Droit international général

Written by Victoria Hélène Dintelmann (Heidelberg University)

On February 14th and 15th, 2025, more than one hundred young academics gathered at Heidelberg University for the 5th German Conference for Young Researchers in Private International Law to discuss the topic “Digital Transformation and Private International Law – Local Connections in Boundless Spaces”. The conference was organized by Andreas Engel, Sophia Schwemmer, Felix Berner, Aron Johanson, Markus Lieberknecht, Ann-Kathrin Voß, Charlotte Wendland and Anton Zimmermann.

The first day started with Professor Marc-Philippe Weller (Heidelberg University), director of the Institute for Comparative Law, Conflict of Laws and International Business Law, illustrating Heidelberg University’s Private International Law tradition. For instance, Max Gutzwiller, who rejected renvoi as well as party autonomy in Private International Law, was the director of the Institute from 1929 until he was forced to emigrate to Switzerland in 1935. Weller ended his remarks with special emphasis on the late Erik Jayme, whose impact on Private International Law was vast. For example, Jayme advanced the “two-stage theory of Private International Law”. Further, he introduced postmodern thoughts of mobility, multiculturalism and openness to Private International Law, arguing for every human to have a “droit à la difference”.

Professor Christiane Wendehorst (University of Vienna) gave the keynote lecture on digital goods in Private International Law. She focused on the Private International Law treatment of digital goods regarding rights with third-party effects. In her introduction, she differentiated between digital goods based on their level of exclusivity and the ability to duplicate them. Within crypto assets in particular, Wendehorst differentiated between tokens with an internal value such as bitcoin (“intrinsic tokens”) and tokens that represent an asset outside the crypto system (“extrinsic tokens”). She deemed this differentiation to be of great importance to assess the applicable law: for extrinsic tokens, the statute of the represented asset must be considered. While some tokens are regulated, e.g. by Sec. 32 of the German Electronic Securities Act, Wendehorst expressed criticism towards an analogous application of such provisions, doubting the tokens’ functional comparability. She then continued with a comparative approach and illustrated different national laws as well as international attempts at a more uniform Private International Law approach to rights in rem to digital assets. She emphasized rules under which a choice of law regarding rights with third-party effects is possible. For instance, the rules of the United States’ UCC refer to the lex fori of the District of Columbia in absence of a choice of law as a fallback. A similar approach, looking first at a choice of law and last at the law of the forum state, was adopted under Principle 5 of the UNIDROIT Principles on Digital Assets and Private Law. Wendehorst concluded by explaining the purposes of the different approaches. In the end, Wendehorst made the plea for a more comprehensive solution and ideally more uniform conflict of laws rules to solve what she called a “crisis in International Property Law”.

Johannes Weigl (LMU Munich) presented on data-related European conflict of laws questions. He first showed that the decades-old “libertarian dream” of a boundless internet did not come to fruition: data is regulated by states. Still, digital and analogous goods cannot be equated, leading to a call for a harmonized digital property law. Such a uniform law would cause the “silent death” of conflict of laws provisions regarding digital property. Still, Weigl identified four categories in which questions of conflict of laws might nonetheless arise. As to territorial limits of harmonization, he identified as a first category the territorial scope of EU digital regulation and as a second category data protection through the limitation of the free flow of data beyond the EU’s borders. Regarding the substantive limits of harmonization, he considered a third category of potential conflict of laws challenges to be explicit references to national law and, as a fourth, substantive gaps of uniform law. Weigl went on to discuss limits of boundlessness using the examples of his first and third category. Regarding the territorial scope of EU digital regulations, many do not depend on the provider’s place of establishment but on whether the services are offered to persons in the EU. While Weigl classified those as one-sided conflict norms undoubtedly belonging to public law, he argued for their parallel application as public and private law conflicts rules. Weigl explained this approach to be – above all – teleologically convincing, securing the effet utile of EU law as well as international decisional harmony between public and private law. Further, Weigl illustrated the substantive limits of unification using the example of the third category, i.e. rules explicitly referring to national law. While some see such referential norms as conflict of laws rules, he argued against this classification, maintaining that referential norms are not conflict of laws rules but leave room for general conflicts rules. As this approach leads to the application of general conflict of laws rules, he identified some room for a more general legal policy discussion, e.g. about further harmonization of conflict of laws rules or the creation of internet specific conflicts rules.

Loïc Bréhin (Université Panthéon-Assas) addressed the law applicable to determine the illegality of digital content. Pursuant to Art. 3(h) DSA, content is illegal if it is not in compliance with EU law or the law of Member States. Bréhin criticized this provision as too generic; it does not determine the applicable law. He identified the root of the problem to be the diversity of legal relationships one could assess: there is a relationship between victim and publisher, victim and platform, as well as publisher and platform. Bréhin explained that to all relationships, different rules may apply and thereby cause inconsistencies. Bréhin acknowledged that the problem could be mitigated by solutions at the edge of conflict of laws theory such as internal market clauses or through fundamental rights. However, he found the most promising solution to lie at the heart of conflict of laws theory: substantive law consideration. He proposed to assess the legality of content under the law designated by the conflicts rule for torts invokable by the victim, either as applicable law or as law to be taken into consideration at the level of substantive law. Bréhin based this proposal on the rationale of Art. 3(h) DSA and Art. 14(4) DSA, maintaining that although digital platforms are often classified as private, they are in fact collective phenomena. He concluded that there is great potential in allowing for adjustments – in particular, when considering the platform’s nature as a collective phenomenon.

Christina Lemke (University of Hamburg, Max Planck Institute for Comparative and International Private Law Hamburg) tackled questions regarding the implementation of the digital euro as a European digital currency from a Private International Law perspective. Lemke introduced the topic by differentiating between cash, electronic money and the digital euro. She classified cash, on the one hand, to be a central bank liability to which individuals have property rights. Electronic money, on the other hand, is a means of payment that derives its value from a claim against a private institution. Lemke explained that in contrast, the digital euro is to be a central bank liability, aimed at supplementing cash payment. Neither the technological details nor the digital euro’s legal nature are certain. Lemke maintained that the digital euro should not be classified as a mere claim, since it can be allocated to an individual. Lemke determined the most important question in relation to the digital euro to be the function of payment, i.e. the evaluation of the satisfaction of payment obligations. The first step in answering this question is the determination of the applicable law. To assess payment, one could look at the lex causae. Lemke emphasized the importance of the lex monetae principle for monetary units: Anchored in sovereignty, every state is entitled to its own currency. Hence, a monetary unit is governed by the sovereign that issued the unit. However, the digital euro is not a monetary unit, but a monetary medium. Lemke argued for the extension of the lex monetae principle to the monetary medium. Lemke concluded by raising the delicate questions on the EU’s competence to develop private law regulations on the digital euro and the conflicts between EU institutions possibly involved.

Naivi Chikoc Barreda (University of Ottawa) elaborated on the rise of remote authentic instruments when notarizing beyond borders through online appearance. While notarial practice is increasingly shaped by digitization, there is potential for conflict when a party is in a different country than the notary. Chikoc Barreda started by giving a comparative overview of the three main approaches to deal with remote authentication: first the liberal approach, which allows all relations to be handled remotely, second the intermediate approach, which allows for exceptions in very protected fields of law (e.g. wills, divorces) and third the restrictive approach, which generally prohibits remote authentication with few exceptions (e.g. the incorporation of companies). Chikoc Barreda explained that this fragmentation leads to challenges for Private International Law. One of these challenges is to assess whether the locus actus is the state where the notary is located or the state from which the parties appear. While jurisdictions following the liberal approach view the location of the notary as decisive, restrictive jurisdictions tend to prioritize the state from which the parties appear. This leads to the risk of limping legal relationships. Further, Chikoc Barreda showed that questions of equivalence of acts arise. Authenticity relies on a person’s assessment by the notary. The classic notion was to reach such an assessment through physical presence. Under a more modern approach, in some jurisdictions, virtual presence suffices. In light of this, Chikoc Barreda elaborated on the assessment of the equivalence of notarial acts: while the state of origin will regularly apply the lex auctoris to determine equivalence, the receiving state might apply another law to the form. Last, Chikoc Barreda addressed the notary’s international competence: some view a foreign notary as having unrestricted competence in line with the principle of free choice, while others only accept a restricted competence of the notary, demanding for a significant connection to the notary’s state of origin. Chikoc Barreda concluded that the rise of remote authentication calls into question the lex loci actus rule, authenticity, and the notary’s international competence.

Piotr Wilinski (Erasmus University Rotterdam) and Marciej Durbas (KKG Legal, Kraków) discussed the consequences of the use of AI by arbitral tribunals – in particular, potential challenges of arbitrators and awards. Wilinski and Durbas first introduced the legal framework, stating that there is no significant transnational law governing the use of AI in arbitration. However, there are emerging legal instruments, e.g. in the EU and the US. The EU AI Act governs individuals who rely on AI as deployers. A deployer status causes a duty to disclose. Wilinski and Durbas argued that arbitrators can be classified as deployers within the meaning of the EU AI Act, causing potential disclosure obligations. At the same time, there is only nascent soft law, namely the Silicon Valley AI guidelines and the SCC guidelines. These rules are quite rudimental. Wilinski and Durbas agreed that under the guidelines, decision-making may not be delegated to AI. Second, Wilinski and Durbas turned to potential challenges of arbitrators. They found that AI can be used to assist decision-making. Although most tasks one might delegate to AI do not directly affect decision-making, it does seem possible that steps such as AI-generated summaries of cases indirectly affect the decision. Wilinski and Durbas proposed that an improper use of AI could lead to challenges of the tribunal. Third, Wilinski and Durbas assessed the enforceability of awards rendered with the use of AI. Although AI is a new phenomenon, Wilinski and Durbas argued that the core of the problem is not. They drew a comparison of the use of AI on the one hand with the use of tribunal secretaries and independent legal research by arbitrators on the other hand. Based on this comparison, they deduced that as long as AI is merely used for assistance with the award’s drafting (even if its use was undisclosed), the award will likely stand. When it comes to decision-making, AI may be used for support in reasoning, but they found that to secure enforcement, the decision itself must stay with the tribunal. Wilinski and Durbas concluded that for now, as long as AI does not render the final decision, arbitrators can “sleep safely”. However, they found a common standard to be preferrable, perhaps in the form of a traffic light approach.

The last speaker of the first day was Agatha Brandão (University of Luzern), who presented on the development of a large language model for Swiss cases on choice of law (available at https://www.choiceoflawdataverse.com). The project’s goal was to use an open AI GPT to generate high-quality case law analysis comparable to Private International Law experts. Using a data set of 33 cases, the AI was to perform six tasks: to extract an abstract, to extract and summarize relevant facts, to extract the relevant Private International Law provisions, to classify and interpret the choice of law issue and to extract and interpret the court’s position. Brandão maintained that the AI case analyzer succeeded in the extraction and classification of information. However, challenges arose when the AI case analyzer provided information that was secondary or irrelevant and when it produced lengthy responses. Brandão explained that in working on fixing these problems, the research team focused on phrasing prompts as precisely as possible: if the output did not match the researchers’ expectations, the instructions were most likely not sufficiently comprehensive. At the end of the experiment, each category of tasks was evaluated based on specific criteria in a peer-reviewed process. Overall, the AI case analyzer had a success rate of 92 %. While there were still roughly 10 % of outcomes one might want to modify, Brandão emphasized that the AI case analyzer saves valuable time – in particular, for the extraction and classification of information and when given sufficiently precise instructions. Brandão concluded that large language models can indeed be a valuable support – not unlike real-life Private International Law experts.

The second day of the conference started with parallel panel discussions. In the first panel, Christoph König (BSP Berlin) gave an impulse rooted in legal history on the decentralization of blockchain technology and delegalization. König drew parallels from discussions surrounding the creation of a lex mercatoria in the past century. The second panel focused on the pioneering role of arbitration in the use of digital tools in contrast to the use of digital means in German and Swiss courts. First, Cedric Schad (University of St. Gallen) gave an overview over the advanced, but not boundless use of digital instruments in arbitration. In particular, he illustrated the option of conducting proceedings via video conference and the use of case management platforms. Second, Marco Andjic (Osnabrück University) presented on attempts at digitization in German courts: he found that the main obstacle of remote proceedings is not German law, but the equipment of courts. Third, Nadine Boss (University of St. Gallen) elaborated on the Swiss approach. While there is no option of virtual court proceedings yet, there are attempts at reform. It is possible to use digital tools such as e-mail, but uncommon due to perceived risks regarding service. In the third panel, Raffael Müller (Heidelberg University) presented on international product liability and AI. Müller considered the applicability of Art. 5 of the Rome II Regulation to Artificial Intelligence. He emphasized the importance of placing AI on the market and its interplay with the AI Act, in particular regarding the AI Act’s territorial scope. Fourth, Peter Moser (LMU Munich) addressed connecting factors for declarations of intent made by AI. Moser differentiated between an “ePerson” and an “AI agent”. An “ePerson”, on the one hand, can be legally competent and capable. As Art. 7 of the Introductory Act to the German Civil Code concerns natural persons, Moser found that a corporate law connecting factor might be more appropriate. An “AI agent”, on the other hand, is no proper legal entity. Hence, the attribution of its actions is critical. Moser found it most appropriate to apply Art. 10 Rome I Regulation, as the exclusion in Art. 1(2)(g) Rome I Regulation concerns natural persons – not an “AI agent”. In the fifth panel, Leon Marcel Kahl (University of Vienna) illustrated how the special construction of the Unified Patent Court leads to conflict of laws questions. Which conflict of laws rules the Unified Patent Court applies is determined by a “ladder” in Art. 24(2) UPCA. According to its lit. c, the applicable national conflicts rules are to be determined by the court. However, since the Court of First Instance comprises a central chamber as well as local and regional chambers, it is not clear which national provisions are to be applied.

After the panel discussions, Linda Kuschel (Bucerius Law School) elaborated on whether cross-border electronic service is a sovereign act on foreign territory. In Germany, regular e-mails do not suffice for proper service, but the use of a special electronic attorney mailbox (“beA”) does. Internationally, there are cases of service through e-mail and even social media platforms. First, Kuschel identified the European Service Regulation and the Hague Service Convention as the relevant rules for cross-border service. Next, she discussed the Public International Law qualification of service. The prevailing opinion considers the service of court documents to be an exercise of state authority. This is where Kuschel differentiated: while she qualified the legal consequences of service as an exercise of state authority, she did not find the same to apply to the mere act of gaining knowledge of a document and its content, e.g. through service by private means. She then tackled the question of localization of electronic service. First, one could see electronic service as a type of fictional service. But while fictional service is a mere last resort, electronic service could become the norm – therefore, Kuschel negated a comparability. Second, one could view the internet as an exterritorial space that cannot be attributed to any sovereign state, but the internet is not truly boundless. Third, one could draw an analogy to analogous life and treat electronic service parallel to analogous service, as territorial borders are emulated in the digital space. However, equating analogous and electronic service would lead to a fiction. Kuschel assessed this to be particularly problematic if one – in line with the prevailing opinion – classifies service in a foreign state as an act of sovereignty on foreign territory. In light of these shortcomings, Kuschel deemed it necessary to assess electronic service by its own metrics. She concluded that only service on foreign territory through means of sovereign power leads to a violation of the principle of territoriality while in contrast, service by means of communication accessible to private persons should not violate Public International Law.

The last presentation was delivered by Adrian Hemler (University of Konstanz), who illustrated options and boundaries of a fully digital judicial activity from abroad. Hemler reported a trend towards virtual and digital proceedings, asserting that these developments can only be expected to accelerate. The advantages in virtual proceedings lie in more efficiency, lower costs as well as in making the profession of judge more flexible and, hence, more attractive. While Hemler found possibly affected principles of German procedural law to be publicity, immediacy and orality, he assessed that their violation can be avoided. However, Hemler explained the currently prevailing opinion to be that working from abroad as a judge violates the foreign country’s sovereignty. Hemler went on to reference Kelsen, who understood what ought to be at the core of law – not what is. Building on this, Hemler differentiated between on the one hand the scope of application of legal norms, which operates on the level of what ought to be. This category does not violate foreign sovereignty, even when it extends beyond a state’s territorial borders. On the other hand, Hemler allocated the practical implementation and enforcement of legal rules on the level of what is. Hemler argued that this latter category should only be allowed with the other country’s permission – otherwise, Public International Law violations can arise. Within this grid, according to Hemler, rendering judgements from abroad does not interfere in the foreign state’s sovereignty.

A conference volume will be published by Mohr Siebeck later this year. The 6th German Conference for Young Researchers in Private International Law will take place at LMU Munich in 2027.

The first issue of 2025 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. It features five contributions. Bruno Nascimbene, Cittadinanza: riflessioni su problemi attuali di diritto internazionale ed europeo [Citizenship: Reflections on Current Issues of International and European Law] The theme of citizenship is the subject of some reflections concerning its […]

The general course given by Louis d’Avout (Université Paris-Panthéon-Assas) in 2022 at the Hague Academy of International Law on Searching for Worldwide Legal Coherence (La cohérence mondiale du droit) was published in Volume 443 of the Collected Courses of the Academy and is soon to be published as a pocketbook. The author has provided the […]

The latest issue of the Netherlands International Law Review (issue 3 of 2024) features five articles related to public interest litigation, preceded by an introductory paper by Xandra Kramer. The articles address different aspects of public interest litigation either from a primarily public law or private law perspective. Xandra Kramer, Public Interest Litigation at the […]

University of Ljubljana is organising Private International Law Conference with sessions in Slovenian and English. The conference, which will take place in Ljubljana (Slovenia) on 18 September 2025, will gather reknown academics and practitioners who will address current topics in European and international PIL.

The programme is available by clicking here: PIL-Ljubljana2025 and for more infromation you are welcome to contact the organisers at: ipp.pf@pf.uni-lj.si.

In his opinion of 3 April 2025 in C-713/23, Wojewoda Mazowiecki, Advocate General (AG) Richard De la Tour expressed the view that the Articles 20 and 21(1) TFEU, read with Article 7 of the Charter of Fundamental Rights, allow a Member State to refuse the transcription of a same-sex marriage certificate lawfully issued in another Member State, […]

Recently, the Hague Academy of International Law published the 2026 programme of its renowned Winter Courses in International Law (12-30 January 2026). Unlike the Summer Courses, this program presents lectures on both Public and Private International Law and therefore provides for a particularly holistic academic experience. Once again, the Academy has spared no effort in inviting legal scholars from around the world to The Hague, including speakers from countries as diverse as Argentina, Belgium, China, France, Japan, the United Kingdom, and the United States, offering its audience a truly global perspective on the topic.

Following the Inauguaral Lecture by Silvia Fernández de Gurmendi (Former President of the International Criminal Court), this year’s General Course will focus on “The Contemporary International Legal Order” and will be delivered by Bing Bing Jia (Tsinghua University). Furthermore, Special Courses will be offered in English by Catherine Amirfar (Debevoise & Plimpton LLP), Caroline Foster (University of Auckland), Schuichi Furuya (Waseda University) and Antonios Tzanakopoulos (University of Oxford), while Xavier Boucobza (University of Paris-Saclay) and Yannick Radi (Université Catholique de Louvain) will deliver their presentations in French. As always, all lectures will be simultaneously interpreted into English or French and vice versa.

Advanced Students, especially those who are ambitious to sit for the prestigious Diploma Exam, are highly encouraged to apply for the Academy’s Directed Studies as well. The French edition of these interactive afternoon seminars will be directed by Vaios Koutroulis (Université libre de Bruxelles), while English-speaking candidates are taught by Guy Fiti Sinclair (University of Auckland).

Registration will be open from  1 May to 1 October 2025 via the institution’s own Online Registration Form . Students who whish to apply for the Academy’s scholarship opportunities need to submit their application by 1 May to 31 July 2025. For further information on the HAIL 2026 Winter Courses and the Hague Academy in general, please consult the HAIL Homepage or refer to the enclosed PDF Programme.

 

Prologue

On 15 April 2025, the new federal UAE law on personal status (Federal Decree Law No 41 of 14 October 2024) officially entered into force ( “2024 PSL”). This law fully replaces the 2005 Federal Act on Personal Status (Federal Law No. 28 of 19 November 2005 as subsequently amended) (“2005 PSL”). The new law marks the latest step in the UAE remarkable wave of legal reforms, particularly regarding personal status matters. It follows a series of significant developments at both the federal and local levels. At the federal level, this includes the adoption of the law on Civil Personal Status (Federal Decree-Law No. 41 of 3 October 2022 on Civil Personal Status) (“2022 CPSL”) and its executive regulation. At the local level, specific legislations were adopted in the Emirate of Abu Dhabi, most notably the 2021 Law on Civil Marriages and its Effects (as subsequently amended) (“2021 ADCML”), and its Procedural Regulation. These legislative efforts collectively address what is commonly referred to as “civil family law” (for further details see previous posts on this blog here, here, here, and here). Together with the new 2024 PSL, these instruments will collectively be referred to as the “Family Law Regulations” (see Table below).

This overactive legislative activity has inevitably impacted on the articulation between the different legislative texts, both within the federal framework and between the federal and local levels. At the federal level, there is a need to consider the interaction between the 2024 PSL and the 2022 CPSL. At the intergovernmental level, this extends to the interplay between these two federal laws and 2021 ADCML.

The icing on the cake – or perhaps the tipping point – is when private international law enters the equation. This is because the above family law regulations include provisions determining their scope of application, and in some cases allow for the application of foreign law under some conditions. This necessarily bring them into contact with the conflict of law rules contained in the 1985 Federal Act on Civil Transactions (Federal Law No. 5 of 21 March 1985, as subsequently amended) (“1985 FACT”).

Moreover, with the exception of the federal regulation on civil personal status, the other legislative texts also contain detailed rules on international jurisdiction. This leads to further interaction with the 2022 federal law on Civil Procedure (Federal Decree-Law No. 42 of 10 October 2022 on the Civil Procedure). This aspect, however, will not be addressed in this post. For a comparative overview of international jurisdiction in divorce matters, see my previous post here.

 

Table of relevant legislative texts:

Legislation Federal level Local Level Family Law Regulations Federal Decree-Law No. 41 of 3 October 2022 on Civil Personal Status (*)

• Art. 1: Scope of application and applicability of foreign law
• Art. 11(3): Possibility of applying foreign law in successions and wills?

Abu Dhabi Law No. 14 of 7 November 2021 On Civil Marriage and its Effects in the Emirate of Abu Dhabi (as subsequently amended)

• Art. 3: Direct application of the law
• Art. 11(3): Possibility of application of foreign law in matters of successions and wills
• Art. 17bis: International jurisdiction

Procedural regulation (Resolution No. (8) of 1 February 2022 concerning the Marriage and Civil Divorce Procedures in the Emirate of Abu Dhabi)

• Art. 4: International jurisdiction (confusingly referred to as territorial jurisdiction in the Regulation)
• Art. 5: Scope of applicationadjd.gov.ae/…/regulation 8 2022 family law.pdf

Federal Decree Law No 41 of 14 October 2024 on Personal Status

• Art. 1: Scope of application and applicability of foreign law
• Arts. 3 and 4: International jurisdiction

Private International law Federal Decree-Law No. 42 of 10 October 2022 on the Civil Procedure

• Arts. 19 – 23: International jurisdictions

Federal Law No. 5 of 21 March 1985 on Civil Transactions

• Arts. 10 – 28: Conflict of laws rules

(*) One of the unresolved questions is whether the 2022 CPSL also applies in Abu Dhabi—at least in a way that would override the provisions of the Abu Dhabi Law that are inconsistent with the federal legislation. This aspect is briefly addressed below.

 

It must be acknowledged that the current framework is highly complex, marked with multiple layers of interaction, and at times, inconsistencies and unresolved questions. The aim of this short post is simply to highlight these difficulties, particularly those relating to the scope of application and the interplay with choice of law rules, leaving a more-in-depth analysis for another occasion.

 

I. Innovations and clarifications

 

1. Scope of application

One of the most significant innovations introduced by the new 2024 PSL is its clear delineation of its scope of application, particularly in relation to the other foundational law, that is the 2022 CPSL. Indeed, the latter has already defined its scope by limiting its application to family law matters between non-Muslims, whether nationals or foreigners. Accordingly, it can be inferred that 2024 PSL limits its scope to family law matters involving Muslims. This is explicitly stated in respect of family relations involving UAE citizens. As for non-citizens, since family relations of foreign non-Muslims are primarily governed by the 2022 CPSL, the reference to “non-UAE citizen” in 2024 PSL should be understood as referring to “foreign Muslims”.

2024 PSL 2022 CPSL Art. 1 [Scope of Application]:

(1) The provisions of this Law shall apply to UAE citizens if both parties of the relationship or one of them is Muslim. Art. 1 [Scope of Application]:

(1) The provisions of this Decree-Law shall apply to non-Muslims who are national citizens of the United Arab Emirates, and to non-Muslim foreigners residing in the state […] Art. 1 [Scope of Application]:

(3) The provisions of this Law shall apply to non-UAE citizens […]

(*) All translations are based on the officially adopted versions, with modifications made where necessary. Own underlines and Italics.

 

2. Parties’ agreement

Another point worth highlighting is that both federal personal status laws contain provisions suggesting that a certain degree of party autonomy is permitted. However, the extent of this autonomy remains unclear. This issue will be discussed below.

2024 PSL 2022 CPSL Art. 1 [Scope of Application]:

(2) The provisions of this Law apply to non-Muslim UAE citizens unless […] they agree to apply another law permitted by the legislation in force in the State. Art. 1 [Scope of Application]:

(2) The persons governed by the provisions of this Decree-Law … may agree to apply other legislation regulating the family or personal status matters currently in force in the State instead of applying the provisions of this Decree-Law. Art. 1 [Scope of Application]:

(3) The provisions of this Law shall apply to non-UAE citizens unless […] any other law that has been agreed to be applied, as permitted by the legislation in force in the State.

 

3. Possibility of applying foreign law

Finally, like the 2022 CPSL and the now-repealed 2005 PSL, the 2024 PSL also allows for the application of foreign law. What is particularly noteworthy, however, is that the formulation originally found in the repealed 2005 PSL was not reproduced in the newly adopted 2024 PSL, despite its inclusion – albeit with some modifications – in the 2022 CPSL (see the underlined portion below). The reasons for this divergence remain unclear.

2024 Personal Status Law 2022 Civil Personal Status Law Art. 1 [Scope of Application]:

(3) The provisions of this Law shall apply to non-UAE citizens unless one of them invokes the application of his law [….] (*) Art. 1 [Scope of Application]:

(1) The provisions of this Decree-Law shall apply to non-Muslims who are national citizens of the United Arab Emirates, and to non-Muslim foreigners residing in the state, unless one of them invokes the application of his law, with regard to matters of marriage, divorce, successions, wills, and establishment of filiation, without prejudice to the provisions of Articles (12), (13), (15), (16), and (17) of the Federal Law No. (5) of 1985[on Civil Transactions] (**).

(*) The Gender biased formulations found in the original texts are maintained.

(**) Art. 1(3) of the now-repealed 2005 PSL stated as follows: “The provisions of this Law shall apply to non-UAE citizens, unless one of them invokes the application of his law, without prejudice to the provisions of Articles (12), (13), (15), (16), (17), (27) and (28) of the Federal Law No. (5) of 1985 on Civil Transactions”.

The numbered articles concern respectively, conflict of law rules in matters of marriages (12), divorce (13), maintenance (15), guardianship and other institutions of protection of persons with limited capacity and absentees (16), successions and wills (17), as well as public policy (27) and failure to prove foreign law (28).

 

II. Ambiguities and persistent problems

 

1. Ambiguities

a) Scope of application

i) The 2021 ADCML and its 2022 Procedural Regulation

One of the most crucial points concerns the relationship between federal and local law. As previously mentioned, the Emirate of Abu Dhabi took the initiative in 2021 by enacting its “Law on Civil Marriage and Its Effects”. This law – originally titled the “Personal Status Law of Non-Muslim Foreigners” – defined its scope of application in a more restrictive manner compared to the 2022 CPSL. While the latter applies to both foreign and local non-Muslims, the 2021 Abu Dhabi law was limited, as its title suggests, to foreign non-Muslim only.

  2021 ADCML (before amendment) 2022 CPSL Art. 1 [Definitions]:

Foreigner: Any male or female non-Muslim foreigner, having a domicile, residence or place of work in the Emirate. Art. 1 [Scope of Application]:

(1) The provisions of this Decree-Law shall apply to non-Muslims who are national citizens of the United Arab Emirates, and to non-Muslim foreigners residing in the state […] Civil Marriage: A union that is intended to be of indefinite duration according to the provisions of this Law, between a foreign man and woman, both non-Muslim.

Only a few weeks after its adoption, the 2021 ADCML was amended. Notably, in addition to the change of the title of the as mentioned above, all references to “foreigners” and “foreign non-Muslims” were replaced with the more neutral phrase of “persons covered by the provisions of this law” and new jurisdictional rules adopted (Art. 17bis). Despite this amendment, and somewhat surprisingly, the amended law continues does not only define “persons covered by the provisions of this law” in an ambiguous manner (see some critical comments here), it also continues to define civil marriage as union “between a foreign man and woman, both non-Muslim”. This has reinforced the impression that both the original law and its subsequent amendments were enacted without thorough consideration of their internal consistency or of the broader legal context in which they would operate.

  2021 ADCML (after amendment) Art. 1 [Definitions]:

Civil Marriage: A union that is intended to be of indefinite duration according to the provisions of this Law, between a foreign man and woman, both non-Muslim.

Persons covered by the provisions of this law: Foreigners and Nationals, non-Muslims, whether male or female. (*)

(*) The original ambiguity in the formulation is maintained in purpose.

 

In 2022, a Procedural Regulation (“2022 Procedural Regulation”) was adopted with the intention of clarifying, inter alia, the scope and application of the 2021 ADCML. However, this instrument has introduced more inconsistencies and ambiguities than it has resolved. This is particularly evident with regard to the definition of “civil marriage”, as well as the ratione personae and ratione materiae of both the 2021 ADCML and its accompanying 2022 Procedural Regulation.

 

  Abu Dhabi 2021 Law (after amendment) The 2022 Procedural Regulation Art. 1 [Definitions]:

Civil Marriage: A union that is intended to be of indefinite duration according to the provisions of this Law, between a foreign man and woman, both non-Muslim. Art. 1 [Definitions]:

Civil Marriage: Marriage that is concluded and registered under statutory laws and regulations, without taking into account of any particular religious law. Persons covered by the provisions of this law: Foreigners and Nationals, non-Muslims, whether male or female Persons covered by the provisions of this law: Foreigners and non-Muslims Nationals, whether male or female Article 5 (Persons covered by the provisions of this law): 

The provisions of this law govern civil marriages and their effects, as well as all matters concerning the civil family according to the following cases:

1)       Non-Muslim citizens

2)       A foreigner who holds the nationality of a country that does not primarily apply Islamis Sharia in matters of personal status […] In the case of multiple nationalities, the nationality to be taken into account shall be the one used based on the person’s status of residence in the State.

3)       Where the marriage is concluded in a country that does not primarily apply Islamic Sharia provisions in matters of personal status [….]

4)       Where the marriage is concluded in accordance with the provisions of civil marriage.

5)       Any other case for which a decision is issued by the Head of the Department.

Problems of interpretation and application generated by the ambiguities and inconsistencies of the 2021 ADCML and its 2022 Procedural Regulations have already been addressed on this blog (see here, here, and here). These issues particularly concern the application of these instruments to foreign Muslims, a possibility permitted under the 2021 ADCML and its 2022 Procedural Regulations as confirmed by recent case law, but not allowed under the 2022 CPSL.

 

ii) Constitutional implications

Given the differing scopes of application, a crucial issue has arisen: whether the 2022 CPSL overrides the local law in this respect. In other words, does the Federal Civil Personal Status Law also apply in Abu Dhabi?

From a constitutional perspective, the answer should be affirmative (see Article 151 of the Federal Constitution). However, the issue remains largely unresolved. In practice, lower courts in Abu Dhabi appear to give little weight to the federal law, applying the local law and its regulations instead. (The Abu Dhabi Supreme Court seems to follow a slightly different approach, as on some occasions it cited the 2022 Federal Law on Civil Personal Status. For examples, previous posts here, and here).

 

iii) Impact of the 2024 PSL

The situation, however, changes significantly with the adoption of the 2024 PSL. It is undisputed that this new federal law applies in Abu Dhabi as well. The absence of any local regulation on personal status (other than the 2021 ADCML and its 2022 Procedural Regulation) makes the application of the new federal law self-evident. Therefore, even if one were to argue (for the sake of discussion) that the 2022 CPSL does not apply in Abu Dhabi, it will still be necessary to observe how Abu Dhabi courts will reconcile the new law, which explicitly applies to Muslims (regardless of their nationality or whether their country of origin applies Islamic sharia in personal status matters), with the existing local regulations. A typical case would be a Muslim couple from Europe or elsewhere where Islamic Sharia does not primarily apply in matters of personal status, or Muslims from Muslim jurisdictions who got married under the 2021 ADCML, but then one of the parties claims the application of the 2024 PSL because they are Muslim, and therefore subject to the federal and not local law.

 

b) The Parties’ agreement

As mentioned above, both federal laws allow the parties to “agree” to apply “another law permitted by the legislation in force” (2024 PSL) or “other legislation regulating family or personal status matters currently in force” in the UAE (2022 CPSL). The formulations used here are highly problematic, as their exact meaning remains unclear.

For instance, it is unclear, whether the phrase “legislation in force” includes also local laws, notably the 2021 ADCML. Assuming that the 2022 CPSL does not override the 2021 ADCML, could parties residing in Dubai agree to apply it? This remains unresolved.

Moreover, an open question also concerns the form that such an agreement must take. Is an explicit agreement required, e.g., one that is formally recorded in the marriage contract? Or can consent be implied, such that a party’s reliance on the provisions of a given law is sufficient to infer tacit agreement?

Finally, and more importantly, it is not clear whether “non-UAE citizens” under the 2024 PSL, which applies primarily to Muslims (see above), would be allowed to choose the application non-Muslim law. While this can be somewhat “tolerated” in matters of marriage or divorce as the practice now in Abu Dhabi clearly shows (see previous post here, although the boundaries of such “tolerance” remains certainly unclear notably in other Emirates. From a broader perspective, see examples cited in Béligh Elbalti, “The Recognition and Enforcement of Foreign Filiation Judgments in Arab Countries”, in Nadjma Yassari et al. (eds.), Filiation and the Protection of Parentless Children (T.M.C. Asser Press, 2019), 397), such a possibility seems to be inconceivable in matters of successions, giving the longstanding position of UAE courts to consider that the Federal Personal Status Law – which is largely based on Islamic Sharia – should apply whenever one of the parties (the deceased or the heir) is Muslim (for detailed analyses and overview of applicable case law, see Béligh Elbalti, “Applicable Law in Succession Matters in the MENA Arab Jurisdictions – Special Focus on Interfaith Successions and Difference of Religion as Impediment to Inheritance”,  88(4) RabelsZ  2024 748, 751).

 

2. Persistent problems

Two are particularly relevant here, both concern (a) the applicability of foreign law, and (b) the interplay of the family law regulations with private international law.

 

a) Applicability of foreign law

A key difference between the 2021 ADCML and the 2022 CPSL (as well as the 2024 PSL) lies in the fact that the former excludes the very application of foreign law, rendering the 2021 ADCML directly and automatically applicable in all disputes that enter into its scope of application (it must be acknowledged, however, that a recent Abu Dhabi Supreme Court’s ruling suggests otherwise. Upon examination, though, the Court’s reference to choice of law rules does not have any tangible implication on the above stated conclusion). The only exception concerns matters of succession and wills, for which, a reference to choice of law rules is explicitly provided for within the law itself.

  2021 ADCML (after amendment) 2022 CPSL Article 3 [Scope of Application] (*) (**):

(1)    If the marriage is concluded in accordance with this law, it shall be the applicable law governing the effects of the marriage and its dissolution.

(2)    This law shall apply to wills and succession matters concerning persons subject to its provisions, provided that the estate or the bequeathed property is located within the State. Art. 1 [Scope of Application]:

(1) The provisions of this Decree-Law shall apply to non-Muslims who are national citizens of the United Arab Emirates, and to non-Muslim foreigners residing in the state, unless one of them invokes the application of his law, with regard to matters of marriage, divorce, successions, wills, and establishment of filiation […] Article 11 [Distribution of Estate]:

(3) Notwithstanding paragraph (2) of this Article [testate succession], any heir of the foreign deceased may request the application of the law governing the estate in accordance with the provisions of [1985 FACT], unless a registered will provides otherwise. Article 11 [Distribution of Estate]:

(3) Notwithstanding paragraph (2) of this Article [testate succession], any heir of the foreign deceased may request the application of the law governing the estate in accordance with the provisions of [1985 FACT], unless a registered will provides otherwise.

(*) It is worth noting that article 3 in its original form was similar to that of Article of the 2022 CPSL. It stated as follows: “Unless the foreigner requests the application of their national law, the court shall apply this law to foreigners in matters relating to marriage, divorce, inheritance, wills, and the establishment of parentage.”

(**) See also Article 5 of the Procedural Regulation cited above.

 

This does not only give rise to problems of inconsistency with the federal personal status laws, but also with the 1985 FACT.

 

b) Interplay with choice of law rules

This is arguably the main issue that remains unresolved despite the various reforms and amendments. As mentioned above, the federal laws allow “one of the parties” to invoke the application of “his law”. Theoretically, if properly invoked, the foreign law would apply instead of the federal provisions. However, this possibility raises three core issues:

1) who is exactly meant by “one of the parties” (ahadihim)?

2) what is meant by “his law” (qanunihi), and

3) what is the current relevance of choice of law rules governing family matters as set out in the 1985 FACT?

 

i) Meaning of “one of the parties”

Regarding 1), there is a range of diverging opinions. For instance, the Explanatory Report of the now-repealed 2005 PSL referred to the “adversary party” (al-khasm). Certain strands in literature, contra legem, suggest that this concerns any party, but only when both of them share the same nationality. Case law, however, reveals more diverse scenarios: courts addressed the issue of the application of foreign law regardless of whether the parties hold the same nationality or not, and when the foreign is invoked by any of them. Yet, to the best of our knowledge, UAE courts have not provided a definitive answer to this question, often focusing instead on whether the party’s claim could be accepted or not.

 

ii) The Meaning of “his law”

Regarding 2), case law has largely clarified that “his law” refers to the lex patriae. Still, ambiguity remains in cases involving parties of different nationalities. Prior to 2020, the main connecting factor in matters of marriage and its dissolution was the lex patriae of the husband. It was thus unclear whether the wife could invoke the application of “her law” or whether she should claim the application of the lex patriae of her husband, when the latter based his claim on UAE law. In any case, where a party holds multiple nationalities, Article 24 (still in force) states that the lex fori (UAE law) shall apply.

However, in 2020, an amendment to the 1985 FACT introduced significant changes, shifting away from lex patriae as the main connecting factor in personal status. Particularly, articles 12 and 13 dealing respectively with marriage and its dissolution now refer to lex loci celebrationis. Moreover, Article 17 dealing with successions and wills grants considerable weight to professio juris, allowing a person in testate successions to designate the law that shall govern their estate. These changes have further deepened the discrepancy between the federal personal status regulations and the choice of law provisions contained in the 1985 FACT.

 

iii) Relevance of choice of law rules

Regarding 3), an as a result of what was stated above, resolving conflicts of law and coordinating the application of the various legislative instruments has become particularly difficult without significantly stretching the wording, and arguably, the intended meaning of the law. This difficulty is especially evident when the lex loci celebrationis differs from the parties’ lex patriae.

Article 1(2) of the 2022 CPSL offers somehow better articulation by including a two-part clause: “unless one of the parties invoke the application of his law, without prejudice to the provisions of Articles (12), (13), (15), (16), and (17)” of the 1985 FACT. Nevertheless, this articulation becomes problematic when both parties share the same nationality but have concluded their marriage abroad.

In any case, both laws remains silent on the consequences of the parties invoking his lex patriae when it conflicts with the law designated under the conflict of laws rules included in the 1985 FACT.

 

Epilogue

In practice, these theoretical complexities are often resolved in a far more radical and pragmatic way: foreign law is rarely applied, even when validly invoked by one or both parties.

It is against this backdrop that one can understand the rationale behind the adoption of civil family law regimes and the recent adoption of the 2024 PSL: rather than refining the existing conflict-of-law mechanisms, these instruments aim to sidestep them altogether by offering a self-contained and directly applicable alternative.

 

The registrations for the Hague Academy Winter Course of 2026 will be open from 1 May 2025 to 1 October 2025 for full fee applicants, and from 1 May 2025 to 31 July 2025 for scholarship applicants. The course will be opened by Silvia Fernández de Gurmendi (Former President of the International Criminal Court) with […]

In January 2025, AG J. Richard de la Tour delivered his opinion in case C-536/23, Mutua Madrileña Automovilista, upon a request from the Landgericht München I (Regional Court of Munich I, Germany) asking the Court of Justice : Must Article 13(2) of Regulation (EU) No 1215/2012 [the Brussels I bis Regulation], read in conjunction with Article 11(1)(b) […]

The first issue of the Journal of Private International Law for 2025 was published today. It contains the following articles:

Pietro Franzina, Cristina González Beilfuss, Jan von Hein, Katja Karjalainen & Thalia Kruger, “Cross-border protection of adults: what could the EU do better?†”

On 31 May 2023 the European Commission published two proposals on the protection of adults. The first proposal is for a Council Decision to authorise Member States to become or remain parties to the Hague Adults Convention “in the interest of the European Union.” The second is a proposal for a Regulation of the European Parliament and the Council which would supplement (and depart from, in some respects) the Convention’s rules. The aim of the proposals is to ensure that the protection of adults is maintained in cross-border cases, and that their right to individual autonomy, including the freedom to make their own choices as regards their person and property is respected when they move from one State to another or, more generally, when their interests are at stake in two or more jurisdictions. This paper analyses these EU proposals, in particular as regards the Regulation, and suggests potential improvements.

 

Máire Ní Shúilleabháin, “Adult habitual residence in EU private international law: an interpretative odyssey begins”

This article examines the first three CJEU cases on adult habitual residence in EU private international law, against the background of the pre-existing (and much more developed) CJEU jurisprudence on child habitual residence. While the new trilogy of judgments provides some important insights, many questions remain, in particular, as to the scope for contextual variability, and on the role of intention. In this article, the CJEU’s treatment of dual or concurrent habitual residence is analysed in detail, and an attempt is made to anticipate the future development of what is now the main connecting factor in EU private international law.

 

Felix Berner, “Characterisation in context – a comparative evaluation of EU law, English law and the laws of southern Africa”

Academic speculation on characterisation has produced a highly theorised body of literature. In particular, the question of the governing law is the subject of fierce disagreement: Whether the lex fori, the lex causae or an “autonomous approach” governs characterisation is hotly debated. Such discussions suggest that a decision on the governing law is important when lawyers decide questions of characterisation. Contrary to this assumption, the essay shows that the theoretical discussion about the governing law is unhelpful. Rather, courts should focus on two questions: First, courts should assess whether the normative context in which the choice-of-law rule is embedded informs or even determines the question of characterisation. Insofar as the question is not determined by the specific normative context, the court may take into account any information it considers helpful, whether that information comes from the lex fori, the potential lex causae or from comparative assessments. This approach does not require a general decision on the applicable law to characterisation, but focuses on the normative context and the needs of the case. To defend this thesis, the essay offers comparative insights and analyses the EU approach of legislative solutions, the interpretation of assimilated EU law in England post-Brexit and the reception of the via media approach in southern Africa.

 

Filip Vlcek, “The existence of a genuine international element as a pre-requisite for the application of the Brussels Ia Regulation: a matter of EU competence?”

Under Article 25(1) of the Brussels Ia Regulation, parties, regardless of their domicile, may agree on a jurisdiction of a court or the courts of an EU Member State to settle any disputes between them. The problem with this provision is that it remains silent on the question of whether it may be applicable in a materially domestic dispute, in which the sole international element is a jurisdictional clause in favour of foreign courts. Having been debated in the literature for years, the ultimate solution to this problem has finally been found in the recent judgment of the ECJ in Inkreal (C-566/22). This article argues that the ECJ should have insisted on the existence of a material international element in order for Article 25 of the Regulation to apply. This, however, does not necessarily stem from the interpretation of the provision in question, as Advocate General de la Tour seemed to propose in his opinion in Inkreal. Instead, this article focuses on the principle of conferral, as the European Union does not have a legal base to regulate choice-of-court clauses in purely internal disputes. Accordingly, with the Regulation applying to legal relationships whose sole cross-border element is a prorogation clause, the Union legislature goes beyond the competence conferred on it by Article 81 TFEU. Such an extensive interpretation of the Regulation’s scope, which is, in reality, contrary to the objective of judicial cooperation in civil matters, is moreover prevented by the principle of subsidiarity as well as the principle of proportionality. Finally, this approach cannot be called into question by the parallel applicability of the Rome I and II Regulations in virtually analogous situations as those Regulations become inherently self-limiting once the international element concerned proves to be artificial.

 

Adrian Hemler, “Deconstructing blocking statutes: why extraterritorial legislation cannot violate the sovereignty of other states”

Blocking statutes are national provisions that aim to combat the legal consequences of foreign, extraterritorial legislation. They are often justified by an alleged necessity to protect domestic sovereignty. This article challenges this assumption based on an in-depth discussion of the sovereignty principle and its interplay with the exercise of state power regarding foreign facts. In particular, it shows why a distinction between the law’s territorial scope of sovereign validity and its potentially extraterritorial scope of application is warranted and why, based on these foundations, extraterritorial legislation cannot violate foreign sovereignty. Since Blocking Statutes cannot be understood to protect domestic sovereignty, the article also discusses how they serve to enforce international principles on extraterritorial legislation instead.

 

Michiel Poesen, “A Scots perspective on forum non conveniens in business and human rights litigation: Hugh Campbell KC v James Finlay (Kenya) Ltd”

In Hugh Campbell KC v James Finlay (Kenya) Ltd the Inner House of the Court of Session, the highest civil court in Scotland subject only to appeal to the UK Supreme Court, stayed class action proceedings brought by a group of Kenyan employees who claimed damages from their Scottish employer for injuries suffered due to poor labour conditions. Applying the forum non conveniens doctrine, the Court held that Kenya was the clearly more appropriate forum, and that there were no indications that the pursuers will suffer substantial injustice in Kenya. Campbell is the first modern-day litigation in Scotland against a Scottish transnational corporation for wrongs allegedly committed in its overseas activities. This article first observes that the decision of the Inner House offers valuable insight into the application of forum non conveniens to business and human rights litigation in Scotland. Moreover, it argues that the decision would have benefitted from a more rigorous application of the jurisdictional privilege in employment contract matters contained in section 15C of the Civil Jurisdiction and Judgments Act 1982

 

Hasan Muhammad Mansour Alrashid, “Appraising party autonomy in conflict-of-laws rules in international consumer and employment contracts: a critical analysis of the Kuwaiti legal framework”

Party autonomy plays a vital role in international contracts in avoiding legal uncertainty and ensuring predictability. However, its application in international employment and consumer contracts remains a subject of debate. Consumers and employees are typically the weaker parties in these contracts and often lack the expertise of the other party, raising questions about their autonomy to choose the applicable law. Globally, legal systems differ on this point with some permitting full party autonomy, others rejecting it outrightly and some allowing a qualified autonomy with domestic courts empowered to apply a different law in deserving cases to protect the employee or consumer. Kuwaiti law allows full autonomy only in international consumer contracts but prohibits it in international employment contracts. This paper critically analyses Kuwait’s legal approach to find an appropriate balance between the principle of party autonomy in the choice of law and the protection of employees and consumers.

 

Alexander A. Kostin, “Recognition and enforcement of foreign judgments in bankruptcy and insolvency matters under Russian law”

This article addresses the role of certain Russian Federal Law “On Insolvency (Bankruptcy)” provisions (eg Article 1(6)) for resolving bankruptcy and insolvency matters under Russian law. The author argues that the “foreign judgment on the insolvency matters” term covers not only the judgments on initiation of bankruptcy/insolvency, but also other related judgments like those on vicarious liability, avoidance of transactions and settlement agreements. The issues associated with enforcing foreign judgments on the grounds of reciprocity under Article 1(6) of the Federal Law “On Insolvency (Bankruptcy)” are being explored and valid arguments in favour of recognition simpliciter (recognition of foreign judgments without extra exequatur proceedings at the national level) are provided. The legal effects of foreign judgments on the initiation of bankruptcy/insolvency proceedings recognition are analysed as well as the interconnection between relevant provisions of the Russian legislation on lex societatis of a legal entity and the rules for recognising foreign judgments on the initiation of bankruptcy/insolvency proceedings.

On the occasion of the 150th anniversary of the Swiss Federal Tribunal, the Swiss Institute of Comparative Law (SICD) is pleased to announce its 35th Conference on Private International Law, to be held on 19–20 November 2025 in Lausanne.

The conference addresses how courts, lawyers, and litigants have shaped—and how they continue to shape—private international law. Special emphasis will be placed on how legal practice drives the development of private international law at both the national and supranational levels. Judges, through landmark rulings, have clarified conflicts of laws rules, set precedents on the recognition of foreign judgments, and adapted legal frameworks to globalization and digital commerce. Lawyers, by crafting novel arguments, have influenced judicial reasoning and contributed to evolving legal doctrines. Finally, strategic litigation, led by litigants and advocacy groups, has driven major jurisprudential shifts, particularly in fundamental rights, corporate liability, and cross-border regulation. The conference will analyse these actors’ distinct but interconnected roles in shaping contemporary private international law.

We invite scholars (both established and early-career researchers), legal practitioners, and policymakers to submit papers addressing these issues.

Possible topics include:

• The role of national and supranational courts in shaping private international law
• The impact of key judicial decisions on cross-border legal relationships
• The influence of legal practitioners in driving jurisprudential change
• Strategic litigation as a tool for legal evolution in private international law
• Comparative approaches to judicial reasoning in international private law cases
• Judicial responses to global challenges such as migration, digital commerce, corporate responsibility, and human rights protection

Paper Submission
Please submit an abstract (up to 500 words) of your proposed paper by 11 May 2025 to Ms. Marie-Laure Lauria (marie-laure.lauria@isdc-dfjp.unil.ch), with the subject line “ISDC 35th PIL Conference Submission“. Abstracts may be submitted in English, German, or French.

All submissions will undergo a double-blind peer review and decisions will be communicated by 3 June 2025. Accepted papers will be considered for publication in an edited volume or a special journal issue.

Organization
The conference will be hosted by the Swiss Institute of Comparative Law.

Funding
The Swiss Institute of Comparative Law will provide funding for the travel costs and accommodation of all presenters.

On 14 April 2025, the Council of the European Union approved the position of the European Parliament at first reading, illustrated in this blog, on the proposal for a directive amending Directives (EU) 2022/2464 and (EU) 2024/1760 (the Corporate Sustainability Due Diligence Directive – CSDDD) as regards the dates from which Member States are to […]

On 9 April 2025, the French Ministry of Justice issued instructions for the public prosecutors of Nantes and Rennes, who are responsible of the French central status registry, to register parentage as resulting from foreign surrogacies. The instruction expressly relies on the judgments of the Cour de cassation of October 2024 and November 2024 which […]

In April, the Aberdeen Centre for Private International Law and Transnational Governance will be relaunching its Crossroads in Private International Law research seminar series. It will feature both online and hybrid events.

For the upcoming term, six events have been scheduled:

23 April 2025 at 14:00 (UK time) | “Consumer Protection and Justice in Israeli Private International Law” by Prof Sharon Shakargy (The Hebrew University of Jerusalem) | online and in-person

In 1933, Professor David Cavers argued for rethinking the choice of law process by prioritizing justice and party expectations over formal rules, sparking the American choice of law revolution. While this movement had some lasting impacts, it ultimately was mostly unsuccessful. Nearly 90 years later, the issue of justice in conflict of laws remains relevant, especially regarding power disparities between major tech companies and consumers. This paper calls for a renewed focus on justice within this context, outlining its implications for the existing legal framework.

24 April 2025 at 14:00 (UK time) | “Collisions and Autonomous Ships: A Challenge for the Collision Convention 1910” by Ms Luci Carey (University of Aberdeen) | online only

The introduction of Maritime Autonomous Surface Ships (MASS) whereby human crews are replaced by AI driven navigation systems raises novel legal questions. One of these relates to the liability of the vessel in the event of a collision. The International Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels 1910 (1910 Collision Convention) apportions liability between colliding ships based upon the degree of fault. The introduction of artificial intelligence is making the determination of fault or liability in negligence increasingly difficult. This seminar questions whether fault-based liability for collisions involving ships navigated without human control is appropriate, enquires if strict liability is the logical solution or if the 1910 Collision Convention is robust in its current form to accommodate technological developments.

30 April 2025 at 12:00 (UK time) | “A Skewed Bargain? Platforms get the King’s Protection for little or no Obedience or Allegiance” by Prof Uta Kohl (University of Southampton) | online only

Common law jurisprudence on civil jurisdiction over non-resident defendants has occasionally made explicit reference to the justification of jurisdiction as formulated in Calvin’s Case (1608): ‘when an alien in amity cometh into England, because so long as he is within England he is within the King’s protection; therefore so long as he is here he oweth unto the King a local obedience or ligeance, for the one (as it hath been said), draweth the other.’ This justification is powerful in so far as it demonstrates that territorially based jurisdiction (in civil and criminal cases) is one side of a two sided bargain: obedience and allegiance in exchange for protection. In this talk I will reflect on how this bargain has played out – or not played out – in the case of online platforms, and on how we might use Calvin’s Case to fundamentally rethink the treatment of platforms.

7 May 2025 at 11:00 (UK time) | “Should the Rules on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters Be Harmonised in Africa? A Comparative and Empirical Assessment” by Dr Chukwuma Okoli (University of Birmingham) | online only

This study examines 200 decided cases from 18 African legal systems, focusing on the recognition and enforcement of foreign judgments in civil and commercial matters. It reveals significant disparities in outcomes and grounds for recognition and enforcement and refusal. It underscores the diversity of legal frameworks, procedural rules, and judicial interpretations across the continent. The findings highlight the challenges posed by this fragmentation and make a strong case for harmonisation. A more unified approach, the study argues, would not only streamline cross-border legal processes but also foster economic development and strengthen investor confidence across Africa.

14 May 2025 at 14:00 (UK time) | “Navigating Generative AI, Copyright Protection, and Private International Law in Europe” by Dr Michiel Poesen (University of Aberdeen) | online and in-person

Generative AI has an intellectual property problem. This seminar enquires whether the current framework of private international law in the European Union is fit to deal with cross-border copyright infringement litigation concerning (i) the use of copyrighted work to train and develop GenAI and (ii) AI-generated content (AIGC) which resembles protected work.

21 May 2025 at 10:00 (UK time) | “Platform Governance and Wikilegality” by Prof David Nelken (UCL) (Joint seminar with the Aberdeen Centre for Constitutional and Public International Law) | online and in-person

Registration for all events is possible here.

Stefano Dominelli (Università di Genova) has just published a book titled Regolamento Bruxelles I bis e US jurisdiction in personam: riflessioni e proposte su condivisioni valoriali, influenze e osmosi di metodi with Editoriale Scientifica. The book is written in Italian but also features conclusions in English.

The author has kindly shared the following summary with us:

The book analyses the basic principles of the EU’ and US international civil procedure in contract and tort law. The investigation shows how both systems are partly inconsistent with their respective premises – of legal certainty, on the one hand, and fairness and justice, on the other. The juxtaposition of the dogmatic approaches and their contextualisation in the light of the law in action makes it possible to reconstruct a common and shared principle which shapes solutions in both systems – that of the necessary existence of a minimum connection between the jurisdiction and the case. This conclusion opens up, to a limited extent, to a conceptual rapprochement between legal systems and to reflections on possible legal transplants that respect the characteristics of the local legal culture.

The whole book is available open access under this link.

Dr. Carlos Santaló Goris, Postdoctoral researcher at the University of Luxembourg, offers an analysis of the Opinion of Advocate General de la Tour in CJEU, Case C-713/23, Trojan

From Coman to Trojan

On 5 June 2018, the Court of Justice of the European Union (‘CJEU’) rendered its judgment in the case C-673/16, Coman. In this landmark ruling, the CJEU decided that Member States are required to recognize same-sex marriage contracted in another Member Stated to grant a residence permit to the non-EU citizen spouse of an EU citizen under the EU Citizens’ Rights Directive. The pending case C-713/23, Trojan goes a step further than C-673/16, Coman. On this occasion, the CJEU was asked whether EU law requires a civil registry of Poland, a Member State that does not provide any form of recognition to same-sex couples, to transcribe the certificate of same-sex marriage validly contracted in another Member State. A positive answer would imply that the same-sex marriage established under German law would be able to deploy the same effects as a validly contracted marriage under Polish law. While the CJEU has not yet rendered a judgment, on 3 April 2025, Advocate General de la Tour issued his Opinion on the case. While the CJEU might decide differently from AG de la Tour, the Opinion already gives an idea of the solution that might potentially be reached by the CJEU. This post aims to analyse the case and explore its implications should the CJEU side with AG de la Tour.

Background of the case

Mr. Cupriak-Trojan, a German-Polish citizen, and Mr. Trojan, a Polish national, got married in Germany, where they used to live. Then, they moved to Poland, where they requested to transcribe the German marriage certificate in the Polish civil registry. Their request was rejected on the ground that marriage is not open to same-sex couples under Polish law. It was considered that the transcription of the certificate would go against Polish public policy. Upon the rejection, the couple decided to contest the decision before Polish administrative jurisdiction. They considered that refusal to transcribe the certificate contravenes the right to freedom of movement and residence enshrined in Article 21 of the Treaty on the Functioning of the European Union (‘TFEU’) and Article 21 of the EU Charter of Fundamental Rights (‘EUCFR’) in light of the principle of non-discrimination under Article of 7 of the EUCFR. In other words, when they decided to move to Poland, the non-recognition of their marriage under Polish law hindered their right to freedom of movement and residence. Eventually, the case reached the Polish Supreme Administrative Court, which decided to submit the following preliminary reference to the CJEU:

‘Must the provisions of Article 20(2)(a) and Article 21(1) TFEU, read in conjunction with Article 7 and Article 21(1) of [the Charter] and Article 2(2) of Directive [2004/38], be interpreted as precluding the competent authorities of a Member State, where a citizen of the Union who is a national of that State has contracted a marriage with another citizen of the Union (a person of the same sex) in a Member State in accordance with the legislation of that State, from refusing to recognise that marriage certificate and transcribe it into the national civil registry, which prevents those persons from residing in the State in question with the marital status of a married couple and under the same surname, on the grounds that the law of the host Member State [(18)] does not provide for same-sex marriage?’

AG de la Tour’s analysis

AG de la Tour starts his analysis by acknowledging that matters concerning the civil status of persons depend on the national law of the Member States. However, the right of freedom of movement and residence imposes on Member States the recognition of the civil status of persons validly established in other Member States. In this regard, he recalls that the CJEU adopted a two-fold approach to civil status matters. In matters concerning an EU citizen’s identity (e.g. name or gender), Member States are required to include those identity details in the civil registries. However, in civil status matters concerning ties legally established in other Member States (e.g. marriage or parenthood), there is no such obligation, and recognition of those ties is limited to the ‘sole purpose of exercising the rights which the person concerned derived from EU law’ (para. 29).

In the present case, AG de la Tour considers that the non-recognition of the same-sex marriage amounts to a ‘restriction on the exercise of the right’ to freedom of movement and residence under EU law (para. 32). Subsequently, he proceeds to examine whether such restriction is compatible with the right for respect for private and family life guaranteed by Article 7 of the EU Charter of Fundamental Rights (‘EUCFR’). He examines this issue through the lens of the European Court of Human Rights (‘ECtHR’) case law on Article 8 of the European Convention of Human Rights (‘ECHR’), the equivalent provision of Article 7 of the EUCFR. It should be reminded that the EUCFR expressly acknowledges in its Article 53 the ECHR and the ECtHR case law as the term of reference for establishing the minimum standards for its interpretation. In this regard, the ECtHR has repeatedly stated that Article 8 of the ECHR requires its contracting States to provide same-sex couples with a ‘specific legal framework’. Nonetheless, contracting States are not required to legalize same-sex marriages and enjoy a margin of discretion to decide how the recognition of the same-sex couple provided.

Based on the referred ECtHR case law, it appears that the non-recognition would constitute a restriction on the right to freedom of movement and residence incompatible with the EUCFR. At this point, the question arises whether such recognition should be done by entering the same-sex marriage certificate into the civil registry. Here, AG de la Tour considers that EU law does not require the marriage licence transcription. As he mentioned at the beginning of his reasoning, ‘Member States’ obligations in terms of civil status relate only to the determination of a Union citizen’s identity’ (para. 38). In his view, the registration of foreign marriage certificate ‘falls within the exclusive competence of the Member States’ (para. 42). Member States can thus refuse the transcription of the marriage certificate if the recognition of the same-sex marriage can be achieved through other means. This discretion is given to Member States to decide whether they enter a foreign same-sex marriage in their civil registry or not would also be in line with the ECtHR case law, which acknowledges States a wide margin of appreciation on how to recognize foreign same-sex marriages.

In the case of Poland, since there is no kind of legal framework for same-sex couples in this Member State, the only possible solution appears to be the registration of the marriage certificate. Therefore, as an exception, and given the specific Polish circumstances, AG de la Tour considers that Poland would be required to entry into its civil registry of the same-sex marriage.

Recognition yes, transcription no

The fil rouge of AG de la Tour’s reasoning was to find a manner to provide recognition for same-sex marriages without overstepping on the Member States’ competences in matters concerning the civil status. Finding that right to freedom of movement and residence entails an obligation to transcribe the marriage certificate would not be ‘in strict compliance with the division of competences between the European Union and the Member States’ (para. 55). That would imply that an understanding of the ‘freedom of movement and residence of Union citizens which may be exercised without limit so far as concerns personal status’ (para. 56). Such a solution that would depart from the well-established CJEU case law on this matter, moving ‘from an approach based on the principle of free movement of a Union citizen that is limited to his or her identity, to an approach based solely on the right to respect for his or her family life’ (para. 57). This why AG de la Tour adopted a solution that allows recognition without the need for transcription of the marriage licence in the civil registry.

Regarding the recognition of same-sex marriages, it should also be noted that AG de la Tour leaves the Member States with wide discretion on how same-sex marriage is recognized. This means that the marriage does not necessarily need to be recognized as a marriage. They could be recognized in the form of a civil partnership. That is, for instance, the solution that exists under Italian law. Article 32bis of the Italian Private International Law Act provides that ‘a marriage contracted abroad by Italian citizens with a person of the same sex produces the effects of the civil union regulated by Italian law’. Based on AG de la Tour’s reasoning, had Poland had a similar, he would have accepted the recognition of a same-sex marriage in the downgraded form of a civil partnership and the transcription of the marriage certificate would have been required.

Promoting the effectiveness of the ECtHR case law through EU law

On its reasoning, AG de la Tour strongly relies on the ECtHR case law. This does not come as a surprise. Other LGBT rights cases involving civil status matters and the right to freedom of movement contain similar references to the ECtHR jurisprudence. The most recent example is the C-21/23, Mirin in which the CJEU found that Romania had to recognize the gender change that occurred in another Member State. The main basis of this ruling was the ECtHR judgment, in which Romania had been found in violation of Article 8 of the ECHR because Romanian law did not provide a clear procedure to obtain legal gender recognition (X and Y v. Romania).

Such reliance on the ECtHR case law also serves to expose that Member States do not duly implement the ECtHR rulings. Poland has been found twice in violation of Article 8 of the ECtHR for not providing same-sex couples with any kind of formal legal recognition (Przybyszewska and Others v. Poland and Formela and Others v. Poland). While the Polish government has proposed an act introducing a civil partnership regime open to same-sex couples, it has not been approved yet. Furthermore, such an initiative only appeared after a more progressive government emerged out of the 2023 Polish general election. The situation is similar in other Member States such as Romania or Bulgaria. These Member States have been also called out by the ECtHR (Buhuceanu and Others v. Romania and Koilova and Babulkova v. Bulgaria) for not providing any sort of legal recognition for same-sex couples. However, unlike in Poland, no legislative changes are expected on this matter in the near future. If the CJEU adopts AG de la Tour’s solution, all these Member States would have to allow the recognition of same-sex marriages contracted in other Member States, even if in the downgraded form of civil partnership. Unlike the Council of Europe with regards to the ECtHR rulings, the EU counts with more effective means to ensure that CJEU rulings are followed by Member States. Formally, the Commission could even trigger an infringement procedure against them in case they do not comply with the judgment in C-713/23, Trojan. Therefore, EU law would become the indirect path to make Member States comply with the ECtHR rulings.

The potential for reverse discrimination

The solution proposed by AG de la Tour entails the risk of recreating a situation of reserve discrimination of same-sex couples that have not left Poland against those who have obtained certain legal status for the relationship in other Member States while exercising the right to freedom of movement. A same-sex couple moving who married or entered a civil partnership in a Member State would be able to attain the recognition of their marriage or civil partnership in a Member State that does not provide any legal framework for same-sex relationships. This is as far as EU law can go in this matter, given domestic family law matters strictly fall within the scope of Member States competencies.

It should also be noted that going to another Member State to get a marriage licence because the Member State where the same-sex couple resides does not provide any legal recognition would not be sufficient to achieve the recognition of such marriage in the Member State of residence. As AG de la Tour pointed out in his Opinion in C-4/23, Mirin, a close link needs to exist between the person and the Member State where the legal gender recognition is obtained (para. 71 and 72). Otherwise, there would be an abuse of EU law. The same would apply in the case of a marriage. Going to another Member State with the only purpose of obtaining a marriage licence and circumventing domestic law that does not provide a legal status for same-sex couples. The same-sex couple would have to establish a close link with the Member State where they seek to contract their marriage.

 

A collection of essays honoring Marc Fallon has recently been published by Larcier under the title Vers un code européen de droit international privé? Further information can be found here. The collection, edited by Jean-Yves Carlier and Stéphanie Francq (both professors at the Université Catholique de Louvain, as the honoree), brings together some twenty contributions (mostly […]

On 4–5 December 2025, the Department of Law at the University of Ferrara will host the XXII edition of the Conference of Young Scholars of International Legal Studies, dedicated to “The Principle of Good Faith in International and European Union Law”.

The organizers have issued a call for papers open to scholars of public and private international law and EU law, who are currently enrolled in a PhD program or who have obtained their PhD no more than five years ago.

To apply, authors must submit an abstract (no more than 600 words), in either Italian or English, along with a curriculum vitae, by 22 June 2025, to the following email address: giovaniinternazionalisti2025@gmail.com.

Further information is available here.

The Ulrich Huber round of the Pax Moot competition ended on Friday in the Meuse-Rhine Euroregion, at the University of Maastricht to be precise.

During three fierce days 34 Moot teams from all over Europe and as far as Georgia, Kazakhstan, India, Singapore and Uzbekistan pleaded against each other. They argued about whether self-employed content moderators for social media companies could be considered employees; about how to locate the damage that consists of the stress and mental health harm suffered by these digital nomads; about whether a UK subsidiary of an Irish company could be considered to be domiciled in the EU; about whether the proceedings instituted by a foundation under the Dutch WAMCA should be characterised as contract or tort; about whether a settlement in front of a UK court could be recognised under the 2019 Hague Judgments Convention and much more. They relied on old and new case law, reports and legal scholarship.

At the end, the University of Ljubljana won the competition, with Jindal Law School as the runner-up. The other two teams that made it to the semi-finals were the Universities of Sofia and Paris-Saclay.

The prize for the best memorials went to ESADE Business School, with the University of Ghent in second place, and Paris Dauphine and Sofia Universities in shared third places.

Jana Ušen won the best pleader’s award, followed by Brin Smole, both of Ljubljana University. In the third position was Joshua Tan and in fourth Ong Xin Yan, both of Singapore Management University.

Under the inexhaustible leadership of Marta Pertegás, expect the Pax team to be back with a new case in October/November, to be pleaded in Sofia in roughly one year’s time. Pax Moot is co-funded b y the European Commission.