Conflictoflaws

We are delighted to share the Call for Papers for a virtual early-career conference on ‘Global Harm, Local Justice | The Future of Cross-Border Torts’, hosted by K.C. (Kirsten) Henckel and M.A.S. (Martin) Bulla from the University of Groningen on 6 February 2026.

Abstracts of 300–500 words must be submitted by 1 December 2025.

The second issue of the Chinese Journal of Transnational Law for 2025 was just published. It contains a special issue on “Private International Law and Sustainable Development in Asia” with Ralf Michaels,  Verónica Ruiz Abou-Nigm, Hans van Loon as guest editors. It builds on The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law.

Ralf Michaels, Verónica Ruiz Abou-Nigm, Hans van Loon, “Private International Law and Sustainable Development in Asia”

Since the publication of ‘The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law’ in 2021, the importance of private international law for sustainable development is increasingly being recognised. The article describes the background to that project and surveys its subsequent reception and further development in scholarly literature. Moreover, it traces the need for, and trend towards, regionalization of the relevant research, including in Latin America, Africa and Asia-Pacific. It can thus serve as introduction to the special issue on private international law and sustainable development in Asia.

Jiabao Zhou, “Private International Law as Foreign Relations Law? Orienting Chinese Private International Law Towards Sustainable Development”

The Chinese Foreign Relations Law (‘the FRL’) – a collection of rules legalizing China’s foreign policies – was enacted in 2023. While technically a set of policy goals and public law rules, it provides an opportunity to orient Chinese private international law (‘PIL’) towards sustainable development. Notably, the FRL connects Chinese PIL with sustainable development for the first time and revisits the conceptions of what is being understood as ‘domestic’ versus ‘foreign’, and ‘public’ versus ‘private’. This article explores how PIL can leverage this shift to accommodate sustainability as a normative value, foster positive interactions with foreign laws and courts, and develop a robust and tailored regulatory function. By doing so, Chinese PIL, as a form of foreign relations law, can expand its function beyond conflict resolution and develop a role in China’s foreign policy and global sustainability governance.

 

Ke Mu, “The Role of State-Owned Enterprises in the Pursuit of the Sustainable Development Goals”

Business conduct and enterprises’ commitment to social responsibility have a far-reaching impact on corporate shareholders and external stakeholders, but they are not effectively aligned with the globally recognized agenda of Sustainable Development Goals (SDGs). The necessity and difficulty of studying state-owned enterprises’(SOEs) roles in corporate governance and the SDGs agenda stem from their unique position at the intersection of various legal sectors and their underrated status within the SDGs schemes and relevant studies. In particular, the issue of characterizing SOEs from the perspective of private international law is emblematic, raising doubts about whether to treat SOEs as private or state entities in international dispute resolution and how such categorization may affect their performance of sustainability obligations. A sovereign function test is routinely invoked for deciding whether state immunity applies to SOEs. This test proposes four criteria: (a) state ownership and control, (b) nature of the activities at issue, (c) principal purposes of the entities, and (d) specific purposes of the activities at issue. However, given the limitations of this test, an additional criterion can be added consisting in examining whether the SOEs could have carried out the same act – or could have seized the same property – without relying on state power. Zihao Fan, “Promoting Cities’ Sustainable Development vis Access to Justice: Observations on the Jurisdiction of Chinese Mainland” This article explores how transnational jurisdiction influences cities’ sustainable development in view of providing access to justice in SDG 16. While cities are often regarded as administrative units within a State, effective jurisdictional designs can promote transnational access to justice on city-level, providing efficiency, transparency and predictability, which in turn attracts people, capital and technology required to advance the sustainability objectives embodied in SDG 11. By analysing China’s jurisdictional framework, this article examines both general jurisdictional rules and special jurisdictional arrangements that impact cities. The revised monistic approach of the 2023 Civil Procedure Law indirectly affects cities by determining how foreign-related cases are allocated, while special jurisdictional arrangements, such as China International Commercial Courts and local International Commercial Courts, directly strengthen selected cities’ dispute resolution capabilities. Additionally, the evolution of China’s centralised jurisdiction system demonstrates the importance of adapting jurisdictional strategies to economic development and judicial expertise. Adeline Chong and Stefanie Schacherer, “Extra-territorial Liability and Enforcement: Finding Ways to Tackle Haze Pollution is Southeast Asia” Periodic transboundary haze pollution resulting from land fires in Southeast Asia poses significant sustainability challenges for the region. The majority of transboundary haze is attributed to peatland fires in Indonesia, with winds bringing haze pollution to other countries in the region. Attempts have been made to tackle this problem. At the public international law level, the Association of Southeast Asian Nations (ASEAN) concluded the ASEAN Transboundary Haze Agreement which entered into force in 2003. However, the lack of sanctions for breach and the adoption of the principle of non-interference between ASEAN member states meant that this agreement and other policy-oriented measures have had limited effect. In the hopes of ameliorating the problem, Singapore enacted the Transboundary Haze Pollution Act in 2014. This act, which is extraterritorial in scope, imposes criminal and civil liability on entities responsible for haze pollution which causes damage in Singapore. Nevertheless, practical issues still remain. This paper examines regional efforts to deal with the transboundary haze pollution problem. In particular, it accesses the Singapore Act from a private international law viewpoint, by considering jurisdictional, choice of law, and judgement enforcement issues. Lastly, suggestions are made as to concrete steps forward.

Bùi Th? Qu?nh Trang and Nguy?n Th? H?ng Trinh, “Exploring the Potential for Climate Change Litigation in Vietnam: A Forward-Looking Assessment”

Climate change litigation is increasingly recognized not just as a strategic tool but also as an effective method for advocating more robust climate change mitigation and adaptation targets and ensuring the enforcement of environmental laws by governments and private actors alike. In several developed countries, climate change litigation emerged, with typical cases setting precedents in other jurisdictions. In the context of Vietnam, a developing country with a unique communist legal system, climate change litigation presents a novel area of inquiry; thus, this study explores the nascent field of climate litigation, assessing its viability in Vietnamese judicial practices. Notably, the study suggests that in Vietnam’s typical jurisdiction, the vertical climate actions are less likely to materialize compared to horizontal cases. Furthermore, in these international horizontal litigations, the choice of law rules primarily mandate the application of local law.

Anselmo Reyes, “The Impartial Judge, Climate Change and the Conflict of Laws”

The article reflects on how an impartial judge might approach disputes involving environmental, social and governance (ESG) issues, especially climate change. Section II expresses doubts about the efficacy of a purely private international law analysis in dealing with climate change litigation and suggests ways of addressing such concerns. Section III focuses on Asia and comments on the extent to which the observations in section II are applicable to the Asian context. Section IV offers tentative thoughts, in light of sections II and III, on how judges can and should conduct themselves in ESG disputes relating to climate change.

 

Zixuan Yang, “Providing Legal Identity for All: A Comparative Study of the Cross-Border Recognition of Personal Status in the European Union and Asian Regionalization”

In this paper, I argue that the civil registration and its distance from the private international law (PIL) pose peculiar challenges for achieving the goal of ‘Providing Legal Identity for All’ among the Asian intra-regional circular migrants. Civil registration of personal and family status combines public administration with private law. More public registration of personal status means more involvement of local public order and interest. Therefore, registration regulations are less attentive than PIL to the potential foreign-related legal situations. Hence, will greater public involvement in registration raise a conflict between the defence of ordre public and individuals’ aspirations to maintain their personal status? The territorial limits of administrative act have so far foreclosed the possibility of transnational civil registration. When it comes to the identity that does not fit into the domestic categories, questions arise whether and how to recognize them in the domestic legal system. This poses special burdens and additional costs for intra-regional circular migrants if their legal identity cannot be well defined and recognized in the several jurisdictions concerned, which is essentially contrary to the presumed erga omnes effect of individuals’ identity rights.

 

Stellina Jolly and  Prakriti Malla, “International Child Abduction Jurisprudence in India and Nepal: An Evaluation of Gender Consideration in the Attainment of SDG 5″

Despite the growing incidence of child abduction facilitated by the mobility and prevalence of non-resident marriages involving Indian and Nepalese citizens with foreign nationals, both India and Nepal have refrained from acceding to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Indian executive has vocally supported criticisms against the Abduction Convention, advocating for the inclusion of domestic violence as a basis for exception under the Abduction Convention and proposed domestic legislation. In contrast, the official position of Nepal remains undisclosed, with recent case law offering limited insight into its engagement with the Abduction Convention. Against this backdrop, the article scrutinizes the recognition of gender perspectives in statutory provisions and case law in India and Nepal concerning international child abduction. It should be noted that Sustainable Development Goal (SDG) 5, which calls for the elimination of all forms of violence against women and girls in the public and private spheres – including trafficking, sexual and other types of exploitation – also includes addressing domestic violence in family spheres. This article, therefore, considers the inclusion of gender considerations within the realm of child abduction as a core consideration in the attainment of SDG 5.

 

Rong-Chwan Chen, “Taiwan’s Path Toward Sustainable Development Goal 5 in Private International Law”

Sustainable Development Goal 5 (SDG 5) has different implications for countries. This paper explores Taiwan’s path toward SDG 5 and examines the legal environment surrounding this path. Taiwan’s unilateral implementation of UN conventions effectively bridges certain gaps between itself and the international community. Reforms in private international law and the legalization of same-sex marriage have further promoted gender equality from a conflict-of-laws perspective. The recognition of the exceptional validity of polygamous marriages illustrates the pursuit of justice in cross-border legal conflicts. It is observed that alternative applicable laws, ordre public, and overriding mandatory provisions serve as effective tools for states to advance SDG 5. Taiwan’s traditional rules on ancestor worship associations collide not only with modern legislation on estate succession but also with foreign laws when the membership disputes involve foreign elements. This paper argues that the nature of rules on estate succession should be distinguished from that of ancestor worship or family lineage, and that SDG 5 is helpful in modernizing the local customary rules on ancestor worship associations. It further suggests that the provisions on legal persons in the Choice of Law Act 2010 may be applied by analogy to determine the governing law for the membership of unincorporated ancestor worship associations.

 

The third issue of the Journal of Private International Law was published today. It contains the following articles

Andrew Tettenborn, “English conflicts law at sea – the transfer and creation of proprietary interests in ships”

Surprisingly, the law applicable to the creation and transfer of proprietary interests in ships remains remarkably obscure as a matter of the English conflict of laws. In this article an attempt is made to investigate the relevant authorities and to reconcile them. The conclusion is that, subject to exceptions, English courts will recognise transfers if they are effective under any one or more of (1) the lex situs, (2) the law of the registry and (3) (in the case of equitable interests) English law.

 

Gerard McCormack, “Hands up for UK joining the Hague Judgments Convention 2019 but lukewarm on the UK returning to the Lugano Convention 2007”

This article considers the relative merits of the Hague Judgments Convention 2019 and the Lugano Convention 2007 for the UK in the post-Brexit era viewed primarily from the extent of the insolvency exceptions in both Conventions (and in the Hague Choice of Court Convention 2005) as they apply to UK schemes of arrangement and UK restructuring plans for companies. The article briefly takes account of some broader issues relating to arbitration and exclusive choice of court agreements, primarily through the lens of The Prestige litigation, before reaching a conclusion in favour of the UK having become a Party to the Hague Judgments Convention 2019 in 2025 and against the UK rejoining the Lugano Convention 2007.

 

Guangjian Tu and Tiezheng Yang., “The doctrine of public policy in Chinese courts’ choice of law in the modern age”

It is generally agreed that in private international law the doctrine of public policy plays a fundamentally important role in the application of foreign law and can work as a safety valve. This doctrine has also been reflected in Chinese legislation as in many other jurisdictions. However, the application of this doctrine in Chinese courts is inconsistent, which could not only lead to uncertainty but also jeopardise justice. This article examines how the doctrine of public policy has been applied in choice of law in Chinese courts since 2010 when the new Chinese choice of law codification was made. It finds that there are basically four main types of cases in which Chinese courts have applied the doctrine of public policy to exclude the application of foreign laws. After detailed analysis and reflection, it is suggested that this doctrine continue to be applied for some of those cases but not for others.

Katja Karjalainen, “Acquiring a child abroad and paths to parenthood in Finland: The difference between private adoptions and international surrogacy arrangements”

The article delves into issues of legal tourism and global justice. By referencing the Hague Adoption Convention as well as Finnish legal approaches and case law with respect to the confirmation of a child-parent relationship following private intercountry adoptions and international surrogacy arrangements (ISAs), the article elaborates on the problematics of recognition. Doubts with respect to ethical and commercial aspects of arrangements and the deprivation of rights of vulnerable individuals have been presented with respect to both cases. The article shows the paradox between the legal approaches in these two cases that both entail an independent endeavour to get a child abroad. In doing so, the article underlines how the regulatory framework built up by the Hague Adoption Convention for the area of intercountry adoptions creates more space for global justice and collective interests than non-regulation, but may, in some cases, be detrimental to individual rights and interests. Non-regulation of ISAs underlines individual rights and interests and at the same time erodes domestic legal norms.The article delves into issues of legal tourism and global justice. By referencing the Hague Adoption Convention as well as Finnish legal approaches and case law with respect to the confirmation of a child-parent relationship following private intercountry adoptions and international surrogacy arrangements (ISAs), the article elaborates on the problematics of recognition. Doubts with respect to ethical and commercial aspects of arrangements and the deprivation of rights of vulnerable individuals have been presented with respect to both cases. The article shows the paradox between the legal approaches in these two cases that both entail an independent endeavour to get a child abroad. In doing so, the article underlines how the regulatory framework built up by the Hague Adoption Convention for the area of intercountry adoptions creates more space for global justice and collective interests than non-regulation, but may, in some cases, be detrimental to individual rights and interests. Non-regulation of ISAs underlines individual rights and interests and at the same time erodes domestic legal norms.

 

Maria Hook, “Are “extraterritorial” consumer laws anti-internationalist?”

This article asks whether extraterritorial consumer laws, defined as laws that create a risk of regulatory overlap, are anti-internationalist. Drawing on New Zealand law as a case study, the article argues that extraterritorial consumer laws may recognise intersecting but legitimate regulatory interests. If the plaintiff gets to choose the law, indirectly or directly, there is an appropriate process for identifying the applicable law based on the principle of favor laesi. In this sense, extraterritorial consumer laws do not just give effect to local interests, to be balanced with competing internationalist concerns. Rather, they themselves may reflect an internationalist approach to private international law, even if the approach is not universally adopted. The article then explores potential implications of this argument for the court’s analysis of the applicable law and jurisdiction. Courts may be more willing to embrace an extraterritorial interpretation of consumer laws, and to lean into the plaintiff’s ability to rely on foreign law despite local law also being applicable in principle (as has happened in New Zealand). Courts may also treat the plaintiff’s choice of forum with deference when they decide whether to exercise jurisdiction on the basis of the doctrine of forum (non) conveniens.

 

Aleksandrs Fillers, “Venue in the Brussels Ia Regulation”

Anybody who has even superficial knowledge of EU private international law has heard about its cornerstone – the Brussels Ia Regulation. Typically, the major issue when dealing with the said regulation is to determine which Member State can hear the dispute. However, the Brussels Ia Regulation has a second layer. In addition to rules of international jurisdiction, the Regulation, as interpreted by the CJEU, contains venue rules that determine which specific court can hear a case. This issue is far less known to courts and practitioners and often glossed over by scholars. The article aims to provide a comprehensive study of venue rules in the Brussels Ia Regulation.

The third issue of Lloyd’s Maritime and Commercial Law Quarterly for 2025 has recently been published. It contains two private international law case notes and a book review.

Andreas Giannakopoulos, “Asymmetric Jurisdiction Clauses and EU Exceptionalism”

Matthew Hoyle, “Full Service: Freezing Injunctions and Service Out (Again)”

Thomas Raphael, “The Virtues of Symmetry”

This guest post is posted on behalf of Kamakshi Puri, Senior Associate at Cyril Amarchand Mangaldas, Delhi, India, and dual-qualified lawyer (India and England and Wales).

 

The Singapore High Court recently clarified the scope of the court’s jurisdiction over foreign non-parties to the arbitration. In an application to set aside two interim injunctions, in Alphard Maritime Ltd. v Samson Maritime Ltd. & Ors. (2025) SGHC 154,[1] the court held that the the seat per se did not confer jurisdiction against non-parties to an arbitration, and that jurisdiction would first have to be established through regular service-out procedures before the seat court could grant an injunction against a non-party.

 

Factual Background

 

Briefly, the applicant, Alphard Maritime (“Alphard”), initiated SCMA arbitration[2] against its debtor, Samson Maritime (“Samson”), and Samson’s wholly owned subsidiary, Underwater Services (“Underwater”), for alleged breach of a settlement agreement for the sale of approx. nine vessels and Samson’s shareholding in Underwater to Alphard (“Subject Assets”). Alphard initiated arbitration upon receiving information of the pledge/mortgage of the Subject Assets to J M Baxi Marine Services (“Baxi”) in breach of the Settlement Agreement. In addition to the ex-parte freezing order against Samson and Underwater, Alphard had received from the seat court, acting in support of the arbitration, an ex-parte prohibitory injunction restraining Baxi and other creditors of Samson from assisting in or facilitating the dissipation of, or dealing with, any of Samson and Underwater’s assets worldwide. Baxi was not a party to the Settlement Agreement. While one of the defendants was based out of Singapore, Samson and Underwater were bound by the jurisdiction conferred to the seat court; however, Baxi was a foreign non-party to the arbitration.

 

While the interim freezing injunction against Samson and Underwater was vacated on the finding that there was no evidence of dissipation or risk of dissipation of assets, and the court observed that there was no basis for the injunction which in effect prohibited Baxi and/or the lenders from asserting their own contractual rights or enforcing proprietary rights against Samson which pre-dated the Settlement Agreement, the injunction was vacated primarily on the finding that the Singapore court, as the seat court, had no jurisdiction over Baxi or the foreign lenders.

 

Seat Court’s Jurisdiction over Foreign Defendants

 

A court must have in personam jurisdiction to grant an injunction against a party. Under Singapore law, which follows the English law on jurisdiction, jurisdiction is based on service of proceedings, and the court assumes jurisdiction over a foreign party (not having a presence in Singapore and not having submitted to the proceedings) through permission for service out of the claims. [3] The court allows permission for service out where “the Singapore Court is the appropriate forum for hearing the proceedings”.[4] For the assessment of whether permission for service out should be granted, i.e., that Singapore Court is the appropriate forum, the claimant is required to meet the following three-prong assessment: [5]

 

1. A good arguable case that there is sufficient nexus with the Singapore court;
2. Singapore is the forum conveniens; and
3. There is a serious question to be tried on the merits of the claim.

 

The “sufficient nexus” refers to the connection between the court and the defendant and follows the logic that a party may only be called to a foreign court where they have a sufficiently strong connection to the state. Practice Directions 63(3)(a) to (t) set out “Factors” that guide as to the possible connection that the foreign defendant may have with the Singapore court. [6]

 

Alphard relied on 2 factors – first, PD 63(3)(d), a claim to obtain relief in respect of the breach of a contract governed by the laws of Singapore. This was held to be inapplicable, as Baxi was neither a party to the contract, nor committed any breach. Second, PD 63(3)(n) claims made under any other written law of Singapore. In this regard, it was contended that the claim against Baxi was under Section 12A of the International Arbitration Act, i.e., an exercise of the Singapore court’s power to grant an injunction against non-parties in support of Singapore-seated arbitration, which wide power ensured that non-parties did not collude with the defendants to frustrate the fruits of a claim. The court accepted PD 63(3)(n) as a relevant factor.

 

However, since sufficient nexus with the court is not enough for permission to service out, the court proceeded to the next equity, i.e., whether Singapore was the ‘forum conveniens’. Forum conveniens is an exercise in determining the most appropriate court for deciding the lis. It is the assessment of the connection of the dispute with the Singapore court. The ‘dispute’ here was the prohibitory injunction against Baxi. The court held that to be the ‘appropriate court’ for interim relief against a specific party, it required more than the arbitration being seated in Singapore. The seat court would be the appropriate court if the dispute with the specific party could be traced to the arbitration, or assets/obligations were substantially that of party to the arbitration, i.e.,

 

1. Was the non-party bound by the arbitration agreement even if it was not a party to the arbitration?
2. did the non-party hold assets in Singapore, which arguably belonged beneficially to a party to the arbitration (non-party was a trustee / pass-through for the assets)
3. was the non-party a corporate entity held/owned by the party to the arbitration, and therefore, did the dissipation of assets of the party amount to the dissipation of value of the party (merger of identity between the party and non-party)?

 

The Court held that in the absence of any of the above, the seat court would not be the de facto appropriate forum for injunctions against all non-parties even when the injunction is in aid of Singapore-seated arbitration. The court did not find any reason for Baxi, an entity pursuing its independent remedy against the Alphard, to be brought before the Singapore court.

 

Notably, Alphard had already pursued interim relief under Section 9 of the (Indian) Arbitration and Conciliation Act, 1996, against the Defendants, including Baxi, before the High Court of Bombay. [7] The Bombay High Court, acting further to its power for making interim orders for protection of the subject matter in arbitration, including in international commercial arbitration where the place of arbitration is outside India [8], granted a status quo injunction, including on Baxi, on further dealing in or creating any further third-party interests in the shares held by Samson in Underwater and a disclosure order in respect to the transaction for pledge created in favour of Baxi.

 

Concluding Thoughts

 

For the known benefits of enforcement and limited grounds of challenge of awards under Singapore law and before Singapore courts, foreign parties regularly opt for Singapore as the neutral seat of arbitration. In such cases, the only nexus of the dispute with the court is its designation as the seat court. Separately, arbitral tribunals do not have jurisdiction over non-parties to an arbitration; thus, courts assume adjudication for interim relief applications against non-parties to the arbitration. With this decision, the Singapore court has confirmed the non-seat court’s interference for interim reliefs where parties require protective orders vis-a-vis non-parties to the arbitration.

[1] Available here.

[2] Arbitration under the Singapore Chamber of Maritime Arbitration (“SCMA”) Rules.

[3] S. 16(1)(a)(ii) of the Supreme Court of Judicature Act 1969: “16.—(1)  The General Division has jurisdiction to hear and try any action in personam where — (a) the defendant is served with an originating claim or any other originating process — …(ii) outside Singapore in the circumstances authorised by and in the manner prescribed by Rules of Court or Family Justice Rules.”

[4] Rules of Court 2021, Rule 1(1) of Order 8 of ROC 2021 “1.—(1)  An originating process or other court document may be served out of Singapore with the Court’s approval if it can be shown that the Court has the jurisdiction or is the appropriate court to hear the action” .

[5] Supreme Court Practice Directions 2021, Para 63(2).

[6] Prior to 2021, this condition was similar to English law, i.e., the “Good and arguable case that a gateway applies”. While “gateways” have been done away with, the Practice Directives have set out a non-exhaustive list of factors (PD 63(3)(a)–(t)) which a claimant “should refer to” in order to meet the requirement under PD 63(2)(a). These factors mirror the gateways with were earlier found in the Rules of Court 2014. See Ardavan Arzandeh, The New Rules of Court and the Service-Out Jurisdiction in Singapore, (2022) Singapore Journal of Legal Studies 191–201.

[7] Alphard Maritime Ltd. v Samson Maritime Limited & Ors. Commercial Arbitration Petition (L) No.7499 of 2025, Order dated 02.04.2025, available here.

[8] Section 9 read with Section 2(2) of the Arbitration Act, 1996.

The fourth annual APILA Conference will take place in person at Doshisha University in Kyoto (Japan) on Saturday 13 (Day 1) and Sunday 14 (Day 2) December 2025.  The APILA Conference will be in the form of two days of roundtable discussions in English.  Persons whose abstracts have been selected (see next paragraph) will deliver oral presentations in turn on Days 1 and 2.  Each presentation will run for about 10 minutes and be followed by a discussion of about 10 to 15 minutes in which participants will have the opportunity to comment on the presentation.  The objective of the APILA Conference is to assist presenters to refine prospective research papers with a view to eventual publication. 

Persons who are interested in delivering presentations at the APILA Conference are invited to submit abstracts of their proposals in English.  While proposals may be on any topic, they should (1) focus on private international law issues and (2) somehow relate to Asia (broadly defined).  Further, while every effort will be made to fit in as many presentations as possible, given the constraints of time, it may not be feasible to accept all proposals.  Inevitably, in that case, some selection may be necessary.  APILA apologises in advance for this.  Everything else being equal, priority will be given to proposals exploring cutting edge questions (albeit not necessarily definitively answering them) in one or more of the following areas: (1) international dispute resolution (especially international arbitration and mediation), (2) data protection and data privacy, (3) competition law (including within digital markets), (4) family law (including succession), (5) intellectual property rights, (6) Islamic private international law, (7) environmental issues (including climate change), (8) business and human rights, (9) cryptocurrency and the blockchain, (10) sanctions and counter-sanctions, (11) the economic analysis of private international law rules, and (12) artificial intelligence.

Abstracts are to be submitted by email to reyes.anselmo@gmail.com by Saturday 25 October 2025.  Persons whose abstracts have been accepted will be so informed by Saturday 1 November 2025. The latter persons are thereafter requested to submit their presentations in PowerPoint format or (if the presentation is in the form of a draft paper) in pdf format by email to reyes.anselmo@gmail.com by Saturday 22 November 2025.  All PowerPoints and draft papers received will be circulated in advance electronically among APILA Conference participants.  Participants will thus be able to read into the topics to be discussed in advance of the APILA Conference.  Oral presentations can then focus on succinct statements of key takeaways and more time can be allotted to discussion.

Please note that APILA’s available funding is limited.  Therefore, in the normal course of events, APILA regrets that it will not be able to provide funding for the travel and accommodation expenses of presenters and attendees.

With a slight delay – entirely due to myself – I am pleased to announce the release of the second 2025 issue of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM). This issue features:

Francesco Pesce, Associate Professor at the University of Genoa, Il riconoscimento delle decisioni straniere in materia civile tra previsioni sulla competenza funzionale del giudice interno e comunicazioni alla Commissione europea (Recognition of Foreign Decisions in Civil Matters between Provisions on the Functional Jurisdiction of National Courts and Communications to the European Commission; in Italian)

The implementation of the Regulations adopted by the EU in the context of so-called civil judicial cooperation has assumed an increasing importance over the last twenty years, due to the progressive expansion of the areas of intervention of the legislator of the European Union. Nonetheless, some of the repercussions of such uniform legislation do not seem to have been appropriately reversed, by the Italian national legislator, into the code of civil procedure and into the other special provisions aimed at ruling civil proceedings. With regard to the recognition and enforcement of foreign decisions, it appears that notwithstanding the ever more pressing need to address the matter in a complete and organic manner, a situation of inertia has prevailed in the Italian legal system, moving from the idea that, where compatible with the new EU Regulations, the domestic procedural rules could also be adapted to the intra-European circulation of judgments. This has resulted in a rather fragmentary and incomplete internal regulatory framework of civil procedure, so affecting the principle of legal certainty due to the lack of specific provisions aimed at implementing the EU discipline dedicated to the free movement of decisions. Moreover, the EU Regulations here considered require that each country informs the Commission, by means of a formal communication, of the internal procedures that may be relevant in the application of the uniform discipline (with particular reference to the competent national authorities and to the specific applicable procedures): in this regard – even after the 2022 ‘Cartabia’ reform of civil procedure – it seems that the content of the Italian communications is, in some cases, not only devoid of an adequate legislative basis of reference from the point of view of the national system, but even unreasonable and incoherent if observed in a systemic perspective.

This issue also comprises the following comments:

Curzio Fossati, Postdoctoral research fellow at the University of Cagliari, L’incidenza dell’obbligo di riconoscimento dello status filiationis nell’Unione europea sugli ordinamenti nazionali (The Impact on National Legal Systems of the Obligation to Recognise Filiation Status within the European Union; in Italian)

This article examines whether each Member State of the European Union is obliged to recognise the filiation established in another Member State. Noting the current lack of uniform private international law rules on filiation, the paper considers some examples of conflict-of-laws rules in force in the Member States and highlights the main differences between them. It then analyses the case-law of the Court of Justice on the circulation of personal and family status between Member States in order to examine the scope and basis of the Court’s obligation for Member States to recognise such status. The aim of this work is to show that the solution adopted by the Court of Justice is only partially able to resolve the problematic aspects of the current private international law regulation of filiation, highlighting persistent uncertainties and critical issues.

Kevin Silvestri, Doctor in law, La legge regolatrice degli effetti dell’apertura di procedure di insolvenza sui processi su crediti pendenti all’estero (The Law Governing the Effects of the Opening of Insolvency Proceedings on Proceedings Concerning Claims Pending Abroad; in Italian)

This paper examines a specific facet of the broader challenge of cross-border insolvency proceedings: identifying the law that governs the effect of opening insolvency proceedings in one State on lawsuits concerning creditors’ claims that are already pending in another. The issue is particularly delicate for several reasons. On the one hand, the impact of insolvency proceedings on ongoing creditor litigation is a key element in determining the liabilities of the estate under the lex fori concursus. This includes, in particular, how the proof of claims process interacts with pending lawsuits involving the debtor. On the other hand, under the principle lex fori regit processum, the rules applicable to those lawsuits may differ from those governing the insolvency proceedings themselves, especially when the litigation is pending abroad. This work highlights the tension between these competing principles and explores the difficulties that arise when the legal systems involved adopt different methods of coordinating the proof of claims process with creditor litigation. It then turns to the divergent interpretations of Article 18 of Regulation (EU) 2015/848, which seeks to determine the applicable law in such cases. Scholars have advanced a range of interpretations, reflecting the complexity created by the divergences among European leges concursus concerning the treatment of creditor lawsuits pending at the commencement of insolvency proceedings.

Finally, the issue features the following book review by Lenka Válková, Research fellow at the University of Milan: GEERT VAN CALSTER, European Private International Law: Commercial Litigation in the EU, Cambridge, Hart Publishing, 2024, 4th ed., p. 1-468.

On Tuesday, September 2, 2025, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST). Professor Eva Lein (Lausanne University) will speak, in English, about the topic

“PIL and dispute resolution in times of crisis”

In times of polycrisis, the law is put to the challenge. In international commercial transactions the question is how law can safeguard commercial activity, avoid a plethora of disputes, and encourage a pragmatic legal environment conducive to global economic recovery. This contribution discusses how dispute settlement mechanisms and private international law can be used to responsibly manage disputes in this context and to appropriately respond to future crises.

 

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

The latest issue of the Ritsumeikan Law Review (No. 43, 2025), a law review in English published by the Ritsumeikan University Law Association since 1986, features a study by Professor Mao UEMATSU (School of Law, Ritsumeikan University) entitled Cross-border Patent Litigation and Lis Alibi Pendens: A Korean–Japanese Case Study for Future Asian Principles of Private International Law.

The article examines a series of patent litigation cases in Korea and Japan, analyzing them to “illustrate the complexity of cross-border patent litigation.” It further argues that, even after reforms to procedural laws in both Korea and Japan, structurally similar cross-border conflicts remain unresolved. The paper concludes with preliminary reflections on possible improvements in legal coordination within Asia.

By introducing case law from both jurisdictions and sharing information on recent legal developments in the region, the study provides valuable material for comparative research and contributes to a better understanding of the dynamics of Asian private international law.

The paper is freely available at the Ritsumeikan Law Review online version here.

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

 

C. Krapfl/N. V. Krahn: Can Parties Gather Evidence for Arbitration by Utilizing Freedom of Information Laws? [Article published in English]

This article examines the use of freedom of information laws, specifically the German Freedom of Information Act (“IFG”) and the United States Freedom of Information Act (“FOIA”), to gather evidence for arbitration. Both acts grant public access to government-held information but include exemptions. Recent German court decisions in the German car toll system case confirm that freedom of information requests can provide evidence for arbitration, emphasizing that such claims cannot be overridden by private arbitration agreements. The courts also ruled that transparency regarding documents enhances due process and does not undermine arbitral tribunals. The article concludes that freedom of information laws, including the IFG and FOIA, offer significant opportunities to gather evidence for arbitration, particularly when one party is a state or government entity, ensuring a fairer and more transparent arbitration process.

 

B. Schmitz: Protection Principle instead of Preferential Law Approach: A Dutch Alternative for Interpreting Article 6 (2) Rome I Regulation

Article 6 (2) Rome I Regulation allows parties to a consumer contract to choose the applicable law, but “such a choice may not, however, have the result of depriving the consumer of the protection afforded” under the non-derogable rules of the consumer’s habitual place of residence. This article introduces the reader to two distinctly different ways of interpreting this restriction to party autonomy: the preferential law approach, which is followed by German scholars, and the protection principle approach, which is followed by the majority of Dutch scholars. The article argues that whilst the preferential law approach is likely to be the correct interpretation in the eyes of the CJEU, the “Dutch method” bears many advantages.

 

L. Hübner: Determination of the place where the harmful event occurred in lawsuits against manufacturers in the diesel emissions’ scandal

This article examines the question of how the place where the harmful event occurred is to be determined in the context of the tort jurisdiction of the Brussels Ibis Regulation in actions brought by purchasers against the manufacturers of emissions-manipulated motor vehicles. While the ECJ had defined the place of acquisition as the place of success in the VKI case, the ECJ had to define the place of acquisition more precisely in FCA Italy. In doing so, the Court continues its questionable line of case law from the VKI decision. The article takes the criticism of the ECJ’s case law as an opportunity to also assess the alternative solutions considered in the literature.

 

W. Wurmnest: The single economic entity concept does not apply to claimants when determining international jurisdiction under Art. 7(2) Brussel Ibis Regulation

In MOL, the CJEU rejected the application of the single economic entity doctrine to the claimant to localise “the place where the harmful event occurred” according to Art. 7(2) Brussels I bis Regulation. Consequentially, a parent company cannot bring an action for damages at its registered office to remedy the losses caused to its subsidiaries in various EU Member States through the acquisition of allegedly cartelised goods at supra-competitive prices. As the parent company is merely indirectly harmed, the damage caused to the subsidiaries is the relevant damage under Art. 7(2) Brussels I bis Regulation. The economic entity doctrine that was developed in EU competition law does not alter this finding. The CJEU’s interpretation is sound from the perspective of procedural law. Making the indirect losses of the parent company the cornerstone of jurisdictional analysis based on the single economic entity doctrine would contradict the Regulation’s objectives of proximity and predictability of the rules governing jurisdiction.

 

M. Lehmann: The United Kingdom as a Fourth State? Controversy About the Continued Application of the Brussels Ibis Regulation after Brexit

Can EU consumers sue a British business in their home Member State? The answer seems obvious, but it has recently been the subject of a heated discussion between several German courts of appeal. At the heart of the debate is the Withdrawal Agreement, which was concluded between the EU and the UK in 2019. The article sheds light on its role and its relation to the Brussels Ibis Regulation.

Furthermore, the merits of the disputes underlying the actions will be addressed. They concerned a specific type of instrument under German law, the “Genussrecht” or “participation right”, which confers on its holders benefits usually reserved for shareholders. Holders of an Austrian issuer of these instruments sued its successor, a British company, in Germany. The article analyses the law governing their claims from various perspectives (contract law, tort law, M&A).

 

G. Freise: Brussels Ibis and CMR: Primacy of Application and Breach of Jurisdiction Agreements as Grounds for Refusal of Recognition

The preliminary ruling procedure discussed in this article addresses two issues. Firstly, it deals with the relationship between the Brussels Ibis Regulation and the CMR, a topic that has previously been considered by the ECJ on several occasions. In this instance, the referring court raised the question of whether the priority given to the more specific CMR in Article 71 of the Brussels Ibis Regulation also applies in the case of a jurisdiction agreement. In contrast to the Brussels Ibis Regulation, the CMR does not recognise exclusive jurisdiction agreements, which is why the court considered a violation of the essential principles of the Brussels Ibis Regulation possible. Unfortunately, due to its lack of relevance to the decision, the ECJ did not comment on this intriguing question. According to the view presented here, however, the CMR should continue to take precedence even without the possibility of an exclusive jurisdiction agreement. Secondly, the referring court raised the question of whether decisions must be recognised if a jurisdiction agreement has been disregarded. On this point, the ECJ upheld its previous case law, reaffirming the principles of mutual trust and recognition. The Court clarified that disregarding a jurisdiction agreement does not constitute grounds for refusing recognition, particularly on the basis of a breach of public policy.

 

R. Wagner: Club de Fútbol Real Madrid vs. Le Monde before the ECJ: Does “the Spanish decision” violate French public policy

“The [European] Union offers an area of freedom, security and justice …” (Art. 67 TFEU). The area of justice makes it possible to enforce civil court decisions from one EU Member State in another EU Member State. This possibility is based on the principle of mutual trust. However, trust in the judiciary of the other EU member states does not have to be completely unlimited. For example, the ECJ ruled, among other things, that a Spanish decision won by the football club Real Madrid against Le Monde does not have to be enforced in France, “… to the extent that this would result in a manifest violation of the freedom of the press, as enshrined in Article 11 of the Charter of Fundamental Rights, …”. The following article explains and evaluates this decision.

 

M. Andrae: On the Delimitation of the Provisions on Jurisdiction of the Brussels IIb Regulation and the 1996 Hague Child Protection Convention (CPC)

The decision of the ECJ in case C-572/21 provides an opportunity to define the territorial scope of application of the individual provisions of the Brussels IIb Regulation, the 1996 Hague Child Protection Convention (CPC), and the German Act on Proceedings in Family Matters (FamFG) regarding the international jurisdiction of courts in matters of parental responsibility. With the entry into force of the Brussels IIb Regulation, this issue has not lost its practical significance. A considerable part of the discussion focuses on Article 10 of the Brussels IIb Regulation, which regulates the court’s jurisdiction based on a choice-of-court agreement. It is argued that such an agreement loses its effect if, after its conclusion but before the proceedings are concluded, the child lawfully relocates and establishes habitual residence in a Contracting State that is not bound by the Regulation. In this case, jurisdiction is determined by the CPC, and the principle of perpetuatio fori does not apply. The jurisdiction of the agreed court can only arise from ancillary jurisdiction under Article 10 of the CPC in such circumstances.

 

F. Berner: Settlement of estates in cases with a foreign element

Complex estate settlements can become even more difficult when potential heirs live abroad. The Higher Regional Court in Düsseldorf (Oberlandesgericht Düsseldorf ) had to decide how a fraction of heirs could be registered in the German land register (Grundbuch) if another part of their community of heirs did not participate in the German proceedings and could not be reached by the land registry office.

 

C. v. Bary: The public law of names in cross-border situations taking into account the reform of the private law of names of 1 May 2025

The German law of names is divided between private and public law. In cross-border cases, this has been leading to questions of characterisation (in private international law) and scope of application (in public law) already in the past, with the decision of the Berlin Administrative Court concerning the latter. The answers to these questions are now reconsidered in light of the 2025 reform of the law of names because the scope of application of the private and public law of names now differ from each other. Therefore, a need for reform remains, which should ideally be resolved by abolishing the distinction between private and public law in the law of names altogether.

 

B. Hess: Shallows and abysses of the contractual jurisdiction, Art. 7 No. 1 b) and a) of the Regulation Brussels Ibis – the Higher Regional Court of Dresden in the interfaces between the German and the European laws of civil procedure

The contractual jurisdiction of Article 7 No. 1 of the Brussels I-bis Regulation still causes difficulties for the courts of the EU member states. This demonstrates a judgment rendered by the Dresden Higher Regional Court dated 29 November 2024, that, unfortunately, misunderstood the meaning and the function of European procedural law.

 

L. D. Loacker/G. A. Capaul: Enforceability of foreign arbitration settlements or: Unequal treatment due to gradual differences?

The enforceability of arbitral settlements under German procedural law is subject to considerable restrictions. Based on a recent decision of the Bavarian Higher Regional Court (BayObLG), the authors discuss the extent to which the widespread refusal to enforce foreign arbitral settlements appears justified. Overall, they advocate a more enforcement-friendly approach. Such an approach can be achieved by understanding the scope of application of the UN Arbitration Convention in a way that is more closely aligned with the party-autonomous nature of arbitral dispute resolution. In particular, the reference to the UN Arbitration Convention contained in section 1061 of the German Code of Civil Procedure (ZPO) does not have to preclude the enforcement of arbitral settlements. In all cases, however, it is important not to fall short of sufficient requirements for the enforceability of arbitral settlements. This is due to the fact that not all forms of arbitral settlements are suitable for a cross-border extension of their effect with regard to enforcement.

 

A. S. Zimmermann: Accelerated Enforcement Proceedings for Cross-Border Child Abductions: European Parameters for Domestic Procedural Law

Child abduction cases are among the most sensitive matters in international family law. The 1980 Hague Convention on Child Abduction, which today connects more than 100 contracting parties, has led to great progress in this area. Its guiding principle is the child’s best interest, which generally requires an abducted child to be returned immediately. The Brussels II, II bis and II ter Regulations incorporated this guiding principle into EU law. Nevertheless, there is no agreement among the Member States as to how much procedural acceleration the child’s best interest requires. In the decision discussed here, the ECJ clarified how much (or rather: how little) the enforceability of return orders may be postponed by national law.

 

S. C. Symeonides: The Public Policy Exception in Choice of Law: The American Version [Article published in English]

To the surprise of many foreign readers, the American version of the public policy reservation (ordre public) is phrased exclusively in terms of jurisdiction and access to courts rather than as an exception to choice of law. At least in its “official” iteration in the First and Second Restatements, the exception allows courts to refuse to entertain a foreign cause of action that offends the forum’s public policy rather than to refuse to apply an offensive foreign law provision while adjudicating a (foreign or domestic) cause of action. This essay discusses the historical origins of this narrow and rather unique formulation, the problems it creates, its tacit rejection by most American courts, and the new flexible formulation of the exception in the proposed Third Conflicts Restatement.

 

A. Hermann: Applicability of the Hague Convention in British-European Legal Relations to Contracts Concluded before Brexit Confirmed

The Belgian Cour de Cassation has ruled that the Hague Convention on Choice of Court Agreements became effective in the United Kingdom and, from the perspective of the EU Member States, in relation to the United Kingdom on 1 October 2015 and has been in force continuously since then. With this decision, the Cour de Cassation helps to eliminate uncertainty for future British-European legal relations.

Originally posted on NGPIL blog on 26 August 2025

The Nigeria Group on Private International Law invites submissions for the annual NGPIL Conflict of Laws’ Competition. The winner will be awarded for the best essay on any aspect of Nigerian conflict of laws. Entries will be accepted from the following: an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practising and residing in Nigeria. The essay should be unpublished at the time of submission. Submitted essays should be in the English language. Submitted essays should also be within five to eight thousand words. Competitors may be citizens of any nation, age or gender but must be an undergraduate and/or postgraduate scholar studying in Nigeria, or any lawyer below five years post-call experience practising and residing in Nigeria.

The first prize is 200,000 Naira (NGN), and the winner of the competition will be encouraged to publish the paper in any high-quality peer reviewed journal on private international law (conflict of laws). The second prize is 120,000 Naira (NGN), and third prize is 80,000 Naira (NGN). The prize is sponsored by and will be awarded by NGPIL.

Submissions to the Prize Committee must be received no later than 31 October 2025. Entries should be submitted by email in Word or pdf format. The winner will be announced no later than 2 months after the deadline. Decisions of the NGPIL on the winning essay and on any conditions relating to this prize are final. Submissions and any queries should be addressed by email to ngpilaw@gmail.com. All submissions will be acknowledged by e-mail.

Previous Winners

Peace George  (Winner for the 2023/2024 session)

Oluwabusola Fagbemi (Winner for the 2022/2023 session)

Solomon Adegboyo (Winner for the 2021/2022 session)

Family law in the European Union is an intricate, fast-evolving, and politically sensitive area of judicial cooperation. With issues ranging from cross-border divorce to international child abduction, and from parental responsibility to maintenance obligations, practitioners and judges must constantly navigate overlapping instruments, shifting jurisdictional rules, and complex interactions between national and EU law.

The Practical Handbook on EU Family Law: Part I – Key Concepts, Legal Terminology, and CJEU Case Law in Cross-Border Judicial Cooperation, authored by Nadia Rusinova and freely available online for download, positions itself as a much-needed companion in this field. Drawing on the Court of Justice of the European Union’s jurisprudence and the architecture of EU family law, the handbook provides a clear roadmap through legal terminology, concepts, and cross-instrument mechanisms.

Structure and Foundations

The opening Unit 1 sets the stage by outlining the purpose, audience, and method of the handbook. It presents itself as a practical tool designed to support judges, lawyers, academics, and students in navigating the complexities of cross-border family cases. Particularly noteworthy is the emphasis on English as a tool of legal harmonization, highlighting its role as a neutral bridge across diverse national legal systems and a means of fostering greater coherence in judicial cooperation.

EU Family Law in Context

Unit 2 provides the legal and institutional backdrop. It introduces the competence of the EU under Article 81 TFEU, the limits imposed by the special legislative procedure, and the use of enhanced cooperation (e.g., in matrimonial property regimes). It also offers a historical overview, tracing family law’s evolution within the broader framework of judicial cooperation in civil matters. The treatment of the Brussels II system is especially helpful in showing how successive instruments have created the backbone of today’s EU family law. For readers less familiar with EU competences, the discussion of direct applicability, primacy, and the role of domestic courts situates family law firmly within the EU’s constitutional order.

Cross-Instrument Legal Concepts

The third unit is a central part of the handbook, bringing together core legal concepts that recur across family law instruments. These include:

• Structural terms: “civil matters”, “court”, “habitual residence”, “central authorities”.
• Applicable law concepts: universal application, renvoi, and party autonomy.
• Safeguards: public policy and the best interests of the child.
• Jurisdictional coordination: lis pendens, related actions, prorogation, residual jurisdiction.
• Recognition and enforcement: the circulation of decisions, exequatur, enforcement measures, and grounds for refusal.

This cross-instrument perspective demonstrates how family law rules form part of a system of judicial cooperation, requiring coherent interpretation across instruments. The integration of CJEU case law grounds the discussion in practice.

Matrimonial Matters

Unit 4 turns to marriage-related proceedings: divorce, legal separation, annulment, and the recognition of non-judicial divorces involving public authorities. The coverage of jurisdictional bases (such as the habitual residence of spouses and counterclaims) and the recognition of decisions highlights the challenges courts face when marriages break down across borders.

Parental Responsibility

One of the most sensitive aspects of family law, Unit 5 addresses custody, access rights, and parental responsibility. Concepts such as continuing jurisdiction, transfer of jurisdiction, and urgent measures are explained with clarity. The section on perpetuatio fori, which ensures stability of jurisdiction once proceedings are initiated, is particularly insightful. The discussion of enforcement balances the importance of privileged decisions (such as those automatically enforceable) with the role of coercive and non-coercive measures in practice.

International Child Abduction

Unit 6 provides a well-structured synthesis of the 1980 Hague Convention and the EU’s overriding mechanism. It covers wrongful removal or retention, return procedures, and exceptions such as grave risk of harm or settlement of the child. The attention to post-decision scenario, such as further abduction or non-compliance, demonstrates the handbook’s practical orientation and awareness of the complexities courts encounter in real-world cases.

Maintenance Obligations

Unit 7 completes the thematic coverage with maintenance obligations. It clarifies terminology (creditor, debtor, subrogation of public bodies) and explains jurisdictional bases, including forum necessitatis, which safeguards access to justice where no other court is available. The treatment of applicable law and the recognition and enforcement of maintenance decisions is highly useful for practitioners managing the financial dimensions of cross-border disputes.

Annexes and Added Value

The annexes provide a set of especially useful practical tools:

• An alphabetical glossary of terms for quick reference.
• Tables and figures that map out jurisdictional rules and procedures.
• CJEU case law indexed by legal term.

In Conclusion

With this work, Nadia Rusinova has produced a handbook that renders EU family law accessible, well-structured, and firmly practice-oriented, while at the same time combining doctrinal depth with methodological precision. This dual quality enables the handbook to serve not only as a reliable guide for practitioners confronted with cross-border family law issues, but also as a valuable scholarly contribution to the academic study of EU judicial cooperation. Its layered design – beginning with foundational principles, moving through cross-cutting concepts, and then addressing specific domains – makes the handbook equally indispensable for lawyers, judges, and academics alike.

Congratulations, Nadia!

The Faculty of Law at the University of Rijeka has announced the upcoming edition of RIDOC: Rijeka Doctoral Conference, which will take place on Friday, 12 December 2025 in Rijeka, Croatia.

RIDOC is an international academic conference designed for doctoral students in law and related disciplines. It offers a unique platform for early-career researchers to present, test and discuss their research ideas in front of an expert academic audience and fellow PhD candidates from across Europe and beyond.

Key Information:

Conference date: 12 December 2025
Location: Faculty of Law, University of Rijeka (Croatia)

Abstract deadline: 20 October 2025
Submission email: ridoc@pravri.uniri.hr
More information on the web

Contributions from all areas of legal research are welcome, including private international law and related areas. The language of the conference is English.

This guest post was written by Ezzatollah Pabakhsh, Master’s Student at the University of Antwerp

The European Union has taken an unprecedented step by regulating artificial intelligence (AI) through the EU AI Act, which is the world’s first comprehensive legal framework for AI governance. According to Recital 61, Article 6(2) and Annex III, 8(a), AI tools used in legal or administrative decision-making processes—including alternative dispute resolution (ADR), when used similarly to courts and producing legal effects—are considered high risk. These tools must comply with the strict requirements outlined in Articles 8 through 27.

These provisions are designed to ensure transparency, accountability, and respect for fundamental rights. This obligation will take effect on August 2, 2026, according to Article 113. Notably, the Act’s extraterritorial scope, as outlined in Articles 2(1)(c) and (g), applies to any AI system that affects individuals within the European Union. This applies regardless of where the system is developed or used. It also applies to providers and deployers outside the EU whose output is used within the Union. This raises a critical question: can non?compliance with the EU AI Act serve as a basis for courts in EU Member States to refuse recognition or enforcement of an arbitral award on procedural or public?policy grounds?[1]

Consider the following scenario: Two EU-based technology companies, one Belgian and one German, agree to resolve their disputes through US-seated arbitration. Suppose the ADR center uses AI-powered tools that do not comply with the EU AI Act‘s high-risk system requirements. How would enforcement of the resulting award play out before national courts in the EU?

This scenario presents a direct legal conflict. If the winning party seeks to enforce the award in a national court of an EU Member State, two well-established legal grounds for refusing enforcement may arise.[2] First, the losing party may invoke Article V(1)(d) of the 1958 New York Convention, together with the applicable national arbitration law. They could argue that reliance on AI systems that do not comply with the EU AI Act constitutes a procedural irregularity, as it departs from the parties’ agreed arbitration procedure and undermines the integrity of the arbitral process.[3] Second, under Article V(2)(b) of the Convention, the enforcing court may refuse recognition on its own motion if it finds that using non-compliant AI violates the forum’s public policy, especially when fundamental rights or procedural fairness are at stake.[4] The following section will examine these two scenarios in more detail.

Scenario 1: Procedural Irregularity under Article V(1)

Imagine that the ADR center uses an AI tool to assist the tribunal in drafting the award during the proceedings. This AI system uses complex algorithms that cannot produce transparent, human-readable explanations of how key conclusions were reached. The final award relies on these outputs, yet it offers no meaningful reasoning or justification for several significant findings. Furthermore, the tribunal does not disclose the extent to which it relies on the AI system, nor is there any clear evidence of human oversight in the deliberation process.

When the losing party in Belgium contests enforcement of the award, they invoke Article V(1)(d) of the New York Convention, arguing that the arbitral procedure did not align with the parties’ expectations or the applicable law. This objection is also found in Article 1721 of the Belgian Judicial Code (BJC), inspired by Article 36 of the UNCITRAL Model Law and, to a large extent, mirroring the grounds of Article V of the New York Convention. Among these, two are especially relevant to the use of AI in the arbitral process and are central to the objection in this case.

First, under Article 1721(1)(d), a party may argue that the award lacks proper reasoning[5], which violates a core procedural guarantee under Belgian law.[6]  This requirement ensures that parties can understand the legal and factual basis for the tribunal’s decision and respond accordingly.[7] In this case, however, the award’s reliance on opaque, AI-generated conclusions, particularly those produced by “black box” systems, renders the reasoning inaccessible and legally inadequate.[8] The EU AI Act further reinforces this objection. Articles 13, 16, and 17 require transparency, traceability, and documentation for high-risk AI systems. Meanwhile, Article 86 grants limited right to explanation for affected persons where a deployer’s decision is based on Annex III systems and produces legal effects. If an award fails to meet these standards, it may not align with Belgian procedural norms.

Second, under Article 1721(1)(e), a party may argue that the tribunal’s composition or procedure deviated from the parties’ agreement or the law of the seat. For example, if the arbitration agreement contemplated adjudication by human arbitrators and the tribunal instead relied on AI tools that materially influenced its reasoning without disclosure or consent, this could constitute a procedural irregularity. According to Article 14 of the EU AI Act, there must be effective human oversight of high-risk AI systems. Where such oversight is lacking or merely formal and AI outputs are adopted without critical human assessment, the legitimacy of the proceedings may be seriously undermined. Belgian courts have consistently held that procedural deviations capable of affecting the outcome may justify refusal of recognition and enforcement.[9]

Scenario 2: Public Policy under Article V(2)(b)

In this scenario, the court may refuse to enforce the award on its own initiative if it is found to be contrary to public policy[10] under Article V(2)(b) of the New York Convention, Article 34(2)(b)(ii) of the UNCITRAL Model Law, or Article 1721(3) of the Belgian Judicial Code (BJC). These provisions allow courts to deny recognition and enforcement if the underlying procedure or outcome conflicts with fundamental principles of justice in national and European legal systems.[11]

In comparative international practice, public policy has both substantive and procedural dimensions. When a breach of fundamental and widely recognized procedural principles renders an arbitral decision incompatible with the core values and legal order of a state governed by the rule of law, procedural public policy is engaged. Examples include violations of due process, lack of tribunal independence, breach of equality of arms, and other essential guarantees of fair adjudication.[12]

In this case, the use of non-transparent AI systems may fall within this category.[13] If a tribunal relies on these tools without disclosing their use or without providing understandable justifications, the process could violate Article 47 of the Charter of Fundamental Rights of the European Union. This article guarantees the right to a fair and public hearing before an independent and impartial tribunal. This issue, along with case law, could provide a reasonable basis for refusal based on public policy.[14] When applying EU-relevant norms, Belgian courts are bound to interpret procedural guarantees in accordance with the Charter. [15]

Comparative case law provides additional support. In Dutco, for example, the French Cour de cassation annulled an arbitral award for violating the equality of arms in the tribunal’s constitution, which is an archetypal breach of procedural public policy.[16] Similarly, in a 2016 decision under § 611(2)(5) ZPO, the Austrian Supreme Court annulled an award where the arbitral procedure was found to be incompatible[17] with Austria’s fundamental legal values.[18] These rulings confirm that courts may deny enforcement when arbitral mechanisms, especially those that affect the outcome, compromise procedural integrity.

Belgian courts have consistently held that recognition and enforcement must be refused where the underlying proceedings are incompatible with ordre public international belge, particularly where fundamental principles such as transparency, reasoned decision-making, and party equality are undermined.[19] In this context, reliance on non-transparent AI—without adequate procedural safeguards—may constitute a violation of procedural public policy. As a result, enforcement may lawfully be denied ex officio under Article V(2)(b) of the New York Convention and Article 1721(3) of the Belgian Judicial Code, thereby preserving the integrity of both the Belgian and broader EU legal frameworks. Ultimately, courts retain wide discretion under public policy grounds to decide with real control whether or not to enforce AI-assisted awards.[20]

These potential refusals of enforcement within the EU highlight a broader trend, as domestic procedural safeguards are increasingly influenced by global regulatory developments, prompting questions about whether the EU’s approach to AI in arbitration will remain a regional standard or evolve into an international benchmark.

The EU AI Act as a Global Regulatory Model?

The EU has a proven history of establishing global legal benchmarks—rules that, while originating in Europe, shape laws and practices far beyond its borders.[21] The GDPR is the clearest example of this. Its extraterritorial scope, strict compliance obligations, and enforcement mechanisms have prompted countries ranging from Brazil to Japan to adopt similar data protection frameworks.[22]

In arbitration, a comparable pattern could emerge. If EU courts apply the EU AI Act’s high-risk requirements when deciding on the recognition and enforcement of arbitral awards, other jurisdictions may adopt comparable standards, encouraging convergence in AI governance across dispute resolution systems. Conversely, inconsistent enforcement approaches could foster fragmentation rather than harmonisation. In any case, the Act’s influence is already being felt beyond Europe, prompting arbitration stakeholders to address new questions regarding procedural legitimacy, technological oversight, and cross-border enforceability.

 

Conclusion

The interplay between the EU AI Act and the enforcement of arbitral awards highlights how technological regulation is shaping the concept of procedural fairness in cross-border dispute resolution. Whether the Act becomes a catalyst for global standards or a source of jurisdictional friction, parties and institutions cannot ignore its requirements. As AI tools move deeper into arbitral practice, compliance will become not just a regulatory obligation but a strategic necessity for ensuring the enforceability of awards in key jurisdictions.

 

[1] Tariq K Alhasan, ‘Integrating AI Into Arbitration: Balancing Efficiency With Fairness and Legal Compliance’ (2025) 42 Conflict Resolution Quarterly 523, 524.

[2] ibid 525.

[3] Jordan Bakst and others, ‘Artificial Intelligence and Arbitration: A US Perspective’ (2022) 16 Dispute Resolution International 7, 23; Sanjana Reddy Jeeri and Vinita Singh, ‘Soft Law, Hard Justice: Regulating Artificial Intelligence in Arbitration’ (2024) 17 Contemporary Asia Arbitration Journal 191, 222.

[4] Sean Shih and Eric Chin-Ru Chang, ‘The Application of AI in Arbitration: How Far Away Are We from AI Arbitrators?’ (2024) 17 Contemporary Asia Arbitration Journal 69, 81.

[5] Horst Eidenmuller and Faidon Varesis, ‘What Is an Arbitration? Artificial Intelligence and the Vanishing Human Arbitrator’ (2020) 17 New York University Journal of Law and Business 49, 72.

[6] Dilyara Nigmatullina and Beatrix Vanlerberghe, ‘Arbitration Related Lessons: Insights from the Supreme Courts around the World’ (2020) 2020 b-Arbitra | Belgian Review of Arbitration 307, 354.

[7] Gizem Kasap, ‘Can Artificial Intelligence (“AI”) Replace Human Arbitrators? Technological Concerns and Legal Implications’ (2021) 2021 Journal of Dispute Resolution 209, 230, 249.

[8] Shih and Chang (n 4) 79.

[9] Koen De Winter and Michaël De Vroey, ‘Belgium’ in Baker McKenzie International Arbitration Yearbook: 10th Anniversary Edition 2016–2017 (Baker McKenzie 2017), 81, 82, 85.

[10] Eidenmuller and Varesis (n 5) 80–81; Bernard Hanotiau, ‘Arbitrability; Due Process; and Public Policy Under Article V of the New York Convention Belgian and French Perspectives’ (2008) 25 Journal of International Arbitration 721, 729–730.

[11] Kasap (n 7) 252; Annabelle O Onyefulu, ‘Artificial Intelligence in International Arbitration: A Step Too Far?’ (2023) 89 Arbitration: The International Journal of Arbitration, Mediation and Dispute Management 56, 63.

[12] Nigmatullina and Vanlerberghe (n 6) 351–352.

[13] Shih and Chang (n 4) 86.

[14] Nigmatullina and Vanlerberghe (n 6) 353.

[15] A de Zitter, ‘The Impact of EU Public Policy on Annulment, Recognition and Enforcement of Arbitral Awards in International Commercial Arbitration’ (University of Oxford 2019) 5, 251–253.

[16] Stefan Kröll, ‘Siemens – Dutco Revisited? Balancing Party Autonomy and Equality of the Parties in the Appointment Process in Multiparty Cases | Kluwer Arbitration Blog’ <https://legalblogs.wolterskluwer.com/arbitration-blog/siemens-dutco-revisited-balancing-party-autonomy-and-equality-of-the-parties-in-the-appointment-process-in-multiparty-cases/> accessed 18 August 2025; Nigmatullina and Vanlerberghe (n 6) 351.

[17] Alexander Zollner, ‘Austrian Supreme Court Set aside an Arbitral Award Due to a Violation of the Procedural Ordre Public’ (Global Arbitration News, 21 June 2017) <https://www.globalarbitrationnews.com/2017/06/21/austrian-supreme-court-set-aside-arbitral-award-for-violation-of-public-policy/> accessed 18 August 2025. ; Franz Schwarz and Helmut Ortner, ‘Austria’ in Giacomo Rojas Elgueta, James Hosking and Yasmine Lahlou (eds), Does a Right to a Physical Hearing Exist in International Arbitration? (ICCA Reports, 2020) 26, https://www.arbitration-icca.org/right-to-a-physical-hearing-international-arbitration accessed 5 August 2025

[18] Nigmatullina and Vanlerberghe (n 6) 351.

[19] Alhasan (n 1) 5–6.

[20] Shih and Chang (n 4) 87; Hanotiau (n 10) 737.

[21] Arturo J Carrillo and Matías Jackson, ‘Follow the Leader? A Comparative Law Study of the EU’s General Data Protection Regulation’s Impact in Latin America’ (2022) 16 ICL Journal 177, 178; Michelle Goddard, ‘The EU General Data Protection Regulation (GDPR): European Regulation That Has a Global Impact’ (2017) 59 International Journal of Market Research 703, 703–704.

[22] Carrillo and Jackson (n 21) 242–245.

By Dr Sarah McKibbin, University of Southern Queensland

The Supreme Court of New South Wales’ decision in Isaacman v King [No 2][1] is the kind of case that tempts one to say ‘nothing to see here’, and yet it richly rewards a closer look. On a conventional application of Voth v Manildra Flour Mills[2] — the leading Australian authority on forum non conveniens — Garling J stayed proceedings that attempted to litigate a New York relationship dispute in Sydney, being ‘well satisfied’ that the NSW Supreme Court was a clearly inappropriate forum.[3] The reasons, though brief by design,[4] illuminate the transaction costs of jurisdictional overreach,[5] show how the Voth framework handles an extreme set of facts, and offer a careful case study for empirical debates about Australian ‘parochialism’ in jurisdictional decision-making.

The Factual Background

The facts almost read like a hypothetical designed to test the outer limits of exorbitant, or long-arm, jurisdiction. A US biotech executive residing in New York sued his former partner, an Australian marketing consultant, in the NSW Supreme Court for alleged negligent transmission of herpes simplex virus during their relationship in New York. The relationship began and ended in New York; the alleged transmission occurred there; the plaintiff’s diagnosis and treatment took place there; and the defendant, though Australian, lived overseas and was only ordinarily resident in Victoria when in Australia. The plaintiff had a four-month period in 2022 split between Sydney, New South Wales, and Melbourne, Victoria, with visits to Queensland, while exploring business opportunities for skincare ventures. He pointed to social friendships in Sydney and his one-off membership of the North Bondi Returned Services League Club.[6]

None of this impressed Garling J as a meaningful link to New South Wales. As Garling J readily observed in the case’s earlier procedural judgment, there was ‘no connection whatsoever between either of the parties, and the pleaded cause of action and the State of New South Wales.’[7] The RSL membership did not establish ‘any connection at all with the forum’.[8] The pleading itself underscored the foreignness of the dispute: by notice under New South Wales’ court rules,[9] the plaintiff relied on New York law, in particular New York Public Health Law § 2307, alongside common law claims available under New York law.[10]

The decision

The stay analysis proceeded squarely under Voth. Garling J recited the familiar principles: the onus lies on the defendant; the question is whether the local court is a clearly inappropriate forum, not whether an alternative is more convenient; it is relevant that another forum can provide justice; and the need to determine foreign law is not conclusive but is a significant factor.[11] The only explicit nod to the English test in Spiliada Maritime Corporation v Cansulex Ltd[12] came through the High Court’s own endorsement in Voth of Lord Templeman’s aspiration for brevity in such applications. [13] Yet Garling J noted that an issue arising in oral submissions required further written submissions, precluding an ex tempore disposition, but nonetheless kept the reasons concise.[14]

On the facts, the connecting factors all pointed away from New South Wales. The conduct giving rise to the claim, the governing law, and the evidentiary base were in New York. Neither party had assets in NSW, so any judgment, whether for damages or for costs, would have to be enforced elsewhere, compounding expense.[15] Garling J accepted, and the parties did not dispute, that New York courts could exercise in personam jurisdiction over the defendant; that acceptance underpinned the conclusion that there was another forum where the plaintiff could ‘obtain justice’.[16] The upshot was decisive but orthodox: the Supreme Court of New South Wales was a clearly inappropriate forum, and the proceedings would be stayed.[17]

The conditional order deserves to be recorded with some precision. The stay was to take effect seven days after publication of the judgment. Within that same seven-day period, the defendant was to file and serve a written undertaking that, if the plaintiff brought civil proceedings in the State of New York concerning the subject matter of the NSW suit, she would not plead any New York limitations defence, provided the plaintiff commenced in New York within three months of the stay taking effect and provided the claims were not statute-barred when the NSW proceeding was commenced.[18] Framed this way, the undertaking did not expand the analysis beyond Voth. It neutralised limitation prejudice, as long as the plaintiff did not delay commencing proceedings, and ensured practical access to the natural forum. Garling J also ordered the plaintiff to pay the costs of the forum non conveniens application.[19]

Two ancillary applications were left untouched. A motion seeking transfer to the Supreme Court of Victoria and a late-filed non-publication motion were not determined.[20] Given the stay, it was not appropriate to go on to decide further issues between the parties. Garling J added that ordering a transfer could impinge on the plaintiff’s own choices about where to proceed next; and with the matter stayed, non-publication orders served no useful purpose.[21]

Comments

Situating Isaacman v King [No 2] in the post-Voth jurisprudence helps explain both the ease and the limits of the result. Voth’s ‘clearly inappropriate forum’ test was announced as only a slight departure from the English Spiliada test,[22] but, as Richard Garnett’s early survey of the doctrine shows,[23] its operation had been variegated.[24] In the years immediately after Voth, Australian courts often refused stays where there were meaningful Australian connections — even if the governing law or much of the evidence was foreign — and sometimes gave generous weight to local juridical advantages.[25] Mary Keyes’ analysis in the Australian family law context underscores why this felt unpredictable: a forum-centric test with broad judicial discretion risks certainty, predictability and cost.[26] Understandably then, Keyes argues for an explicitly comparative, Spiliada-style inquiry that focuses on effective, complete and efficient resolution, the parties’ ability to participate, costs and enforceability.[27]

At the same time, the High Court tempered Voth in specific contexts. In Henry v Henry,[28]  the majority effectively created a presumption in favour of a stay where truly parallel foreign proceedings between the same parties on the same controversy were already on foot, explicitly invoking comity and the risks of inconsistent outcomes.[29] In CSR Ltd v Cigna Insurance Australia Ltd,[30] the High Court went further. Even without identity of issues, the ‘controversy as a whole’ analysis could render local proceedings oppressive where their dominant purpose was to frustrate access to relief available only abroad.[31] These qualifications that, outside the special case of parallel litigation, Voth directs attention to the suitability of the local forum in its own terms; but where duplication looms in the form of parallel proceedings, the analysis necessarily broadens. That broader, comparative posture is also what Ardavan Arzandeh shows Australian courts actually do in practice, despite Voth’s formal language.[32]

Isaacman v King [No 2] belongs to a different, more straightforward strand in that story: the ‘little or no connection with Australia’ cases in which stays have been ordered because the action and the parties’ controversy are overwhelmingly foreign.[33] Unlike the contested margins Garnett identifies, there was no pleaded Australian statutory right of a kind sometimes relied on as a juridical advantage; no contest about the availability of a competent foreign forum; and no tactical race between parallel proceedings. Garling J canvassed the classic connecting factors, noted the New York law pleaded, recorded the practical burdens of proof and enforcement, and concluded that New South Wales was clearly an inappropriate forum. That emphasis on concrete, case-specific connections and on consequences for the conduct and enforcement of the litigation fits both Keyes’ call for structured, predictable decision-making and Arzandeh’s demonstration that Australian courts, in substance, weigh the same considerations as Spiliada.[34]

Two implications follow. First, the decision is a neat instance of Voth doing exactly what it was designed to do when the forum is only nominally engaged. It offers little purchase for testing the harder comparative question whether, at the margins, Voth’s rhetoric yields different outcomes from Spiliada’s ‘more appropriate forum’ inquiry. That is consistent with Arzandeh’s view that the supposed gap is, in practice, vanishingly small.[35] Secondly, it gives texture to the practical burdens that inappropriate forum choices impose. Expert evidence on New York law would have been required; witnesses and records are in the United States; neither party’s assets are in New South Wales; and the court itself, even in this ‘easy’ case, could not resolve the application wholly on the basis of oral submissions because an issue warranted further written argument. Those are precisely the private and public costs Keyes highlights as reasons to favour a clearer, more comparative framework ex ante, rather than leaving calibration to ex post discretion.[36]

There is, then, a narrow lesson and a broader one. Narrowly, Isaacman v King [No 2] confirms that Australian courts will not entertain a claim whose only local anchors are social relationships and what amounts to a meal-discount club card. Broadly, it supplies one more controlled observation for comparative and empirical work: an extreme outlier that aligns with ‘no connection’ line of authority.[37] It also leaves open — indeed, usefully highlights — the need for data drawn from genuinely contested cases, where juridical advantage and practical adequacy are engaged on the evidence, if we are to assess how far Voth diverges, in practice, from its common law counterparts.[38]

Conclusion

Isaacman v King [No 2] therefore earns its place not because it breaks doctrinal ground, but because it shows the doctrine working as intended. The plaintiff’s Sydney friendships and RSL membership could not anchor a transatlantic dispute in a NSW court; New York law, evidence and enforcement pointed inexorably elsewhere; and a conditional stay ensured that the plaintiff would not be procedurally disadvantaged by being sent to the forum where the dispute belongs. If some forum non conveniens applications can be resolved quickly,[39] this was not one of them. But it was, in the end, a straightforward exercise of judicial discipline about where litigation should be done.

[1] [2025] NSWSC 381.

[2] (1990) 171 CLR 538 (‘Voth’).

[3] Isaacman v King [No 2] (n 1) [50].

[4] Voth (n 2) 565.

[5] See Andrew Bell, Forum Shopping and Venue in Transnational Litigation (Oxford University Press, 2003; J J Spigelman, ‘Transaction Costs and International Litigation’ (2006) 80(7) Australian Law Journal 438, 441–3.

[6] Ibid [22].

[7] Isaacman v King [2024] NSWSC 1291, [85]. The earlier judgment dealt with preliminary procedural matters including the plaintiff’s failed attempt to proceed pseudonymously.

[8] Isaacman v King [No 2] (n 1) [41]–[42].

[9] Uniform Civil Procedure Rules 2005 (NSW).

[10] Isaacman v King [No 2] (n 1) [14], [45]–[46].

[11] Ibid [35]–[36].

[12] [1987] AC 460.

[13] Isaacman v King [No 2] (n 1) [37], quoting Voth (n 2) 565. One wonders how often Lord Templeman’s aspiration is realised.

[14] Isaacman v King [No 2] (n 1) [37]–[38].

[15] Ibid [43], [46]–[49].

[16] Ibid [47].

[17] Ibid [39]–[51].

[18] Ibid [4], [56].

[19] Ibid [56].

[20] Ibid [7], [52]–[53].

[21] Ibid [8], [52]–[55].

[22] Voth (n 2) 558.

[23] Richard Garnett, ‘Stay of Proceedings in Australia: A “Clearly Inappropriate” Test?’ (1999) 23(1) Melbourne University Law Review 30.

[24] Cf Ardavan Arzandeh, ‘Reconsidering the Australian Forum (Non) Conveniens Doctrine’ (2016) 65 International and Comparative Law Quarterly 475.

[25] Garnett (n 22) 39–48.

[26] Mary Keyes, ‘Jurisdiction in International Family Litigation: A Critical Analysis’ (2004) 27 UNSW Law Journal 42, 63–4.

[27] Ibid.

[28] (1995) 185 CLR 571.

[29] Ibid 590–1; Garnett (n 22) 52–4.

[30] (1997) 189 CLR 345.

[31] Ibid 400–1; Garnett (n 22) 57–9.

[32] Arzandeh (n 23) 485, 486.

[33] Garnett (n 22) 45–6.

[34] Keyes (n 26) 63–4; Arzandeh (n 23).

[35] Arzandeh (n 23) 491.

[36] Keyes (n 26) 59–60.

[37] Garnett (n 22) 45–6.

[38] On the need for empirical research in this area, see Christopher A Whytock, ‘Sticky Beliefs about Transnational Litigation’ (2022) 28(2) Southwestern Journal of International Law 284.

[39] Spiliada (n 12) 465.

On 21 August 2025, the UNSW School of Private and Commercial Law, the Journal of Equity and Allens jointly hosted the 2025 Journal of Equity Conference. This year’s one-day Conference focused on important questions at the intersection of equity, trusts and private international law. It featured four papers delivered by judges and scholars, each of which was followed by ample time for insightful questions and discussion among over 30 judges, lawyers and scholars attending the office of Allens in (rainy) Sydney.

After the Acknowledgement of Country and welcoming address by Professor Ying Khai Liew (University of Melbourne), The Honourable Andrew Bell (Chief Justice of New South Wales) delivered opening remarks, emphasising the importance of private international law and the application of its rules in equity and trusts in the modern global economy. Drawing references from old and new cases and academic materials, the Chief Justice discussed the tensions among various potential choices of law for equity and trusts, and highlighted the increasingly important role of the question of characterisation when analysing equitable doctrines and remedies.

The first paper by Professor Richard Garnett (University of Melbourne) and The Honourable Andrew Bell focused on the enforcement of trusts in international litigation. Professor Garnett considered private international law principles applied by common law courts to disputes specifically involving trusts with connections to civil law jurisdictions. Drawing from a wealth of judicial decisions, Professor Garnett examined the approaches taken by common law jurisdictions to issues of jurisdiction and applicable law in relation to both express and constructive trusts. The Chief Justice further considered the question of jurisdiction clauses (particularly in Crociani v Crociani [2014] UKPC 40, [2015] WTLR 975) and arbitrability in the enforcement of trusts in private international law. It was noted that there is fertile ground for future cases to develop more sophisticated rules.

The second paper by Professor Tiong Min Yeo (Singapore Management University) considered the problems and approaches in the characterisation of equitable doctrines. Starting with the traditional choice-of-law methodology, Professor Yeo discussed several difficulties when characterising equitable doctrines, most notably that these equitable doctrines often cross doctrinal categories in domestic law and functional categories in choice of law. Taking a functional characterisation perspective of private international law, Professor Yeo suggested looking at how the case is argued and the functions of the doctrine being pleaded. This was illustrated by reference to constructive and resulting trusts, which can fall in either the category of property or the law of obligations, or both, depending on the issue before the court. Multiple cases showed that courts have yet to engage in detail with the question of characterisation.

The third paper by Professor Man Yip (Singapore Management University) looked at the equitable origins and private international law developments of the anti-suit injunction. Professor Yip emphasised the in personam, discretionary nature of the injunction, involving considerations of comity and unconscionability. Professor Yip revealed and discussed various themes of equity within the modern framework of the anti-suit relief, including the different conceptions of comity, the recourse to equitable ideas such as ‘conscience’ (in ‘unconscionable conduct’), and the different bases for the grant of anti-suit relief (equitable jurisdiction vs inherent jurisdiction). The close relationship between equity and comity was further demonstrated by anti-suit injunctions granted in support of foreign litigation or arbitration.

The fourth paper by Associate Professor Adeline Chong (Singapore Management University) investigated the extent of the role of the lex situs in trusts claims. After explaining the rationales for applying the lex situs to questions of property generally, Professor Chong provided an in-depth account of the choice-of-law approach under the Hague Trusts Convention (the HCCH Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition) for express trusts, including the situs as a factor in identifying the applicable law of the trust, and the relevance of the lex situs when the applicable law of the trust is not the lex situs, particularly if the lex situs does not recognise trusts or the proprietary aspects of trusts. Professor Chong then turned to common law rules on resulting and constructive trusts, pointing out tensions between applying the lex fori, the lex situs, and the law governing the cause of action, event or obligation. Among these approaches, it was suggested that the lex situs should be accorded a primary role in determining whether a trust can be created in the first place, before other laws – such as those governing the cause of action, event or obligation, or those governing the relationship between the parties – come into play.

Overall, the Conference has provided all attendees with much food for thought. It is evident that these issues have no clear and easy answers, and deserve further judicial and academic attention.

Readers who are interested in the topic may wish to consult, as a starting point, Professor Yeo’s monograph, Choice of Law for Equitable Doctrines (Oxford University Press 2004), as well as various judicial decisions which were frequently featured throughout the Conference, including (in chronological order, and certainly not being an exhaustive list):

• Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1996] 1 WLR 387 (EWCA);
• Lightning v Lightning Electrical Contractors Ltd (unreported, 23 April 1998) (EWCA);
• Damberg v Damberg (2001) 52 NSWLR 492 (NSWCA);
• Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377 (SGCA);
• Murakami v Wiryadi (2010) 268 ALR 377 (NSWCA);
• First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd (2012) 15 HKCFAR 569;
• Akers v Samba Financial Group [2017] UKSC 6, [2017] AC 424;
• Trisuryo Garuda Nusa Pte Ltd v SKP Pradiksi (North) Sdn Bhd [2017] 2 SLR 814;
• Xiamen Xinjingdi Group Co Ltd v Eton Properties Ltd [2020] HKCFA 32, (2020) 23 HKCFAR 348; and
• Byers v Saudi National Bank [2023] UKSC 51, [2024] AC 1191.

THE INDONESIAN CONSTITUTIONAL COURT DECISION REAFFIRMED PARENTAL CHILD ABDUCTION IS A CRIMINAL OFFENCE

By: Priskila Pratita Penasthika[1]

 

INTRODUCTION

The Indonesian Constitutional Court Decision Number 140/PUU-XXI/2023, issued on 3 September 2024, confirms that parental child abduction is a criminal offence under Article 330(1) of the Indonesian Criminal Code. Prior to this Decision, Article 330(1) of the Criminal Code was understood as a provision that could not criminalise someone for child abduction if the abduction was committed by one of the biological parents.

After 3 September 2024, through this Constitutional Court Decision, the abduction of a child by one of the biological parents, when the parent does not have custody based on a final court decision, is reaffirmed as a criminal offence.

CONSTITUTIONAL COURT DECISION

Facts

On 15 November 2023, five single mothers (Petitioners) whose children have been abducted by their ex-husbands submitted a petition to the Constitutional Court on 11 October 2023, challenging Article 330 (1) of the Indonesian Criminal Code, which states, “Anyone who, with deliberate intent, removes a minor from the authority which in accordance with the laws is assigned to him, or from the supervision of a person authorised to do so, shall be punished by a maximum imprisonment of seven years.”

The Petitioners shared a common experience: after divorcing their husbands, they were granted custody of their children through a court ruling. However, they have been deprived of this right because their ex-husband abducted their child.

The Petitioners also asserted that they had reported the ex-husband’s actions to the police under Article 330 (1) of the Criminal Code. However, in practice, the report was either dismissed or considered invalid because the police were of the view that the person who abducted the child was the biological father himself and, therefore, could not be prosecuted.

Given this background, the Petitioners believe that the phrase “anyone” (“barang siapa” in Indonesian) in Article 330(1) of the Criminal Code could be interpreted to mean that the biological father or mother of a child cannot be held accountable for the accusation of abducting their own child. Therefore, they submitted a petition to the Constitutional Court requesting a judicial review of Article 330(1) of the Criminal Code.

The Petitioners argue that the phrase “anyone” in Article 330(1) of the Criminal Code should encompass all individuals, including the child’s biological father or mother, as a legal subject. There should be no exceptions that grant absolute authority to the father or mother and exclude him or her from any legal action if he or she violates the child’s rights. Protecting children’s rights is a fundamental aspect of human rights, and the state has a responsibility to provide protection, oversight, and law enforcement to promote children’s welfare. Consequently, the state has the authority to act against parents who violate children’s rights.

Furthermore, the Petitioners request the Constitutional Court to declare that the phrase “anyone” in Article 330(1) of the Criminal Code, which was derived from the Wetboek van Strafrecht voor Nederlandsch-Indië (Staatsblad 1915 Number 732), and later enacted under Law Number 1 of 1946 on the Criminal Code in conjunction with Law Number 73 of 1958 on the Entry into Force of Law No. 1 of 1946 on the Criminal Code for the Entire Territory of the Republic of Indonesia, is unconstitutional, insofar as it is not interpreted to mean “anyone, without exception the biological father or mother of the child.”

The Decision

The Decision of the Constitutional Court Number 140/PUU-XXI/2023, which consists of nine Constitutional Judges, rejected the Petitioners’ request in its entirety.

The Constitutional Court Judges believe that Article 330(1) of the Criminal Code is an explicit and well-defined provision (expressive verbis), so there is no need to interpret it or add any supplementary meaning to it. The Judges asserted that the phrase “anyone” encompasses every individual without exception, including the biological father or mother of the child. The Court also noted that adding a new meaning to Article 330(1) of the Criminal Code, as requested by the Petitioners, could potentially restrict the scope of the legal subjects covered by that provision and other provisions in the Criminal Code that use the phrase “anyone”. This could result in legal uncertainty, according to the Judges.

In its legal deliberation, the Constitutional Court Judges referred to the United Nations Convention on the Rights of the Child (UNCRC), to which Indonesia is a state party, and its provisions are incorporated into Law Number 23 of 2002 on Child Protection, as amended by Law Number 35 of 2014 (Law on Child Protection). Furthermore, the Law on Child Protection recognises that the best interests of the child, as stipulated in the UNCRC, are a fundamental principle for child protection. According to the Official Elucidation of Law on Child Protection, the best interests of the child mean that, in all actions concerning children undertaken by the government, society, legislative bodies, and judiciary, the child’s best interest must be the primary consideration.

In cases of parental child abduction, aside from the child being the victim, the Constitutional Court recognises that the parent, who is forcibly separated from their child by the other parent, can also become a victim, particularly on a psychological level. This indicates that the psychological bond between parents and their biological children should not be severed, emphasising that the child’s best interests must take precedence. In this context, the Constitutional Court Judges emphasise that criminalising one of the child’s biological parents who breaches the provisions of Article 330(1) of the Criminal Code should only be considered as a last resort (ultimum remedium).

In another part of its Decision, the Constitutional Court addressed the issue of the Petitioners whose reports were rejected by the police. The Constitutional Court Judges stated that they had no authority to assess this matter. However, they affirmed in the Decision that law enforcement officers, especially police investigators, should have no hesitation in accepting any report concerning the application of Article 330(1) of the Criminal Code, even if it involves the child’s biological parents. This is because the term “anyone” includes every individual without exception, including, in this case, the child’s biological father and mother.

The Constitutional Court concluded that Article 330(1) of the Criminal Code provides legal protection for children and ensures fair legal certainty as outlined in the 1945 Constitution of the Republic of Indonesia. Therefore, the Court states that the Petitioners’ request is rejected in its entirety.

Dissenting Opinion

The nine Constitutional Judges did not reach a unanimous decision. Judge Guntur Hamzah expressed his dissenting opinion, arguing that the Constitutional Court should have partially granted the Petitioners’ request.

Judge Hamzah views the Petitioners’ case as also involving the enforcement of a norm that breaches the principles of justice, the constitution, and human rights. Due to numerous cases of parental child abduction, often committed by biological fathers, Judge Hamzah believes it is appropriate for the Constitutional Court to act as the defender of citizens’ constitutional rights in this matter. This aims to safeguard the constitutional rights of biological mothers who hold custody, whether naturally or legally granted by the court, from acts of child abduction or forced removal by biological fathers. It not only ensures legal certainty but also offers reassurance to both the child and the parent who holds the legal custody rights.

Judge Hamzah is of the opinion that the Constitutional Court should have partially granted the Petitioners’ request by inserting the phrase “including the biological father/mother” into Article 330(1) of the Criminal Code. This would have made Article 330(1) of the Criminal Code to read, “Anyone who, with deliberate intent, removes a minor from the authority which in accordance with the laws is assigned to him, including his biological father/mother, or from the supervision of a person authorised to do so, shall be punished by a maximum imprisonment of seven years.”

REMARKS

It is worth noting that Law Number 1 of 2023 on the Criminal Code (New Criminal Code) was approved by the Indonesian House of Representatives on 2 January 2023. The New Criminal Code will come into effect on 2 January 2026. There are no significant changes regarding the concept of child abduction in the New Criminal Code. Article 452(1) of the New Criminal Code is equivalent to Article 330(1) of the current Criminal Code. Article 452(1) of the New Criminal Code states: “Every person who removes a Child from the authority which in accordance with the statutory regulations is assigned to him or from the supervision of a person authorised to do so, shall be punished by a maximum imprisonment of 6 (six) years or a maximum fine of category IV.”

It is quite unfortunate that there has been no shift in the perspective towards parental child abduction cases in Indonesia. In early 2023, Indonesian lawmakers, as indicated in Article 452(1) of the New Criminal Code, still regard parental child abduction cases primarily from a criminal perspective. This stance is later reaffirmed in 2024 by the Court, as stated in the Constitutional Court Decision Number 140/PUU-XXI/2023.

Although the Constitutional Court Judges, in their Decision, recognise the psychological bond between parents and the child as part of the child’s best interests and acknowledge that criminalising a parent over child abduction is a last resort, parental child abduction is still viewed from a criminal perspective. Consequently, this Constitutional Court Decision does not provide an effective solution. The five petitioners remain unable to access their abducted children because they do not know their children’s whereabouts or how to contact them.

The Constitutional Court Judges also hold conflicting views in their deliberations. On one hand, they acknowledge that the psychological bond between parents and a child must be prioritised as part of the child’s best interests. On the other hand, they affirm the provision of Article 330(1) of the Criminal Code, which permits the criminalisation and imprisonment of the parent who commits child abduction, albeit as a last resort. It seems that the judges overlooked the possibility that criminalising and imprisoning the parent involved in child abduction could also harm the child’s best interests, as it would deprive the child of access to that parent.

It is also regrettable that none of the Judges or the expert witnesses involved in the proceedings mentioned the HCCH 1980 Convention on the Civil Aspects of International Child Abduction (HCCH 1980 Child Abduction Convention), which provides a perspective on parental child abduction from its civil aspects. Consequently, the procedures for returning the wrongfully removed child to their habitual residence—while safeguarding access rights and prioritising the child’s best interests as stipulated by the Convention—remain unfamiliar and unexplored in Indonesia.

The Constitutional Court Decision Number 140/PUU-XXI/2023, which considers parental child abduction from its criminal aspect, reveals a legal gap in Indonesian law that can only be filled in by the HCCH 1980 Child Abduction Convention. The Convention could serve as an instrument providing civil measures in cases of parental child abduction in Indonesia and promote a more effective resolution by ensuring the child’s prompt return without depriving access to either parent. In other words, Indonesia’s accession to the Convention has become more urgent to ensure that the child’s best interests, as recognised by Indonesian Law on Child Protection, are adequately protected.

Recognising that many adjustments within Indonesian laws and regulations will still be necessary, the Author of this article has long hoped that Indonesia will eventually accede to the HCCH 1980 Child Abduction Convention, hopefully sooner rather than later.

 

[1] Assistant professor in private international law at the Faculty of Law, Universitas Indonesia.

We are delighted to announce another addition to our Editorial Board: Elsabe Schoeman.

Elsabe has long been one of the leading scholars of private international law in South Africa, having authored countless publications in the areas of jurisdiction in cross-border commercial litigation and choice of law in contract, delict/tort and selected areas of family law, with a recent focus on access to justice for victims of human rights infringements and environmental torts. She has also advised a variety of law commissions and private law firms on these topics.

Elsabe has just left the office of Dean of the Faculty of Law at the University of Pretoria and will be focusing her work for the blog on legal developments in South Africa.

Vesna Lazic (Asser Institute, Utrecht University) has published an interesting case note on the complex case of CJEU Judgment C-394/22 Oilchart International NV v O.W. Bunker Nederland BV, ING Bank NV in Revue de Droit Commercial Belge. This case dealt with the interaction between the Brussels I-bis Regulation and the Insolvency Regulation. You can read it here: 2025 Note rdc_tbh2025_2p308 .

In this case, the Court held that:

Article 1(2)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, must be interpreted as not applying to an action brought in a Member State against a company seeking payment for goods delivered which does not mention either the insolvency proceedings opened previously against that company in another Member State or the fact that the claim was already declared in the insolvency estate.

 

Annoucement prepared by Eduardo Silva de Freitas (Asser Institute and Erasmus University Rotterdam)

The T.M.C. Asser Institute is organising the conference “Adapting Private International Law in an Era of Uncertainty” as part of its 60 Years Series. The event will take place in The Hague (The Netherlands) on Friday, 24 October 2025, and will gather academics, practitioners, and early career researchers who will address current topics in Private International Law, including developments in the digital age and the protection of weaker parties.

The programme is available by clicking here: asser-institute-60-years-series_final.pdf

To register for the conference, please visit: T.M.C. Asser Instituut Registration Form

For more information you can contact the organisers at: E.Silva.de.Freitas@asser.nl or V.Lazic@asser.nl