Agrégateur de flux

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The CJEU has held early July in C‑99/24 [Chmieka], on the application ratione temporis of Brussels Ia (cq Brussels I), the application of Article 24(1) [22(1)]’s rights in rem exclusive heads of jurisdiction, ‘contract’ v ‘tort’, and the anchor defendant mechanism: a whole bunch of jurisdictional issues resulting from, on the merits, a fairly straightforward case it seems.

The issue arose in an action for payment of compensation, by a Polish municipal authority against a natural person domiciled in The Netherlands, for the non-contractual use of immovable property situated in Poland. That person was one of the daughters of the original tenant. The rental agreement having been entered into by the mum in 1994, an eviction order was issued in 2007. The mum and, it seems, some of the daughters did not leave the property and in 2013 the municipality asked and obtained a compensation order for the use of the house between 2011 and 2012. That order was served on the family in 2013 (only one of the family members having signed for receipt), and objected to by one of the daughters in a procedure launched in 2023. In that procedure the daughter argues ia that the Polish courts lacked jurisdiction in the 2013 proceedings seeing as, she argued, she had herself been domiciled in The Netherlands since 2007.

Four questions were dealt with.

First, does Brussels I or Brussels IA apply? The question is academic, for the relevant jurisdictional provisions are identical in wording in BIa and BI. The CJEU decided to answer the question anyway. Per A66(1) BIa, it applies only to legal proceedings “instituted … on or after 10 January 2015”. The uncertainty concerns whether the concept of ‘institution of proceedings’ should relate to the date on which the municipality brought the action for payment against the
defendant (15 March 2013) or the date on which the defendant lodged the
statement of opposition (7 July 2023) with a request for review of the case.  The CJEU goes with the former, meaning that in the case at issue, Brussels I applies: [38] , with reference to Hanssen Beleggingen and AMS Neve:

a request for review of the case concerned, such as that at issue in the main proceedings, must be regarded as part of the continuation of the initial action, since that request made by the defendant is an application initiating proceedings which does not constitute proceedings separate from those opened by the initial action, but an extension of that action.

This finding will particularly be of relevance for proceedings where BI and BIa do materially differ.

Next, the potential role for A22 [24]’s right in rem (and tenancies) jurisdiction. In current case the CJEU very much draws the ‘need for restrictive interpretation of the exclusive jurisdictional rules’ card:

[53] (with reference to CJEU Reitbauer):

the assessment of such an action seeking compensation does not require on-site investigations, nor does it involve the assessment of facts or the application of rules and practices of the locus rei sitae in such a way as to justify conferring exclusive jurisdiction on a court of the Member State in whose territory that property is situated

[54] with reference to CJEU Lieber and Gaillard:

First, an action for payment of compensation for the non-contractual use of immovable property, after the termination of a tenancy agreement relating to it, is not covered by that expression because such an action is not based on a right in rem, having effect erga omnes, but a right in personam, which may only be relied upon against the alleged debtor from whom that compensation is sought. Second, an action such as that brought against [the daughter], who is classified as a third party in relation to the terminated tenancy agreement, cannot be included in the concept of ‘tenancies of immovable property’, within the meaning of [A22(1), because such an action does not directly relate to the rights and obligations arising from that tenancy and is therefore not based on the relationship of landlord and tenant

[55]

paragraph 163 [of the Schlosser report suggest that] actions for damages based on infringement of rights in rem do not fall within the scope of [A22] because in that context the existence and content of such rights in rem, usually rights of ownership, are only of marginal significance.

Finally, the interpretation of Article 5 [7] forum contractus v forum delicti: does residing in another person’s property without legal title following the termination of the tenancy agreement authorising the occupation of that property, constitutes tort, delict or quasi-delict?

[58-59] the Court reminds us of the need for autonomous and restrictive interpretation.

[60] with reference to CJEU Obala and Hrvatske Sume

the concept of ‘matters relating to tort, delict or quasi-delict’, within the meaning of [A5(3) BI] includes all claims which, first, do not concern ‘matters relating to a contract, within the meaning of [A5(1)(a)] and, second, seek to establish the liability of a defendant, so that it is necessary to ascertain whether those two conditions are satisfied

[61] with reference to Holterman and Hrvatske Sume

the independent concept of ‘matters relating to a contract’..covers any claim based on an obligation freely consented to by one person towards another

In the case at issue, [62] the facts suggest an A5(3) [7(2)] jurisdiction because

a claim for compensation such as that brought by the applicant in the main proceedings against [the daughter] is not covered by the concept of ‘matters relating to a contract’ because such a claim is based on the fact that a person has occupied immovable property without the free consent of the landlord expressed in the form of a tenancy agreement.

However [67] the national court must

ascertain whether, in the dispute before it, a ‘harmful event occurred’, within the meaning of [A5(3) BI], owing to [the daughter’s] conduct and, more specifically, whether [she] personally occupied the immovable property concerned during the period in question in the main proceedings, that is to say between 2011 and 2012. In the light of the order for reference, it has not been ruled out that [the daughter] resided exclusively in the Netherlands during that period. In the absence of such occupation on her part, no connecting factors making [A5(3)] applicable can be identified.

Finally, the application of A6 [8]’s anchor defendant mechanism: must the Polish court examine the action brought before it so as to decide jointly in respect of all the persons concerned by that action who have resided in the housing in question? A possibility arises from Polish law that different judgments may be delivered in respect of each of those persons, depending on whether the individual concerned did or did not occupy that housing after the termination of the tenancy agreement in question, because there is no joint and several liability between those persons.

Here [71] the CJEU first (with reference to Profit Sim Investment and Athenian Brewery] first of all recalls that the mere fact that the result of one of the proceedings concerned may have an effect on the result of the other does not suffice to characterise the judgments to be delivered in the two proceedings as ‘irreconcilable’. [72-73] The national court must also satisfy itself that the claims brought against more than one defendant are not intended artificially to satisfy the conditions for the application of the anchor defendant mechanism.

Here, [75] “it it seems unlikely that there was, on the date that the action was brought, the same situation of fact and law from which there could have been a risk that ‘irreconcilable judgments’, within the meaning of [A6(1)]”: that is precisely because [76]

[while] the claims for compensation brought by the applicant in the main proceedings against the four persons concerned by that action are, admittedly, connected by their subject matter, the purpose of those claims being identical… it is apparent from the order for reference that, under the applicable provisions of Polish law, first, those claims are severable in so far as different judgments could be delivered in respect of those persons, depending on whether each of those defendants occupied the property concerned during the relevant period, and, second, there is no joint and several liability between them, which appears to imply an individual examination of the facts alleged.

Quite a lot of ground covered.

Geert.

I. Introduction

The question of the application of Islamic law in non-Muslim countries has triggered extensive discussions and debates regarding the consistency of Islamic law rules – whether codified in modern legislation or not – with the forum’s public policy. This issue has attracted particular attention in the field of family law, where various legal Islamic institutions (such as dower, polygamy, and early marriage) have sparked considerable controversy and posed significant challenges in both court practice and academic debate. This is particularly salient in the field of dissolution of marriage, as Islamic practices such as talaq and khul have often been the subject of intense discussions concerning their recognition and validity in non-Muslim jurisdictions.

The case presented here is another example of the complexity inherent in the reception of peculiar Islamic law institutions in private international law. Recently decided by the Nagoya High Court (second-instance court) in its ruling of 12 June 2025, it concerns a type of marital dissolution based on ila (an oath of sexual abstention). To the best of my knowledge, no comparable case involving ila has been decided before in any jurisdiction, which makes this ruling particularly important both in theory and in practice. This is especially so given that resorting to ila in this case appears to have been part of a litigation strategy, anticipating an unfavourable outcome if the case had been brought before the court as a talaq case (see infra V). As such, the case provides an opportunity to consider the nature of this unusual Islamic legal institution, its specific features, and the challenges it may raise when examined by foreign courts.

 

II. The Case:

The parties in this case are a Bangladeshi Muslim couple who married in accordance with Islamic law in Bangladesh and subsequently moved to Japan, where they had their children. All parties, including the children, are permanent residents of Japan.

The case concerns a divorce action filed by the husband (X) against his wife (Y), seeking dissolution of marriage primarily under Bangladeshi law, and alternatively under Japanese law. X argued that, in his complaint, he declared his intention “in the name of Allah” to abstain from sexual relations with his wife; and since four months had passed without any sexual relations with Y, a “talaq-divorce” had been effected and thereby completed in accordance with Bangladeshi law. The divorce action was filed as a result of continuous disagreement and disputes between the parties on various issues including property rights, management of the household finance, and alleged misbehaviour and even violence on the wife’s side. At the time the action was filed, X and Y had already been living separately for some time.

One of the main issues revolved around whether the application of Bangladeshi law, which provides for this form of marital dissolution (referred to in the judgment as “talaq-divorce”), should be excluded due to inconsistency with Japanese public policy under Article 42 of the Act on the General Rules of Application of Laws (AGRAL).

The court of first instance (Nagoya Family Court, judgment of 26 November 2024) held that the “talaq-divorce” (as referred to in the judgment) was valid under Bangladeshi law and that its recognition did not contravene Japanese public policy. Notably, the court emphasized that “any assessment of whether the legal rules applicable between spouses who share the same religious and cultural background violate Japanese public policy should be approached with a certain degree of restraint”, given the strong cultural and religious elements involved in the personal status of the parties, who are both originally Bangladeshi nationals and Muslims who were married in accordance with Islamic law, even if they had been living and residing in Japan for some time.

Dissatisfied with the judgment, Y appealed before the High Court.

Y challenged the first instance judgment on various grounds. She basically argued – inter alia – that, given the strong ties the parties and their children have with Japan and their established life there, the mere fact that the parties are Bangladeshi nationals and Muslims should not justify a restrained implication of public policy, especially considering that the effects and consequences of the divorce would take place in Japan.

 

III. The Ruling

The Nagoya High Court upheld the judgment of the court of first instance, stating as follows (only a summary is provided here, with modifications and adjustments):

Under Bangladeshi law, which governs the present divorce, a husband may dissolve the marriage either through talaq (a unilateral declaration of divorce by the husband) or through other modes. There are several forms of talaq-divorce available to the husband, including ila. The latter entails the husband taking an oath in the name of Allah to abstain from sexual relations with his wife. If no intercourse occurs within four months following the oath, the divorce is considered to have taken effect.

In the present case, considering that Bangladeshi law is the applicable law, the talaq-divorce would be deemed valid, and would be recognized, since a period of four months had passed without any sexual contact between the parties after X made his declaration in the complaint.

Generally, when determining the applicability of Article 42 of the AGRAL, it is not the foreign law’s provisions themselves that should be assessed in abstracto. Rather, the application of the foreign law as the governing law may be excluded [only] where (1)its concrete application would result in a consequence that is contrary to public policy, and (2) the case has a close connection with Japan.

Regarding (1), the marital relationship between the parties had deteriorated over time, and various elements, when taken together, indicate that the parties had already reached a serious state of discord that could reasonably be seen as leading to separation or divorce. Consequently, considering all these circumstances, and taking into account the background of the case, the nature of the parties’ interactions, and the duration of their separation, it cannot be said that applying Bangladeshi law and recognizing the talaq-divorce in this case would be contrary to public policy.

With respect to (2), Y argued that, due to the strong connection between the case and Japan, the exclusion of the application of Bangladeshi in application of article 42 of the AGRAL should be admitted. However, as previously noted, the application of Bangladeshi law in this case does not result in a violation of public policy. Therefore, even considering the strong connection of the case to Japan, the application of Article 42 of the AGRAL cannot be justified.

 

IV. Comments

(*) Unless otherwise indicated, all references to Islamic law here are about classical Islamic law as developed by the orthodox Sunni schools, and not Islamic law as codified and/or practiced in modern Muslim countries.

 

1. Islamic law before Japanese Court

There are several cases in which Japanese courts have addressed the application of foreign laws influenced by or based on Islamic law. These cases have involved matters such as the establishment of filiation, annulment of marriage, parental authority, adoption, and divorce (whether based on the unilateral will of the husband or not). While in few instances the courts have applied the relevant foreign law without particular difficulties (for example, allowing a Japanese woman married to a Pakistani Muslim man to seek and obtain a divorce under Pakistani law), in most cases, the courts have refused to apply such laws on the grounds that they were contrary to Japanese public policy. The rules found incompatible with public policy include, among others, the non-recognition of out-of-wedlock filiation, the prohibition of interfaith marriage, the prohibition of adoption, the automatic attribution of parental authority to the father, and talaq-based divorce (triple talaq). The foreign laws at issue in these cases originate either from Muslim-majority countries such as Iran, Pakistan, Indonesia, and Egypt, or from non-Muslim countries with Muslim minorities who are governed by their own personal status laws, such as Myanmar and the Philippines.

The case commented on here provides a new example of a Japanese court grappling with the application of foreign law grounded in Islamic legal principles.

 

2. Ila and dissolution of marriage

Like many other traditional – and in some views, “exotic” – Islamic legal institutions (such as zihar, li’an, khul, tamlik, tafwidh, mubara’a …… definitions are intentionally omitted), ila is often difficult to apprehend correctly, both in substance and in function.

 

a) What is ila?

Generally speaking, ila can be defined as “the swearing of an oath by a man that he will not have intercourse with his wife” for a period fixed in the Quran (chapter 2, verse 226) at four months (See Ibn Rushd (I. A. Khan Nyazee, trans.), The Distinguished Jurist’s Primer – Vol. II: Bidayat Al-Mujtahid wa Nihayat Al-Muqtasid (Garnet Publishing, 2000) 121).

It worth mentioning first that ila is not an Islamic invention but was practiced in pre-Islamic society. In that context, ila allowed the husband to place considerable pressure on his wife by placing her in a state of marital limbo, which can be for an indefinite period. This left the woman in a vulnerable and uncertain position, as she was neither fully married in practice, nor legally divorced.

Islamic Sharia addressed this practice and, while it did not abolish it – unlike some other pre-Islamic institutions and practices –, it attempted to alleviate its harmful effects, by introducing a period of four months, during which the husband is invited to reconsider his decision and either resume marital life (Quran chapter 2, verse 226)  or dissolve the marriage  (Quran chapter 2, verse 227).

 

b) Ila – Different Practices

However, regarding the actual operation of ila, the schools of Islamic religio-legal jurisprudence (fiqh) diverge significantly on several points (Ibn Rushd, op. cit.). Two issues are particularly relevant here:

i. The first concerns whether :

(i-a) the four-month period stated in the Quran represents a maximum period, at the end of which the marriage is dissolved; or

(i-b) the four-month period merely marks the threshold between an oath of abstention that does not lead to marital dissolution and one that does. According to this latter view, only an oath exceeding four months, or one made for an indefinite duration, qualifies as ila that may result in the dissolution of marriage.

 

ii. The second issue concerns whether

(ii-a) the marriage is automatically dissolved once the four-month period has elapsed, if the husband does take the necessary actions to resume the marital life, that is after performing an act of expiation (kaffara) in accordance with the Quranic prescriptions (notably Chapter 5, verse 89); or

(ii-b), upon expiry of the term, the wife may petition a qadhi (Muslim judge), requesting that her husband either end the marriage by pronouncing talaq, or resume marital relations after performing an act of expiation (Chapter 5, verse 89). In such a case, the qadhi would then grant the husband a specified period to decide. If the husband fails to take either course of action, the qadhi may pronounce the dissolution of the marriage on account of his inaction. Depending on the legal opinion, this dissolution may be categorized either as a talaq issued on behalf of the husband, or as a judicial annulment (faskh).

Traditionally, the Hanafi school, prevalent in Bangladesh, follows positions (1-a) and (2-a), while the other major schools adopt views (1-b) and (2-b).

 

3. Ila and talaq – what’s the difference?

It is not uncommon for ila to be described as “a form of talaq.” This appears to be the position of the High Court, seemingly based on the arguments presented by X’s representative during the trial. It is true that both ila and talaq are prerogatives reserved exclusively for men; women do not have equivalent right (except, in the case of talaq, where the husband may contractually delegate this right to his wife at the time of the marriage). It is also true that both ila and talaq may lead to the dissolution of marriage based on the unilateral intention of the husband. However, describing ila as a “form of talaq” is not – technically speaking – entirely accurate.

i. Under the majority of schools of fiqh – except for the Hanafi –, the distinction is quite clear. This is because unlike talaq, ila, by itself, does not lead to dissolution of marriage. A judicial intervention is required upon the wife’s request for the marriage to be dissolved (which is not required for talaq).

 ii. Under the Hanafi school, however, the distinction between ila and talaq may be blurred due to their substantial and functional similarities. In both cases, a qualified verbal formula places the marriage in a suspended state(*) for a specified period (the waiting period (iddah) in the case of talaq, and the four-month period in the case of ila). If the husband fails to retract his declaration within this period, the marriage is dissolved.

(*) However, this does not apply in the case of a talaq that immediately dissolves the marriage: that is, a talaq occurring for the third time after two previous ones (whether or not those resulted in the dissolution of the marriage), or in the case of the so-called triple talaq, where the husband pronounces three talaqs in a single formula with the intention of producing the effect of three successive talaqs.

 

Nevertheless, a number of important distinctions remain between the two, even within the Hanafi doctrine.

a. The first concerns the frequency with which talaq and ila may be resorted to. Similar to ila, talaq does not necessarily lead to the dissolution of the marriage if the husband retracts during the wife’s waiting period (iddah). However, its use – even if followed by retraction – is limited to two occurrences (Chapter 2, verse 229). A third pronouncement of talaq results in immediate and irrevocable dissolution of the marriage, and creates a temporary impediment to remarriage. This impediment can only be lifted if the woman marries another man and that subsequent marriage is irrevocably dissolved (Quran, Chapter 2, verse 230). By contrast, ila, does not have such limitation and can be repeated without restriction (in terms of frequency), provided that the husband retracts by performing the act of expiation each time.

 b. The second concerns the form of retraction. In the case of talaq, the husband can resume conjugal life at will. No particular formality is required; and retraction can be explicit or implied. In the case of ila, however, retraction must take the form of an act of expiation (kaffara) in accordance with the Quranic prescriptions (Chapter 5, verse 89) before marital relations may resume.

 

4. Ila and public policy

a) Ila – some inherent aspects

As previously noted, ila has traditionally been used as a means for a husband to exert pressure or express discontent within the marriage by vowing abstinence from sexual relations. Under Islamic Sharia, this practice is preserved: husbands – even without making any formal oath of abstinence (ila) – are allowed to “discipline their wives” in cases of marital discord by abstaining from sharing the marital (hajr) as a corrective measure (Quran, Chapter 4, verse 34). Indeed, it is not uncommon that Muslim scholars justify the “rationale” behind this practice by stating that “a man may resort to ila…when he sees no other option but to abstain from sharing the marital bed as a means of disciplining and correcting his wife (italic added)…. In this case, his abstention during this period serves as a warning to deter her from repeating such behavior” (O. A. Abd Al-Hamid Lillu, ‘Mirath al-mutallaqa bi-al-‘ila – Dirasa fiqhiyya muqarana ma’a ba’dh al-tashri’at al-‘arabiyya [The Inheritance Rights of a Woman Divorced by Ila’: A Comparative Jurisprudential Study with Selected Arab Legislations]’ (2020) 4(3) Journal of the Faculty of Islamic and Arabic Studies for Women 630). It is therefore not surprising that some would view ila as “troubling” due to its perceived “sexism” and the fact that wives may find themselves at their husbands’ “mercy” with little thing to do (Raj Bhala, Understanding Islamic Law (Shar’ia) (Carolina Academic Press, 2023) 803).

These aspects, in addition with inherent gender asymmetry in the rights involved, calls into question the compatibility of ila with the public policy of the forum.

 

b) The position of the Nagoya High Court

As the Nagoya High Court rightly indicated, the exclusion of foreign law under the public policy exception does not depend on the content of the foreign law itself, assessed in abstracto. On the contrary, as it is generally accepted in Japanese private international law, public policy may be invoked based on two elements: (1) the result of applying the foreign law in a concrete case is found unacceptable in the eyes of Japanese law, and (2) there is a strong connection between the case and the forum (see K. Nishioka & Y. Nishitani, Japanese Private International Law (Hart, 2019) 22).

The Nagoya High Court’s explicit adherence to this framework, notably by engaging in an in concreto examination of the foreign law and avoiding invoking public policy solely on the ground of its content as some earlier court decisions suggest (see e.g. Tokyo Family Court judgment of 17 January 2019; see my English translation in 63 (2020) Japanese Yearbook of International Law 373), is noteworthy and should be welcomed.

That said, the Court’s overall approach raises some questions. The impression conveyed by the Court’s reasoning is that it focused primarily on the irretrievable breakdown of the marital relationship and the period of separation to conclude that there was no violation of public policy. In other words, since the marital relationship had reached a dead end, dissolving the marriage on the basis of objective grounds or on the basis of ila does not alter the outcome.

Although this approach is understandable, it would have been more convincing if the Court had carefully considered the nature of ila and its specific implications in this case, and eventually explicitly state that such elements were not established. These aspects appear to have been largely overlooked by the High Court, seemingly due to its unfamiliarity with Islamic legal institutions. It would have been advisable for the Court to address these aspects, at least to demonstrate its concerns regarding the potential abusive use of ila.

 

V. Concluding Remarks: Ila as a litigation strategy?

One may wonder why the husband in this case chose to resort to ila to end his marriage. One possible explanation is that Japanese courts have previously ruled that a talaq divorce in the form of triple talaq is inconsistent with public policy (Tokyo Family Court judgment of 17 January 2019, op. cit.). It appears that, anticipating a similar outcome, the husband in this case was advised to take a “safer approach” by relying on ila rather than resorting to triple talaq (see the comment by the law firm representing the husband in this case, available here – in Japanese only).  To be sure, associating talaq solely with its most contested form (i.e., triple talaq) is not entirely accurate. That said, considering how the case under discussion was decided, it is now open to question whether it would have been simpler for the husband to perform a single talaq and then abstain from retracting during his wife’s waiting period (iddah). At least in this way, the aspect of “disciplining the wife” inherent in ila would not be an issue that the courts would need to address

The latest issue of the Journal of Private International Law (Volume 21, Issue 1) features eight articles. Pietro Franzina, Cristina González Beilfuss, Jan von Hein, Katja Karjalainen & Thalia Kruger, Cross-border protection of adults: what could the EU do better?, 1-29 On 31 May 2023 the European Commission published two proposals on the protection of adults. […]

The author of this post is Federica Sartori, PhD student at the University of Pavia. A pending case, Tatrauskė (C-789/23), offers the Court of Justice an opportunity to rule on the relationship between the EU citizens’ right to free movement and residence under Article 21 TFEU and national legislation on the registration of marriage property […]

In Sinclair v Venezia Turismo, 2025 SCC 27 (available here) the Supreme Court of Canada has, by 5-4 decision, held that the Ontario court does not have jurisdiction to hear claims by Ontario residents against three Italian defendants in respect of a tort in Italy.  The Sinclair family members were injured in a gondola collision in Venice that they alleged was caused by the Italian defendants.  But there were several connections to Ontario.  The trip to Italy had been booked by Mr Sinclair using a premium credit card’s concierge and travel agency service [4, 156] and the gondola ride had been arranged through that service [15, 160].  The card was with Amex Canada and one or more contracts connected to the gondola ride had been made in Ontario.  The Sinclairs were also suing Amex Canada and the travel service for carelessness in making the arrangements with the Italian defendants, and those defendants attorned in Ontario [167, 172].  A core overall issue, then, was whether the plaintiffs would be able to pursue all of their claims arising from the gondola collision, against various defendants, in one legal proceeding in Ontario.

For assumed jurisdiction, Canadian common law requires that the plaintiff establish a presumed connecting factor (PCF) in respect of each defendant.  Once established, the defendant can rebut the PCF by showing that it does not point to a real relationship, or only a weak relationship, with the plaintiff’s chosen forum [7, 49, 202, 216].  It is well established that damage sustained by the plaintiff abroad, and continuing to be suffered in the forum, is not a PCF.  While less clear, the better view of the law is that the defendant’s being a “proper party” to a proceeding advanced against a local defendant is not a PCF.  So neither of these routes to jurisdiction, familiar in some legal systems, was available despite their fitting the facts.

Canadian courts have held that the fact that a contract connected with a tort was made in the forum is a PCF.  This is controversial because many have questioned the strength of this connection, based as it is on the place of making a contract, but it has been repeatedly endorsed by the Supreme Court of Canada.  Sinclair turned on whether this PCF had been established and if so rebutted [1, 51, 146].  The majority (decision written by Justice Cote) found the defendants had rebutted the PCF; the dissent (decision written by Justice Jamal) found not.

The reasons are a challenging read.  The majority and dissent disagree on many discrete points (including the standard of review and the standard of proof).  Many of these are essentially factual.  Because they do not see the facts the same way, it is hard to compare the legal analysis.  A key example is on the issue of what contract(s) had been made in Ontario.  The majority is not overly satisfied that any contract had been, but is prepared to accept that Mr Sinclair’s cardmember agreement was made in Ontario [102-103].  That contract is in a loose sense connected with the tort in Italy, but it is easy to see how one might think this is at best a very weak link [9].  In contrast, the dissent has no issue with the cardmember agreement having been made in Ontario [253, 259] and finds an additional contract also made in Ontario in respect of arranging the specific gondola ride [268].  That second contract is more closely linked to the tort and so the rebuttal analysis would be expected to differ from that relating to the cardmember agreement.  The majority does not find any such second contract at all: it sees this as a reservation made to arrange that the gondola be available, which is not a separate contract but rather a part of the way Amex Canada performs its service obligations under the cardmember agreement [105-107].

The result of the appeal is highly fact-specific.  But some useful general points can be extracted from the reasons.  First, the decision may add to our understanding of the test for when a contract made in the forum is “connected” to the tort.  In Lapointe (available here) the court had said that this is satisfied if “a defendant’s conduct brings him or her within the scope of the contractual relationship” AND “the events that give rise to the claim flow from the relationship created by the contract” [58, 215].  I confess to having had trouble understanding what the former aspect means.  What is it to be brought within the scope of the contractual relationship?  Is this a factual or legal question?  In what way would the Italian defendants be brought within the scope of the cardmember agreement (this does not seem possible) or even the second contract between Amex Canada and Carey International to arrange a gondola?  Do they get brought within the scope just because they end up being the relevant gondola providers?  Anyway, in this case, both the majority and the dissent seem to focus all of their analysis of whether the contract is connected to the tort on the second aspect: whether the tort “flows” from the earlier contract (a pretty easy test to meet here for all contracts involved) [128, 246].

Second, the judges engage in a lively debate about the standard of establishing a PCF.  This is understandable given the extent to which they disagree about the facts.  But their debate ends up being inconclusive.  For the majority see [59] to [62] and the conclusion that this is not an appropriate case to develop the law on this point (so these paragraphs, then, are markers for arguments parties might make in future cases in which the law might be developed).  For the dissent see [224] to [236] and the conclusion that what it considers the status quo on the issue remains the law (yet this is in dissent).  There may be common ground, since in both discussions care is taken, at least in places, to refer specifically to the distinction between disputes about facts and disputes about the application of the law to those facts.  A standard of proof, whether a balance of probabilities or a good arguable case, must be about facts and not law.  It does not make sense to talk about the standard of proof for establishing a point of law or satisfying a legal test.

Third, few Canadian cases have provided a detailed analysis of how the rebuttal of a PCF works, so this case is most welcome on that specific issue.  The majority offers some general considerations that feed into the analysis [67-72].  It also rejects the contention that rebuttal is a “heavy” burden on the defendant [74].  It calls the rebuttal “a shift in burden and perspective, not a shift in difficulty” [74, quoting the intervener BC Chamber of Commerce].  This language is likely be repeated quoted in subsequent decisions.  The majority also says that the PCF and rebuttal stages work in tandem and are complementary [74-75].  This reflects the idea that if the PCF is broad, there should be more scope for rebuttal, and if the PCF is narrow, less so.  The dissent does not disagree with this stated approach to the rebuttal analysis [see 217].  However, the judges disagree about whether the defendant’s reasonable expectations of where it might be sued can be considered as part of the rebuttal analysis.  The dissent says no [218, 291].  The majority says yes [71-72].

Finally, on the broader question of how willing courts should be to take jurisdiction over a defendant on grounds of efficiency, access to justice and avoidance of multiple proceedings, most comments from the judges are indirect.  The majority stresses the importance of “fairness” to defendants [45].  It rejects “bootstrapping” and insists that a PCF must be shown for each defendant [63].  It cautions against a jurisdiction analysis that considers “the factual and legal situation writ large” [63].  In contrast, the dissent sees the proceeding as one that “claims inseparable damages for these integrally related torts” [281] and rejects focusing on the collision as something separate from other facts and claims [249].  More directly, it states “[i]n a case alleging multiple torts, as in this case, or a case raising claims under multiple heads of liability, focussing on the dispute as a whole ensures that a court does not inappropriately hear only part of the case in the forum while leaving related claims to be heard in the extra-provincial or foreign court” [244].  In doing so it quotes the notorious para 99 of Club Resorts (available here), language that continues to trouble courts more than a decade later.  After Sinclair, are we closer to a principled answer for cases with related claims against multiple defendants?  By focusing on the narrow and specific questions raised by the particular PCF at issue, including identifying whether and where certain contracts were made, the broader debate is being conducted covertly rather than in the open.

 

The EAPIL blog will be publishing fewer posts than usual in the course of August. As in previous years, there will be no more than two or three posts per week until 25 August, when we plan to resume our usual pace. Potential guests are encouraged to keep submitting their proposals at blog@eapil.org, in the […]

A collection of essays titled Europäisierung des Zivilrechts, edited by Guido Kosmehl, Steffen Pabst and István Varga, has been published by C.H. Beck to celebrate the 70th birthday of Thomas Rauscher. It comes with some thirty contributions, mostly in German, dealing with a variety of topics in the area of private law and private international […]

The Australian Institute of International Affairs and the Australian Branch of the International Law Association call for applications for the 2026 Peter Nygh Hague Conference Internship.

Awarded annually, the Nygh internship offers a postgraduate student or graduate of an Australian law school the exciting opportunity to undertake a 6-month internship with The Hague Conference on Private International Law, in the Netherlands.

The successful applicant will have the chance to work with some of the world’s leading private international law practitioners and will receive funding to assist with travel costs and living expenses.

Previous Nygh interns have worked on projects in fields including: family law; evidence and access to justice; cross border flow of personal data; migration; civil liability for trans-boundary harm and commercial dispute resolution. For many interns, the opportunity to observe the negotiation of an international convention first-hand has been a highlight of their internship, all whilst living and working in the Netherlands.

English, French and Spanish are the three working languages of the Hague Conference and Australian law graduates and final year law students with French and/or Spanish language skills are encouraged to apply for the internship.

The Peter Nygh Hague Conference Internship was established in memory of the late Hon Dr Peter Nygh AM, a renowned international lawyer and former judge of the Family Court of Australia.

Applications for the 2026 Nygh Internship have been extended to close on 14 August 2025. For further information and application instructions visit: Peter Nygh Hague Conference Internship – Australian Institute of International Affairs or email Nicola Nygh at nicola.nygh@rllawyers.com.au

Royal Football Club Seraing
Football : la Cour consacre le droit, notamment pour les clubs et les joueurs, d’obtenir un contrôle juridictionnel effectif des sentences arbitrales rendues par le Tribunal arbitral du sport

Alace
Espace de liberté, sécurité et justice
Protection internationale : la désignation d’un pays tiers comme « pays d’origine sûr » doit pouvoir faire l’objet d’un contrôle juridictionnel effectif

The Minister for Children, Equality, Disability, Integration and Youth
Principes du droit communautaire
Droit d’asile : un État membre ne peut invoquer un afflux imprévisible de demandeurs de protection internationale pour se soustraire à son obligation de couvrir les besoins fondamentaux des demandeurs d’asile

BAJI Trans
Le principe de l’application rétroactive de la loi pénale plus favorable s’étend à une sanction qualifiée d’administrative en droit national lorsqu’elle est de nature pénale au sens du droit de l’Union

Volkswagen (Droit à réparation adéquate)
Rapprochement des législations
Un constructeur automobile ne peut pas s’exonérer de sa responsabilité pour un dispositif d’invalidation illicite du fait de l’existence d’une réception CE par type

The following announcement was kindly shared with us by Fabienne Jault-Seseke

Created with the support of LexisNexis, the Review Perspectives contentieuses internationales (PCI) is a biannual academic journal dedicated to the globalization of international litigation in both its public and private aspects. Each issue features a thematic dossier, complemented by several articles outside the main topic (Varia), as well as brief focus pieces addressing current events relevant to political or regulatory developments impacting international disputes (Focus).

The editorial committee, which ensures the scientific and operational direction of the Review, is composed of Sandrine Clavel, Patrick Jacob, and Fabienne Jault-Seseke (professors at Université Paris-Saclay, UVSQ).

Three issues have already been published and are available open access.

Issue 3 was released a few weeks ago.

It features a dossier dedicated to the Real Madrid / Le Monde case, following the decisions of the Court of Justice and the French Court of Cassation. Articles in this dossier were written by Fabienne Jault-Seseke, Julie Traullé, Marie Dugué and Laura Vitale, Ana Quinones, Olivera Boskovic, and Fabien Marchadier.

The issue also contains an article in English by Gilles Cuniberti on the international attractiveness of specialized commercial courts: “Assessing the International Attractiveness of Commercial Courts: Will Paris Eat London’s Lunch?”

A recent decision by the French Court of Cassation enabled Marylou Françoise to write a study devoted to the seising of the Judge in International Disputes.”

The issue concludes with presentations of:

• The Arbitration Act 2025, by Thomas Clay,
• The report on the application of the recast Brussels I Regulation: “To revise or not to revise?” by Sandrine Clavel,
• The order issued by the ICJ in the Sudan v. United Arab Emirates case: a brake on the Court’s openness, by Patrick Jacob.

France / CWS Powder Coatings e.a.
Rapprochement des législations
La Cour de justice confirme l’annulation de la classification du dioxyde de titane sous certaines formes de poudre comme substance cancérogène

A new volume coming out of the Programme in European Private Law for Postgraduates (PEPP) has just been published as part of the Scritti di diritto privato europeo ed internazionale series.

The table of contents can be found here; the full volume is available open access here.

Banca Mediolanum
Fiscalité
Fiscalité : une réglementation nationale prévoyant d’imposer dans une mesure supérieure à 5 % de leur montant les dividendes que les intermédiaires financiers perçoivent, en tant que sociétés mères, de leurs filiales résidant dans d’autres États membres est contraire au droit de l’Union

Veracash
Libre circulation des capitaux
Services de paiement : l’utilisateur d’une carte de paiement est privé du droit d’obtenir le remboursement d’une opération de paiement non autorisée dont il a eu connaissance s’il tarde à la signaler à son prestataire de manière intentionnelle ou gravement négligente

Daka
Indépendance des juges : la double affectation des juges à la Cour suprême polonaise est compatible avec le droit de l’Union

Adrar
Espace de liberté, sécurité et justice
Avocat général Spielmann : le juge qui contrôle la légalité du placement en rétention d’un ressortissant d’un pays tiers en séjour irrégulier doit vérifier que le principe de non-refoulement ne s’oppose pas à son éloignement