Agrégateur de flux

The latest volume of the Yearbook of Private International Law is out. Edited by Andrea Bonomi and Ilaria Pretelli, it is the first volume of the Yearbook published by Brill. The volume consists of six sections: the usual “Doctrine” section; a section on choice of court agreements; a section on court decisions; a section exploring […]

I. Introduction

Reciprocity is probably one of the most discussed requirements in the field of the recognition and enforcement of foreign judgments. While its legitimacy appears to be on the wane (see Béligh Elbalti, “Reciprocity and the Recognition and Enforcement of Foreign Judgments: A Lot of Bark but Not Much Bite,” 13 JPIL 1 (2017) 184), reciprocity can still strike hard – particularly when it is applied loosely and without sufficient consideration.

The case presented here, decided by the Egyptian Supreme Court (Appeal No. 11434 of 21 June 2025), provides a good illustration. Despite the Court’s well-established case law imposing certain restrictions on the use of the reciprocity requirement, this recent judgment shows that, when not applied with the necessary rigor, reciprocity can still produce significant effects that undermine the legitimate expectations of the parties.

 

II. Facts

The case concerned the enforcement of a Canadian divorce judgment rendered in Quebec, ordering the appellant (Y) to pay a specified sum of money with interest.

X, in whose favor the judgment was issued, sought to have the Canadian judgment enforced in Egypt. The Court of First Instance rejected the claim. X then appealed to the Court of Appeal, which overturned the first-instance judgment and ordered the enforcement of the Canadian decision.

Dissatisfied with this outcome, Y brought an appeal before the Supreme Court.

In support of his appeal, Y argued that the Court of Appeal had ordered the enforcement of the Canadian judgment without establishing the existence of any legislation in Canada permitting the enforcement of Egyptian judgments there, as required under Article 296.

 

III. The Ruling (Summary)

It is established in the case law of this Court that Article 296 of the Code of Civil Procedure makes clear that the rule is founded on the principle of reciprocity or mutual treatment. Accordingly, foreign judgments in Egypt must receive the same treatment that Egyptian judgments receive in the foreign country whose judgment is sought to be enforced. In this respect, the legislature limited the requirement to legislative reciprocity and did not require diplomatic reciprocity established by treaty or convention. The court must ascertain the existence of legislative reciprocity on its own initiative.

In the present case, the Court of Appeal ordered the enforcement of the Canadian decision on the basis that a foreign judgment may be relied upon before Egyptian courts so long as no Egyptian judgment between the same parties on the same matter has been issued and become enforceable, without determining whether any convention exists between Egypt and Canada concerning the enforcement of judgments that provides for reciprocity, as required under Article 296 of the Code of Civil Procedure.

This constitutes a violation of the law and requires that the judgment be quashed and the case remanded.

 

IV. Comments

The Court’s decision raises significant concerns.

First, the Supreme Court appears to contradict itself. After reiterating its longstanding position that “diplomatic reciprocity” – that is, reciprocity established through a treaty – is not required under Egyptian law, it nevertheless held that reciprocity with Canada was not established because the Court of Appeal did not determine whether any convention with Canada exists. This is not the first time the Court has adopted such reasoning. In a previous case decided in 2015, the Supreme Court relied on a similar approach when evaluating the enforcement of a Palestinian judgment (Appeal No. 16894 of 4 June 2015). Such reasoning is difficult to reconcile with the Court’s own affirmation that treaty-based reciprocity is irrelevant under Article 296.

Second, the Court’s ruling is inconsistent not only with the prevailing view in the literature (for an overview, see Karim El Chazli, “Recognition and Enforcement of Foreign Decisions in Egypt,” 15 YBPIL (2013/2014) 400–401), but also with the Court’s prior stance affirming reciprocity on the basis of “legislative reciprocity”. Under this approach, reciprocity exists if, according to the enforcement law of the State of origin, Egyptian judgments would be enforceable there. Indeed, in earlier cases, the Court conducted a comparative analysis of the enforcement requirements under the law of the State of origin and under Egyptian law, and concluded that reciprocity was satisfied when the two sets of requirements were broadly comparable (see, e.g., Appeal No. 1136 of 28 November 1990, admitting reciprocity with Yemen; Appeal No. 633 of 26 February 2011 and Appeal No. 3940 of 15 June 2020, both admitting reciprocity with Palestine). In addition, in some cases involving the recognition or enforcement of judgments rendered in a country with which Egypt has not concluded any international convention, the Supreme Court did not examine the issue of reciprocity as required under Article 296 of the Code of Civil Procedure, nor did it invoke it sua sponte as the Court has repeatedly affirmed. Instead, it directly examined the requirements for recognition or enforcement under the conditions laid down in Article 298 of the Code of Civil Procedure (see, e.g., Appeal No. 2014 of 20 March 2003 regarding the enforcement of a New Jersey judgment ordering the payment of damages resulting from breach of contract; Appeals No. 62 and 106 of 25 May 1993 regarding the recognition of a Californian divorce judgment. In both cases, however, recognition and enforcement were rejected, inter alia, on the ground of public policy).

Third, the Court’s stance in this case is likely to create more problems than it solves. Even setting aside the contradiction noted above, the Court gave no indication on how “legislative reciprocity” should be established when the foreign judgment originates from a federated province or a state within a federal system, each having its own autonomous legal regime (on the difficulty of establishing reciprocity emanating from federal states, notably the United States, see Béligh Elbalti, “La Réciprocité en matière de réception des décisions étrangères en droit international privé tunisien – observations critiques de la décision de la Cour d’appel de Tunis n°37565 du 31 janvier 2013” 256/257 Infos Juridiques (mars-2018) 20 (Part I), 258/259, Infos Juridiques (avril-2018) 18 (Part II)).

The situation of Canada is particularly striking. In Quebec, where a civil-law approach prevails in the field of private international law, the rules on the recognition and enforcement of foreign judgments are comprehensively codified (see Gérald Goldstein, “The Recognition and Enforcement of Foreign Decisions in Québec,” 15 YBPIL (2013/2014) 291) and differ substantially from those applicable in the common-law provinces (see Geneviève Saumier, “Recognition and Enforcement of Foreign Judgments in Canadian Common Law Provinces,” 15 YBPIL (2013/2014) 313). If the Court insists on applying the criterion of “legislative reciprocity,” how are Egyptian courts to assess reciprocity in relation to a province such as Quebec? Would it be sufficient that Egyptian judgments are enforceable in another Canadian province where enforcement is governed by common-law principles? Does it matter that, in the common-law provinces, recognition and enforcement are not codified and are largely based on case law? And if, as would be expected, “legislative reciprocity” had to be established by reference to Quebec law, would it be relevant that under Quebec law, reciprocity is not a requirement for the recognition and enforcement of foreign judgments at all? In this respect, Egyptian courts would be well advised to consider the generous approach followed in Tunisia, whereby the Supreme Court established a presumption in favor of reciprocity, placing the burden on the party challenging enforcement to prove its non-existence (for details, see Béligh Elbalti, “La réciprocité en matière d’exequatur?: Quoi de nouveau?? Observations sous l’arrêt de la Cour de cassation n° 6608 du 13 mars 2014”published in Arab Law Quarterly (2025) as an online-first publication).

Finally, this case, along with several others concerning the enforcement of foreign judgments, illustrates the difficulty of enforcing such judgments in Egypt in the absence of an applicable treaty (for recent examples, see Appeal No. 25178 of 17 November 2024, which rejected the enforcement of an Irish judgment on the ground of public policy, and Appeal No. 3493 of 4 December 2024, which rejected the enforcement of an Austrian judgment because the various conditions laid down in Article 298 were not satisfied. By contrast, where a bilateral convention exists, enforcement is somewhat generally easier (see, e.g., Appeal No. 200 of 14 May 2005, which allowed the enforcement of a French custody judgment pursuant to the bilateral convention between the two countries; but contra, Appeal No. 719 of 8 October 2013, which rejected the enforcement of a similar French judgment).

It must be admitted, however, that the conclusion of such a convention does not necessarily guarantee smoother enforcement (see, for instance, my previous comments on the enforcement of judgments rendered in Saudi Arabia and Kuwait, available on this Blog here and here).

The issue of “foreign law” and its application, long considered essential to the functioning of private international law (PIL), continues to trigger interesting discussions and debates.

In this context, Professor Dr. Carlos Esplugues (University of Valencia) has recently published a special course entitled New Dimensions in the Application of Foreign Law by Courts (and Arbitrators) and Non-Judicial Authorities in the Collected Courses of the Hague Academy of International Law – Recueil des cours, Volume 449, which offers new perspectives on this long-discussed topic.

In this course, Prof. Esplugues discusses the traditional state-centred and binary (“domestic vs. foreign”) perspective and views it as outdated. He argues that the application of foreign law cannot be treated as a single, unified reality and that understanding the topic requires a broader, “propedeutic” approach that takes into account the functioning of PIL as a system with internal contradictions, pressures, and limitations.

 

The blurb reads as follows:

Private international law is a field of law that is particularly permeable to its environment. This openness to the outside world has historically manifested itself in the question of the application of foreign law, the answers to which, far from being strictly legal, have also reflected political, economic and geostrategic reasons. Starting from this premise, the course will, firstly, assess the validity of the equation “foreign law = foreign State private law”, based on the triple idea of the reformulation of the role of the State at the national and international levels, the acceptance – even encouragement – by the State of the presence of private providers of legal services, and the reappearance of normative realities outside the State, which enjoy varying degrees of acceptance and sympathy. Second, it analyses the usual incoherence between theoretical positions on the nature of applicable law and their practice in most places in the world. This is done, thirdly, overcoming the traditional US-Eurocentric approach to the subject by opening up the study to the responses of a large number of jurisdictions outside the US and Europe, where the future of the discipline will be decided.

 

The table of contents, in its main lines, is as follows:

 

Introduction. A polymorphic issue requiring a global and asymmetric approach

Chapter I. Beyond the legal discourse: Geopolitics, Private International Law and the admission of foreign law
1. Those early days when PIL did not exist
2. The emergence of the first PIL responses
3. A step further: The development of the principle of comity (and vested rights)
4. The paths diverge: Continental Europe, Anglo-Saxon countries and Ibero-America
5. Diving into the fog: Admitting, as a rule or exception, the possible application of foreign law

Chapter II. The playing field for foreign law: The pier and the quicksand
1. First: The changing terrain for foreign law
2. Second: The end of the State’s judge as the sole actor in the process of applying foreign law
3. Third: The evolving and relative meaning of “application” of foreign “law”
4. A slippery issue and the fluctuating reality of PIL: Not such a beautiful friendship

Chapter III. The nightmare in practice: How is foreign law applied?
1. The application of foreign law by national authorities
2. The system in practice: The link between the treatment of foreign law before national authorities and its legal, factual or hybrid consideration
3. Foreign law before State courts
4. The application of foreign law by State non-judicial authorities
5. A fully particular world: The application of the law governing the substance of the dispute by the arbitrators

Epilogue. The never-ending story . . . until the consolidation of AI?

Bibliography

A symposium on “Judicial Independence and Liberal Democracy Under Threat: The Challenge of Implementing the ELI Mt Scopus Standards on Judicial Independence” will take place from 10 to 12 December 2025 at the University of Nicosia. The event is organised by the Procedural Law Unit in cooperation with the International Association of Judicial Independence and World Peace (JIWP) and will be held at the UNESCO Amphitheatre.

For conflict-of-laws scholars, the theme is of direct relevance. The operation of mutual trust, the circulation of judgments and the effectiveness of cross-border cooperation depend upon structurally independent courts capable of delivering fair and impartial justice. Recent developments in several jurisdictions have renewed the discussion on whether systemic deficiencies can undermine recognition and enforcement mechanisms. The symposium aims to examine these questions against the background of the ELI Mt Scopus Standards, which provide a comprehensive framework for assessing judicial independence in both institutional and functional terms.

The Opening Session, chaired by Assistant Professor Nicolas Kyriakides, will include contributions from representatives of the justice ministries of Greece and Cyprus, members of the Cyprus judiciary and parliament, the Cyprus Bar Association, the European Commission and the European Law Institute. Professor Shimon Shetreet, President of JIWP and Co-Reporter of the Mt Scopus Standards, will also address the audience.

The programme subsequently turns to comparative perspectives, with interventions by Marieta Safta, Graham Zellick, Mikhail Antonov, Alexander Trunk, Daniela Piana, Matthias E. Storme and Achilleas Demetriades. A further session on the contemporary role of courts will feature Valentina Pavlicic, Dragana Kolaric, Amnon Reichman, Gralf-Peter Calliess, Christos Clerides, Takis Tridimas and Giuseppe Franco Ferrari.

The afternoon sessions will consider judicial appointments and structural guarantees, with contributions from Fryderyk Zoll, Sophie Turenne, Caroline Expert-Foulquier, Serhii Kravtsov and Stephanie Laulhé Shaelou, followed by a panel on judicial ethics and accountability with Natasa Plavsic, Philippe Jougleux, George Kontis and Andrea Danuser. The final session, addressing judicial independence in democratic governance, will include Ruti Teitel, Martin Sabelli, Haim Sandberg and Hiram Chodosh, with concluding comments by Maimon Schwarzschild and Elina Asimakopoulou.

For those interested in the institutional foundations of private international law, the symposium offers a timely opportunity to revisit the structural assumptions that underpin cross-border judicial cooperation.

The programme is available here: https://www.unic.ac.cy/event/procedural-law-unit-5th-annual-symposium/

To follow the event online, you may watch the YouTube livestream here: https://www.youtube.com/watch?v=gKQ8sRIRQZs

By Marketa Trimble, Samuel S. Lionel Professor of Intellectual Property Law, Co-Director of the IP Law Concentration, William S. Boyd School of Law, University of Nevada, Las Vegas

It is neither new nor surprising that international treaties affect the design and application of conflict-of-laws rules; not only international conventions on private international law but also other international treaties shape conflicts rules, with human rights treaties being the primary example. But a recent decision concerning the interpretation of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”) could have profound and arguably unprecedented effects on the conflict rules that are applied in intellectual property (“IP”) cases, such as cross-border cases concerning copyright infringement, trademark ownership, and patent licenses.

In July 2025, an arbitration panel decided in a WTO dispute between the European Union and China that the Chinese anti-suit injunction policy that led Chinese courts to issue anti-suit injunctions in disputes involving standard-essential patents violated the TRIPS Agreement (China—Enforcement of Intellectual Property Rights, WTO, Award of Arbitrators, WT/DS611/ARB25, 21 July 2025). The decision, which concerned the Chinese version of anti-suit injunctions, which are referred to as “behavior preservation orders,” was rendered on appeal from a panel report from April 2025. In the absence of a functioning WTO Appellate Body, the appellate decision was rendered under the alternative Multi-Party Interim Appeal Arbitration Arrangement that was concluded pursuant to Article 25 of the WTO dispute settlement understanding.

The EU complaint to the WTO in the case was certainly not the first, or the only, attack on anti-suit injunctions that national courts have issued in patent cases in order to stop parties from litigating in parallel in foreign jurisdictions. Opponents of anti-suit injunctions have been successful, for example, in the Paris Court of Appeal and in the Munich Local Division of the Unified Patent Court; these courts found that in the particular cases, U.S. court-issued anti-suit injunctions violated parties’ rights under the European Convention of Human Rights and the Charter of Fundamental Rights of the European Union (IPCom GmbH & Co. Kg v. Lenovo (United States) Inc, No 14/2020, Paris Court of Appeal, 3 March 2020; Huawei v. Netgear, UPC, Munich Local Division, Order of 11 December 2024, File No. ACT_65376-2024 UPC_CFI_791-2024). But while the effects of those decisions have been limited and focused on anti-suit injunctions, the arbitral panel decision in the WTO case could have much wider implications.

The arbitral panel in the WTO case found that TRIPS Agreement Article 1.1, according to which WTO “[m]embers shall give effect to the provisions of [the TRIPS] Agreement,” creates a corollary obligation for WTO members “to do so without frustrating the functioning of the systems of protection and enforcement of IP rights implemented by other Members in their respective territories.” Because the anti-suit injunctions policy at issue affected the patent holders’ ability to enforce their rights that WTO member countries provided for in compliance with the TRIPS Agreement, the panel held that the policy violated the TRIPS Agreement. The panel acknowledged that “the TRIPS Agreement does not address issues of private international law,” but concluded that “the TRIPS Agreement … requires that Members not frustrate the effective protection of trade-related IP rights in the territories of other Members.” It explained that “[t]he provisions of the TRIPS Agreement would be rendered inoperative if Members were allowed to frustrate the implementation by other Members of their obligations under the TRIPS Agreement.”

Although the arbitral panel decision concerns anti-suit injunctions in patent cases, its reasoning raises the question whether the panel’s interpretation of the TRIPS Agreement could affect the application of other conflict-of-laws rules and affect the rules in any cases involving IP rights covered by the Agreement. Anti-suit injunctions are not the only means through which conflicts rules can impact the ability of a foreign country to protect the IP rights that the foreign country provides. Justiciability of foreign IP rights violations allows courts to adjudicate IP rights infringements arising under foreign countries’ laws, which foreign countries could perceive as depriving their own courts of the opportunity to vindicate the countries’ IP law violations and preventing the countries from fulfilling their obligation to “give effect to the provisions of [the TRIPS] Agreement.” Choice-of-law rules that direct courts to apply the law of the forum to remedies in cases of foreign IP rights infringements could also be viewed as diminishing or frustrating foreign countries’ protection of their IP rights, and any denials of the recognition and enforcement of foreign judgments concerning foreign IP rights, which might, for instance, be because of their repugnancy with the public policy of the recognizing court’s forum, clearly frustrate foreign countries’ enforcement and protection of their IP rights.

A pessimistic reading of the decision could lead to the conclusion that the arbitral panel’s interpretation forecloses the application of many principles and rules of conflict of laws that assist or could assist in the cross-border litigation of IP cases. In the past two decades, teams of conflicts & IP law scholars in the United States, Europe, and Asia have proposed sets of conflicts principles and rules that would overcome strictly territorial approaches to IP rights enforcement and promote greater flexibility in cross-border IP litigation, such as wider justiciability of foreign IP rights violations, greater numbers of courts with broader jurisdiction over IP disputes, concentrations of proceedings of related causes of action concerning IP rights in different countries, and the application of a single country’s law for ubiquitous (such as online) IP rights infringements. Among the several proposals, the projects by the American Law Institute, the European Max Planck Group, and the International Law Association have been the most detailed. Much of this work could now seem to be to no avail in light of the arbitral panel’s interpretation of the TRIPS Agreement.

An optimistic reading of the arbitral panel decision could offer support for the current conflicts principles and rules, and at least for some of the principles and rules proposed by the projects. Conflicts rules should support collaboration among courts in their enforcement of each other’s national laws, including IP laws, and thus contribute to countries meeting their obligations under the TRIPS Agreement. For example, justiciability of foreign IP rights violations can frustrate the ability of foreign courts to adjudicate violations in their jurisdictions, but in some cases, the justiciability rule can pave the way for the only available avenue for effective enforcement of the rights, such as when a rights holder can afford to litigate only once, and a concentration of proceedings, facilitated by the rules of justiciability, of parallel violations of IP rights under multiple countries’ laws provides the only realistic possibility for a rights holder to enforce his rights. Certainly, any rules that aim to maximize the recognizability and enforceability of foreign judgments in IP cases should be consistent with a requirement that a foreign country’s ability to “give effect to the provisions of [the TRIPS] Agreement” not be frustrated.

Not all conflicts rules, and not the rules in all circumstances, will live up to the corollary obligation that the arbitral panel identified in Article 1.1 of the TRIPS Agreement. Detailed analyses should study the compliance of different conflicts rules with the obligation, and also contemplate the role that the rules might play in achieving the overall goals of the TRIPS Agreement when a foreign country’s IP laws and/or judgments do not comply with the Agreement. Rules such as the public policy exception and internationally mandatory rules might pose interesting questions in this regard.

The durability of the arbitral panel’s interpretation is unclear; because it is a product of the Multi-Party Interim Appeal Arbitration Arrangement, the arbitral panel’s decision is binding only on the parties and is not precedential for all WTO members, and future decisions within the WTO dispute settlement could produce other interpretations. For now, the interpretation by the arbitral panel suggests that courts should be looking closely at the TRIPS Agreement when addressing conflict-of-laws issues in cross-border IP cases.

Maria Victoria Cuartero Rubio (University of Castilla-La Mancha) and Jose Manuel Velasco Retamosa (University of Castilla-La Mancha) edited El Derecho de Familia a la luz del derecho fundamental europeo al respeto a la vida familiar (Family Law in Light of the European Fundamental Right to Respect for Family Life) with Aranzadi. The book, part of […]

Boothnesse
Avocate générale Medina : en vertu de l’accord de commerce et de coopération entre l’Union européenne et le Royaume-Uni, la règle de la spécialité est une garantie procédurale essentielle pouvant être invoquée et sa mise en application contrôlée

Mio e.a.
Libre circulation des personnes
La protection d’objets utilitaires par le droit d’auteur est soumise aux mêmes exigences que pour d’autres objets

The general course of international law that Professor Campbell McLachlan (University of Cambridge) gave at the Hague Academy of International Law On the Interface Between Public and Private International Law was published in volume 446 of the Collected Courses of the Academy. Our understanding of the operation of law beyond the State has been deeply shaped by two […]

Une condition imposée par le droit national applicable dans l’État membre de la juridiction dont la compétence a été convenue entre des parties contractantes, selon laquelle une convention attributive de juridiction conclue entre personnes physiques n’est valide que si le litige en cause est lié à l’activité économique ou professionnelle de ces parties, ne relève pas d’une cause de « nullité quant au fond » au sens de l’article 25, § 1, du règlement (UE) n° 1215/2012 du 12 décembre 2012 dit « Bruxelles I bis ».

en lire plus

Registration is open for the book launch celebrating the publication of The Hague Convention on Choice of Court Agreements: A Commentary, to be held in hybrid format in The Hague on 11 December 2025 from 1.30 p.m. to 4.45 p.m. (CET). The book launch will coincide with the tenth anniversary of the entry into force of the 2005 Choice of Court Convention.

The book launch will consist of two session. In the first session, the authors and discussants will explore selected chapters of the book. Brooke Marshall (University of Oxford) and Stefanie Francq (Catholic University of Louvain) will discuss the manifest injustice and public policy exception in Article 6 of the Convention; Louise Ellen Teitz (Roger Williams University) and Fausto Pocar (University of Milan) will discuss declarations under Articles 21 and 22 and accommodating multiple legal systems; and Gilles Cuniberti (University of Luxembourg, EAPIL) and Adrian Briggs KC (University of Oxford) will discuss the law applicable to the issue of consent to choice of court agreements. The second session of the event will discuss the practical operation of the Convention and the practical application of the text, with the participation of Delphia Lim (Ministry of Law of Singapore), Colin Seouw (Colin Seouw Chambers LLC), and Anselmo Reyes (Singapore International Commercial Court). Dr Christophe Bernasconi (HCCH) will provide opening remarks, and Melissa Ford (HCCH) will moderate the discussions.

For more information, and to register, please visit: https://www.hcch.net/en/instruments/conventions/specialised-sections/choice-of-court/hcch-book-launch

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

The fourth issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2025 has recently been published.  It contains the following articles, cases notes and book review.

Michael Howard, “The True History of the Origin of the Mareva Injunction or Freezing Order”

Fifty years ago, in 1975, a revolutionary innovation occurred in English procedural law, the introduction of what is officially named the freezing injunction, formerly and to some extent even now known as the Mareva injunction. It was the consequence of two decisions of the Commercial Court, the Karageorgis and Mareva cases. The thesis of this article, lightly camouflaged, is that these cases and this change were brought about by a combination of four factors which are present in most such developments of the common law: the personal, the institutional, the technical legal and the accidental. It is an attempt to present all of them and to show that the first and particularly the last were disproportionately large contributors.

Masood Ahmed, “State Immunity and the New York Convention”

 

Adrian Briggs, “Book Review of Hong Kong Private International Law” (by Wilson Lui and Anselmo Reyes)

 

My views

I  read the interesting—but in my view unconvincing—critical review by Emeritus Professor Adrian Briggs of “Private International Law in Hong Kong” (by Wilson Lui and Anselmo Reyes). My reading of the review is that Briggs laments the authors’ limited engagement with English sources, suggesting that because Hong Kong’s private international law is not as fully developed as Singapore’s, English texts and cases should operate as gap-fillers.

I take a different view. I am pleased to see Asian private international law scholars asserting a more autonomous and context-sensitive approach to developing their conflict-of-laws rules. That intellectual independence is healthy for the discipline, and it is precisely the direction I believe African private international law should pursue.

 

 

This post was contributed by Burkhard Hess, who is professor at the University of Vienna. On 2 December 2025, the Grand Chamber of the Court of Justice gave its long-awaited judgment in case C-34/34, Apple Store Nederland. The Court went for a fundamental expansion of Article 7(2) of the Brussels I bis Regulation (in the […]

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

I reviewed Sánchez-Bordona AG’s Opinion in Case C-34/24 Stichting Right to Consumer Justice v Apple here.

The CJEU held yesterday and did not follow its AG. In doing so it gave collective action under WAMCA a boost. This is not something many will object to. However in my view its judgment is fairly clearly contra legem and I do not think it is a good idea for the CJEU effectively to legislate in this way.

The Court held that Dutch foundations can consolidate their collective claim in just one court in The Netherlands, despite the absence of a clear ex ante procedural rule in Dutch civil procedure providing for same.

The foundations at issue are procedural vehicles, created to bring a class action suit in the name of both identified and unidentified victims of alleged abuse of dominant position by Apple with its fee structure for App Store.

With its judgment, the Court decided not to follow the Opinion of its Advocate General. He had suggested the Court stick to what is a more literal reading of the EU rules on jurisdiction. This Opinion implied that

unless the Dutch rules clearly provide for such consolidation for instance for all breaches of competition law (clearly sanctioned by CJEU Volvo) – which they do not (Dutch lawyers will be better placed to explain why this change has not been made in the context of WAMCA); or

unless the court in the case at issue finds that a multitude of claims brought in various Dutch court – which they had not – must be consolidated in one court on the basis of Dutch civil procedure rules,

, the Court should follow the implications of the actual wording of the EU rule at issue.

In its ruling the Court emphasised that consolidating the claims in one court will make it more efficient to perform the often complex factual and economic analysis required to judge complicated competition law cases like the one at issue. It also highlighted that Apple can hardly be surprised to be sued in one court in The Netherlands given its marketing of the App Store across The Netherlands collectively (as Giles Cuniberti notes, this specific focus on the Dutch market may mean the authority of the judgment does not stretch to cases where such national marketing focus is absent).

I get both elements. However they are de lege ferenda, not de lege lata. Article 7(2) clearly allocates territorial jurisdiction, not just national jurisdiction, to the place of individual harm which must therefore be identified. Should this be considered to go against the interest of the sound administration of justice, then the Regulation ought to be amended (which it has not, despite repeated opportunity to do so, and despite it having been considered in the specific context of collective action, without it actually having been amended).

Note that [64-65] emphasis on ‘unidentified but identifiable’ echoes the requirement of individual harm emphasised also in CJEU Mittelbayerisher Verlag:

As is apparent from the request for a preliminary ruling, under Netherlands law, a foundation or association which brings a representative action acts as an independent promoter of the interests of persons who, although not referred to individually, have similar interests. Those applicants thus exercise their own right, namely the right to represent and defend the collective interests of a ‘strictly defined group’ which brings together unidentified but identifiable persons, namely users, whether consumers or professionals, who have purchased apps created by developers on the App Store NL to which those persons had access by means of their Apple ID associated with the Netherlands and whose domicile or registered office is likely, for the majority of those users, to be located throughout the territory of that State.

That group must be determined in a sufficiently precise manner to enable interested persons to express their position on the outcome of the proceedings concerned and, where applicable, to receive compensation. In that regard, the Netherlands Government stated, at the hearing, that the outcome of a representative action for the defence of the collective interests of unidentified but identifiable persons is binding on the persons established in the Netherlands who belong to that group and who have not expressed their intention to refrain from participating in those proceedings.

[66] the CJEU notes

a court cannot be required, for the purpose of determining its territorial jurisdiction to hear such an action, on the basis of the place where the damage occurred, within the meaning of Article 7(2) of Regulation No 1215/2012, to identify, for each alleged victim taken individually, the precise place where the damage that may have been suffered occurred, since those victims are not identified individually at the time when that court ascertains whether it has jurisdiction; nor can it be required to identify one or some of those victims.

With respect, that puts the horse before the cart. If such determination cannot be done, then one may simply have to conclude that there cannot be locus damni jurisdiction under Article 7(2), instead turning to locus delicti commissi. However in view of its answer to the locus damni issue, the Court did not reply to the question on the location of the harmful event /locus delicti commissi.

This is a question which is of equally general importance to the effective implementation of competition law and as I discuss in my previous post, could do with clarification. That the Court did not entertain it is an important missed opportunity.

Further, in various places in the judgment the CJEU pushes the ‘sound administration of justice’ as a foundational principle of Brussels Ia. As I argue here, there is in fact little support in the Regulation de lege lata that this principle is core to the Regulation’s jurisdictional matrix. The CJEU clearly pushes it as one.

Overall there will be few who will have sympathy for an economic player the size of Apple who now can more realistically be sued in one court rather than claimants having to first bring the claim across the whole of The Netherlands. In that respect the judgment echoes an earlier one brought against Volkswagen in the context of the Dieselgate scandal. In that judgment, the Court allowed individual, second hand  purchasers of a defective car to sue the manufacturer effectively in their individual place of domicile. In that case therefore Volkswagen was inconveniently forced to defend the claim in a multitude of jurisdictions.

The inconvenience for Apple in current case is that it is being sued in one place by a more sophisticated claimant. However the danger in my opinion lies in the Court effectively applying the law with the perceived unpopularity or sophistication of one of the parties in mind. If current EU procedural law turns out to be ineffective in holding big business to account, then that law must be changed by the legislator. I do not think the Court must do it in the legislator’s stead, in cases where the law’s express provisions are clear.

Geert.

Care Proceedings with an International Element, by Maria Sofia Wright, a practicing English solicitor, has been published by Bloomsbury Publishing. The blurb reads: Presenting the findings of a study of 100 care cases, this book provides rigorous analysis of how jurisdictional issues are determined and how information sharing of child protection operates across borders. It […]

Russmedia Digital et Inform Media Press
Libre circulation des personnes

Protection des données : l’exploitant d’un site de marché en ligne est responsable du traitement des données à caractère personnel contenues dans les annonces publiées sur sa plateforme

Stichting Right to Consumer Justice et Stichting App Stores Claims
Espace de liberté, sécurité et justice
Les juridictions néerlandaises sont compétentes pour connaître d’une action représentative portant sur un comportement prétendument anticoncurrentiel d'Apple concernant son App Store destinée au marché des Pays-Bas

Georgia Antonopoulou (University of Birmingham) and Ekaterina Pannebakker (Leiden University) have issued a call for papers in view of a roundtable that will take place at the University of Birmingham, on 14 May 2026, under the title Bridging Jurisdictions: Rethinking Commercial Conflicts of Laws 10 Years After Brexit. The roundtable will focus on highlighting cooperation opportunities in commercial conflicts […]

Before the Christmas break (from 22 December 2025 to 11 January 2026), the Court of Justice will publish several decisions and opinions related to private international law. As of 30 November 2025, the scheduled calendar includes the decision of 2 December in case C-34/24, Right to Consumer Justice et Stichting App Stores Claims. The main […]

On Friday, December 5, 2025, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST). Dr. Béligh Elbalti (Osaka University) will speak, in English, about the topic

“The Double Face of Private International Law: Reconsidering Its Colonial Entanglements”

In its general discourse, private international law (conflict of laws) is often presented as a discipline grounded in principles such as sovereignty, the equality of states, and comity. Its defining traits are said to flow from this premise of equality between legal orders, including its claim to neutrality, its pursuit of international harmony in cross-border cases, and its role in coordinating diverse legal systems. However, it is striking that private international law developed in an international context marked by domination, inequality, and subordination, a context that challenged the very premises on which the discipline claimed to rest.

Within this broader context, private international law appears to have played a dual role. On the one hand, it served as an instrument of colonial domination, particularly by denying its foundational premises to legal systems not regarded as “civilized”. In these contexts, instead of applying the ordinary methods of private international law, alternative mechanisms were employed to manage foreignness, most notably through systems of extraterritoriality – whether in the form of consular jurisdiction, mixed courts, or foreign courts operating in colonized or semi-colonized territories. On the other hand, private international law also functioned as an instrument for restoring sovereignty and achieving independence. The abolition and dismantling of extraterritorial regimes required colonized and semi-colonized states to meet the substantive and institutional conditions considered necessary for recognition as a “civilized nation”. This included, among other reforms, the establishment of a functioning system of private international law, alongside the adoption of substantive and procedural legal frameworks that guaranteed equal rights and protection for foreigners.

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

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