Agrégateur de flux

The judges of the UK Supreme Court and the Privy Council were quite busy last term with private international law matters. The UK Supreme Court issued one judgment of relevance, whereas the Privy Council issued no fewer than three. This post briefly outlines the issues and decisions in these four cases. P&ID v Nigeria: Currency […]

La Cour européenne des droits de l’homme se prononce pour la première fois sur les retards de paiement d’indemnités dues à des avocats au titre de l’aide judiciaire. Au-delà du cadre italien, l’affaire retient l’attention par la méthode qu’elle déploie pour analyser l’applicabilité de la Convention européenne des droits de l’homme et apprécier le caractère excessif du retard. La grille d’analyse est aisément transposable à d’autres systèmes juridiques et inscrit l’exécution des créances définitives dans le prolongement naturel de leur reconnaissance. 

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Présenté par le journaliste Laurent Neumann, Quid Juris est un podcast du Club des juristes, réalisé en partenariat avec Lefebvre Dalloz, qui décrypte chaque semaine l’actualité à travers le prisme du droit. Il donne la parole aux meilleurs professeurs, magistrats, avocats et experts du monde juridique. Cette semaine, Laurent Neumann reçoit Mattias Guyomar, président de la Cour européenne des droits de l’homme. Gardienne des droits et libertés fondamentales, la Cour européenne est régulièrement critiquée parce qu’elle s’opposerait à la loi nationale et aux choix du législateur. Elle est ainsi au cœur des débats et polémiques sur l’État de droit, qui ne cessent de gagner du terrain. Pour la première fois depuis son élection en mai dernier, Mattias Guyomar prend la parole pour rappeler le rôle essentiel de la Cour européenne et réfuter les attaques dont elle est l’objet. Sans oublier de montrer comment elle défend, au quotidien, les droits et libertés de plus de 450 millions d’Européens. 

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Canada’s highest court does not grant leave to appeal in many cases involving private international law.  In November 2025 it granted leave to appeal from NHK Spring Co., Ltd. v Cheung, 2024 BCCA 236, in which the British Columbia Court of Appeal agreed with the court below in holding that it had jurisdiction to hear a price fixing class action.  The action is interesting because it involves what could be described as a “foreign” conspiracy that had effects within Canada.

The defendants are Japanese entities and the claim alleges that they conspired to fix the price of “suspension assemblies” which are a component of hard disk drives which are in turn a component of things like computers.  The claim alleges that Canadians purchased products that contained these assemblies and because of the price fixing they paid more than they otherwise would have done.

The defendants object to being sued in British Columbia.  As the Court of Appeal explained (at [11]), “None of the appellants have a relevant personal presence in Canada. Their headquarters are overseas. They do not operate in Canada. They do not carry out business in Canada for Assemblies. There have been no direct sales of Assemblies in Canada. There has been no pleading that they conspired to fix prices in Canada, actually fixed prices in Canada, or allocated markets within Canada. The initial action does not name a defendant located in Canada and there is no Canadian market for Assemblies. That market exists outside Canada. Assemblies are low cost components and any overcharge in relation to a particular final product is arguably negligible.”

British Columbia is one of the provinces that has adopted a statute on jurisdiction (the CJPTA) and it presumes a real and substantial connection to the forum, and thus territorial competence (jurisdiction), in a proceeding concerning a tort committed in the forum (s 10(g)).  The Court of Appeal relied on several of its own prior decisions in stating (at [43]) that “The judge’s statement that the tort of conspiracy is committed where the harm occurs, even if the conspiracy is entered into elsewhere, is indisputably correct” (emphasis added).  It went on to conclude that the presumed connection had not been rebutted by the defendants.

The parties’ written arguments for and against leave to appeal are available here.  The defendants seek to have the SCC develop the law on how the place of a tort is identified.  They raise the concern that the focus on the location of the harm does not sit well with earlier SCC decisions, notably Club Resorts (available here) rejecting the place of damage or injury as a sufficient jurisdictional connection.  The defendants also ask the SCC to provide more clarification on how a presumption of jurisdiction is to be rebutted, though it should be noted that since those arguments were filed the SCC has released Sinclair v Venezia Turismo, 2025 SCC 27 which does contain significant discussion of that stage of the analysis.

In response, the plaintiffs argue that the law regarding the place of the tort of conspiracy for jurisdiction purposes is well-settled and not in need of development or revision.  In the context of taking jurisdiction, it is acceptable for more than one place to be considered the place of a tort; a single place need not be identified.  The plaintiffs rely on the longstanding approach in Moran v Pyle National (Canada) Ltd., [1975] SCR 393.  Not surprisingly, both sides of the dispute rely on various aspects of the competing decisions in the English Brownlie litigation.

As is its practice, the SCC did not provide reasons for granting leave to appeal.  We have to await clues in the oral argument and then of course the subsequent written decision to determine what the SCC thought warranted its involvement.

It is the time of the year when fees fall due. If you’re a member of the European Association of Private International Law, please take a moment to pay your annual fees! Ordinary members are required to pay 50 Euros, while associate members must pay 30 Euros. Fees can be paid by credit card or […]

The latest issue of the French journal dedicated to international dispute resolution, Perspectives Contentieuses internationales (PCI), has been released. It is an open access publication and can be freely read here. The main focus of the issue is the International Commercial Chamber at the Paris Court of Appeal (CCIP-CA). Nine contributions are provided, coordinated by […]

I. Introduction

On 1 January 2026, the Legislative Decree No. 25/2025 promulgating a new Civil Transactions Act (hereafter ‘NCTA’) entered into force. The NCTA repeals and replaces the former Federal Civil Transactions Act of 1985 (hereafter ‘the 1985 Act’). The adoption of the NCTA forms part of the State’s broader and ongoing effort to comprehensively update and modernize its legal system, an effort that has already touched major legislative instruments, including, among many others, the 2022 Civil Procedure Act, the 2024 Personal Status Act, the 2023 Competition Act, and the 2022 Commercial Transactions Act.

Since the 1985 Act contained a codified set of conflict-of-laws rules, its replacement necessarily entails a re-examination of the UAE’s private international law framework and, at least in principle, the introduction of new or revised choice-of-law provisions. Against this background, this note offers a preliminary and necessarily tentative assessment of the modifications introduced by the NCTA. It focuses on the main features of the new law in relation to choice-of-law regulation, highlighting both the changes introduced and the limits of the reform.

 

II. The Choice-of-Law System under the 1985 Act and its Evolution

 

1. Choice of Law Rules under the 1985 Act

It is worth recalling that the first codification of conflict-of-laws rules in the UAE was introduced in 1985 as part of the 1985 Act. This codification consisted of 29 provisions (Arts. 10–28), incorporated into the Preliminary Part of the Act. In both structure and substance, the UAE codification closely followed the Egyptian model. Remarkably, despite the 37 years separating the two codifications, most of the Egyptian rules were retained almost unchanged. Some divergences nevertheless existed. For instance, while renvoi is entirely excluded under Egyptian law (Art. 27 of the Egyptian Civil Code), it is permitted under the 1985 Act only where it leads to the application of UAE law (Art. 26 of the 1985 Act).

The codification was relatively simple, comprising general choice-of-law rules structured by reference to broad legal categories, dealing in particular with status and capacity (Art. 11); marriage, its effects, and dissolution (Arts. 12–14); maintenance (Art. 15); guardianship and other measures for the protection of persons with limited capacity and absentees (Art. 16); succession and wills (Art. 17); real rights (Art. 18); contractual obligations (Art. 19); non-contractual obligations (Art. 20); and procedure (Art. 21).

The codification also included general provisions governing characterization (Art. 10); the priority of international conventions (Art. 22); general principles of private international law (Art. 23); national law (Art. 24); multi-jurisdictional legal systems (Art. 25); renvoi (Art. 26); public policy (Art. 27); and the application of UAE law in cases where the content of the applicable foreign law cannot be ascertained (Art. 28).

 

2. The 2020 Reform

It was not until 2020 that the choice-of-law rules were partially reformed through the Legislative Decree No. 30/2020, which amended certain provisions of the 1985 Act. This reform was not comprehensive but instead targeted four key areas.

First, the rule on substantive and formal validity of marriage was amended to replace the former connecting factor based on the lex patriae of each spouse with the lex loci celebrationis (Art. 12).

Second, the rule on personal and patrimonial effects of marriage and its dissolution based on the lex patriae of the husband was similarly abandoned in favor of the lex loci celebrationis.

Third, Article 17, relating to succession and wills, was revised to allow professio juris for both the substantive and the formal validity of wills. As regards the former, the will is governed by the law chosen by the testator, failing which the lex patriae of the deceased at the time of death applies. As for formal validity, professio juris now operates as an additional alternative connecting factor.

Finally, the reform addressed public policy. For reasons that remain unclear, Article 27 expressly limited the operation of the public policy exception by excluding matters traditionally associated with personal status – such as marriage, divorce, filiation, maintenance, guardianship, succession, and wills – from its scope, despite the fact that these matters are generally regarded as having a strong public policy character (Art. 3).

Other provisions, however, were left unchanged, notwithstanding the fact that many of them are outdated and no longer reflect contemporary developments in private international law, in particular the persistence of traditional connecting factors such as the common domicile of the contractors and the locus contractus in contractual matters or double actionability rule for non-contractual obligations. More fundamentally, the reform failed to address the interaction between the conflict-of-laws rules contained in the 1985 Act and the provisions delimiting the scope of application of the 2005 Personal Status Act, which was subsequently replaced by the 2024 Personal Status Act. This unresolved issue of articulation continues to generate significant legal uncertainty (for an overview, see my previous posts here).

 

III. The New Reform under the NCTA

It was therefore with genuine enthusiasm that the reform of the existing legal framework was awaited, particularly in light of the ongoing efforts to modernize the UAE legal system and align it with international standards. However, while the reform does present some positive aspects (1), it is with considerable regret that the NCTA appears to have devoted only very limited attention to the modernization of the UAE conflict-of-laws regime (2).

This assessment is grounded in two main observations:

First, the existing system has largely been maintained with only some minor changes, including changes in wording.

Second, the very limited modifications that were introduced reflect a legislative approach that, at best, appears insufficiently informed by contemporary developments in private international law.

 

1. Positive Aspects of the Reform

Three main positive aspects can be identified:

The first concerns the clear affirmation of party autonomy as a guiding principle in contractual matters. Under the 1985 Act, although party autonomy was formally recognized, its formulation tended to present it as an exception rather than as a genuine principle. This shortcoming has now been remedied in the NCTA. The new provision expressly states that “contractual obligations, as to both form and substance, are governed by the law expressly chosen by the parties.” In addition, the NCTA abolishes the place of conclusion of the contract as an objective connecting factor applicable in the absence of a choice of law by the parties, thereby moving away from a traditional and often criticized criterion.

Second, the questionable rule allowing the application of UAE law when one of the parties has multiple nationalities is now abandoned. According to the new rule, in case a person has multiple nationalities, the law of nationality under which that person entered the UAE would apply.

The third important modification concerns public policy. As noted above, the 2020 reform introduced considerable confusion and ambiguity in the application of the public policy exception by unduly restricting its scope and excluding matters that have traditionally been regarded as falling within public policy. The NCTA addresses this difficulty by removing the limitation introduced in 2020 and by restoring the public policy exception to its more general function within the UAE conflict-of-laws system.

Another modification of particular significance should also be highlighted, although it must be acknowledged that its practical impact may be more symbolic than substantive. This concerns the abandonment, in the current reform, of any explicit reference to Islamic Sharia in the context of public policy, even though such a reference, which appeared in the original provision in 1985, was expressly maintained in the 2020 reform. This omission marks a notable shift in legislative technique and appears to signal a move toward a more neutral formulation of public policy, at least at the level of statutory language.

The removal of the explicit reference to Islamic Sharia may thus be understood as part of a broader trend toward the modernization and internationalization of the UAE’s private international law framework. This interpretation is further supported by the redefinition of the role of Islamic Sharia as a formal source of law under the NCTA. Indeed, whereas former Article 1 of the 1985 Act set out a detailed hierarchy of rules prioritizing specific schools of jurisprudence (most notably the Maliki and Hanbali schools), the new Article 1 of the NCTA adopts a more open-ended formulation, granting judges greater discretion to select “the solution that is most appropriate in light of the interests at stake,” without specifying any particular school of reference. A similar approach was adopted in the 2024 reform of the Personal Status Act.

 

2. Limits of the Reform and Persisting Issues

 Notwithstanding the positive aspects identified above, the reform also presents a number of significant shortcomings. These concern both certain newly introduced provisions, whose design or content raises serious difficulties, and important issues that the legislature chose not to address or appears to have overlooked altogether. Taken together, these weaknesses considerably limit the extent to which the reform can be regarded as a genuine modernization of the UAE conflict-of-laws regime.

 

a) New Solutions Introduced in the NCTA

 

i) The The Conflict-of-Law rule in Matters of Marriage and its Dissolution:  The Further Extension of the Scope of the Nationality Privilege

As noted above, prior to the entry into force of the NCTA, the lex loci celebrationis governed the substantive and formal validity of marriage (Art. 12), as well as its personal and patrimonial effects and its dissolution (Art. 13). Marriages concluded between  foreigners, or between a foreigner and a UAE citizen, could also be recognized as valid in form if they complied with the formalities of the place of celebration, or if they respected the formal requirements prescribed by the law of each of the spouses (Art. 12). The application of these rules was, however, subject to an important exception: they did not apply if one of the parties was a UAE citizen at the time of the marriage, except with respect to capacity (Art. 14).

First, it should be noted that the NCTA failed to resolve the inconsistency between Articles 12 and 14. While Article 12 allows the formal validity of marriages concluded by UAE citizens abroad to be governed by the lex loci celebrationis, Article 14 removes this possibility by subjecting all matters relating to the formation of marriage, its effects, and its dissolution exclusively to UAE law when one of the parties is a UAE citizen.

Second, and more importantly, the NCTA extends the scope of the exception in a problematic manner. Under the new rules, the exception now applies not only to persons who were UAE citizens at the time of the marriage, but also to those who subsequent to their marriage acquired UAE citizenship, and retained that citizenship up to the time the action is brought.

On its face, this rule raises two main concerns. First, it introduces retrospective effects by applying UAE law to marriages concluded before the acquisition of citizenship. This potentially affects the validity, formalities, and effects of marriages that were lawfully concluded under foreign law. Second, it may create uncertainty in cross-border matrimonial relations, as spouses who acquire UAE nationality after marriage could inadvertently subject themselves to UAE law even if all formal and substantive requirements were originally satisfied abroad. Such an extension of the nationality privilege, while it may be of very limited practical relevance, represents a questionable departure from traditional conflict-of-law principles based on the ideas of acquired rights, and the respect of the legitimate expectations of the parties.

 

ii) The Conflict-of-Law rule in Contractual Matters

Despite the positive aspects noted above, the new rule suffers from significant shortcomings. These shortcomings relate, first and foremost, to the scope and the regime of party autonomy. In particular, the provision remains silent on several crucial issues: whether the chosen law must have any connection with the parties or the contract; whether an initial choice of law may be modified at a later stage; and whether techniques such as dépeçage or the choice of non-State law are permissible. All these uncertainties undermine the effective operation of party autonomy and weaken legal certainty.

Second, in the absence of a choice of law by the parties, the NCTA not only retains the outdated reference to the parties’ common domicile as the primary objective connecting factor, but also introduces a new connecting factor whose application is likely, in practice, to lead systematically to the application of UAE law. Under the new rule, where there is neither a choice of law nor a common domicile, the contract is governed by the law of the State in which the principal obligation is to be performed. Unlike the traditional test of the “characteristic obligation”, which typically leads to the identification of a single governing law presumed to have the closest connection with the contract, the notion of “principal obligation” is inherently problematic in the field of choice of law. This is because bilateral contracts, which constitute the main instruments of international trade, by their very nature involve more than one principal obligation, such as the delivery of goods and the payment of the price in a contract of sale. As a result, in contracts involving a UAE party, whether as obligor or obligee, the performance of at least one principal obligation will often take place in the UAE, thereby triggering the systematic and largely indiscriminate application of UAE law. Even if the term “principal obligation” is understood as referring to the “characteristic obligation,” the new provision departs from the general approach adopted in leading recent codifications by designating the place of performance (locus solutionis) of that obligation, rather than the more widely accepted and more predictable connecting factor of the habitual residence of the party performing the characteristic obligation.

Of course, the parties may seek to avoid this difficulty by choosing the law applicable to their contract. However, given the very weak status of foreign law in the UAE, where it is treated as a mere question of fact, and the considerable hurdles imposed on the parties in establishing its content in judicial practice, the practical relevance of party autonomy is largely illusory. This assessment is once again confirmed by several recent Supreme Court decisions in which the law chosen by the parties was not applied on the grounds that the chosen law was not ascertained as required (see Dubai Supreme Court, Appeal No. 720 of 13 August 2025; Appeal No. 1084 of 22 October 2025; Appeal No. 1615 of 23 December 2025). The same difficulties arise in family law matters, as discussed in a previous post, but they are identical in substance in civil and commercial cases as well.

 

b) Persisting Issues

Notwithstanding the few positive developments highlighted above, the conflict-of-laws rules incorporated in the NCTA largely preserve the traditional Egyptian model introduced into the region in 1948. As a result, they remain significantly disconnected from contemporary developments and comparative trends in private international law and fail to fully reflect the principles increasingly adopted in other jurisdictions to address the needs of cross-border transactions, family relations, and international commercial practice. The reform also preserved a traditionally rigid approach, leaving little room for flexibility and excluding exception clauses that would allow courts to depart from the designated applicable law in favor of a more closely connected one. In particular, the NCTA does not introduce tailored conflict rules designed to reflect the specific characteristics of certain legal relationships. This omission is especially noticeable with regard to protective regimes for weaker parties, including employees and consumers. Unlike many modern conflict-of-laws systems, the NCTA does not limit the role of party autonomy in these contexts, nor does it provide specific choice-of-law rules for employment or consumer contracts. Similar shortcomings can be observed in the absence of specialized rules governing particular categories of torts or addressing specific aspects of family relationships.

Finally, as was already the case following the 2020 reform, the NCTA fails to resolve the longstanding and fundamental issue concerning the articulation between the rules delimiting the scope of application of the Personal Status Act and the choice-of-law rules set out in the NCTA. This problem has become even more acute with the recent introduction of “civil personal status” legislation at both the federal level and the local level in the Emirate of Abu Dhabi, thereby further complicating the overall normative landscape (for an overview see my previous posts here and here).

 

IV. Some Concluding Remarks

Taken as a whole, while the adoption of the NCTA could have provided an opportunity to undertake a thorough and forward-looking reform of the UAE’s private international law framework by drawing inspiration from the most recent developments in the field and from general trends observed in comparative law. Such a reform would have helped consolidate the UAE’s position and ambitions as a leading hub not only for international finance and business transactions, but also as a melting pot of multiple nationalities living harmoniously within its territory. However, the reform ultimately falls short of this ambition. It largely preserves an outdated structure and introduces only limited, and at times problematic, adjustments. Moreover, the reform does nothing to address the strong homeward trend observed in judicial practice, which significantly limits the practical relevance of choice-of-law rules. This trend is particularly evident in personal status legislation and in the very weak status accorded to foreign law. In this respect, the NCTA represents a missed opportunity to align the UAE’s conflict-of-laws regime with modern comparative standards and to enhance legal certainty, predictability, and coherence in an increasingly international legal environment.

Les autorités françaises ont été condamnées par la Cour européenne des droits de l’homme sur le fondement de l’article 3 de la Convention européenne, en raison du défaut d’accès aux soins d’un détenu conditionnant la compatibilité du maintien en détention avec son état de santé. Reprenant une jurisprudence classique, la Cour constate que les autorités françaises ont failli dans leur obligation positive de fournir des soins adaptés. 

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The PAX Moot 2026 Vladimir Koutikov Round is well underway. The case was published on 13 October 2025 and is available here. The deadline for registration is 16 January 2026 at 23:59 CET.

Save the date: The oral rounds will take place from 15 to 17 April 2026 in Sofia, Bulgaria.

The schedule of the case (incl. other deadlines) is the following:

Deadline for Requests for Clarifications                                  16 January 2026, 23:59 CET

Deadline for Submission of the Memorials                             27 February 2026, 23:59 CET

Grading of Written Submissions                                                26 March 2026

Communication of Grading Sheets                                           27 April 2026

The PAX Moot is a specialized moot court competition focused on Transnational Law and Private International Law issues and is funded by the European Union. For more information, click here. To view the PAX partners, click here.

Views and opinions expressed are however those of the authors and do not necessarily reflect those of the European Union or the European Commission. Neither the European Union nor the granting authority can be held responsible for them.

 

 

 

From 1 January to 30 June 2026, Cyprus holds the Presidency of the Council of the European Union for the second time. Beyond its broader political and institutional priorities, the programme of the Cyprus Presidency also addresses aspects of private international law. Operating under the motto “An Autonomous Union. Open to the World”, the Cyprus […]

The 27th Volume (2025) of the Japanese Yearbook of Private International Law (JYPIL) (Kokusai Shiho Nenpo [Japanese]) published by the Private International Law Association of Japan (Kokusai Shiho Gakkai [Japanese]) (“PILAJ”) has recently been released.

This new volume features the following table of content.

The papers are published in Japanese; all links below direct to the papers’ English summaries.

 

Special Feature I: Transformations of Law in the Digital Society

 

Digital Society and Data Protection

Kazuki SHISHIDO

 

Applicable Law to Copyright Infringement in the Era of Generative AI

Yuriko HAGA

 

Digital Asset Transactions and Private International Law

Tetsuo MORISHITA

 

Special Feature II: The Advent of the Age of Migration and the Role of Private International Law

 

Japan’s Foreign Labor Policy

Chizuko HAYAKAWA

 

Rethinking the Lex Patriae in Japanese International Family Law and Succession

Takami HAYASHI

 

Habitual Residence of Individuals with Short-term, Medium-term, or Unstable Periods of Stay

Miku KOIKE

 

From Academic Conference Presentations

 

After Brexit

— The Situation Surrounding Private International Law in the United Kingdom

Yuko OKANO

 

Meaning of the “Causal Fact” of a Maritime Lien

— A Study on the Scope of the Theory of Lex Rei Sitae at the Time of Completion of the Causal Fact

Yohei ITO

 

Mutual Legal Assistance and Infringement of Foreign State Sovereignty

— A Preliminary Analysis from the Perspective of Enforcement Jurisdiction Based on Practical Considerations

Kazuaki TAKAHASHI

 

Challenges and Prospects for Access to Extraterritorial Evidence between Japan and the United States

Atsushi SHIRAKI

 

The contents of all volumes are available here (English) and here (Japanese)

Papers included in volumes 1 (1999) to 24 (2022) are freely available on the PILAJ’s website.

English summaries of volumes from Vol. 18 (2016) are also available online.

Both current and past volumes of JYPIL may be ordered from the publisher’s website (Shinzansha).

Colombian private international law research has been witnessing a notable period of renewed scholarly activity. Following a previous announcement on this blog of the publication of a volume dedicated to the Colombian Draft Project on Private International Law, a further significant contribution has now been published, this time offering a broader and more systematic perspective on the field. This new contribution takes the form of a book edited by María Julia Ochoa Jiménez (Loyola University) and Claudia Madrid Martínez (University of Antioquia), entitled “A Private International Law for Colombia”, published in the Springer Textbooks in Law series (Springer, 2025).

According to the publisher’s website, the book offers a “[c]omprehensive study of issues underlying PIL, particularly in Latin America and Colombia”, provides “[s]ystematical analysis of PIL rules in Colombia, allowing readers to understand how they deal with global issues”, and “[a]ddresses rules in force, critically examines them and, accordantly, presents and discusses a legislative proposal”.

In the Preface, the editors themselves describe the “book’s approach” as “unique”. According to them, the book’s “main objective is to address how the most relevant issues in each of the main areas of this legal field manifest themselves in Colombia, analyzing them in a way that is both exhaustive in disciplinary terms and critically engaged.”

 

The book’s blurb reads as follows:

The book, which systematically analyzes private international law rules contained in the Colombian legal system, contributes to the study and knowledge of this legal field, and also has a positive impact on its practical application. In addition, attention is given to the need for a special legislation that not only fits the Colombian reality and takes into consideration the evolution of private international law in Latin America. The book appeals to a worldwide audience. It enables readers to better understand how private law deals with a variety of situations in the Global South. Such situations can be linked to virtually all global phenomena, including at least two: cross-border migration and international trade. Regarding this, Colombia stands out in Latin America because, although it has traditionally been the origin of many migrants, in recent years it has also come to play an important role as a destination and transit country for migrants from different regions. In addition, Colombia’s economic growth has led it to become part of several international trade agreements, for example, with the Andean Community, Venezuela, Mexico, MERCOSUR, Chile, the Northern Triangle, which includes Guatemala, El Salvador and Honduras, and also with Canada, the European Free Trade Association (EFTA), the United States, the European Union, South Korea, Costa Rica and the Pacific Alliance, of which Chile, Colombia, Mexico and Peru are members. All this, while resulting in an increase in situations with foreign elements that must be dealt with by national authorities, makes it unavoidable to know the Colombian private international law to know the legal landscape of the region in relation to global issues that currently must be addressed worldwide. Thus, the book is of interest to students in different countries. They find in it a guide to understand the theory and dogmatics of private international law in Latin America and Colombia. The academic relevance of the book is also reflected in its usefulness for scholars working in private international law and comparative law. It allows for an in-depth study of the problems that underly private international law in this part of the Global South. It is structured and written in such a way that it can be used as a textbook in undergraduate and graduate courses in subjects such as comparative law, private international law, international contracts, international trade, and international movement of persons and goods.

 

The book consists of 18 chapters divided into six sections and comprises a total of VIII + 308 pages.

 

The Table of contents includes the following:

 

Introduction (Pages 1-14)

María Julia Ochoa Jiménez

The lack of systematic studies hinders the development of private international law in Colombia. Academics, practitioners, or judges may encounter difficulties when faced with the application of the private international law rules contained in the Colombian legal system, which are scattered in various legal instruments. This volume not only systematically analyzes the technical mechanisms contained in such rules but also outlines the historical and theoretical context in which they exist. In addition, attention is given to the need for special legislation that fits Colombia’s reality and takes into consideration the developments of private international law in Latin America. This volume also embodies an effort to consider some of the global challenges facing Colombian private international law today in relation to issues concerning the protection of human rights, including those of the most disadvantaged groups.

 

Introductory Notions

Colombian Private International Law: Three Dimensions, One Perspective (Pages 17-29)

María Julia Ochoa Jiménez

This and the next chapters address, in an introductory manner, two fundamental questions that lie at the root of private international law and serve to understand its broad conceptual scope. Both questions are approached from the Colombian perspective, considering the current situation of the discipline in the country. The first question, which is dealt with here, is quite wide and refers to the role that private international law plays in today’s world. Thus, this chapter outlines what lies behind the national, international, and global dimensions of private international law, and also the relevance it has when it is particularly considered from the global perspective. The second question, on which the next chapter focuses, is not less vast and concerns the interactions between comparative law and private international law.

 

Private International Law and Comparative Law: A Colombian Approach (Pages 31-44)

María Julia Ochoa Jiménez

This chapter, and the previous one, address, in an introductory manner and from the Colombian perspective, two fundamental questions that lie at the root of private international law and serve to understand its broad conceptual scope. The first question, which is dealt with in the previous chapter, refers to the national, international, and global dimensions of private international law, and the relevance it has when it is particularly considered in the latter perspective. Here, the focus is on the second question, which is not less vast and concerns the interactions between comparative law and private international law. In this regard, this chapter explores how some forms that the former adopts can be identified in the different ways in which the latter is practiced in Colombia.

 

An Introduction to the Private International Law of the Latin American Countries Today (Pages 45-54)

Eugenio Hernández-Bretón

This chapter provides a comprehensive overview of the evolving landscape of private international law in Latin America. It highlights how Latin American countries have historically followed a territorialist approach but have increasingly modernized their legal frameworks over the past twenty-five years. Countries such as Venezuela, Uruguay, and Panama have enacted new Acts, while others like Cuba and Mexico have introduced reforms focusing on specific areas like international family law and civil procedure. Despite this modernization, traditional instruments like the Bustamante Code and Montevideo Treaties continue to coexist with these new legal developments. The chapter emphasizes the importance of continued academic and judicial engagement to assess the effectiveness of these evolving legal frameworks in practice.

 

International Procedural Law

 International Jurisdiction in Colombia (Pages 57-75)

Claudia Madrid Martínez

This chapter explores the rules on international jurisdiction in Colombia. It examines the criteria used to determine which courts have jurisdiction over private international law cases, which is the initial step in resolving such cases. It takes account of Colombian current law and the rules included in the Draft General Act on Private International Law for Colombia prepared by IADIP.

 

International Judicial Cooperation in Colombia (Pages 77-92)

Luis Alfredo Pinilla

This chapter provides an introduction to the Colombian regulation on international cooperation in civil and commercial matters. It describes the international treaties to which the country is a party, as well as the national legal framework on the subject. To this end, the chapter briefly presents the essential aspects of the most relevant treaties for Colombia. In doing so, it addresses in particular the 1965 Hague Service Convention and the 1970 Hague Evidence Convention. Furthermore, the chapter describes how letters rogatory and exhortos are regulated in domestic legislation. It also comments briefly on the proposal for international legal cooperation contained in the IADIP Draft General Act.

 

Extraterritorial Effect of Judgments in Colombian Private International Law (Pages 93-108)

María Julia Ochoa Jiménez, José Luis Marín Fuentes

This chapter deals with how the Colombian legal system addresses the recognition and enforcement of foreign judgments and arbitral awards. In order to do this, it presents the relevant rules of the General Code of Procedure Law of 2012 and Act No. 1563 of 2012. Attention is also paid to the ways in which these rules have been applied in practice by the Civil Chamber of the Supreme Court of Justice. Such a practical approach allows us to introduce the novelties included in the IADIP Draft General Act on Private International Law for Colombia.

 

Applicable Law: Cross-Cutting Questions

Sources and Methodological Plurality of Private International Law in Colombia (Pages 111-125)

Claudia Madrid Martínez

This chapter deals with two issues concerning the general theory of private international law considering the Colombian context: the sources of private international law and its methodological plurality. It addresses the complex interplay of sources in Colombian private international law and how it is rooted in a combination of international treaties and domestic laws that challenges the identification of a hierarchical order between them. The chapter also examines how the methodological plurality of Colombian private international law involves the application of internationally mandatory rules, special substantive rules, and conflict rules, highlighting its diverse and layered approach.

 

Application of Foreign Law in Colombia (Pages 127-133)

Claudia Madrid Martínez

The application of foreign law is one of the most intricate aspects of private international law. This issue entails both procedural and substantive complexities. In many cases, judges opt to apply their domestic law due to the challenges of understanding foreign legal systems. This chapter delves into procedural implications, distinguishing when foreign law is treated as law or as a fact. Moreover, it outlines the Colombian legal framework, emphasizing the “mixed system” that makes both judges and parties responsible for knowing foreign law and that must be balanced by some flexible guidelines that have been provided by the Constitutional Court.

 

General Institutions in Colombian Private International Law (Pages 135-160)

Claudia Madrid Martínez

This chapter focuses on the general rules and concepts of private international law that address the challenge of determining applicable law in cross-border cases. It discusses how Colombian private international law lacks codified rules on these institutions, as well as the way in which the IADIP Draft addresses them, in particular following the Inter-American Convention on General Rules of Private International Law.

 

Property

Property Rights in Colombian Private International Law (Pages 163-184)

María Julia Ochoa Jiménez

This chapter deals with how the lex rei sitae rule is introduced in Latin America in general and in Colombia in particular. It critically discusses its inclusion in the legal instruments currently in force in Colombia and takes into account how it is approached in the IADIP Draft. After briefly describing how this proposal refers to intellectual property, the chapter turns to the quite innovative regulation it contains regarding the international restitution of cultural property in general and of Indigenous cultural objects in particular. Finally, the chapter briefly refers to the IADIP Draft’s rules on mobile conflicts and jurisdiction before concluding with some final remarks.

 

International Intellectual Property Contracts in Colombia: Applicable Law and Dispute Resolution (Pages 185-197)

Brenda Salas

In international contracts concerning intellectual property, the general principle is to resort to the autonomy of the parties’ will. This means that the parties are free to determine both the law applicable to the contract and the means of dispute resolution. However, the question that arises in Colombia is how to determine the applicable law to the contract and the competent authority for conflict resolution when the parties have remained silent on these matters in an international contract concerning intellectual property. To this end, this chapter first analyzes the law applicable to the contract, then the competent authority for dispute resolution. Finally, it analyzes the regulation included in the Draft General Act on Private International Law for Colombia prepared by the Instituto Antioqueño de Derecho Internacional Privado.

 

Persons and Family

Natural Persons in Colombian Private International Law (Pages 201-219)

Laura Victoria García Matamoros

This chapter focuses on the individual scope of the personal status. It first discusses its elements, particularly considering the private international law perspective. Furthermore, it presents the advantages and disadvantages of the criteria to determine the law that must be applied to cross-border situations. Finally, the chapter critically approaches the Colombian legal system, paying special attention to the current situation and to the solutions proposed by two recent law drafts: the Draft General Act on Private International Law for Colombia prepared by the Instituto Antioqueño de Derecho Internacional Privado in 2021 and the Draft Civil Code of Colombia presented by the Universidad Nacional de Colombia in 2023.

 

Marriage and Marital Unions in Colombian Private International Law (Pages 221-241)

Laura Victoria García Matamoros

This chapter first examines the international legal relationships that give rise to the formation of a family. It then analyzes the legal regulation of these aspects within the Colombian legal system. Subsequently, the chapter briefly discusses the relevant provisions of two proposals: the Draft General Act on Private International Law for Colombia, prepared by the Instituto Antioqueño de Derecho Internacional Privado in 2021, and the Draft Civil Code of Colombia presented by the Universidad Nacional de Colombia in 2023.

 

International Family Law in Colombia (Pages 243-258)

Gloria Rivera Ocampo

This chapter presents the main international treaties and instruments that make up Colombian international family law, particularly those that contain rules regarding child protection and international adoption, which refer to the general principles on this subject matter, i.e., safeguarding the best interest of the child, non-discrimination, and efficiency in legal processes. Reference is also made to the fact that the lack of regulation on other issues, such as surrogacy and post-mortem insemination, poses complex challenges for Colombian family courts.

 

Commerce

Private International Law and Colombian Business Associations Law (Pages 261-275)

Juan Antonio Gaviria

The intersection between Colombian business association law and private international law is dealt with in this chapter. For this purpose, it identifies the current issues in the international interaction of for-profit entities and their shareholders or partners, studying the former under a double angle or edge: both as juridical persons, and therefore subjects of rights and duties, and international contracts. This entails analyzing the legal rules determining which companies are domestic and foreign and the legal relevance of such a distinction. The chapter also makes some comments on the IADIP Draft General Act on Private International Act for Colombia regarding business association law.

 

A New Beginning for Negotiable Instruments (Pages 277-288)

Daniel Rojas-Tamayo

Colombian private international law on negotiable instruments is intriguing: very few rules in recent codes and legislation contrast with a rather extensive regulation in antique treaties. Despite both choice-of-law and substantial rules, there are only three rulings of the Colombian Supreme Court on the subject matter. In this context, the IADIP Draft on Private International Law for Colombia studied in this chapter seems to offer a satisfactory and necessary regulation. Furthermore, the IADIP Draft modernizes Colombian law in various manners, such as embracing a different connecting factor and introducing freedom of choice.

 

The Lex Mercatoria Method: Addressing International Private Cases Beyond Conflict of Laws (Pages 289-308)

Néstor Raúl Londoño Sepúlveda

This chapter examines the use of lex mercatoria as a substitute legal system for transnational private conflicts. The lex mercatoria is a set of ad hoc, international rules that originate from non-state entities and govern business transactions outside of the conventional conflict of law system. In international arbitration, for example, arbitrators frequently rely on it in the lack of clear national legal frameworks. These transnational rules continue to offer adaptable solutions in international trade, addressing legal gaps and enhancing both domestic laws and international treaties, despite criticism regarding their regulatory scattering. The chapter explores the development of the lex mercatoria, its origins, and its empirical application.

Quick and easy access to German case law in private international law – One year of ‘IPRspr 2.0’ (and almost 100 years of ‘IPRspr’)

A comprehensive and carefully curated database providing free access to German court decisions on private international law – www.iprspr.de

Ralf Michaels/Jan Peter Schmidt

 

 

As is well known (at least among readers of this blog), the reality of private international law is found not in the highly abstract and often rudimentary black-letter rules, but only in their concrete application by courts. Case surveys are therefore crucial, but compiling the decisions comprehensively is hard. Private international law issues appear in all areas of private law and beyond: they can arise not only before civil and commercial courts, but also, for example, in criminal and in administrative proceedings. Sometimes courts do not even realize, or make explicit, the relevance of foreign law. The annual survey of US decisions on choice of law in the American Journal of Comparative Law, initiated by Symeon Symeonides and now continued by Coyle, Dodge, and Simowitz, relies on a keyword search. Other surveys do not even aim at being comprehensive.

In Germany, a continuous and close-to-comprehensive compilation has been available since 1928 and thus for nearly 100 years. ‘Die deutsche Rechtsprechung auf dem Gebiete des Internationalen Privatrechts’, or short ‘IPRspr’, is published by the Max Planck Institute in Hamburg and offers a complete and systematic documentation of German case law on private international law, including procedural law and foreign law.

Comprehensiveness is a goal that is hard to achieve, but the IPRspr goes a long way. Apart from other available databases, more than 100 journals (from private law and beyond) are regularly surveyed. Via the legal opinions it prepares for German courts, the Institute also becomes aware of at least some of the (unfortunately, quite numerous) decisions that otherwise remain unpublished.

One particular value of the collection, appreciated within the discipline, is that the decisions are not merely collected and republished, but carefully edited. This entails, among other things, that the decisions are distilled down to their private international law aspects and categorized according to subject matter. References to domestic and foreign sources are checked (and mistakes are rectified). Depending on the case, the (unofficial) headnotes are reformulated or completely rewritten. Both practitioners and scholars have long relied on the collection; the entirety of its volumes enable access to the whole body of German case law on private international law.

The publication of the IPRspr in book form, one for each year of decisions, was long the only viable option, but came with two shortcomings. First, some court decisions became known only with considerable delay. Second, the increasing number of private international law decisions made it necessary to leave some decisions out to keep the size of each volume manageable.

This changed in October 2024 when the ‘IPRspr’ was launched as a freely accessible database (www.iprspr.de). This is IPRspr 2.0 – a continuation of the old IPRspr and at the same time an entirely new, much more useful and convenient tool for legal research.

Since the shift to online access, the collection has increased by another 500 entries and surpassed the total number of 7,000 decisions, some of which were otherwise unpublished. Whereas the printed version, which has in the meantime been discontinued, typically lagged more than two years behind the reported period, the online database is close to achieving its goal of being entirely up to date. Currently, the decisions date back to 2004. Even earlier volumes, which date back to the cases of 1926, might be integrated in the future.

The access to new decisions is supported by an RSS-feed which can be limited to specific subject matters. Apart from the decisions as such, ‘IPRspr 2.0’ offers a wide range of search and retrieval functions. In addition to full-text searches, decisions can be filtered by, among other criteria, date(s), subject matter(s), jurisdiction(s), and statutory provision(s). Much more than in the old days of the print volumes, this allows for targeted research on specific and topical matters, be it for practical or for scholarly purposes. Hyperlinks make it possible to quickly access other cited decisions. Permalinks can be used for citations. More detailed instructions are found in the FAQ section of www.iprspr.de.

At the same time, the IPRspr has conserved – and expanded – its potential for identifying practically relevant issues and general trends. The latter point can be illustrated with a few examples:

• The total number of reported decisions per year has been relatively stable for the last 15 years, ranging between 300 and 400. Compared to 1970, the number has more than doubled.
• Decisions applying the Hague Convention on the Civil Aspects of International Child Abduction sharply increased beginning in 2016 and have declined again since 2022. The majority of cases concerned children abducted from Poland, the USA, and France. Since 2022, however, there have been more cases relating to Ukraine.
• Decisions concerning child adoption show a surprisingly unstable pattern. After a considerable increase in 2009, the number of cases later dropped, falling even to single digits between 2020 and 2023. 2024 once again saw a sharp increase to 32. Whether these shifts are mere coincidence or to be explained by specific factors might be worthy of further investigation.
• Decisions concerning the jurisdiction over consumer contracts (Article 17 Brussel Ibis Regulation) have sharply climbed since 2020, reaching almost 100 in 2023. As for the countries involved, Ireland and Malta are the clear front-runners, with the primary subject matter being data scraping in the first case and online-gambling in the second.

Shortly before reaching its 100th anniversary, the IPRspr has thus achieved the transition to the digital age, preserving many of its traditional features and adding important new ones. The IPRspr has become an even more useful tool for practitioners and scholars alike, and it hopefully inspires the creation of other free national databases, or even one for European PIL as a whole. Plans to add CJEU decisions to IPRspr are underway.

The IPRspr is compiled and edited by a team within the Institute’s Centre for the Application of Foreign Law, led by Jan Peter Schmidt. Its continued success depends, however, on its acceptance by the PIL community, both in Germany and abroad. We suggest that citations of decisions include the IPRspr number, at least in parallel to other possible case references (the format is Year-Number, e.g. “IPRspr 2025-110”). We kindly ask judges, academics and practitioners to submit or communicate new decisions, or case notes to these decisions, to iprspr@mpipriv.de. Any other kind of feedback, including suggestions for future improvements, is equally welcomed and can be sent to the same email address.

Decisions in the database – as edited by the IPRspr team – are published under a creative commons licence CC-BY 4.0. This means they can be republished, and even translated, freely. All that is required is naming IPRspr as a source.

The European Commission has established the Brussels Ia sub-group and launched a Call for Applications to select members of this group, which will support the revision of the cornerstone instrument of EU Private International Law. Members of the sub group will contribute to the evaluation of the Brussels Ia Regulation, support the preparation of any […]

La décision Fliegenschnee et autres c/ Autriche aurait pu passer inaperçue. Elle rejette comme « manifestement mal fondée » une requête portée devant elle en matière climatique. Or, elle illustre parfaitement le mouvement de stabilisation jurisprudentielle qui est en train de se manifester devant la juridiction européenne, en matière de climat : après les arrêts de principe, vient le temps de leur application qui encadre strictement la portée contentieuse des principes dégagés. 

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by Fabienne Jault-Seseke

Volume 4 of the Revue Perspectives Contentieuses Internationales (PCI) has been published. Available in open access here.

It includes a special feature on ‘the International Commercial Chamber of the Paris Court of Appeal’ edited by Sandrine Clavel and Daniel Barlow. This feature provides an insight into the history of the chamber, its specific characteristics, its place in the European market for justice, and how it operates. It also includes a presentation of its case law in private international law by Marie-Elodie Ancel and François Mailhé. Case law in arbitration is the subject of three articles by Malik Laazouzi.

Here is the table of the contents of the « dossier »:

• La chambre commerciale internationale de la Cour d’appel de Paris, juridiction-modèle ? by Sandrine Clavel. Is the International Commercial Chamber of the Paris Court of Appeal a model jurisdiction?
• La place de la chambre commerciale internationale dans le paysage judiciaire national, by François Ancel (The place of the International Commercial Chamber in the national judicial landscape)
• La place de la chambre commerciale internationale dans le paysage judiciaire international, par Gilles Cuniberti (The place of the International Commercial Chamber in the international judicial landscape)
• Procédure et pratiques de la chambre commerciale internationale, par Daniel Barlow (Procedure and practices of the International Commercial Chamber)
• La jurisprudence de la chambre commerciale internationale en droit international privé, par Marie-Elodie Ancel et François Mailhé (The case law of the International Commercial Chamber in PIL)
• La jurisprudence de la chambre commerciale internationale en matière d’arbitrage international : l’articulation entre le contentieux arbitral et le contentieux étatique, par Malik Laazouzi (The relationship between arbitration and state litigation in the case law of the International Commercial Chamber)
• La jurisprudence de la chambre commerciale internationale en matière d’arbitrage international : le respect de la volonté des parties, par Malik Laazouzi (Respect for the will of the parties in the case law of the International Commercial Chamber)
• La jurisprudence de la chambre commerciale internationale en matière d’arbitrage international : le respect des droits et principes fondamentaux, par Malik Laazouzi (Respect for fundamental rights and principles in the case law of the International Commercial Chamber)

Volume 4 also includes two other articles (Varia) and three « focus » :

– « Le contentieux interaméricain des droits de l’homme, remède efficace à la violation des droits des peuples autochtones ? Réflexions à partir de l’affaire Lhaka Honhat ». Patrick Jacob examines ‘Inter-American human rights litigation: an effective remedy for the violation of indigenous peoples’ rights? Reflections based on the Lhaka Honhat case’. This case gave rise to a ruling by the Inter-American Court of Human Rights in 2020.

– « La notion de matière contractuelle dans le règlement Bruxelles I bis, sous l’angle des perspectives contentieuses ». Marjolaine Roccati provides a detailed analysis of the concept of contractual matters in the Brussels I bis Regulation from a litigation perspective.

– Les perspectives contentieuses de l’avis sur le climat : le juge national au premier plan (G. Giraudeau). On the opinion of the International Court of Justice : Litigation prospects for the climate opinion: national judges at the forefront (G. Giraudeau)

– Regarding the German OLG Hamm decision on climate litigation: « Affaire Lliuya / RWE, à contentieux, stratégique, décision stratégique » (F. Jault-Seseke).

– Regarding the recent French decree on amicable dispute resolution methods: « Refonte des dispositions du Code de procédure civile régissant les modes de résolution amiable des différends » (E. Myrto Kapetanaki).

Edoardo Benvenuti, a post-doc researcher at the University of Milan, has provided the following presentation of a book he authored, entitled ‘Giurisdizione in materia civile e commerciale nei confronti di convenuti domiciliati in Stati terzi e interessi materiali dell’Unione europea’ (Jurisdiction in Civil and Commercial Matters over Defendants Domiciled in Third States and the Substantive Interests […]

Par arrêt du 16 décembre 2025, la chambre criminelle de la Cour de cassation rejette le pourvoi formé contre l’arrêt d’une chambre de l’instruction ayant autorisé la remise d’un ressortissant pakistanais aux autorités judiciaires grecques en exécution d’un mandat d’arrêt européen, en dépit de ses allégations tenant au risque de conditions de détention constitutives d’un traitement inhumain ou dégradant au regard de la surpopulation carcérale dans les prisons grecques.

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This post is posted on behalf of Jason Mitchell, barrister at Maitland Chambers in London and Group 621 in Johannesburg.

In Motorola Solutions v Hytera Communications Corporation, the Court of Appeal held that a judgment that includes a punitive damages component is unenforceable in its entirety (the judgment is available here). The punitive component cannot be severed so that the judgment creditor can enforce non-punitive components.

Motorola sued Hytera in the U.S. One of its causes of action was under the Defend Trade Secrets Act, a federal statute that allows for punitive damages of up to double any compensatory damages. On that cause of action, the U.S. court awarded Motorola compensatory damages of $135 million and punitive damages of $270 million. Motorola tried to enforce the U.S. judgment in England.

Enter the Protection of Trading Interests Act. Section 5 precludes recovery of “any sum payable” under a “judgment for multiple damages” (later defined as “a judgment for an amount arrived at by doubling, trebling or otherwise multiplying a sum assessed as compensation for the loss or damage sustained by the person in whose favour the judgment is given”).

Motorola argued that s.5 did not preclude enforcement of the compensatory component of the judgment, just the punitive component. The Commercial Court and the Court of Appeal rejected that argument: the language of s.5 “is clear and unambiguous in barring enforcement of the whole of multiple damages claim including its compensatory part.”

The Court of Appeal also noted that this interpretation of s.5 “acts as a discouragement to the claimant from seeking an award of multiple damages in the first place”. One wonders whether that aligns with the usual concern over comity: why should an English court project its own view of public policy onto foreign litigants and how foreign litigants choose to conduct litigation in foreign courts (and choose to ask for remedies under foreign statutes that expressly allow punitive damages). A few years ago, the Fourth Circuit’s Judge Wilkinson did not mince his words about the (in his view, exorbitant) effect of an English anti-suit injunction (here). An English court attempting to apply English public policy to create ex ante incentives and disincentives for how a U.S. litigant litigates under a U.S. statute may again raise eyebrows (and ire).

Motorola would have had better luck if Hytera had had some assets farther south. The equivalent statute in South Africa, the Protection of Businesses Act, also precludes enforcement of a “judgment … directing the payment of multiple or punitive damages”. On its plain text, the Act, like the English equivalent, seems to bar a judgment in its entirety. However, South African courts have effectively interpreted the Act out of existence. The Act says it applies to judgments “connected with the mining, production, importation, exportation, refinement, possession, use or sale of or ownership to any matter or material, of whatever nature, whether within, outside, into or from the Republic”, which seems broad. But courts have interpreted that phrase to mean that the Act applies only to judgments about raw materials used to make other things: Tradex Ocean Transportation SA v MV Silvergate 1994 (4) SA 119 (D); see also International Fruit Genetics LLC v Redelinghuys 2019 (4) SA 174 (WCC) (here) (holding that the Act does not even apply to a foreign judgment about a licensing agreement over grape varieties: grapes are raw materials, but, apparently, they aren’t made to use other things). So it should come as no surprise that, according to the leading practitioner text, “there is in fact no recorded instance in which the Act has been successfully invoked as a defence to enforcement” (C F Forsyth Private International Law (5th ed. 2012). The Act is, however, remarkable for this reason: if the Act applies, it precludes enforcement of any judgment (not just judgments that include punitive damages) without the permission of the “Minister of Economic Affairs” (now, presumably, the Minister of Trade, Industry and Competition). That is almost certainly unconstitutional (it probably survives only because the narrow interpretation of the Act’s ambit means that there has not been any need to challenge it—see International Fruit Genetics, above, noting that the constitutionality of the permission requirement is “questionable”).

With the Protection of Businesses Act out of the way, the common law would govern the enforceability of Motorola’s U.S. judgment (South Africa has an Enforcement of Foreign Civil Judgments Act, which sounds promising enough, but it applies only to “designated” countries: a list with just Namibia on it). There is no appellate authority on this, but High Courts seem to agree that an order for punitive damages is contrary to South African public policy, but disagree about how to characterise damages as punitive (unenforceable) or compensatory (enforceable). In Danielson v Human 2017 (1) SA 141 (WCC) (here), the High Court held (probably on shaky ground) that an order for treble damages under RICO is not punitive but compensatory (based on expert U.S. evidence on how U.S. law characterises treble damages under RICO—query why that should matter to a South African court, and, if so, query also whether that should have been a matter of U.S. federal or state law). Danielson distinguished Jones v Krok 1996 (1) SA 504 (T), which held that an order awarding punitive damages for breach of contract under California law was punitive and contrary to public policy. Jones did, however, still enforce the compensatory component of the order.

So, Motorola would have two arguments in a South African courtroom. It could be argued that an order for ‘punitive’ damages under the Defend Trade Secrets Act, like treble damages under RICO, is not punitive but compensatory (Danielson). Or, as a fallback, it could at least enforce the compensatory component of the U.S. judgment even if the punitive component were unenforceable (Jones).

 

Gaëlle Widiez (Bourgogne University) has recently edited a volume entitled The Specialization of Private International Law: Reflections from the Perspective of Business Law (La spécialisation du droit international privé : Réflexion dans le champ du droit des affaires), published by LexisNexis.

The book brings together the contributions of participants in a colloquium on the same theme, held in Dijon on 29 November 2024 and organized in collaboration with the Centre Droit Éthique et Procédures (CDEP) of the University of Artois.

The book’s description reads as follows:

(AI translation)

In contemporary private international law (PIL), there has been a marked proliferation of special rules on jurisdiction and choice of law, designed to respond more closely to the specific features of particular situations. This development, however, carries the risk of relegating the general rules of the discipline to a merely subsidiary role. Such specialization in PIL manifests itself primarily in two forms: first, the emergence of “micro-categories” accompanied by specific connecting factors; and second, the refinement—indeed, at times the “over-refinement”—of general conflict rules in order to tailor the connecting factor to certain specific situations. Against this background, the objectives of the research are twofold. On the one hand, it seeks to enrich and, where appropriate, to go beyond the three justifications traditionally advanced in support of this specialization: the need to better capture the growing complexity of social and economic relations; the internationalization and Europeanization of the discipline; and the increasing role of the judge, particularly at the European level. The analysis of the common and specific reasons underlying this process of specialization in PIL will thus be further developed and consolidated. On the other hand, a detailed examination of various examples drawn from business law will make it possible to assess more closely the effectiveness of this process of specialization. In addition, the study is expected to yield valuable insights into the sources of PIL, which may in turn usefully inform the future development of conflict-of-laws rules.

 

En droit international privé (DIP) contemporain, on constate une prolifération de règles de conflit de juridictions et de conflit de lois spéciales qui se veulent mieux adaptées aux aspérités des cas de figure particuliers, au risque de confiner les règles générales de la matière à un rôle subsidiaire. Cette spéculation du DIP se manifeste principalement sous deux formes : l’apparition de “petites catégories” assorties d’éléments de rattachement particuliers et l’affinement, voir le “raffinement”, de la règle de conflit général afin d’adapter le rattachement à certaines situations spécifiques. Partant, l’objectif de la recherche est double. D’une part, il s’agira d’enrichir et sans doute de dépasser les trois justifications classiquement avancées au soutien de cette spécialisation : volonté de mieux appréhender la complexification croissante des relations sociales et économiques, internationalisation/européanisation de la discipline et accroissement du rôle du juge, spécialement au niveau européen. La réflexion sur les raisons communes et spécifiques de ce processus de spécialisation du DIP sera étoffée et consolidée. D’une part, l’étude par le biais de divers exemples de droit des affaires permettra d’analyser au plus près l’efficacité du processus de spécialisation. De plus, il devrait s’en extraire de précieuses informations sur les sources du DIP qui pourraient utilement éclairer la fabrique des règles de conflit de demain.

 

The Table of contents includes the following:

 

Gaëlle WlDIEZ

Propos introductifs (3)

 

Nicolas BALAT

Réflexions générales sur la spécialisation (9)

 

PREMIÈRE PARTIE – La spécialisation des règles de DIP relatives à la protection des personnes et de la planète

 

Olivera BOSKOVIC

La spécialisation des règles de droit international privé en matière d’atteintes à l’environnement (17)

 

Marie NIOCHE

Directive « vigilance » et spécialisation du droit international privé (31)

 

Marion HO-DAC

Le contentieux international généré par l’intelligence artificielle (57)

 

Marie-Élodie ANCEL

Le contentieux international des données personnelles : réflexion à partir d’une règle de compétence« spécifique» au sein du RGPD (79)

 

DEUXIÈME PARTIE – La spécialisation des règles de DIP relatives à la régulation du marché

 

Valérie PIRONON

Le contentieux international de la concurrence (99

 

Juliette MOREL-MAROGER

La spécialisation des règles de droit international privé relatives à la régulation du marché. Le contentieux financier international (113)

 

Constantin RINGOT-NAMER

Le contentieux international en produits défectueux (129)

 

Béligh ELBALTI

La spécialisation du droit international privé : point de vue du monde Arabe et de l’Asie (145)

 

Sarah LAVAL

La spécialisation des règles de conflit de lois : l’exemple du droit international privé américain (175)

 

Cyril NOURISSAT

La spécialisation du droit international privé : le point de vue de l’Union européenne (187)