Conflictoflaws

We have recently shared the call for papers by the Journal of Law, Market & Innovation (JLMI) for its first issue of 2026. The deadline has now been moved to 20 July 2025.

For further information, we are again referring to the editors who can be reached at editors.jlmi@iuse.it.

Necla Ozturk (Editor of the Akdeniz University Faculty of Law Journal) has kindly shared the following call for papers with us:

On the occasion of the 90th birthday of distinguished legal scholar Professor Dr. Peter Hay, Akdeniz University Faculty of Law Journal is preparing a special issue to be published in 2025, dedicated to his outstanding contributions to Private International Law and Comparative Law.

Throughout his illustrious academic career, Professor Hay has profoundly influenced the field through his pioneering work on the relationships between American, German, and European Private Law systems. His publications, teaching, and international engagements have left a lasting mark on the legal world.

We would be honored to receive a contribution from you for this commemorative issue. We especially welcome articles that address topics aligned with Professor Hay’s areas of expertise or offer critical reflections inspired by his scholarly legacy.

Suggested Topics Include:
• Private International Law
• Comparative Law
• Convergence/Divergence of Legal Systems
• American And European Private Law
• Critical Assessments of Professor Hay’s Work

Submission Deadline: November 15, 2025
Languages Accepted: Turkish, English, German, French.
Submission Guidelines: https://dergipark.org.tr/en/pub/akdhfd/writing-rules

Please submit your article via https://dergipark.org.tr/en/pub/akdhfd or hukukdergi@akdeniz.edu.tr by the deadline indicated above.

We look forward to your valuable contribution to this special issue that pays tribute to Professor Peter Hay’s scholarly achievements and influence.

Written by Dr. Nima Nasrollahi-Shahri (Sorbonne Law School) and Vincent Bassani-Winckler (PhD Candidate, Sorbonne Law School), both authors participated in the Working Group.

A few days ago, the Sorbonne Law School released the final report of a collective research project chaired by Professors Mathias Audit and Sylvain Bollée, entitled “Towards an EU Law on International Commercial Arbitration?”.

Conducted within the IRJS (Institut de Recherche Juridique de la Sorbonne), and more specifically its research group on private international law, SERPI (Sorbonne – Étude des Relations Privées Internationales), this project sets out to examine whether and how to improve the relationship between commercial arbitration and EU law.

Aims of the project and content of the report

Rather than proposing a full-scale harmonisation, the group focused on identifying limited and concrete modifications, focused on procedural issues, that would improve clarity, consistency, and the mutual recognition of arbitration-related judgments across Member States. Most notably, the report contains a proposal to qualify the arbitration exclusion in the Brussels I recast regulation and to add several provisions granting jurisdiction to the court of the seat of the arbitration, giving priority to these courts to prevent forum shopping and allowing arbitration-related judgments to circulate automatically within the EU.

The report is divided into three main parts. The first part of the report maps out the fragmented legal landscape currently governing international commercial arbitration within the European Union. Although arbitration is expressly excluded from the scope of the Brussels I Recast Regulation and Rome I regulation, it is not entirely isolated from EU law. For instance Regulation 2015/848 on insolvency proceedings refers to the effects of insolvency on pending arbitral proceedings, effects solely governed by the lex loci arbitri. By contrast, the jurisprudence of the CJEU has had a more substantial impact on arbitration-related matters, whether it is on application of EU public policy in arbitration (Mostaza Claro and Eco-Swiss) or of course investment arbitration between EU Member States (Achmea, Komstroy, and PL Holdings rulings). The CJEU has also shaped the scope of the arbitration exclusion in the Brussels I system. While early cases seemed fairly uncontroversial, West Tankers precluded Member States’ courts from issuing anti-suit injunctions relating to arbitration. Particularly controversial was the London Steamship Judgement, in which the Court limited the ability of a (then) Member State to refuse recognition of a judgment on the basis of a prior arbitration award – even where the award had already been confirmed by a court in that Member State (where the seat of arbitration was located).

The second part of the report lays out the rationale behind the working group’s proposals. It begins by acknowledging the political and legal constraints of a full-scale harmonisation, before arguing that targeted integration of arbitration-related rules into EU law – in particular the Brussels I Recast Regulation – would meaningfully enhance legal certainty, coherence, and the effectiveness of commercial arbitration within the Union. The report identifies a series of concrete legal issues where the current exclusion of arbitration from Brussels I Recast creates legal uncertainty or unfair outcomes. The first issue is certainly the risk of competing proceedings: the current framework does not give any priority, where the validity or applicability of an arbitration agreement is contested, to the judge of the seat of arbitration. Uncertainties remain, additionally, regarding the leeway of a judge of a Member State faced with a judgment rendered on the merits by the judge of another Member State after the latter has dismissed an arbitration agreement. Litigation concerning the constitution of the arbitral tribunal can also give rise to procedural conflicts. The circulation of decisions on the constitution of the arbitral tribunal and relating to the validity of the award are currently governed by a patchwork of national laws. Both could be ensured by a European recognition regime. In the wake of the London Steamship ruling the handling of conflicts between judgments and awards has never been more uncertain. In short, the current regime gives no clear priority to the court of the seat of arbitration, nor does it offer sufficient predictability to parties who rely on arbitration within the European judicial area.

In the final part of the report, the working group sets out a targeted reform plan for the Brussels I Recast Regulation. These proposed amendments are designed to strengthen the effectiveness of arbitration within the EU judicial area without harmonising the substance of arbitration law. Each provision responds to existing legal uncertainties or procedural inconsistencies and aims to enhance predictability, mutual trust, and party autonomy.

The proposed amendments to the Brussels I Recast Regulation

The amendments focus on six areas:

1.  Limited extension to arbitration of the scope of application of the Regulation (Article 1(2)(d))

Proposed provision (art. 1(2)(d)):

“This Regulation shall not apply to: (…) (d) arbitration, save as provided for in Articles 25 bis, 31 bis, 45 1. (d) and 45 3”

The first proposed amendment refines the current exclusion of arbitration from the Brussels I Recast Regulation. Presently, Article 1(2)(d) excludes arbitration entirely, which has led to interpretive tensions when arbitration-related issues intersect with judicial proceedings. The proposed reform retains the general exclusion but introduces narrowly defined exceptions – specifically for (proposed) Articles 25 bis, 31 bis, 45(1)(d), and 45(3).

This opening is not meant to harmonise arbitration law within the EU, but rather to create bridges where interaction with judicial mechanisms is unavoidable. It provides gateways for EU procedural law to engage with arbitration in discrete and functional ways, particularly around jurisdictional conflicts, enforcement of judgments, and safeguarding the role of the arbitral seat. Crucially, this shift does not introduce EU-wide arbitration rules. Instead, it merely extends the scope of the Regulation in a way that strengthens procedural consistency while continuing to respect the autonomy of Member States in substantive arbitration matters.

2. Recognition of Judgments Related to Arbitration (Article 2)

Proposed provision (art. 2):

“For the purposes of this Regulation: (a)(…) (…)

For the purposes of Chapter III, ‘judgment’ includes a judgment given by virtue of Article 25 bis paragraph 1 in the Member State where the seat of arbitration is located. It also includes a judgment given by virtue of Article 25 bis paragraph 1 (a) in another Member State, the court of which was expressly designated by the parties. It does not include a judgment issued by the court of another Member State on matters referred to in Article 25 bis paragraph 1; (…)”

This reform targets a critical gap in the existing system: the inability of arbitration-related court judgments (e.g. those concerning the annulment or enforcement of arbitral awards) to circulate within the EU under the automatic recognition regime of the Brussels I Recast.

The proposal amends Article 2 to include within the definition of “judgment” those decisions rendered either by the courts of the seat of arbitration (under Article 25 bis) or by courts expressly designated by the parties. Such judgments would now benefit from the mutual recognition mechanism of Chapter III. Conversely, judgments by other courts, not falling under these categories, would be excluded from automatic recognition.

This shift would enable decisions such as annulment or enforcement of awards issued by courts at the arbitral seat to circulate seamlessly across Member States. In effect, it creates a “European passport” for arbitration-related judicial decisions – enhancing legal certainty and mutual trust –  and preventing inconsistencies where one Member State’s court upholds an award and another ignores or contradicts it.

Importantly, this proposal, read in conjunction with article 25 bis, also ensures that parties retain freedom: they may still seek enforcement under national rules of jurisdiction if they prefer (art. 25, 3.). The reform merely introduces a uniform recognition track, based on mutual trust, building on the legitimacy of decisions from the arbitral seat.

3. Jurisdiction of the Courts of the Seat of Arbitration (Article 25 bis)

Proposed provision:

Article 25 bis:

“1. If the parties, regardless of their domicile, have agreed to settle their dispute by arbitration with its seat in the territory of a Member State, the courts of that Member State shall have jurisdiction over the following actions:

(a) Actions relating to the support for the constitution of the arbitral tribunal or the conduct of the arbitration procedure. This should be without prejudice to the jurisdiction of any other court expressly designated by the parties;

(b) Actions relating to the existence, validity or enforceability of the arbitration agreement. This should be without prejudice to:

• provisions of the national law of that State Member empowering the arbitral tribunal to rule on its own jurisdiction and, as the case may be, recognising it a priority in this respect; and
• article 31 bis paragraph2.

(c) Actions for annulment, recognition or enforcement of the arbitral award.

2. Actions referred to in paragraph 1 (a) and (b) may not be brought before a court of a Member State on the basis of national rules of jurisdiction.

3. Paragraph 1 (c) should be without prejudice to the right for a party to seek recognition and enforcement of an arbitral award before a court of a Member State on the basis of its national rules of jurisdiction.

4. The provisions of this article are without pre judice to the application of a rule of national law of the Member State where the seat of arbitration is located enabling the parties to waive their right to bring an action for annulment.

5. The provision of this article do not apply in disputes concerning matters referred to in Sections 3, 4 or 5 of Chapter II.”

This core reform introduces a new jurisdictional rule under EU law that recognises the centrality of the seat of arbitration. Under the proposed Article 25 bis, when parties have agreed to seat their arbitration in the territory of a Member State, the courts of that State will have jurisdiction over three key types of actions:

• (a) Requests for judicial assistance, such as the appointment of arbitrators;
• (b) Challenges to the existence, validity, or enforceability of the arbitration agreement; and
• (c) Actions for annulment, recognition, or enforcement of the award.

However, this is not a rule of exclusive jurisdiction in all cases. While Article 25 bis bars recourse to national jurisdiction rules for actions falling under (a) and (b), paragraph 3 expressly preserves the right for parties to seek enforcement of arbitral awards before other Member State courts, under those States’ existing national jurisdiction rules. In other words, a party could still apply directly for enforcement in a Member State other than the seat — which remains particularly important in practice for seeking execution against assets wherever they are located.

What this rule achieves, then, is not exclusivity per say, but a harmonised baseline: it grants primary jurisdiction to the courts of the seat for core functions, while preserving flexibility where appropriate. It also enhances coherence and foreseeability, notably by ensuring that judgments rendered by the court of the seat (especially on annulment or validity of awards) will benefit from automatic circulation under Chapter III of the Brussels I Recast (which is the effect of the proposed addition to article 2 (a)) — effectively granting them a “European passport.”

In addition, the rule accommodates Member States’ domestic doctrines, such as competence-competence and its negative effect, and waiver of annulment actions, making it fully compatible with diverse national legal cultures.

4. Priority of the Seat’s Courts in Conflicting Proceedings (Article 31 bis)

Proposed provision:

Article 31 Bis:

“1. Where a court of a Member State is seized of an action and its jurisdiction is contested on the basis of an arbitration agreement establishing the seat of the arbitration in another Member State, it shall, on the application of the party seeking to rely upon the said agreement, stay the proceedings until the courts of this other Member State have ruled or may no longer rule on the existence, validity or enforceability of the arbitration agreement.

2. However the court whose jurisdiction is contested continues the proceedings if:

(a) the arbitration agreement is manifestly inexistent, invalid or unenforceable under the law of the Member State where the seat is located; or

(b) the arbitral tribunal was seized and declined jurisdiction, and the arbitration agreement is inexistent, invalid or unenforceable under the law of the Member State where the seat is located.

For the purposes of this paragraph, reference to the law of the Member State where the seat is located encompasses conflict-of laws rules applicable in that Member State.

3. The provisions of this article are without prejudice of the application of a rule of national law of the Member State where the seat of arbitration is located empowering the arbitral tribunal to rule on its own juris diction and, as the case may be, recognizing it a priority in this respect.”

This reform introduces a stay mechanism to prevent jurisdictional races and forum shopping when disputes arise about the validity of an arbitration agreement.

When a court in one Member State is seized and the arbitration agreement designates a seat in another, the seized court must stay its proceedings until the courts of the seat have ruled — unless:

• The arbitration agreement is manifestly invalid, or
• The arbitral tribunal has already declined jurisdiction.

This reform addresses the recurring problem of inconsistent rulings and tactical litigation, where parties rush to court in jurisdictions likely to undermine arbitration. The proposed rule:

• Respects the primacy of the seat in deciding the validity of the arbitration agreement;
• Integrates negative effect competence-competence where national laws so provide (see para. 3);
• Ensures minimal interference by requiring only a prima facie validity to continue proceedings, thus filtering abusive challenges;
• Maintains consistency with the New York Convention, especially Article II(3), by offering a more favourable approach (per Article VII).

In practice, this rule harmonises procedural treatment of arbitration agreements across the EU and strengthens the parties’ contractual choices, giving effect to their selection of the arbitral seat as the appropriate forum for judicial review.

5. Clarification on Provisional Measures (Article 35)

Proposed provision:

Article 35: “Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State or an arbitral tribunal have jurisdiction as to the substance of the matter.”

This is a seemingly modest, but practically important clarification. Currently, Article 35 allows courts to grant provisional measures even if they lack jurisdiction on the merits — but it does not expressly mention arbitration.

The proposal amends this article to state that courts may issue such measures even if an arbitral tribunal has jurisdiction over the dispute. This codifies the approach taken by the ECJ in Van Uden.

6. Refusal of Recognition in Case of Conflict with Arbitral Awards (Article 45)

Proposed provision:

Article 45:

“1. On the application of any interested party, the recognition of a judgment shall be refused:

(…)

(d) if the judgment is irreconcilable with an earlier judgment given in another Member State or in a third State, or an arbitral award, involving the same cause of action and between the same parties, provided that the earlier judgment or arbitral award fulfils the conditions necessary for its recognition in the Member State addressed; or (…)

3. Without prejudice to point (e) of paragraph 1, the jurisdiction of the court of origin may not be reviewed. The test of public policy referred to in point (a) of paragraph 1 may not be applied to the rules relating to jurisdiction, including the rules governing the existence, validity or enforceability of arbitral agreements.”

This reform targets one of the most pressing weaknesses exposed by the London Steamship case: under current law, an arbitral award cannot itself prevent the recognition of a conflicting court judgment within the Brussels I framework.

The proposed change adds arbitral awards to the list of prior decisions that can bar recognition of later inconsistent judgments, provided that:

1. The award was rendered before the judgment,
2. Both involve the same cause of action and parties, and
3. The award meets the conditions for recognition in the requested state.

This ensures that awards enjoy the same res judicata value as earlier judgments, preventing inconsistent decisions and protecting the authority of arbitration.

In addition, paragraph 3 of Article 45 is revised merely to extend the prohibition of the use of public policy exceptions to the rules relating to jurisdiction, even when the rules governing the existence, validity or enforceability of arbitral agreements are at stake.

Conclusion: A Coherent and Functional Reform

These proposals are carefully calibrated. They do not seek to harmonise the substance of arbitration law in the EU – something neither realistic nor desirable given the diversity of legal traditions. Rather, the proposals aim to:

• Close procedural loopholes in the Brussels I Recast Regulation;
• Ensure legal certainty in cross-border litigation involving arbitration;
• Support party autonomy and reward the choice of a Member State seat;
• Enhance the attractiveness of European arbitration venues, through mutual trust in court supervision and support for arbitration.

In short, the proposals promote integration without harmonisation. They offer a modest but meaningful step towards a more coherent and predictable European framework for arbitration—one that recognises both the autonomy of arbitration and the importance of judicial cooperation in the EU.

I. Introduction (*)

(*) For the sake of simplicity, reference will be made only to Federal Decree-Law No. 41/2022 of 2 October 2022 on Civil Personal Status. The Emirate of Abu Dhabi has enacted a separate law that addresses similar matters at the local level. For a comparison of the various applicable legal frameworks in family law in the UAE, see Béligh Elbalti, “The Personal Status Regimes in the UAE — What’s New and What Are the Implications for Private International Law? A Brief Critical Appraisal”.

 

There is no doubt that the introduction of the Civil Personal Status Law (CPSL) in the United Arab Emirates marks a significant turning point in the region’s legal landscape, particularly in areas traditionally governed by religious norms. The CPSL refers to the special law adopted at the federal level, which allows family law disputes involving non-Muslims (both foreigners and UAE citizens) to be resolved under a legal framework, that is intended to be modern, flexible, based on “rules of justice and fairness” and “the best international practices from comparative legal systems” (cf. article 19 of the Cabinet Resolution Concerning the Executive Regulation of Federal Decree-Law on the Civil Personal Status). However, the incorporation of the CPSL into the existing legal frameworks in the UAE has raised several issues. These include, among others, the articulation of the CPSL with the other applicable legal frameworks, and more importantly, the extent to which parties may opt out of this “modern” regime in favor of applying their own national laws (for a general overview, see Elbalti, op. cit.).

The question has so far remained the subject of legal speculation, as the available court decisions have not directly or explicitly addressed the issue (available court decisions have mainly been rendered by Abu Dhabi courts. However, as mentioned earlier, in Abu Dhabi, a different legal framework applies). Optimistic views rely on the wording of the law, which – in theory – allow for the application of foreign law when invoked by foreign non-Muslims (article 1 of the CPSL). Pessimistic views (including my own) are based on the almost consistent judicial practice in the UAE regarding the application of foreign law in general, and in personal status matters in particular. From this perspective, even when foreign law is invoked, its actual application remains extremely limited due to structural and systemic obstacles that render the use of foreign law nearly impossible in practice (although, this does not mean that foreign law is never applied, but rather that its application is particularly difficult).

The decision discussed here is not publicly available and is presented based on private access. Although it is very likely that the Dubai Supreme Court has issued numerous rulings applying the CPSL, such judgments (unlike those in civil and commercial matters) are generally not published on the official website managed by the Dubai Courts. For reasons of privacy, the case reference and the nationality of the parties will not be disclosed.

 

II. Facts

The case concerns divorce between a husband (X) and a wife (Y), both of whom are non-Muslim foreigners and share the same nationality. X and Y were married more than a decade ago in their home country (State A, a European country), where they also had children, before relocating to Dubai, where they eventually settled. The parties concluded a special agreement regarding matrimonial property, in which they expressly agreed that the law of State A would apply.

Later, X initiated divorce proceedings before the Dubai Court of First Instance, seeking the dissolution of marriage in accordance with the CPSL. Y, however, contested the application of the CPSL and argued that the law of State A should apply, requesting that X’s claim be dismissed on that basis. In support of her defense, Y submitted a certified and authenticated translation of the applicable law of State A.

i) Before the first instance court

The Court of First Instance, however, rejected the application of State A’s law on the grounds that the submitted translation was dated, poorly legible, and that no original copy of the law had been provided. As a result, the court concluded that the conditions for applying foreign law were not met and proceeded to dissolve the marriage under the CPSL, on no-fault divorce grounds, as requested by X.

ii) Before the Court of Appeal

Dissatisfied with the judgment, Y filed an appeal before the Dubai Court of Appeal, arguing that the law of State A should have been applied instead of the CPSL, given that both parties shared the same nationality and had expressly agreed to the application of that law in their matrimonial property arrangement. She further contended, among other things, that translating the entire law would have been prohibitively expensive, and that she had not been given an opportunity to submit an original copy of the law. The Court of Appeal, however, was unpersuaded by these arguments. It reaffirmed the principle that when a foreign law is applicable, the burden lies on the party invoking its application to submit an authenticated copy of the law. Moreover, if the original text is not in Arabic, the law must be translated by a translation office certified by the Ministry of Justice. This is because, according to the Court of Appeal, foreign law is treated as a question of fact, and its content must be duly established by the party relying on it.

Unhappy with the outcome, Y appealed to the Supreme Court, reiterating the same arguments raised before the Court of Appeal.

 

III. The Ruling

Unsurprisingly, the Dubai Supreme Court rejected the appeal, holding as follows:

According to the established case law of this Court and pursuant to Article 1(1) of the CPSL, ‘the provisions of this Decree-Law shall apply to non-Muslim citizens of the United Arab Emirates and to foreign non-Muslim residents in the UAE, unless one of them invokes the application of his own law […]’

It is therefore well established that the burden of proving and submitting the foreign law lies with the party seeking its application. That party must submit a complete and unabridged copy of the foreign law, including all amendments, duly authenticated and officially certified. If the foreign law is not in Arabic, it must be translated by an officially certified translator. This is because foreign law is considered a matter of fact, and it lies with the party relying on it to prove its content and that it remains in force in its country of origin.

If none of the parties invokes or submits the foreign law, or if the law is invoked but not properly submitted, or is incomplete, irrelevant to the dispute, or lacks the applicable provisions, then domestic law must be applied. This remains the case even if the foreign law is submitted for the first time on appeal, as introducing it at that stage would undermine the principle of double-degree jurisdiction and deprive the opposing party of one level of litigation, which is a fundamental rule of judicial organization and part of public order.

It is also well established that the assessment of whether the provisions of the foreign law submitted are sufficiently relevant and complete for resolving the dispute is a legal issue subject to the Supreme Court’s control.

Given the above, and since the judgment of the court of first instance, as upheld by the judgment under appeal, complied with the above legal principles and ruled in accordance with the provisions of UAE [civil] personal status law, rejecting the application of [the law of State A] ……, based on sound and well-supported reasoning ….. the ground of appeal is therefore without merit.

 

IV. Comments

1. Foreign Law in the UAE

As noted by UAE lawyers themselves (albeit in the context of international transactions), “it is almost impossible to apply foreign law” in the UAE, and “[i]n most cases, the courts in the UAE will apply local law and will have little or no regard for the foreign law in the absence of evidence [of its] provisions” (Essam Al Tamimi, Practical Guide to Litigation and Arbitration in the United Arab Emirates (Kluwer Law International, 2003) 167).

Prior to 2005, UAE courts were inconsistent in their approach to family law disputes: whereas the Dubai Court of Cassation admitted the application of foreign law ex officio, the Federal Supreme Court treated foreign law as a matter of fact, even in family law cases. However, following the enactment of the Federal Personal Status Law in 2005, the Dubai Court of Cassation aligned its position with that of the Federal Supreme Court, treating foreign law as fact whose application depends on the party invoking it and proving its content. This shift reflects the general legislative intent, as expressed in the Explanatory Memorandum to Federal Law No. 28 of 2005 on Personal Status.

It is therefore not surprising to read that “[t]raditionally, the UAE courts have a reputation of applying foreign law only reluctantly.” This reluctance stems from the general principle that “[f]oreign law is treated as a matter of fact, and a provision of foreign law must be proven in the proceedings by the party that intends to rely on it.” Consequently, “[w]here the parties do not provide sufficient evidence, the Emirati court would apply Emirati law” (Kilian Bälz, “United Arab Emirates,” in D. Girsberger et al. (eds), Choice of Law in International Commercial Contracts (OUP, 2021) 691). For this reason, invoking foreign law has proven largely unsuccessful, as UAE courts impose very strict requirements for its acceptance. These hurdles become even more significant when the foreign law is not in Arabic. In such cases, the party relying on the foreign law must submit a certified translation of the entire relevant legal instrument (e.g., the Swiss Civil Code in its entirety), authenticated by the official authorities of the state of origin. Courts have routinely refused to apply foreign law when only selected provisions are submitted or when the original text (in its foreign language) is not provided. Any failure to meet these stringent requirements typically results in the exclusion of the foreign law and the application of the lex fori instead.

It is against this background that the adoption of the CPSL should be understood. In an attempt to address the challenges associated with the application of foreign law—and rather than facilitating its application—UAE local authorities opted for a radical alternative. Under the guise of modernity, progress, and alignment with the most advanced international practices in family law, they introduced a special legal framework: the CPSL. Indeed, although the CPSL formally leaves room for the application of foreign law (article 1 of the CPSL), it is actually designed to apply directly to all disputes falling within its scope, even in cases where foreign law would otherwise apply under the UAE’s choice-of-law rules, as set out in the Federal Law on Civil Transactions of 1985 (FLCT), arts. 10-28. (On the different approach under the Abu Dhabi Civil Marriage Law, and the issue of articulation between the choice-of-law rules provided in the 1985 FACT and article 1 of the CPSL, see Elbalti, op. cit.). For instance, a Filipino couple who got married in the Philippines and resides in the UAE could be granted a divorce based solely on the unilateral will of one spouse, even though divorce is not permitted under Philippine law, normally applicable here. Similarly, in countries such as Lebanon, where couples married under religious law cannot dissolve their marriage except through religious procedures, one spouse may still obtain a divorce in the UAE. This is more so knowing that jurisdictional rules in the UAE enable UAE courts to assert jurisdiction even in cases with minimal connection to the forum. (For an overview, see Béligh Elbalti, “The Abu Dhabi Civil Family Court on the Law on Civil Marriage Applicability to Foreign Muslim and the Complex Issue of International Jurisdiction”).

 

2. Heads You Lose, Tails You Still Lose: The Litigant’s Dilemma

Faced with a family law dispute in the UAE, litigants (particularly defendants) may find themselves in an inextricable situation. While, in theory, foreign law may be applied if invoked by one of the parties, in practice this is rarely the case. According to testimonies shared on various social media platforms, as well as accounts personally gathered by the author, local lawyers often advise their clients not to engage in a legal battle whose outcome appears predetermined.

However, when such advice is followed, courts typically state: “Since neither party holds the nationality of the UAE, and neither of them invoked the application of any foreign law, the applicable law shall be the laws of the UAE.” (see e.g. Dubai Court of First Instance, Case No. 542 of 14 February 2024 [divorce and custody case], Dubai Court of Appeal, Appeal No14 April 2025 [custody case]). Yet, even when a party does invoke the application of foreign law – as in the case discussed here – the result is often the same: the foreign law is excluded, and UAE law is applied regardless, even when the party has made every effort to comply with procedural requirements.

The obligation to submit the full text of foreign law (an entire civil code!), translated into Arabic by a sworn translator and certified by the state of origin’s authorities, renders the task nearly impossible (especially when the competent authorities in the State of origine often content themselves to refer the parties to available online databases and unofficial translations). This cumbersome process renders the attempt to apply foreign law a Sisyphean effort, ultimately providing the court a convenient justification to revert to the lex fori—when, according to the UAE’s own rules of choice of law, foreign law should have been applied.

 

3. A Potential Recognition Problem Abroad?

What happens when divorces such as the one in the present case are submitted for recognition abroad?

There is, to be sure, no straightforward answer, as this would depend on the legal system concerned. However, precisely for such basic reasons, the UAE should exercise caution in its approach to family law disputes involving foreign parties. To return to the examples mentioned above: a divorce involving a Filipino couple or a Christian Lebanese couple is highly unlikely to be recognized in the Philippines or Lebanon. In the Philippines, foreign divorces between Filipino nationals are not recognized as valid (see Elizabeth H. Aguiling-Pangalangan, “Philippines,” in A. Reyes et al. (eds.), Choice of Law and Recognition in Asian Family Law (Hart, 2023), pp. 273–274). Similarly, in Lebanon, civil divorce judgments rendered abroad have often been refused recognition on public policy grounds, particularly when the marriage was celebrated under religious law involving at least one Lebanese national (see Marie-Claude Najm Kobeh, “Lebanon,” in J. Basedow et al. (eds.), Encyclopedia of Private International Law, Vol. III (Edward Elgar, 2017), p. 2275).

Moreover, certain international treaties concluded by the UAE explicitly require a control of the law applied by the rendering court. Notably, the 1991 Franco-Emirati Bilateral Convention on Judicial Assistance and the Recognition and Enforcement of Foreign Judgments provides in Article 13(1)(b) that a foreign judgment shall be recognized and enforced only if “the law applied to the dispute is the one designated by the conflict-of-law rules accepted in the territory of the requested State.” It is worth noting that the French Cour de cassation relied specifically on this provision in its refusal to enforce a divorce judgment rendered in Abu Dhabi (Ruling No. 15-14.908 of 22 June 2016; see comments by Christelle Chalas, Revue critique, 2017(1), p. 82).

Last but not least, in cases similar to the one discussed here, where a party relying on foreign law appears to be effectively prevented from making her case due to the excessively stringent evidentiary requirements imposed by UAE courts, such proceedings may be found incompatible with procedural public policy. This is particularly true where the losing party was not afforded a fair opportunity to present her arguments, raising serious concerns regarding due process and access to justice.

 

4. Epilogue

Since the emergence of private international law as a legal discipline, debates over the justification for applying foreign law have occupied scholars. Regardless of the theoretical foundations advanced, it is now widely accepted that, the application of foreign law constitutes “a requirement of justice” (O. Kahn-Freund, “General Problems of Private International Law,” 143 Collected Courses (1974), p. 469).

Therefore, while the stated objective of the CPSL is to provide expatriates with a modern and flexible family law based on principles that are in line with the best international practices may be understandable and even commendable, UAE authorities should not lose sight of the fact that the application of foreign law is “an object directed by considerations of justice, convenience, [and] the necessity of international intercourse between individuals” (International Court of Justice, Judgment of 28 November 1958, ICJ Reports 1958, p. 94).

Despite all recent efforts from the HCCH 2019 Judgments Convention to the founding of International Commercial Courts (ICC) promoting the attractiveness of court litigation, the most favoured method for resolving international disputes in civil and commercial matters, without a single doubt, remains arbitration. According to the 2025 QMUL International Arbitration Survey an overwhelming majority of respondents (87%) would choose international arbitration either as a standalone mechanism (39%) or in combination with other mechanisms of alternative dispute resolution (48%).

In view of this prevalence for international arbitration, the latest addition to the Elgar Concise Encyclopedia of Law Series on “International Commercial Arbitration” edited by Franco Ferrari (NYU) and Friedrich Rosenfeld (Hahnefeld Rechtsanwälte) provides more than welcome comprehensive and authoritative guidance on the subject. Featuring more than 130 entries by renowned legal scholars and leading practioners from across the globe, the volume covers the entire spectrum of challenges that can arise in the course of a legal dispute, from the pre-arbitration phase to the post-award stage, with a particular focus on the fundamental legal instruments in this area, such as the 1958 New York Convention, the UNCITRAL Model Law as well as the IBA Guidelines on the Conflict of Interests and the Taking of Evidence.

In the preface, the editors explain the purpose and structure of the book as follows:

“This encyclopedia provides a concise overview of key topics in the field of international arbitration. It is organized by keywords listed in alphabetical order to ensure easy navigation. Each entry provides a brief introduction to the relevant topic. We have asked the contributors to refrain from adding endnotes with references to seconday sources. Instad, a short bibliography guides those interested in delving deeper into further reading materials.

Further information are available on the publisher’s website, the complete list of authors and entries may be retrieved here.

by Achim Czubaiko-Güntgen, Research Fellow („Wissenschaftlicher Mitarbeiter“) and PhD Candidate, supported by the German Scholarship Foundation, Institute for German and International Civil Procedural Law, University of Bonn.

With the fourth instalment in their ongoing webinar series on “Cross-Border Commercial Dispute Resolution”, the Asian Business Law Institute (ABLI) and the Hague Conference on Private International Law (HCCH) returned to the topic of “Electronic Service of Documents and Remote Taking of Evidence”. Contrary to the first webinar in 2021, this session focussed not solely on the HCCH 1970 Evidence but equally on the HCCH 1965 Service Convention. Having finally overcome the immediate constraints of the Covid-19 pandemic, this time the renowned speakers were able to elaborate more on the long-term development and visions in the practice of the two legal instruments with regard to their respective areas of law.

As always, formats like this have to manage the balancing act of providing both an introduction to the topic for an unfamiliar audience and in-depth details for experienced practitioners. In this respect, a survey carried out at the beginning of the webinar was revealing. While 10 % of participants had already worked with both Conventions and 29 % had at least heard of them, this event marked the first contact with the topic for 18 % of the audience. Among those who had worked with either Convention, a majority of 18 % had practical experience only with the HCCH 1965 Service Convention, and a minority of 2 % had so far dealt exclusively with the HCCH 1970 Evidence Convention. Although this last result is anecdotal in nature, it still seems to reflect the gap between the two Conventions in terms of their prevalence, with 84 vs. 68 Contracting Parties respectively…

I. Welcome Remarks (Christophe Bernasconi )

At the beginning of the webinar, the Secretary General of the HCCH, Christophe Bernasconi, offered his welcome remarks (pre-recorded). Setting up the stage for the ensuing presentations, he placed the implementation of the gradually developing use of new information technology (IT) in the broader context of the meta-purpose of all Hague Conventions, as provided for in Article 1 of the HCCH Statute: “The purpose of the Hague Conference is to work for the progressive unification of the rules of private international law.”

Noteworthy, in his address, Bernasconi explicitly mentions Sharia law as the third major legal tradition next to common and civil law, instead of using a more general term like “religious law” or “Islamic law”. With due caution, this parlance could be a nod to the increased – and long overdue – commitment to the MENA region and sub-Saharan Africa, as shown by the continuation of the Malta Process and the establishment of a HCCH Regional Office for Africa (ROA). Further semantic observations concern the designation of the HCCH 2019 Judgments Convention as “our famous game changer”, as well as the recently introduced terminology that more elegantly refers to the interplay of the Hague Conventions on transnational litigation, instead of a “package”, as a “comprehensive suite” that forms a robust framework designed to enhance the effective access to justice and attract foreign investment. Finally, the Secretary General recalled that the digital transformation of the operation of the HCCH Conventions, which is necessary to further the goals of justice at the heart of each instrument, is primarily “incumbent on the [state] parties”, who must embrace technology.

II. The HCCH Conventions: Use of Information Technology (Melissa Ford)

Second, Melissa Ford, HCCH Secretary of the Transnational Litigation and Apostille Division, contributed with a presentation striking the delicate balance between an introduction to the Conventions and the role of the HCCH Permanent Bureau (PB) in general and more detailed insights from the 2024 Special Commission (SC) as well as from the 2022 Questionnaires.

The latter is further testimony to a certain discrepancy between the two HCCH Conventions. Under the HCCH 1965 Service Convention (responding rate: 59 %) more than two-thirds of the Contracting Parties (67 %) permit the execution of service via different electronic means, such as email (20 %) and specific secured/encrypted variants (10 %) or online platforms (40 %) administered either by the government (33 %) or private service providers (7 %) respectively. Interestingly, no Contracting Party has yet reported that it uses distributed ledger technology (DLT) such as ‘block chain’. In addition, one-third of the respondents (33 %) also transferred the requests for service electronically. In contrast, under the HCCH 1970 Evidence Convention, there appears to be a split between Contracting Parties who accept electronic letters of request (55 %) and those who do not (45 %). On a positive note, however, a majority of States (76 %) allows the taking of evidence by video-link under Chapter I of the Convention.

The former acknowledges the notion of technological neutrality of the HCCH Conventions (C&R No. 13). In particular, the Special Commission confirms that Article 10 lit. a) of the HCCH 1965 Service Convention, originally addressing postal channels, also includes the “transmission and service by e-mail, insofar as such method is provided by the law of the State of origin and permitted under the law of the State of destination” (C&R No. 105). However, e-mail domains alone are still not considered a substitute for the address of the person to be served. Hence, the Convention may not apply in such a case according to Article 1 (2). Similarly, the Special Commission recalled for the HCCH 1970 that Article 17 allows that a member of the judicial personnel of the court of origin, if duly appointed as commissioner for the purpose, directly examines a witness located in another Contracting State by video-link (C&R No. 50). In both instances, however, the major caveat remains that these provisions can be made subject to reservations by the Contracting States, which unfortunately a significant number of Contracting States still has opted for to this day (see C&R No. 17 and No. 107).

Last but not least, Melissa Ford put a special emphasis on the introduction of the new country profiles that will replace the practical information table for both legal instruments. Projected to be finalised within 3-4 months, this new section at the HCCH homepage (hcch.net) will contain information on the Central Authorities, direct contact details of contact persons, methods of transmission, data security and privacy, method of transmission, payment methods, acceptance of electronic letters of request and the use of video-link (Chapter I and II) or postal channels respectively.

III. China’s Practice and Application of the HCCH Conventions (Xu Guojian)

Joining from the “Panda City” Chengdu, Xu Guojian, Shanghai University of Political Science and Law, elaborated on “China’s Practice and Application of the HCCH Conventions”. Professor Xu is particularly well, though not exclusively, known to readers of this blog for the numerous entries devoted to his work in the col.net repository on the HCCH 2019 Judgments Convention.

Overall, the use of electronic means for service and taking of evidence is fairly advanced in the People’s Republic of China (PRC). In addition to becoming party to the HCCH 1965 Service Convention in 1992, and the HCCH 1970 Service Convention in 1998, which are impliedly neutral towards technological changes, the topic is also explicitly addressed in domestic law. Following the civil law legal tradition, the relevant provisions are codified within the PRC Law on Civil Procedure (as amended in 2024). For example, according to Article 283 (9) service may be affected by electronic means capable of confirming the receipt of the documents by the recipient, unless prohibited by the law of the country where the party is domiciled. Furthermore, Article 283 (2) allows the remote taking of evidence abroad via instant messaging tools with the consent of both parties, if this procedure is not prohibited by the laws of that country.

In domestic judicial practice, these days, most courts in the PRC (90 %) use platforms like “court service”, SMS, or WeChat to serve documents upon defendants. Likewise, the use of an open-style judicial chain platform based on the blockchain technology providing reliable timestamps and digital signatures ensures the proof of delivery of a certain electronic document.

Morevoer, Xu put a special emphasis on Chinese data security regulations. For example, the Data Security Law (2021) and the Personal Information Protection Law (2021) which emphasize strict controls on cross-border data transfers and impose limitations on how data is collected, stored and transferred in the PRC. Comparable to the legal framework in the European Union (EU), litigants need to be aware of these laws when dealing with Chinese parties or data located in the PRC.

IV. England & Wales: Use of E-Service and Remote Taking of Evidence (Lucinda Orr)

In the final presentation, Lucinda Orr, ENYO Law LLP (London), provided valuable insights on “The Use of E-Service and Remote Taking of Evidence in England & Wales”. In her dual capacity as practising barrister and appointed Examiner of the Court (2023-2029), she has gained first-hand experience of incoming and outgoing requests for legal assistance in numerous cross-border cases.

Following the ratification by the United Kingdom (UK) of the HCCH 1965 Service Convention in 1969, as well as the HCCH 1970 Service Convention in 1976, the Senior Master was designated as the Central Authority in both instances for the (non-unified) legal system of England & Wales. The Senior Master is a senior judicial office within the King’s Bench Division of the High Court of Justice, who also serves as the King’s Remembrancer and Registrar of Judgments as well as in many other capacities according to Section 89 (4) of the Senior Courts Act 1981.

Regarding service of documents, the relevant procedure is set out in Part 6 Section V (Rules 6.48-52) of the English Civil Procedure Rules (CPR), which authorise the Senior Master to determine the method of service (R. 6.51). As a rule, service is usually effectuated by means of process server and takes several months. Moreover, the United Kingdom has paved the way for direct service through solicitors as “other competent persons” under Article 10 lit. b) of the HCCH 1965 Service Convention, which allows for a much smoother process. Besides the above encouragement of personal service, English law is generally very generous in relation to the use of electronic means of service where agreed upon between the parties (R. 6.23 (6) CPR in conj. with PD 6A) or authorised by the court (R. 6.15 CPR), which has recently been ordered more frequently in favour of service via email and social media platforms (e.g. Instagram; Facebook) and even via Non Fungible Token (NFT) when the defendant shows evasive behaviour (see e.g. NPV v. QEL, ZED [2018] EWHC 703 (QB); D’Aloia v. Persons Unknown [2022] 6 WLUK 545). However, pursuant to the responses to the HCCH 2022 Questionnaire, para. 31, the UK had not, at least at that time, permitted the execution via such method within the framework of the HCCH 1965 Service Convention. However, this may again be due to the fact that in such situations the address of the person concerned is typically unknown and the Convention therefore does not apply at all.

The procedures applicable to the taking of evidence can be found in the Evidence (Proceedings in Other Jurisdictions) Act 1975 as well as in Part 34 (R. 34.1-21) of the CPR. In 2023, 5,955 letters of request under Chapter I, and 1,439 letters of request under Chapter II of the HCCH 1970 Evidence Convention were received in England & Wales. Since the powers of the court are limited to the scope of evidence admissible in English civil proceedings under Section 2 (3) of the 1975 Act, these requests must be carefully drafted as English law does not allow for “fishing expeditions”. Again, the requests may be made by foreign courts or private parties. As foreign courts do not usually instruct local solicitors, their specific questions are dealt with by the Government Legal Department – GLD (formerly known as the “Treasury Solicitor’s Department”) which will, for example, examine the witnesses in the presence of a  Court Examiner and stenographer and return the signed transcript – but no video recording – via the official channels. Whilst most of these depositions or examinations in Greater London are conducted using video-link technology, depositions in other regions are still generally executed in person by agent solicitors. Similarly, applications by private parties to the Senior Master under R. 34.17 CPR are usually made ex parte. Therefore, a duty of full and frank disclosure applies. In contrast to the procedure of the GDL, the deposition or examination is also accompanied by a videographer so that the proceedings can be followed or streamed remotely. Although the parties also receive a video recording, this data file is only made available to them in a laborious manner via a USB flash drive.

Drawing on her personal experience, Lucinda Orr, also shared the general observations that letters or requests transmitted by the Contracting States are very popular in South-East European Countries (SEE), in particular Romania, Poland and Bulgaria as well as in Turkish divorce cases, while requests directly from parties are more common in the United States (USA), Canada and Brazil. Furthermore, she also stressed that private parties should definitely engage a local solicitor before their request has been reviewed and sealed by the Senior Master.

IV. Outlook (Anselmo Reyes)

As final remarks, Anselmo Reyes, Justice with the Singapore International Commercial Court (SICC) and former Representative of the HCCH Regional Office for Asia and Pacific (ROAP), put forward two long-term perspectives for the HCCH Conventions. In his view, the HCCH itself could develop (into) a hub to which judges could easily reach out to effect service abroad. Equally, in terms of evidence, the HCCH could seek a Memorandum of Understanding with the Standing International Forum of Commercial Courts (SIFoCC) guaranteeing compliance with applicable evidence law, which in turn would result in a blanket general permission for the taking of evidence by Commercial Courts in HCCH Contracting States. Envisioning the future of the HCCH as a one-stop shop for service and evidence requests would further the goals of justice and finally create a level playing field in relation to arbitration.

Admittedly, given the current international political climate and the organisation’s financial resources, these proposals – just like the ideas put forward in another context of a permanent court or panel of legal experts ensuring the uniform interpretation of the HCCH Conventions –, may at first glance appear almost utopian. However, as Melissa Ford noted, the establishment of the country profiles could be regarded as a modest first step towards a more active and centralised role for HCCH…

 

In response to the growing complexity of cross-border family disputes – driven by increasing mobility and evolving family configurations – the recently published Guida alla mediazione familiare internazionale in materia di responsabilita genitoriale e sottrazione internazionale di minori, authored by Costanza Honorati and Ester di Napoli (Pacini Editore, 2025; available online in open access, in Italian), offers a rigorous and thematically cohesive guide to the law and practice of cross-border family mediation. Grounded in both European and multilateral legal instruments, the volume brings together doctrinal precision, procedural clarity, and practical insight, establishing itself as an essential reference for legal practitioners, judges, mediators, and scholars navigating the intricate terrain of cross-border family justice.

The volume opens with a foundational reflection on the evolving legal and social configurations of cross-border families in crisis (Chapter 1: La mediazione familiare nel contesto transfrontaliero: uno sguardo d’insieme, by Ester di Napoli). This Chapter offers a conceptual and normative overview of family mediation in a transnational context, exposing its principles, objectives, and the interplay between substantive family law and instruments of judicial cooperation. By engaging with key legal sources – from the Council of Europe, the European Union, and the Hague Conference on Private International Law – the Author provides a robust framework for understanding the legal underpinnings of cross-border family mediation.

A significant contribution of the work lies in its detailed treatment of mediation procedures in cases involving parental responsibility and cross-border child abduction (Chapter 2: Il procedimento di mediazione familiare nei casi di responsabilità genitoriale e di sottrazione internazionale, by Ester di Napoli and Costanza Honorati). The Authors examine diverse models of mediation, the temporal and geographical contours of the process, and the variety of actors involved. Particular emphasis is placed on the procedural integration of mediation within the architecture of pending judicial proceedings, revealing how alternative dispute resolution can be effectively harnessed even in the midst of litigation. The Chapter also devotes considerable attention to the child’s role in mediation, affirming the centrality of the child’s right to be heard and to be appropriately informed. This rights-based approach is not merely rhetorical: it is embedded in the procedural design and underlined by practical guidance. Yet, the Authors do not lose sight of the ethical and legal limits of mediation. This section also develops a substantiated analysis of the challenges posed by domestic violence, emphasising the need for rigorous screening mechanisms and a nuanced understanding of power asymmetries within family relationships. Building on this, the book offers a granular analysis of mediation in the context of cross-border child abduction, with particular focus on tight procedural timelines, the dialectic between return proceedings and negotiated solutions, and the use of “package agreements” to resolve multifaceted family disputes.

The final part of the volume (Chapter 3: La circolazione dell’accordo di mediazione familiare negli Stati UE, by Costanza Honorati) offers a carefully reasoned examination of the recognition, enforcement, and circulation of mediated agreements within the European Union. Drawing on the Brussels II-ter Regulation, the 1996 Hague Convention, and relevant national instruments, the Chapter provides an authoritative interpretation of the legal frameworks governing cross-border effectiveness. At the heart of the analysis lies the complex transformation of mediated settlements into binding and enforceable decisions, including the conceptual and procedural distinctions between “agreements” and “decisions” under EU law. This section exemplifies the volume’s commitment not only to legal clarity but to practical operability, offering pathways for turning negotiated consensus into enforceable outcomes across jurisdictions.

In sum, Guida alla mediazione familiare internazionale in materia di responsabilità genitoriale e sottrazione internazionale di minori is far more than a practical manual: it is an invitation to reflect on the evolving normative landscape of cross-border family dispute resolution – one that increasingly privileges dialogue, cooperation, and child-centred justice. Through its intellectual coherence, doctrinal depth, and clear policy relevance, the volume offers both a roadmap and a critical commentary on the current and future architecture of cross-border family mediation within Europe and beyond.

 

Private international law in post-Soviet Central Asian countries is clearly underrepresented in the literature, despite the fact that countries such as Kazakhstan and Uzbekistan have fairly detailed legislation on international jurisdiction, applicable law, and the enforcement of foreign judgments. (For a general overview of Kazakhstan, see the entry on the country in J. Basedow et al. (eds), Encyclopedia of Private International Law, Vol. III (Edward Elgar), p. 2229, and the English translation of the relevant provisions in Vol. IV, p. 3358.)

To help address this gap, I’m pleased to share the publication of a new monograph on Private International Law in Kazakhstan, authored by Nurzhan S. Yeshniyazov and Mokhammed Abdel Mottaleb, and published in June 2025 as part of the International Encyclopaedia of Laws – Private International Law, by Kluwer Law International:

This monograph offers a systematic and up-to-date overview of Kazakhstan’s legal framework governing cross-border civil and commercial matters, including international jurisdiction, applicable law, and the recognition and enforcement of foreign judgments and arbitral awards. The content follows the standardized outline used across the Encyclopaedia, ensuring consistency and comparability with other national reports.

The addition of Kazakhstan to this global reference work is certainly a welcome development, helping to broaden the comparative scope of the series and providing valuable insights into a region that remains underrepresented in private international law scholarship.

 

The general table of contents of the monograph reads as follows:

Title Page – pp. 1–1

Copyright – pp. 2–2

The Authors – pp. 3–4

Table of Contents – pp. 5–12

List of Abbreviations – pp. 13–14

General Introduction – pp. 15–30

Part I. General Principles (Choice of Law Technique) – pp. 31–76

• Chapter 1. Sources of PIL
• Chapter 2. Determination of the Applicable Law
• Chapter 3. Basic Terms

Part II. Conflict of Law Rules – pp. 77–164

• Chapter 1. Persons
• Chapter 2. Obligations
•  Chapter 3. Property
•  Chapter 4. Intangible Property Rights
• Chapter 5. Family Law
• Chapter 6. Succession Law

Part III. Annex: International Civil Procedure – pp. 165–192

• Chapter 1. Sources of International Civil Procedure
• Chapter 2. The Principle of Lex Fori
• Chapter 3. National Jurisdiction
• Chapter 4. International Jurisdiction
• Chapter 5. Recognition and Enforcement of Foreign Decisions
• Chapter 6. International Insolvency Law
• Chapter 7. International Arbitration

Selected Bibliography – pp. 193–195

Annexes – pp. 196–195

• Annex I: The Civil Code – pp. 196–210
• Annex II: Merchant Shipping – pp. 211–213
• Annex III: The Civil Procedure Code – pp. 214–227
• Annex IV: Arbitration Law – pp. 228–230

Table of Cases – pp. 231–232

Case Citation:

Sqimnga (Nig.) Ltd v. Systems Applications Products (Nig.) Ltd [2025] 2 NWLR 423 (Court of Appeal, Lagos Division, Nigeria)

The dispute in this case arose between two Nigerian companies, Sqimnga Nigeria Ltd (the appellant) and Systems Applications Products Nigeria Ltd (the respondent). Both parties had entered into a Master Service Agreement in Nigeria, relating specifically to software solutions. A critical provision of this agreement stipulated that the laws of South Africa would govern any disputes, and further, that South African courts would possess exclusive jurisdiction to hear any matters arising from the agreement.

When a disagreement emerged between the parties, Sqimnga Nigeria Ltd initiated legal proceedings at the Lagos State High Court. The respondent immediately contested the jurisdiction of the Nigerian court, relying on the contractual clause mandating the use of South African law and courts.

At the High Court level, the court declined jurisdiction over the matter. This decision hinged on the court’s determination that Sqimnga Nigeria Ltd had not provided sufficient evidence or compelling reasons why the Nigerian courts should assume jurisdiction contrary to the clearly stipulated jurisdiction clause in the Master Service Agreement.

Dissatisfied with the High Court’s ruling, Sqimnga Nigeria Ltd appealed to the Court of Appeal. The appellant argued that the trial judge had misapplied the relevant legal principles by overlooking uncontroverted pleadings and witness statements. Additionally, the appellant contended that litigating the case in South Africa would impose unnecessary expenses and inconvenience upon the parties.

However, the Court of Appeal unanimously upheld the decision of the trial court, dismissing the appeal. In reaching this conclusion, the Court emphasized several key considerations. First, it reinforced the fundamental principle of contractual agreements through the maxims pacta sunt servanda (agreements must be kept) and consensu facit legem (consent makes law), asserting that freely made agreements, absent fraud or duress, must be upheld.

Secondly, the Court emphasized that the explicit foreign jurisdiction clause agreed upon by the parties could only be set aside if a compelling justification were provided. To evaluate whether such justification existed, the Court applied the Brandon tests derived from the English case of The Eleftheria (1969) 1 Lloyd’s L. R. 237. These tests require the party challenging the jurisdictional clause to present clear evidence demonstrating “strong cause” for a local court to assume jurisdiction in deviation from the contractual agreement. The Court concluded that Sqimnga Nigeria Ltd failed to meet this evidentiary standard, as its arguments relied primarily on pleadings, unadopted witness statements, and legal submissions from counsel, none of which constituted adequate evidence to satisfy the Brandon tests.

The Court acknowledged the appellant’s concern regarding the inconvenience and additional costs associated with litigating abroad but held that such factors alone, without further compelling justification, were insufficient to disregard the jurisdiction clause explicitly agreed upon by both parties.

Consequently, the appeal was dismissed, thereby reaffirming the position that Nigerian courts will generally respect and enforce foreign jurisdiction clauses and choice of law provisions in contracts unless the challenging party can conclusively demonstrate compelling reasons otherwise. Additionally, the appellant was ordered to pay the associated costs.

 

It is worth noting that South African courts may also be inaccessible where the parties cannot establish a sufficient connection to that forum. For example, in Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (1987) (4) SA 883 (A) at 894 A–B, Viljoen JA held that in a dispute between two foreign parties (peregrini), the mere submission of the defendant (a peregrinus) is not, by itself, sufficient to confer jurisdiction on the South African court.

In such a case, to which court should the party seeking to enforce its rights turn? Had counsel and the Nigerian courts benefited from comparative research on South African law, the outcome might have been different, potentially on grounds of public policy. The Nigerian Supreme Court’s decision in Sonnar (Nig.) Ltd v. Nordwind (1987) 4 NWLR (Pt. 66) 520, 535, affirms that where a foreign court is inaccessible, a Nigerian court may decline to enforce a foreign jurisdiction clause on public policy grounds.

In conclusion, a private international law lawyer best serves their client by being well-versed in the comparative dimensions of the subject.

Axel Halfmeier (Leuphana University Lüneburg, Germany) has kindly shared the following advertisement for a 3-year PhD scholarship with us, which will be part of a research project on ‘Making private law resilient: The role of private litigation in a democracy’.

The research project will investigate the role of private litigation in a democracy, in particular collective litigation, public interest actions or strategic litigation. There is an ongoing discussion about these phenomena and whether they support deliberative democracy by empowering citizens or are anti-democratic in the sense that they transfer excessive power to the judiciary in political questions. To answer this question, normative (legal doctrine, legal theory, political theory) but also empirical approaches are possible. The project can also focus on specific areas of private law, such as media and data protection law, climate litigation, capital markets or tort law in general. The exact study design will be discussed with a view to the interests and qualifications of the candidate.

Application deadline is October 1st, 2025.

Further information on the ‘Embracing Transformation’ scholarships can be found here.

Further information on the specific research project on ‘Democratic Resilience’ is available here.

Questions may be directed to Axel Halfmeier.

On Tuesday, 6 July 2025, 12pm CEST, ConflictofLaws.net will be hosting an ad-hoc virtual roundtable on the Commission’s Brussels Ia Report.

Everyone interested is warmly invited to join via this Zoom link.

More information can be found here.

Conventions & Instruments

On 17 June 2025, the Republic of Korea deposited its instrument of ratification of the 1993 Adoption Convention. With the ratification of the Republic of Korea, the 1993 Adoption Convention now has 107 Contracting Parties. It will enter into force for the Republic of Korea on 1 October 2025. More information is available here.

On 30 June 2025, Denmark signed the 2007 Child Support Convention and deposited its instrument of approval of the Convention. With the approval of Denmark, 55 States and the European Union are bound by the 2007 Child Support Convention. It will enter into force for Denmark on 1 October 2025. More information is available here.

 

Meetings & Events

On 5 June 2025, the first meeting of the Working Group established to finalise the Good Practices document relevant to the 1965 Service, 1970 Evidence, and 1980 Access to Justice Conventions was held online, hosted by the Permanent Bureau. More information is available here.

On 13 June 2025, the Working Party on Cross-Border Family Mediation in the Context of the Malta Process met online. More information is available here.

From 16 to 18 June 2025, the Experts’ Group on Digital Tokens met for the first time. More information is available here.

From 25 to 27June 2025, HCCH Asia Pacific Week 2025 was held in Seoul, co-hosted by the Republic of Korea and the HCCH. The conference brought together over 400 participants from across Asia and the Pacific and beyond for wide-ranging discussions on the most recent developments relating to the HCCH’s key Conventions and instruments, ongoing normative projects, and possible future work. More information is available here.

 

Other Developments

On 2 June 2025, the Host Seat Agreement between Morocco and the HCCH was signed in Rabat, establishing the Regional Office for Africa of the HCCH. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Professor Mareike Schmidt (Max Planck Institute for Social Anthropology) has kindly shared the attached  Call for Applications with us.

She is seeking to fellows working on ‘Complexity as an Issue of Law’ within the framework of her larger project on Change in and through Law: Digital Transformation and Climate Change

On 30 May 2025, the signing of the Convention on the Establishment of the International Organization for Mediation (IOMed)  in Hong Kong marked an advancement in the field of international dispute resolution. Attended by representatives from over 85 countries and 20 international organisations – including the United Nations – the event introduced a treaty-based institutional framework dedicated specifically to mediation.

The IOMed Convention – with equally authentic texts in Arabic, Chinese, English, French, Russian, and Spanish – outlines a structured, treaty-based model of mediation whose scope is deliberately broad, encompassing disputes between States, between a State and nationals of other States, as well as disputes between private parties involved in international commercial relationships (Article 24).

A defining feature of the IOMed Convention is its treatment of the legal effect and enforceability of mediated outcomes. Articles 40 and 41 affirm both the binding nature of settlement agreements resulting from IOMed-facilitated mediation and their enforceability within the domestic legal systems of contracting States. This model of consensual yet normatively binding dispute resolution finds a compelling parallel in – and complements – the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention). The Singapore Convention – which, as of 3 July 2025, counts 58 signatories and 18 parties – reinforces party autonomy while requiring the good faith implementation of mediated settlements. Particularly significant is Article 3 of the Convention, which obliges courts in contracting States to recognise international commercial settlement agreements and to enforce them in accordance with domestic procedures, provided the agreement satisfies the Convention’s requirements. While the Singapore Convention offers a uniform and efficient framework for the enforcement and “invocation” (see Art. 3(2)) of international settlement agreements resulting from mediation, the IOMed Convention contributes by establishing the institutional and procedural framework necessary for the conduct of mediation itself. Together, these instruments enhance both the normative foundation and the practical viability of cross-border mediation, thereby reinforcing its legitimacy in complex international commercial contexts.

Beyond its dispute resolution functions, IOMed also assumes a broader mandate to promote mediation (Art. 5). This includes fostering best practices (Art. 5(b)), organising conferences and training initiatives (Art. 5(c)), and implementing targeted capacity-building programmes (Art. 5(d)). A dedicated Mediation Fund (Art. 44), financed through voluntary contributions, is intended to promote equitable access to services, while a Capacity Building Committee (Art. 43) provides strategic oversight in this domain.

Ultimately, the IOMed Convention does not seek to alter the fundamental character of mediation. Rather, it aims to provide a coherent legal and institutional foundation at the international level. By anchoring mediation within a treaty-based framework, the IOMed Convention offers States and other actors a structured yet flexible environment in which to pursue dialogue-based resolution, with greater predictability, neutrality, and institutional support – while preserving the essential consensual nature that distinguishes mediation from adjudication. While its practical impact will depend on how States and other actors engage with its mechanisms over time, the Convention offers a new platform for exploring the potential of mediation in a variety of international contexts.

 

Written by Dr. Meng Yu, lecturer at China University of Political Science and Law, and co-founder of China Justice Observer.

 

ABSTRACT

In around 2019, a Chinese court in Hebei Province refused to enforce a US default monetary judgment from a California court on the grounds that a valid arbitration agreement was in place (Sunvalley Solar Inc. v Baoding Tianwei Solarfilms Co. Ltd. (2019) Ji 01 Xie Wai Ren No. 3). This decision underscored the court’s reliance on the arbitration agreement’s validity, even though a subsequent legislative proposal to include arbitration agreements as an indirect jurisdictional filter in China’s Civil Procedure Law (2023 Amendment) was ultimately not adopted.

 

Key takeaways:

• In around 2019, a Chinese court in Hebei Province refused to enforce a US default monetary judgment issued by a California court, on the grounds of the existence of a valid arbitration agreement between the parties (Sunvalley Solar Inc. v Baoding Tianwei Solarfilms Co. Ltd. (2019) Ji 01 Xie Wai Ren No. 3).
• The Hebei Court held that the arbitration agreement was valid under Chinese law (the law of the seat of arbitration), since the parties did not specify the law governing the arbitration agreement.
• The Chinese company’s failure to appear in the California court did not constitute a waiver of the arbitration agreement, as the Hebei Court ruled that silence does not imply an intention to abandon arbitration.
• The proposed inclusion of “arbitration agreements” as one of the indirect jurisdictional filters in China’s Civil Procedure Law (2023 Amendment) was ultimately not adopted, following legislative review which deemed it inappropriate to override foreign courts’ determinations regarding the validity of such agreements.

 

What happens if a foreign court default judgment was rendered despite an arbitration agreement and is later submitted for recognition and enforcement in China?

A local Chinese court in Hebei Province refused to recognize and enforce such a default judgment issued by a California court in the United States, on the grounds that the US court lacked indirect jurisdiction due to the existence of a valid arbitration agreement (Sunvalley Solar Inc. v Baoding Tianwei Solarfilms Co. Ltd. (2019) Ji 01 Xie Wai Ren No. 3).

Although the full text of the judgment has not yet been made publicly available, a case brief is included in a recent commentary book – Understanding and Application of the Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide[1] – authored by the Fourth Civil Division of China’s Supreme People’s Court (‘Understanding and Application’).

This raises an interesting and complex question: How would Chinese courts assess the indirect jurisdiction of the court of origin today, in particular, when an arbitration agreement is involved?

 

I. Case background

In January 2011, Sunvalley Solar Inc.(“Sunvalley”), a U.S. company, entered into an agreement with Baoding Tianwei Solarfilms (“BTS”), a Chinese company, for the manufacture of solar panels.

Sunvally later allegedly incurred damages due to defective equipment supplied by BTS and subsequently filed a lawsuit against BTS before the Superior Court of California, County of Los Angeles, US (“California Court”).

On 7 Sept. 2017, the California court rendered a default judgment (no. KC066342) in favor of Sunvalley, awarding a total amount of USD 4,864,722.35 against BTS.

In 2019, Sunvalley filed an application before Shijiazhuang Intermediate People’s Court, Hebei Province, China (“Hebei Court”), seeking the recognition and enforcement of the California judgment (“US Judgment”).

 

II. Court’s Reasoning

Upon review, the Hebei Court held that the jurisdiction of a foreign court over a civil case is a prerequisite for courts to lawfully exercise judicial jurisdiction and also forms the basis upon which a foreign civil judgment may acquire res judicata and become entitled to be recognized and enforced in other countries.

In this case, the key issue was whether the arbitration clause agreed upon by the parties was valid, and if so, whether it excluded the jurisdiction of the California Court. This issue was essential in deciding whether the US Judgment could be recognized and enforced by the Hebei Court.

First, the Hebei Court examined the validity of the arbitration clause. In this case, the parties had only agreed on the governing law of the main contract, which was the laws of California, under Art. 15, Paragraph 1 of the “Procurement Contract”., The parties, however, had not specified the law governing the arbitration agreement. Accordingly, the Court deemed the arbitration clause to be governed by the law of the seat of arbitration, which in this case Chinese law.[2] Under Art. 15, Paragraph 2 of the “Procurement Contract”, the parties had clearly expressed their intention to resolve their disputes through arbitration. According to the said provision, disputes arising out of the contract shall be submitted to the China International Economic and Trade Arbitration Commission (CIETAC). As such, the Hubei Court held that the arbitration clause met the requirements of Art. 16 of China’s Arbitration Law and was therefore valid.

Second, the Hebei Court considered whether BTS’s default constituted a waiver of the arbitration agreement. According to Art. II, Para. 1 of the New York Convention, Contracting States are required to respect valid arbitration agreements. Such agreements are not only legally binding on the parties but also have the legal effect of excluding the jurisdiction of national courts. This principle is fully consistent with Art. 5 of China’s Arbitration Law and Art. 278 of China’s Civil Procedure Law (CPL), both of which clearly provide that a valid arbitration agreement excludes court jurisdiction. If the parties intend to waive the arbitration agreement afterward, such waiver must be clear, explicit and mutually agreed upon, in accordance with the general principle of contract modification. Mere non-appearance in court proceedings does not constitute a waiver of arbitration or submission to the jurisdiction of the California Court. In this case, the existence of a valid arbitration agreement remained unaffected by BTS’s failure to respond to the California Court’s summons. Accordingly, BTS’s silence could not be construed as an intention to waive the arbitration agreement. Thus, the California Court was deemed to lack jurisdiction over the case.

Third, the Hebei Court interpreted Art. 289 of the CPL, which provides for the recognition of “[J]udgments and rulings made by foreign courts that have legal effect”. The Court clarified that this refers specifically to judgments rendered by competent foreign courts. Judgments rendered by courts lacking jurisdiction, including in matters that should have been submitted to arbitration, do not qualify. Since the California Court issued its judgment despite the existence of a valid arbitration agreement, and without proper jurisdiction, the resulting US judgment could not be recognized and enforced under Chinese law.

Accordingly, the Hebei Court refused to recognition and enforcement of the US judgment.

 

III. Comments

Clearly, the existence of a valid arbitration agreement was the decisive reason why the Hebei Court found that the California court lacked proper indirect jurisdiction and thus refused to recognize the judgment it rendered.

While it may seem straightforward that a valid arbitration agreement generally precludes litigation before court, the extent to which such an agreement influences the review of a foreign court’s indirect jurisdiction raises a more nuanced and compelling question. This very issue was at the heart of legislative debates during the drafting of China’s recently amended CPL (“2023 CPL”), which entered in force on 1 January 2024.

 

1. The jurisdiction filter once in the draft

Interestingly, the existence of a valid arbitration agreement was initially included as one of the filters for assessing the indirect jurisdiction of foreign courts in the 2023 CPL Draft Amendment (see Art. 303, Para. 4 of the 2022 CPL Draft Amendment on indirect jurisdiction). Similar judicial views pre-dating the Draft can also be found in Art. 47 of the “Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide”, as well as in the commentary on that Article authored by the Fourth Civil Division of the SPC in the Understanding and Application.

However, this proposed filter was ultimately removed from the final version of the 2023 CPL Amendment.

So why was this filter removed? We can find the answer in the legislative review report on the Draft, the “Report on the Review Results of the ‘CPL Draft Amendment’” issued on Aug. 28, 2023, by the Constitution and Law Committee of the National People’s Congress (NPC) to the NPC Standing Committee:

“[S]ome members of the Standing Committee suggested that Paragraph 4 was inappropriate. If the arbitration agreement has been deemed invalid by a foreign court and thus jurisdiction is assumed, Chinese courts should not easily deny the jurisdiction of the foreign court. It is recommended to delete it. The Constitution and Law Committee, after research, suggested adopting the above opinion and making corresponding amendments to the provision.”

 

2. What now?

If this case were to occur today, how would a Chinese court approach it? In particular, if there were a valid arbitration agreement between the parties, would the court still assess the indirect jurisdiction of the foreign court based on that agreement, if so, how?

This brings us back to the current rules on indirect jurisdiction set out Art. 301 of the 2023 CPL. It is important to note that where the foreign judgments originates from a country that has entered into a bilateral treaty on judicial assistance with China, the indirect jurisdiction rules in the treaty – rather than those in the CPL – will govern the recognition and enforcement process.

Related Posts:

• What’s New for China’s Rules on Foreign Judgments Recognition and Enforcement? – Pocket Guide to 2023 China’s Civil Procedure Law (1)
• Thus Spoke Chinese Judges on Foreign Judgments Recognition and Enforcement: Insights from Chinese Supreme Court Justices on 2023 Civil Procedure Law Amendment (4)

Under Art. 301 of the CPL, China adopts a hybrid approach to assessing indirect jurisdiction, one that combines the law of the rendering court and the law of the requested court. Specifically, for a foreign judgment to be recognized and enforced by Chinese courts, the foreign rendering court must meet the following jurisdictional requirements:

(1) it first must have had jurisdiction under its own national laws;

(2) even if a foreign court had jurisdiction under its own national laws, it must also maintain a proper connection with the dispute. If such a connection is lacking, the foreign court will still be considered incompetent for the purpose of recognition and enforcement in China.;

(3) The foreign court will also be deemed incompetent if its exercise of jurisdiction

a) violates Chinese courts’ exclusive jurisdiction under 279 and Art. 34 of the 2023 CPL, or

b) contradicts a valid exclusive choice-of-court agreement between the parties

In the context of the hypothetical scenario involving an arbitration agreement, a Chinese court would primarily examine the situation under Art. 301, Para. 1 of the CPL. This provision requires the court to consider whether the foreign court properly determined the validity of the arbitration agreement in accordance with the law of the country where the judgment is rendered and thereby determine whether it had jurisdiction.

a) If the foreign court determined that the arbitration agreement was invalid and exercised jurisdiction accordingly under its own law, a Chinese court would generally not deny the foreign court’s jurisdiction (unless it finds that the foreign court lacked proper connection with the dispute). This approach is also consistent with the legislative intent expressed by the NPC Constitution and Law Committee.

b) If the foreign court did not consider or address the validity of the arbitration agreement (as may occur, g., in a default judgment like in the Sunvalley case), how should the Chinese court evaluate the agreement’s validity during the recognition and enforcement stage? This raises a key unresolved issue: Should it assess the validity of the arbitration agreement according to the rules of Chinese private international law, or instead refer to the conflict-of-law rules in the State of origin? The 2023 Civil Procedure Law does not provide a clear answer to this question. As such the issue remains to be tested in future cases.

Related Posts:

• China Issues Landmark Judicial Policy on Enforcement of Foreign Judgments – Breakthrough for Collecting Judgments in China Series (I)
• First Case of Reciprocal Commitment: China Requests Azerbaijan to Enforce its Judgment Based on Reciprocity
• US-China Judgments Recognition and Enforcement

 

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[1] The Fourth Civil Division of China’s Supreme People’s Court, Understanding and Application of the Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide [Quanguo Fayuan Shewai Shangshi Haishi Shenpan Gongzuo Zuotanhui Jiyao Lijie Yu Shiyong], People’s Court Press, 2023, pp. 332-333.

[2] Cf. Art. 18, 2010 Law of the People’s Republic of China on Choice of Law for Foreign-related Civil Relationships (2010 Conflicts Act)

Today the HCCH 2019 Judgments Convention entered into force for the United Kingdom. The UK signed this Convention on 12 January 2024 and filed its instrument of ratification on 27 June 2024.

On 26 March 2025, the UK extended the 2019 Judgments Convention to Scotland and Northern Ireland. Initially, the UK had extended this Convention to England and Wales only. These declarations will take effect on the day the Convention enters into force for the UK in accordance with Articles 25 & 30(3)(4) of the said Convention. For more information, click here.

In particular, the time gap between the declarations requires some clarification. The first declaration with regard to England and Wales takes effect simultaneously with the entry into force of the Convention for the UK (Art. 30(3) of the 2019 Judgments Convention) i.e. 1 July 2025. The second declaration with regard to Scotland and Northern Ireland takes effect “on the first day of the month following the expiration of three months following the date on which the notification is received by the depositary” i.e. 1 July 2025. In the latter case, Article 30(4) of the 2019 Judgments Convention applies and not Article 28(2)(b) of this Convention – which targets territorial units -, because the declaration was made before the Convention entered into force for the UK; nevertheless, the wording of both articles is very similar, with one difference regarding the starting date –  at receipt or after notification is made -, which may in some cases have practical consequences for the counting.

Article 29 of the 2019 Judgments Convention permits States to file a declaration stating that the Convention shall not have the effect of establishing relations between the filing State and another Contracting Party. To date, no State has filed such a declaration. Accordingly, the 2019 Convention will apply between the UK and the 32 Contracting Parties to the Convention (incl. the European Union).

 

 

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

 

H.-P. Mansel: 70 Years of the German Council for Private International Law (1953-2023)

On the occasion of the seventieth anniversary of the founding of the German Council for Private International Law, a conference of the Council was held in Cologne at the invitation of the author as President of the Council, organized by the Institute for Private International and Foreign Law at the University of Cologne. The topic of the conference was “Global Private International Law and 25 Years of Judicial Cooperation in the European Union”. The German Council for Private International Law is an academic institution that advises the Federal Ministry of Justice on German and European legislative projects. Professor Zoltan Csehi, ECJ, gave the opening lecture.

 

Z. Csehi: The approach of the Court of Justice of the European Union to private international law

This article examines the reasons why some scholars, while considering the CJEU’s interpretation of private international law to be correct as to its result, disagree with the CJEU’s reasoning. An analysis of the CJEU’s methodology in this area shows that the approach adopted is not primarily based on the classic principles of private international law. Rather, the focus is on the applicable primary and secondary EU law, in particular the numerous regulations in the area of European judicial cooperation. These instruments are interpreted according to the CJEU’s usual methods, namely by way of autonomous interpretation. Therefore, due account should be taken of this “systemic change” that international civil procedure and conflict of laws rules have undergone as a result of the Europeanization of this area of law.

 

R. Wagner: 25 years of judicial cooperation in civil matters

With the Treaty of Amsterdam entering into force on 1 May 1999, the European Union obtained the legislative competence concerning the judicial cooperation in civil and commercial matters. This event’s 25th anniversary gives ample reason to pause for a moment to briefly appreciate the achievements and to look ahead. This article follows the contributions of the author to this journal in regard to the 15th and the 20th anniversary of the entry into force of the Treaty of Amsterdam (IPRax 2014, 217 and IPRax 2019, 185).

 

C. Budzikiewicz: European international matrimonial law and third countries

The article examines the question of how relations with third countries affect international divorce law, international matrimonial property law and international maintenance law. In the European conflict of laws, the principle of lois uniformes applies. This means that conflict-of-law rules have been established that apply to both EU-related and third-country-related cases. Accordingly, the EU rules on jurisdiction also cover third-country-related cases in principle. Nevertheless, friction and tensions may arise in relation to third countries. This applies, for example, with regard to the primacy of international treaties. But it also covers the creation of limping marriages, the ordre public reservation and conflict-of-law rules relating to form requirements. The fact that both the Rome III Regulation and the European Matrimonial Property Regulation were adopted only by way of enhanced cooperation creates additional conflict potential, as the non-participating Member States are thus third countries, just like the non-EU states. The article deals with the resulting tensions and seeks solutions to overcome them.

 

D. Coester-Waltjen: European International Law on Parent and Child in Relation to Third States

This article aims to analyse problems of determining international jurisdiction and applicable law in matters of parental responsibility as well as recognition of decisions in these matters under European law in connection with third countries. Special focus will be put on EU-Regulation 2019/1111, the 1996 Hague Child Protection Convention and the 1980 Hague Abduction Convention. Whereas those rules of the EU-Regulation 2019/1111 and the 1996 Hague Child Protection Convention, which form lois uniformes, allow a relatively clear and easy determination of international jurisdiction and applicable law even in cases in which the habitual residence of the child – the decisive factor – changed lawfully, the issues become more complicated in cases of child abduction. The EU-Regulation provides some specific rules for that situation concerning jurisdiction, proceedings and enforcement. However, these rules are only applicable if the child had its habitual residence before the abduction in a Member State that is bound by the Regulation and is presumably abducted to another Member State bound by the Regulation. The specific rules do not provide for abduction to or from a third state. For these cases redress should be had to the provisions of the 1996 Hague Convention, the 1980 European Convention on Recognition of Custody Decisions, the 1980 Hague Abduction Convention or the internal national law – possibly intertwined with other rules of the Regulation. Thus, it is complicated to determine the applicable mechanism – even though the concerns – mainly the well-being of the child – are the same in all abduction cases. As time is an issue the complications are counterproductive and may produce inconsistencies.

 

D. Looschelders: European International Succession Law and Third States

The EU Succession Regulation is based on the principles of universal application and unity of succession. Accordingly, it contains only a few provisions that expressly distinguish between cases with substantial connections to two or more Member States and third state situations. The most important exception is the limited relevance of the renvoi in the case of references to third-state law in accordance with Article 34 of the EU Succession Regulation. However, there are numerous other constellations in which the assessment of the succession under the European Succession Regulation in third state situations poses particular difficulties. The article examines these constellations and identifies possible solutions. Finally, the disharmonies arising from the continued validity of bilateral treaties concluded between several Member States, including Germany, and third states are discussed.

 

T. Pfeiffer: The Impact of the Rome I and II Regulations on the Private International Law of Non-Member States and the Hague Principles on Choice of Law in International Commercial Contracts

The article analyzes the influence of the Rome I and Rome II Regs. on the private international law of third countries and on the Hague Principles on Choice of Law in International Commercial Contracts. In doing so, it distinguishes between different ways in which influence is exerted and the varying degrees of influence in individual states or regions, whereby, with regard to the Hague Principles, the exemplary function of certain provisions in the Rome I Reg. can be clearly demonstrated. From an international perspective, the advantage of the Rome Regulations can be seen in the fact that, as European legal acts, they have already passed one, i.e. the European test of international acceptance. A disadvantage of some regulations, on the other hand, is the typical European fondness for detail.

 

H. Kronke: The European Union’s role and its impact on the work of the global private-law-formulating agencies (Hague Conference, UNIDROIT, UNCITRAL)

Focusing, on the one hand, on the European Union’s constitutional competences and, on the other hand, the distinction between categories of instruments (treaties versus soft-law instruments), the author provides an overview of the Union’s participation in and the substantive impact on the negotiation processes over the past decades. While there are examples of highly satisfactory co-operation, there have also been instances of stunning obstruction or unhelpful disinterest. He underscores the role both the relevant Directorates General and individual officials in charge of a dossier may have and calls for better co-ordination of work in the Member States’ ministries and departments.

 

R. Michaels: Private International Law and the Global South

“Modern law’s episteme is inescapably colonial and racist,” says Upendra Baxi, “and private international law cannot escape the, as it were, Original Sin.” With this in mind, I scrutinise for private international law what Nicolaïdis calls EUniversalism: Europe’s claim for universality of its values, spurred by its amnesia about their contingent and colonial origins. How was European private international law shaped against a non-European other? How does private international law today, in its relation, with the Global South, perpetuate colonial hierarchies? To what extent is European private international law an inadequate model for private international law within the Global South itself?

 

L. d´Avout: Explanation and scope of the “right to recognition” of a status change in the EU

The CJEU challenges the legislation of a Member State (Romania) which does not allow the recognition and recording on the birth certificate of a change of first name and gender identity, as lawfully obtained by a citizen of this Member State in another Member State by way of exercising their freedom of movement and of residence. The consequence of this legislation is that an individual person is forced to initiate new legal proceedings with the aim to change their gender identity within this first Member State. The judgment Mirin appears to develop the jurisprudence of the CJEU by confirming the subjective right of transsexual persons to unconditional recognition of their change of civil status in one Member State of the European Union by all other Member States without a supplementary procedure. A contextualised consideration of this judgment enables its significance to be assessed more precisely.

 

K. Duden: Recognition of the change of gender entry: on the home straight to a Union-wide comprehensive status recognition?

The European principle of recognition is becoming more and more important. From company law, it has spread to the law of names, family law and the law of the person. For an increasing number of status questions, the CJEU has established benchmarks from EU primary law for how Member States must treat certain cross-border situations. Mirin is a further step in this development: the CJEU is extending the principle of recognition to a politically highly controversial and salient area – the change of a person’s legal gender entry. In doing so, the court is possibly paving the way for comprehensive status recognition and is setting limits for Member States invoking public policy. Furthermore, the ruling allows interesting insights into the procedural background of the principle of recognition and the object of recognition.

 

A. Dickinson: An Act of Salvage

The sinking of the tanker, ‘The Prestige’, off the Spanish coast more than two decades ago triggered not only an environmental catastrophe, but also a complex chain of legal proceedings that have not yet reached their final destination. This note considers the procedural background to, and substance of, the most recent decision of the English Court of Appeal in Kingdom of Spain v London Steam-Ship Owners’ Mutual Insurance Association Limited [2024] EWCA Civ 1536, considering issues of judgment enforcement under the Brussels I regime and of remedies against a third-party victims pursuing direct actions against insurers without following the dispute resolution mechanisms in the insurance policy.

 

Following a judgment by the Supreme Court of Greece in 2023, the issue of direct damages was once again brought before Areios Pagos. In a decision that diverged from the ruling of the Court of Justice of the European Union (CJEU) in the Lazar case, the Supreme Court reaffirmed its position. However, one member of the court expressed a dissenting opinion, emphasizing the obligation of national courts to submit a preliminary reference. This judge provided rationale for the Supreme Court’s departure from established case law, highlighting the importance of adhering to the CJEU’s precedents in the context of European legal integration.

 

The facts

In the case under consideration, the plaintiffs, Greek nationals residing in Greece, filed a lawsuit in the Athens Court of First Instance following a fatal traffic accident that occurred in Finland in 2016. The deceased, also a Greek national and resident of Greece, suffered fatal injuries when a German driver, operating a vehicle registered in Finland, collided with him. The insurance company representing the German driver acknowledged its civil liability.

First instance proceedings. The plaintiffs, who included the deceased’s parents and grandparents, sought recognition of their right to compensation for emotional distress stemming from the incident. The Athens Court of First Instance partially accepted their claim under Greek law.

Court of Appeal Proceedings

Following the initial ruling, the defendant, i.e., the German insurance company, lodged an appeal before the Athens Court of Appeal [CoA], contending that Finnish law should govern the case, since the accident occurred in Finland. However, the Court of Appeal determined that Greek law was applicable in accordance with Article 4(1) of Regulation (EC) No. 864/2007 (Rome II). This decision was based on the fact that both the deceased and the plaintiffs were Greek nationals and residents of Greece, thereby qualifying under Article 4(1), which stipulates the governing law as the law of the country in which the damage (here, emotional distress) occurs.

The Court of Appeal concluded that the relatives of the deceased possessed a direct and personal claim against the perpetrator, as the emotional injury constituted a primary and immediate violation of their personal rights. Consequently, the jurisdiction of the court was established based on the residence of the plaintiffs, where they endured emotional distress due to the deceased’s death.

Importantly, the nature of the emotional distress was distinguished as a direct consequence of the wrongful act, independent from the primary injury suffered by the deceased. The court considered that the location of such emotional distress is defined not by where the relatives learned of the death, but rather by their primary residence, where they experience ongoing suffering over time.

Finally, under Article 932 of the Greek Civil Code, financial compensation for emotional distress is expressly recognized for relatives of victims in cases involving wrongful death.

Supreme Court Ruling

The Hellenic Supreme Court upheld the Co A decision, affirming that Greek law applied in this case, and that the CoA accurately interpreted Article 4(1) of the Rome II Regulation. The Supreme Court ruled that the concept of direct damage encompasses the emotional anguish experienced by the relatives, thereby warranting compensation and establishing jurisdiction based on their residence.

In its decision, the majority of the Supreme Court members underscored that a contrary interpretation, which would limit jurisdiction solely to the country where the accident occurred, would conflict with established interpretations by the Court of Justice of the European Union (CJEU). The majority opinion emphasized the importance of recognizing the locality of emotional distress as a legitimate basis for asserting jurisdiction and claims for compensation.

Minority Opinion

One member of the Court expressed the following opinion: According to Article 267 TFEU, the courts of the Member States in which a question of interpretation of primary or secondary law of the European Union arises in a pending case are allowed or even required, when it comes to a court whose decisions are not subject to appeal under the internal law of the relevant Member State, to refer the matter to the CJEU for a preliminary ruling. Thus, with the institution of preliminary reference, a procedure is established between national courts and the CJ EU, with the main goal of ensuring the uniformity of EU law, which also serves the principle of equal treatment of the involved persons, since this principle is surely threatened if the same provisions are applied differently across the Member States of the EU.

The submission of a preliminary question is mandatory when the relevant conditions set by the CJEU are met, which are mainly condensed in the principle of the so-called acte clair. If the CJEU has ruled on the interpretation of provisions of EU law, the national court, particularly the court whose decisions are not subject to appeal, is obliged to comply with it and, if it disagrees, must submit a new preliminary question providing new elements, developing its arguments, and supporting a different interpretation.

In addition, the same member of the Supreme Court dissented, arguing that Article 4(1) of the Rome II Regulation characterizes the damages related to the death of the victim as indirect consequences of the accident when the plaintiffs reside in a different Member State than where the accident occurred. The dissenting opinion cited EU case law (CJEU, case C-350/14, Lazar) to assert that the applicable law in such cases would be the law of Finland, where the direct damage occurred, rather than Greek law.

The minority contended that, as per Finnish law, monetary compensation for emotional distress in cases of wrongful death is only available under specific circumstances, which may unduly limit the recovery of damages for the relatives in question. Accordingly, it proposed the need for a preliminary reference to the CJEU to clarify the legal framework surrounding compensation claims for emotional distress and the corresponding entitlements in light of the applicable law.

Conclusion

The Hellenic Supreme Court reinforced the principle that the emotional distress suffered by relatives of a deceased individual due to wrongful death is direct damage under the Rome II Regulation, warranting compensation. This case highlights the nuanced interplay between jurisdiction, applicable law, and the evolving interpretation of emotional distress in the context of cross-border torts within the European Union.

The Department of International Law (Secretariat for Legal Affairs) of the Organization of American States (OAS) has just published in essay form the lectures delivered during the 49th Course on International Law, which was held on 5 -16 August 2024. For more information, click here.

The book features the following piece: The 50th anniversary of the first Inter-American specialized conference on private international law. The future of private international law in the Americas by Dante Mauricio Negro Alvarado (in English, p. 295-335). This is a must-read for Private International Law academics and lawyers from the region and beyond.

As indicated in the publication, Dante Mauricio Negro Alvarado graduated from the Pontificia Universidad Católica del Perú, where he also pursued postgraduate studies in International Economic Law. He holds a master’s degree in International Law and Human Rights from the University of Notre Dame, Indiana. He has worked at the OAS  (Washington, D.C.) since 1995 and served as Director of the Department of International Law of that Organization since 2006. He is Technical Secretary of the Inter-American Juridical Committee.

Post prepared by Eduardo Silva de Freitas, PhD researcher Erasmus University Rotterdam and junior researcher at the Asser Institute

 

As part of its 60th anniversary celebrations, the T.M.C. Asser Institute invites abstracts for the panel “Emerging Voices in Private International Law”, to be held on 24 October 2025 in The Hague, at the conference Adapting Private International Law in an Era of Uncertainty.

The panel will feature two early-career scholars (PhD candidates or postdoctoral researchers) presenting original work in the field. Selected participants will also contribute to a forthcoming volume in the Short Studies in Private International Law series.

To apply, please submit a 400-word abstract and brief personal details by 15 August 2025 (24:00 CET) to: e.silva.de.freitas@asser.nl

Full call for abstracts: https://www.asser.nl/media/797989/call-for-abstracts_pil_asser.pdf