Agrégateur de flux

In 2022, the European Court of Human Rights (ECtHR) held in its KK and Others v. Denmark judgment that Denmark had violated Article 8 of the European Convention on Human Rights (ECHR) by its legislative measures trying to prevent commercial surrogacy arrangements (reported for the blog here). Measures were taken by Danish institutions in response […]

The third issue of the Journal du droit international for 2025 has been released. It contains one article and several case notes relating to private international law issues. It is also worth mentioning a contribution on (public) international law that echoes a special issue of the Journal, published earlier this year to mark its 150th anniversary. In […]

Any student of German private international law will take delight in the news that a new textbook has just been published by our co-editor Susanne Goessl together with Florian Kienle. The book covers questions of both the applicable law (internationales Privatrecht) and of jurisdiction and foreign judgments (internationales Zivilverfahrensrecht), with a certain focus on the former area. As one might expect from a new text, it puts the European instruments of private international law (and the areas governed by them) into the centre (pp. 16–144) – without neglecting the areas that remain governed by domestic law (pp. 145–282).

Readers looking to familiarize themselves with German PIL will appreciate the concise introduction to the field (pp. 1–15), the comprehensive coverage of fundamental questions (such as renvoi, characterisation, etc.; starting at p. 157), and the revision questions provided at the end of each chapter. Above all else, however, they will notice the many topical examples used by the authors to explain the material, ranging from climate change and human rights litigation to Covid, the Volkswagen emissions scandal, and the 2021 Suez Canal obstruction by the Ever Given. The wealth of these examples alone makes the book a great read even for those who may consider themselves already well acquainted with German PIL (not least if they need to teach it).

More information on the book is available here.

 

Nadia Rusinova has recently published an open access book titled Practical Handbook on EU Family Law. Part I: Key Concepts, Legal Terminology, and CJEU Case Law in Cross-Border Judicial Cooperation (2025).The Handbook can be downloaded from the Author’s website here. The blurb reads as follows: The EU Family Law Handbook is a unique, practitioner-focused resource, […]

The author of this post is Pierfancesco Rossi, tenured researcher of International Law at the University of Teramo. On 5 June 2025, the Hague Court of Appeal declined to grant exequatur to a Ukrainian judgment holding Russian energy giant Gazprom jointly and severally liable for material damages incurred during Russia’s invasion of the country. The […]

UBS Group e.a. / Commission
Concurrence
Concurrence : le Tribunal confirme la participation de Credit Suisse à une entente dans le secteur des opérations de change au comptant mais réduit de 83,2 à 28,9 millions d’euros le montant de l’amende qui lui est imposée

At the University of Vienna, a Chair for Comparative Law and Private International Law will become vacant in 2026 (current holder: Professor Helmut Ofner). We are looking for experts around the world.   The role will primarily involve teaching and research in private international law and comparative law. Knowledge of the German language and the […]

Originally sourced from Max Planck Institute for Comparative and International Private Law post on 22 July 2025, with slight amedments.

Make today matter! Under this motto, legal scholars from all over the world gathered at the University of Pretoria on July 8, 2025 to take part in the conference “Sustainable Development and Transnational Law in Africa”. The event was jointly organized by the Law Schools Global League and Max Planck Institute for Comparative and International Private Law with a view to fostering academic exchange across continents on today’s most pressing challenges.

“It was fantastic to see the breadth and depth of work done in and on Africa within the new field of sustainable development and private international law. Thanks are due also to our co-organizers at the Law Schools Global League ant the University of Pretoria; it is so important to hold conferences like this one outside of Europe,” says Max Planck Institute’s Director Ralf Michaels.

The conference program consisted of four panel discussions (for a report, see ? here). The last two panels brought together five of the participants in a current project titled “Private International Law and Sustainable Development in Africa”**:

Solomon Okorley (University of Johannesburg) spoke about International Child Abduction Jurisprudence in South Africa; Grihobou Roland Nombré (Thomas SANKARA University School of Law) discussed the implications of the rise of Nuclear Energy in Africa for Private International Law; Michael K. Quartey (University of Johannesburg) and Theophilus Edwin Coleman (University at Buffalo School of Law & University of Johannesburg) addressed Product Liability Disputes in Ghana from the perspective of sustainable development, and Panji Chirwa (University of Pretoria) looked at the Impact of the EU Directive 2024/1760 on African Sustainability Frameworks.

** The project “Private International Law and Sustainable Development in Africa” forms the African component of the broader initiative “The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law” (see ? here), led globally by Ralf Michaels (Max Planck Institute),  Hans Van Loon (previously Secretary General of the Hague Conference on Private International), and Veronica Ruiz Abou-Nigm (University of Edinburgh). The African initiative is spearheaded by Chukwuma Samuel Adesina Okoli (University of Birmingham), in partnership with Eghosa Ekhator (University of Derby) and the Journal of Sustainable Development Law and Policy (Afe Babalola University, Nigeria), and works closely with the global project leaders.

Publication of the fifth editions of the Practical Handbooks on the Operation of the 1965 Service and 1970 Evidence Conventions

The Permanent Bureau of the HCCH is pleased to announce that the fifth editions of the Practical Handbooks on the Operation of the 1965 Service and 1970 Evidence Conventions are now available for purchase in both paper and e-book format.

The 1965 Service and 1970 Evidence Conventions establish uniform frameworks of cooperation mechanisms to streamline, respectively, the transmission of documents for service abroad and the taking of evidence abroad. The Service and Evidence Handbooks are intended to assist users of the Conventions, including Central Authorities, government officials, courts, counsel and legal practitioners, by providing practical guidance on their implementation and operation.

The Practical Handbook on the 1965 Service Convention is designed first and foremost to assist users with the operation of the main and alternative channels of transmission and the provisions regarding adequate protection of the defendant. As for the Practical Handbook on the 1970 Evidence Convention, it is designed to assist users with the operation of the two systems of taking evidence that are provided by the Convention, namely (1) Letters of Request and (2) Consuls and Commissioners. The Practical Handbooks also explain how information technology is and may be used to further enhance the operation of the Conventions, including by incorporating, for the 1970 Evidence Convention, relevant information from the HCCH Guide to Good Practice on the Use of Video-Link.

Incorporating recent developments, court decisions, and practical examples provided by experts from around the world, as well as updates from the meeting of the Special Commission held in July 2024, the fifth editions of the Handbooks are essential resources for anyone involved in the implementation and operation of the 1965 Service and 1970 Evidence Conventions.

More information on how to purchase hard copies and/or e-book copies is available on the Publications section of the HCCH website (for the general public).  Specific instructions for HCCH National and Contact Organs and Member Central Authorities designated under the Service and Evidence Conventions are also provided on the Publications section of the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

The second issue of 2025 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. It features three contributions. Francesco Pesce, 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 […]

The authors of this post are Birgit van Houtert and Marco Pasqua, co-Chairs of the EAPIL Working Group on Anti-SLAPP Directive Transpositions. The post is the result of the collective work of the members of the Working Group. On 27 June 2025, the EAPIL Working Group on Anti-SLAPP Directive Transpositions held its first online meeting, […]

This post was written by Marco Buzzoni,  Doctoral Researcher at the Luxembourg Centre for European Law (LCEL). By a post of 16 July 2025, Professor Gilles Cuniberti reported on this blog about a ruling of the Grenoble Court of Appeal that refused enforcement of a Luxembourg judgment because the certificate required by Article 53 of the […]

The second edition of International Asset Tracing in Insolvency, edited by Felicity Toube, has recently been published by Oxford University Press. The publisher’s blurb reads as follows. This is the only book to provide comprehensive coverage of the legal issues involved in asset tracing in insolvencies. Both corporate and personal insolvencies are covered in domestic […]

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

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

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

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

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

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

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

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

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

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

Le Pen e.a. / Parlement
Le Tribunal confirme la décision du Parlement européen de recouvrer des sommes indument perçues par M. Jean-Marie Le Pen
The General Court of the European Union upholds the decision of the European Parliament to recover sums unduly received by Jean-Marie Le Pen

In a judgment of 28 January 2025, the Court of Appeal of Grenoble (France) ruled that a Luxembourg judgement could not be enforced in France in the absence of an Article 53 Brussels I bis certificate enforcement, as it was not satisfied that the foreign judgment was enforceable. Background A Luxembourg bank had successfully sued […]

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

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

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

Aims of the project and content of the report

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

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

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

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

The proposed amendments to the Brussels I Recast Regulation

The amendments focus on six areas:

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

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

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

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

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

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

Proposed provision (art. 2):

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

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

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

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

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

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

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

Proposed provision:

Article 25 bis:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Proposed provision:

Article 31 Bis:

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

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

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

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

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

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

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

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

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

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

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

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

5. Clarification on Provisional Measures (Article 35)

Proposed provision:

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

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

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

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

Proposed provision:

Article 45:

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

(…)

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

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

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

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

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

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

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

Conclusion: A Coherent and Functional Reform

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

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

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

The fourth issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) for 2025 will be published on 1 July. The following advance abstracts have been kindly provided by the editor of the journal. H.-P. Mansel, 70 Years of the German Council for Private International Law (1953-2023) [German] On the occasion of the seventieth anniversary […]

I. Introduction (*)

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

 

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

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

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

 

II. Facts

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

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

i) Before the first instance court

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

ii) Before the Court of Appeal

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

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

 

III. The Ruling

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

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

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

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

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

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

 

IV. Comments

1. Foreign Law in the UAE

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

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

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

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

 

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

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

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

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

 

3. A Potential Recognition Problem Abroad?

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

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

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

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

 

4. Epilogue

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

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