically recognizes and seeks to mitigate the threat of SLAPP suits brought in courts outside the EU against EU-based defendants. First, it includes an anti-enforcement provision (Article 16), which provides that a judgment rendered against an EU resident by a non-EU court can be denied recognition and enforcement if the foreign proceedings are deemed “manifestly unfounded or abusive under the law of the Member State in which recognition or enforcement is sought.”

Second, it creates a jurisdictional basis for claims initiated by an EU person targeted by a third-country SLAPP suit (Article 17). In the case of abusive proceedings, such a person “may seek, in the courts or tribunals of the place where that person is domiciled, compensation for the damage and the costs incurred in connection with the proceedings before the court or tribunal of the third country.” Such claims can be initiated before a decision has been rendered or become final in the foreign proceeding.

Although the deadline for EU member states to implement the Directive within their national legal systems has passed, it has not yet been fully transposed across the EU. Nevertheless, the Dutch Ministry of Justice and Security has stated that Dutch private international law already permits the exercise of jurisdiction in anti-SLAPP claims involving a third-country proceeding. Greenpeace’s anti-SLAPP claims against Energy Transfer are based on Dutch civil law.

The Antisuit Injunction

Five months after Greenpeace initiated its lawsuit in Amsterdam—and after the North Dakota state lawsuit had resulted in a jury verdict against Greenpeace—Energy Transfer filed a motion in the North Dakota court seeking an antisuit injunction prohibiting Greenpeace from proceeding with the Dutch anti-SLAPP suit.

Whether and under what circumstances a state court may issue an international antisuit injunction was apparently a matter of first impression in North Dakota. Given the lack of precedent, the state district court turned for guidance to federal law on the issuance of such injunctions. (Oddly, it relied not on Eighth Circuit precedent, but on a district court decision from another circuit.) The framework it chose laid out a three-step analysis, requiring the court to consider:

(1) Whether the parties and issues in the U.S. proceeding and the foreign proceeding are the same;

(2) Whether the foreign litigation would (a) frustrate a policy in the enjoining forum; (b) be vexatious; (c) threaten the enjoining court’s in rem or quasi in rem jurisdiction; or (d) prejudice other equitable considerations; and

(3) Whether principles of comity counsel against an injunction.

Applying this framework, the district court denied Energy Transfer’s motion for an antisuit injunction. Energy Transfer then petitioned the North Dakota Supreme Court for supervisory review. That court granted review and concluded that the district court had abused its discretion by misapplying the legal framework. Following the same framework, it concluded that an antisuit injunction was justified.

Although the North Dakota Supreme Court grappled with the challenges presented by anti-SLAPP litigation, the court’s analysis did not adhere very closely to the test it purported to adopt.

Threshold Question: Identity of Issues

As a threshold matter, the party seeking an antisuit injunction must establish that the issues at stake in the foreign proceeding and the U.S. proceeding are substantially the same, such that the outcome of the latter would dispose of the former. That was not the case here. As the district court had recognized, while the two proceedings arose from the same activities, they raised different issues.

The core of the Dutch proceeding was a claim that was not at issue in the U.S. proceeding, since North Dakota law does not have an anti-SLAPP law. Moreover, the Dutch lawsuit involved allegations that Energy Transfer had defamed Greenpeace, based largely on statements the company made in and in connection with the failed RICO litigation. The question of defamatory conduct by Energy Transfer was not at issue in the North Dakota proceeding, since Greenpeace had made no counterclaims there.

The state Supreme Court nevertheless concluded that the issues were “substantially similar,” holding that the threshold requirement had been met. However—presumably recognizing that its judgment would not in fact dispose of the Dutch proceeding—it offered a “narrowly tailored” injunction that left Greenpeace free to pursue claims premised on “matters the North Dakota proceedings did not adjudicate.”

Equitable Factors and the Role of Comity

Following the district court, the Supreme Court indicated that it was adopting the conservative approach to antisuit injunctions, which views international comity as a significant factor weighing against the issuance of such injunctions. Even under that approach, however, courts are typically willing to enjoin “interdictory” foreign proceedings whose aim is to preclude or interfere with the adjudication of a claim in U.S. court.

In this case, the court characterized the Dutch action as vexatious, stating that it was filed after the North Dakota case had been ongoing for more than six years and “on the eve of trial.” (It is worth pointing out that Greenpeace sent a notice of liability the previous year, after the EU Directive entered into force.) Nevertheless, as the district court noted, it is hard to see how the Dutch action could have actually blocked or interfered with the North Dakota proceeding, which had already proceeded through trial at the time the injunction was sought.

Courts adopting the conservative approach are also willing to enjoin foreign proceedings that violate an important public policy of the forum. Invoking this doctrine, the North Dakota Supreme Court voiced its core objection to the Dutch suit:

North Dakota provides an orderly process for challenging an adverse verdict—post-trial motions and review in this Court… . [Greenpeace]’s Dutch action seeks a declaration that the North Dakota case was “manifestly unfounded and abusive” and demands damages designed to offset the jury’s verdict. If successful, the Dutch action would contradict and offset the verdict, functionally nullifying it. This is not a legitimate parallel action. It is an attack on a fundamental policy of this state.

At this point, however, judgment in Energy Transfer’s favor has already been entered in the North Dakota proceeding, triggering the principle of res judicata. Unless and until a new trial is granted or that judgment is overturned on appeal, one would expect the Dutch court to consider that when assessing Greenpeace’s claims that the North Dakota proceedings were “manifestly unfounded or abusive.” (As recital 29 of the Directive indicates, if the claimant in the foreign proceedings “pursues claims that are founded, such proceedings should not be regarded as abusive.”) Issuing an antisuit injunction that indirectly takes that decision out of the hands of the Dutch court would seem inconsistent with the concept of international comity.

Conclusion

The North Dakota Supreme Court ultimately ordered the district court to enter a “narrowly framed” antisuit injunction. This injunction will bar Greenpeace “from pursuing any claim in the Dutch action whose elements require, as pleaded, a finding that the North Dakota case lacked legal foundation—including any claim premised on the ‘manifestly unfounded’ standard” of the EU Directive.

However, the injunction will not bar Greenpeace from asserting other claims in the Dutch litigation. Specifically, it would not bar claims “premised on Energy Transfer’s dismissed federal RICO suit and on alleged out-of-court defamatory statements—matters the North Dakota proceedings did not adjudicate.”

In a sense, this measure undermines international comity even more than a comprehensive antisuit injunction would. Its effect is to permit the foreign proceeding to continue while attempting to control the set of issues the foreign court can consider.

On 8–10 October 2026, Julian Rapp and Wolfgang Wurmnest will be hosting a conference on European Principles of Transnational Litigation and Their Reception Abroad at the University of Hamburg.

The aim of the conference is described as follows:

As cross-border disputes grow increasingly common in today’s globalized world, reflection on key European procedural principles – and their influence beyond Europe – deserves closer examination. This conference examines how European procedural rules, particularly those shaped by the Court of Justice of the European Union, have evolved into general principles of transnational litigation. It will discuss classic jurisdictional rules (contract and tort jurisdiction, jurisdiction agreements, and lis pendens), the protection of weaker parties, and the recognition and enforcement of judgments – all reflecting the practical challenges that litigants and courts face in cross-border litigation.

Beyond taking stock of European law as it stands, the conference examines how these principles have been received (or rejected) outside the EU – a development that reveals much about their underlying quality. Drawing on comparative perspectives from the United Kingdom, Turkey, Japan, and Korea, the conference aims to foster dialogue between legal cultures and to assess prospects for convergence or divergence in procedural standards. By engaging both doctrinal foundations and practical implications, the conference aims to deepen understanding of how European litigation principles shape, and are in turn shaped by, the evolving global discourse on transnational litigation.

The programme can be found here; registration is possible via this e-mail address: conference-european-principles.rw@uni-hamburg.de.

In an increasingly multipolar world, national and regional actors are reasserting regulatory control over cross-border economic activities. States such as the United States and China, as well as the European Union, are increasingly relying on unilateral measures with extraterritorial reach – particularly in areas such as sanctions, digital regulation, supply chains, competition law, and data […]

This is the last chance to register for the third bi-annual conference of the European Association of Private International Law (EAPIL) that will take place in Geneva, Switzerland, from 18 to 20 June 2026. To register please use this link.

For more information on the conference see our earlier blog post.  The program is available on the conference’s website.

EAPIL is looking forward to seeing you in Geneva!

The first issue of the RabelsZ (The Rabel Journal of Comparative and International Private Law) for 2026 has been published digitally and is available via open access online, while the print issue is in the process of being delivered. The following titles and English abstracts of the articles have been kindly provided to us by […]