Droit international général

Limitation period of the enforcement of a UK judgment in Greece

A judgment issued by the Division of Maritime Disputes of the Piraeus first instance court at the end of last year [nr. 3400/2024, unreported] was confronted with an issue which seldomly appears before Greek courts.

The issue raised before the Piraeus Court of First Instance, in the context of Regulation 44/01, was the following: Is it permissible to revoke the recognition of a foreign (English) judgment (order) that  was declared  enforceable in Greece, when allegedly it is no longer enforceable in the State of origin?

The court approached the case from three perspectives:

Firstly, it clarified that a decision of the Supreme Court issued five years ago [Areios Pagos nr. 767/2019], allowing the revocation of the enforceability of a foreign judgment under similar circumstances according to Greek law, cannot be considered as relevant precedent, because it concerned a US judgment, and not a decision of an EU Member State court of law.

It then examined and highlighted the relevant jurisprudence of the CJEU, which ratione materiae resembles to the dispute at issue, i.e., under the Brussels I regime. It stressed that revocation of enforceability under Reg. 44/01 is strictly allowed for specified grounds only, with the case at hand, i.e., loss of enforceability in the state of origin, not being such a ground. The party against whom enforcement is sought in the executing Member State, could raise such a ground, only in the context of enforcement proceedings in the executing state, the court clarified.

Finally, it went into a detailed analysis and reference to the defences against enforcement under English law, focusing on the provisions of the UK Civil Procedure Rules and the Limitation Act, and identifying relevant case law of the English courts. Relevantly, the Piraeus court rejected in substance the arguments raised by the applicants, noting that under English law the judgment of the English court at hand had not lost its enforceability in principle, but rather that special conditions must be met for enforcement in UK to be authorised (i.e., existence of property there, not previously found). Juxtaposing English and Greek law, the Piraeus court made the distinction of enforceability of judgments and the existence of additional modalities, procedures or preconditions that must be fulfilled for enforcement proceedings to take place.

This is one of the rare decisions published by Greek courts, which demonstrates the potential complexity of the subject matter under the Brussels I Regulation, which reappears sporadically, although it gave way to Regulation 1215/2012 some ten years ago.

The specificity of the case lies in the distinctive time of its occurrence: the ground of refusal did not occur at one of the exequatur stages [application to declare enforceability, appeal, second appeal], but much later, when the remedies under Brussels I before the courts of the state of execution have been unsuccessfully exhausted by the debtor.

The likelihood of similar situations occurring under the current regime of Regulation Brussels I bis is scarce. In this case, the judgment debtor is left with either the opposition (stay of execution) under Article 933 of the Greek Code of Civil Procedure, or the filing of a negative declaratory action, in case the enforcement procedure has not been initiated by the judgment creditor.

Finally, let us not forget that the United Kingdom has left the European Union, and, for the time being, there is no direct commencement of enforcement in Greek territory, such as the model of Regulation nr. 1215/2012, not even the previous system of exequatur under EU Regulation nr. 44/2001. A new corridor is expected to open later this year, given that the UK has ratified the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

For further reading on the issue, see Requejo-Isidro(-Chiapponi), Brussels I bis, A Commentary on Regulation (EU) 1215/2012 (2022), Art. 41, nos. 41.22 et seq, Althammer, in: Simons/Hausmann, Brussels I Regulation – Kommentar zur VO (?G) 44/2001 und zum Übereinkommen von Lugano, Unalex Kommentar (2012), Art. 38, nos. 26 & 29); Geimer/Schütze, Europäisches Zivilverfahrensrecht (3rd ed., 2010), Art. 41, no. 44 et seq.

Hot off the press and published in the Cambridge Law Journal, the article “The Inference of Similarity,” written by Marcus Teo, delves into the intricacies of what has traditionally been referred to as the “presumption of similarity” in English legal proceedings. Teo’s work challenges the conventional understanding of this presumption, arguing that it should be seen not as a true presumption but rather as an inference that courts can draw under certain circumstances.

Teo begins by outlining the challenges litigants who wish to rely on foreign law in English courts face. They must first demonstrate that the relevant choice-of-law rule selects the foreign law as applicable and then prove that the foreign law supports their claim or defence. This task is often complicated by the patchy or vague nature of foreign law evidence, leading courts to apply what has been termed a “presumption of similarity”—the idea that foreign law is presumed similar to English law when not sufficiently proven.

However, Teo argues that this “presumption” is misleading. The paper contends that it should not be understood as a true presumption but rather as an inference that courts can draw when there is reliable evidence to suggest that English and foreign courts would render similar rulings on the same facts. This distinction is crucial because a true presumption would be unprincipled, lacking the justifications of logic, convenience, and policy that support other legal presumptions.

Teo’s paper further explores the nature of legal presumptions and inferences, providing a detailed analysis of how they function within the legal system. He explains that legal presumptions are meant to facilitate practical reasoning in situations of evidential uncertainty, allowing courts to proceed “as if” a presumed fact exists until contrary evidence is presented. In contrast, inferences are conclusions drawn from sufficient evidence, representing an actual belief that the inferred fact exists.

The paper also addresses the implications of understanding the “presumption of similarity” as an inference rather than a true presumption. Teo argues that this understanding resolves various controversies surrounding its use in civil proceedings and does not render the proof of foreign law unpredictable or inconvenient in practice. The author emphasises that courts should aim to replicate the ruling a foreign court would render on similar facts, and when English law reflects a shared tradition or universal ethos, this may be enough to infer that a foreign court would render a similar ruling.

Teo’s insights have significant doctrinal implications, particularly in cases where foreign law is partially proven. He explains that when a party has proven only part of the foreign law, the inference of similarity can still be drawn if the court can reliably conclude that the foreign court would likely render a ruling similar to English law’s. This approach prevents parties from using the presumption as a tactical move to fill gaps in their foreign law evidence.

Marcus Teo’s paper offers a fresh perspective on the “presumption of similarity” in English law, advocating for a more nuanced understanding of it as an inference. This shift in perspective not only clarifies the role of foreign law in English courts but also ensures that the application of foreign law aligns with the substantive values underlying choice-of-law rules. As legal scholars and practitioners continue to grapple with the complexities of foreign law, Teo’s work provides a valuable framework for navigating these challenges.

For those interested, the article may be found here!

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. Since 2024, RabelsZ has been an open access publication, with all articles freely available to readers online. The focal point of the first issue of 2025 is international and comparative family law, with contributions critically examining the interactions between […]

Louise Ellen Teitz (Roger Williams University School of Law) has posted Harmonizing Private International Law and International Private Law Through Softlaw on SSRN. The abstract of the article, a homage to Symeon Symeonides and set to be published in the Willamette Law Review, reads as follows: This article, prepared for a celebration of the career […]

ConflictofLaws.net is happy to announce Saloni Khanderia from Jindal Global Law School as our new General Editor. Saloni joined the blog’s Editorial Board in 2019 and has been an active contributor ever since. She takes over from Jeanne Huang (University of Sydney) and will serve as the blog’s General Editor together with Tobias Lutzi (University of Augsburg).

The Editorial Board is indebted to Jeanne for her over two years of service as General Editor. During her tenure, important changes have been implemented regarding the blog’s operation, including the redesign of our frontpage with the new calendar feature. At the same time, our community has continued to grow to more than 2,5k subscribers of our e-mail newsletter and 5k followers on LinkedIn. We’re deeply grateful for the time and energy she has dedicated to the blog and are delighted that she will stay on the Editorial Board.

On 4 March 2025, Prof. Thomas Kadner-Graziano presented publicly on line the project of research and the achievements to date of the EAPIL’s Working Group on the Feasibility of a European Private International Law Act (to which I belong). A few days earlier, the EAPIL blog had informed about an article of Prof. K. Boele-Woelki […]

The UK Supreme Court judgment in UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30, upholding an anti-suit injunction restraining Russian proceedings brought in violation of an arbitration agreement providing for a seat in France, has caused significant interest. We covered it on the EAPIL Blog in a post noting the judgment and in a […]

By Sophia Tang, Wuhan University

 

China’s New Civil Procedure Law adopted in 2023 and taking effect from 1 Jan 2024 introduces significant changes to the previous civil procedure law regarding cross-border litigation. One of the key changes pertains to choice of court agreements. In the past, Chinese law on choice of court agreements has been criticized for being outdated and inconsistent with international common practice, particularly because it requires choice of court clauses to be in writing and mandates that the chosen court must have “practical connections” with the dispute. After China signed the Hague Choice of Court Convention, there was hope that China might reform its domestic law to align with the Hague Convention’s terms and eventually ratify the Convention.

 

The New Civil Procedure Law retains the old provision on choice of court agreements, stating that parties can choose a court with practical connections to the dispute in writing (Article 35). This provision is included in the chapter dealing with jurisdiction in domestic cases, but traditionally, Chinese courts have applied the same requirements to choice of court clauses in cross-border cases.

 

The 2023 Amendment to the Civil Procedure Law introduces Article 277 as a new provision specifically addressing choice of court agreements in cross-border cases. It states that if parties in cross-border civil disputes choose Chinese courts in writing, Chinese courts will have jurisdiction. Notably, this provision does not require that the chosen Chinese courts have practical connections with the dispute. In other words, it may imply that when parties in cross-border disputes choose Chinese courts, Chinese courts will accept jurisdiction regardless of whether they have any connection to the dispute. The removal of the practical connection requirement is intended to encourage overseas parties to choose Chinese courts as a neutral forum for resolving disputes. This is a crucial step in enhancing the international reception of the Chinese International Commercial Court (CICC) and advancing China’s goal of becoming a dispute resolution hub for Belt and Road initiatives.

 

This change aligns with the Hague Choice of Court Convention, which respects party autonomy and reduces the requirements for making parties’ consent to the competent court effective. Additionally, the New Civil Procedure Law prevents Chinese courts from declining jurisdiction based on forum non conveniens (Art 282(2)) or lis pendens (Art 281(1)) when a choice of Chinese court clause exists, consistent with the duty of the chosen state under Article 5(2) of the Hague Choice of Court Convention.

 

However, controversy remains. Since Article 277 explicitly applies to situations where Chinese courts are chosen, it does not address the choice of foreign courts. The New Civil Procedure Law does not include a specific provision addressing the prerequisites for choosing foreign courts. It is likely that the prerequisites for choosing foreign courts will follow the general rule on prorogation jurisdiction in Article 35. Pursuant to this interpretation, if parties choose a foreign court, the choice is valid only if it is made in writing and the chosen court has practical connections with the dispute. This creates an asymmetric system in international jurisdiction, making it easier for parties to choose Chinese courts than foreign courts. It leaves room for Chinese court to compete with a chosen foreign court, which may demonstrate China’s policy to promote the international influence of Chinese courts and to protect the jurisdiction of Chinese courts in China-related disputes.

 

This asymmetric system is barely compatible with the Hague Choice of Court Convention, which is based on reciprocity. If China ratifies the Hague Convention, the asymmetric system cannot function effectively. Under Article 6 of the Convention, a non-chosen court of a Contracting State must suspend or dismiss proceedings. Even if a choice of foreign court clause is invalid under Chinese law, it would not meet any of the exceptional grounds listed in Article 6. The lack of a practical connection with the chosen court cannot be interpreted as leading to a “manifest injustice” or being “manifestly contrary to the public policy” of China.

 

Of course, because the New Civil Procedure Law does not clarify the prerequisites for choosing foreign courts, alternative interpretations are possible. Article 280 provides that if parties conclude an exclusive choice of court clause selecting a foreign court, and this choice does not violate Chinese exclusive jurisdiction or affect China’s sovereignty, security, and public interest, Chinese courts may decline jurisdiction if the same dispute has been brought before them. This suggests that China does not intend to create a significant difference between the choice of foreign and Chinese courts. If this is indeed the legislative intention, one alternative interpretation is that Article 35 should apply exclusively to choice of court clauses in domestic proceedings. In the absence of clear rules governing choice of foreign court clauses in cross-border proceedings, this situation can be analogized to the choice of Chinese courts in such proceedings. Consequently, the same conditions outlined in Article 277 should apply equally to the choice of foreign courts. This interpretation would enhance the law’s compatibility with the Hague Choice of Court Convention.

 

It is not yet clear which interpretation will ultimately be accepted. The Supreme People’s Court (SPC) should provide judicial guidance on this matter. Hopefully, bearing in mind the possibility of ratifying the Hague Choice of Court Convention, the SPC will adopt the second interpretation to pave the way for China’s ratification of the Convention

On Tuesday, 11 March 2025, 12pm CET, ConflictofLaws.net will be hosting an ad-hoc virtual roundtable on the Commission’s Rome II Report.

Everyone interested is warmly invited to join via this Zoom link.

More information can be found here.

Guest post by Danilo Ruggero Di Bella (Bottega Di Bella)

This post delves into the issues stemming from the exclusive jurisdiction of the Unified Patent Court (UPC) on interim relief in relation with the judicial support of the arbitrations administered by the Patent Mediation and Arbitration Centre (PMAC).

Risks of divesting State courts of competence on interim measures 

On one hand, article 32(1)(c) UPC Agreement (UPCA) provides for the exclusive jurisdiction of the UPC to issue provisional measures in disputes concerning classical European patents and European patents with unitary effect. Under article 62 UPCA and Rules 206 and 211 of the UPC Rules of Procedure (UPC RoP), the UPC may grant interim injunctions against an alleged infringer or against an intermediary whose services are used by the alleged infringer, intended to prevent any imminent infringement, to prohibit the continuation of the alleged infringement under the threat of recurring penalties, or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the patent holder. The UPC may also order the provisional seizure or delivery up of the products suspected of infringing a patent so as to prevent their entry into, or movement, within the channels of commerce. Further, the UPC may order a precautionary seizure of the movable and immovable property of the defendant (such its bank accounts), if an applicant demonstrates circumstances likely to endanger the recovery of damages, as well as an interim award of costs. Additionally, under article 60 UPCA, the UPC may order provisional measures to preserve evidence in respect of the alleged infringement and to inspect premises.

On the other hand, PMAC arbitrations can be seated everywhere in the world (Rule 4 PMAC Rules of Operation) and its arbitral awards can be enforced practically everywhere around the world (under the NY Convention). This means that the competent State court for the assistance and supervision of the arbitration may not necessarily coincide with a court of a UPC Contracting Member State. Such State courts play three fundamental functions in support of the arbitral proceedings, including – for what matters here – the issuance of provisional measures (the other two functions being the judicial appointment of arbitrators and the taking of evidence). Normally, the competent State court for the issuance of the provisional measures is the State court at the place where the arbitral award will be enforced or the court at the place where the measures are to be executed (e.g., article 8 of Spain’s Arbitration law which is largely based on the UNCITRAL Model Law on International Commercial Arbitration).

Hence, it is difficult to reconcile the exclusive competence of the UPC on interim measures with the world reach of PMAC arbitrations, since a literal interpretation of article 32(1)(c) UPC Agreement would prevent any State courts from issuing any necessary interim measures. Arguably, while such exclusivity granted to the UPC would not prevent PMAC arbitral tribunals from ordering provisional measures, it does exclude the jurisdiction of other State courts for obtaining interim relief. Thus, this may leave the plaintiff with no protection at the outset of the dispute when the panel of a PMAC arbitration is not already in place to entertain the case yet.

This raises the question whether such exclusivity on provisional measures is desirable, especially, where the interim relief is meant to be executed in a jurisdiction beyond the territory of the UPC, where the UPC provisional measure may not be enforceable at all, and the defendant may object the competence of the State court seized of the application on interim relief because of the UPC exclusivity on such measure.

For instance, in case a dispute arises between two parties who had contractually agreed to solve their differences by way of a PMAC arbitration to be seated in London, it may prove difficult for the plaintiff to apply to English courts for an urgent interim relief to be enforced in the UK (for example, to seize certain products suspected of infringing its patent that have landed at Heathrow airport) pending the constitution of the arbitral tribunal. The defendant may indeed argue that English courts are excluded from ordering any interim relief because of article 32(1)(c) UPC Agreement giving the UPC an exclusive jurisdiction on provisional measures. Therefore, the plaintiff may apply to the UPC for such an interim measure. However, since the UK is not a Contracting Member to the UPCA, English courts may not be obliged to enforce the interim relief granted by the UPC. Consequently, the plaintiff seeking such an urgent interim measure may find itself in a situation without an effective legal protection.

In this respect, it is interesting to recall the so-called “long-arm jurisdiction” of the UPC established by article 71b(2) of the Regulation (EU) ? 542/2014 of 15 May 2014 amending Regulation (EU) No 1215/2012 as regards the rules to be applied with respect to the UPC and the Benelux Court of Justice. This article equips the UPC with extraterritorial jurisdiction by enabling the UPC to grant provisional measures against a third-State domiciled defendant, even if the courts of a third State have jurisdiction as to the substance of the matter. In other words, article 71b(2) shows that the UPC may attempt to retain jurisdiction with respect to provisional measures even when another court has jurisdiction on a given case. If we transpose the implications of this provision to an arbitration setting where an arbitral tribunal seated in a third State is entrusted with deciding on the merits of the case, the UPC may still seek to retain jurisdiction with respect to provisional measures pending the constitution of the arbitral panel. In essence, Article 71b(2) corroborates that in principle the UPC can grant provisional measures even when the main proceedings are taking place in a third country. The problem arises when a party seeks to enforce the UPC-ordered provisional measures in such a third country. Indeed, it remains doubtful whether the UPC provisional measure can be enforced in the relevant third State.

On this issue, some UPCA provisions on provisional measures are somehow conscious of the territorial limitations of the UPC jurisdiction. For instance, part of article 61 UPCA – dealing with on freezing orders – is expressly directed at ordering a party not to remove from the UPC jurisdiction any assets located therein (precisely, to avoid that the infringer may escape liability by moving its assets beyond the UPC jurisdiction). However, article 61.1 UPC Agreement in fine seems to intentionally neglect the territorial limits of the UPC jurisdiction by enabling the UPC to order a party not to deal in any assets, whether located within its jurisdiction or not.

Admittedly, article 32 UPCA contains a carve-out to the exclusivity of the UPC competence by providing for the residual competence of the national courts of the Contracting States for any actions which do not fall within the exclusive competence of the UPC. Nevertheless, the various provisional measures available under the UPCA as detailed in its articles 60, 61, 62 (and elaborated further in Rules 206-211 UPC RoP) do not leave much to the residual competence of the national courts of the Contracting States.

Emergency arbitration as procedural solution

To somehow downsize this procedural issue, the adoption by the PMAC of an emergency arbitrator mechanism would be a welcome amendment in line with the best modern practices of international commercial arbitration. As the need for adopting provisional measures often arises at the outset of the arbitral proceedings, an emergency arbitrator – appointed before the arbitral tribunal is constituted – is in the position to order any interim relief. Further, unlike a State court, the arbitrator would not be prevented from adopting such interim relief by the exclusive competence of the UPC on such measures, since the exclusivity is directed only at excluding other State courts. Moreover, the emergency arbitrator’s provisional measure adopted in the form of an interim award may be more likely to be enforced than UPC orders in jurisdictions beyond the territory of the UPC. For example, the Singapore High Court has confirmed in 2022 that a foreign seated emergency arbitrator award was enforceable under the Singapore International Arbitration Act 1994.

This mechanism could be implemented by the PMAC in its arbitration rules. By way of comparison, for instance, article 43 of the WIPO Expedited Arbitration Rules provides for a detailed procedural framework on “Emergency Relief Proceedings.” According to such framework a party seeking urgent interim relief prior to the establishment of the arbitral tribunal can submit a request for such emergency relief to the Arbitration Institution, which within two days appoints a sole emergency arbitrator who may in turn order any interim measure it deems necessary.

Final remarks

With the view of resizing this procedural problem – which originates from the exclusive competence of the UPC on interim relief in relation to PMAC arbitrations seated in third countries where UPC provisional measure may not be enforceable – it is important to remark that the UPCA contains already a self-correcting mechanism. Namely, by providing at article 62 UPCA for the payment of a recurring penalty in case of non-compliance with a given provisional measure, the UPCA gives the applicant for an interim relief a pecuniary alternative that the UPC can order and enforce within its jurisdiction on the assets of the non-compliant defendant. However, the problem may reemerge in case of provisional measures aimed at preserving evidence located in a third country. In this case the payment of a recurring penalty may not serve its purpose and play only a mild deterrent effect. In such cases, the UPC may draw negative inferences from the lack of cooperation of the defendant, although neither the UPCA nor the UPC RoP expressly provide so.

 

I could not quite think of a catchier title conveying both the plus (claim will continue to be heard in England) and the minus (the discussion having already caused considerable delay), without resorting too obviously to football metaphors.

The claim is brought in England by a number of Liverpool fans physically and psychologically damaged by the poor security at the May 2022 Champions League Final at Paris’ Stade de France. Claimants allege that UEFA had organisational responsibilities for the match and that they owed, and were in breach of, contractual and/or tortious duties concerning the safety of the
claimants.

The case illustrates a problem highlighted by Oliver Holland (partner with Leigh Day, the law firm representing claimants however not, as far as I am aware, involved in the claim), last week at a hearing at the UK Parliament’s human rights committee. (Mr Holland did not give current claim as an example and seeing as the hearing focused on forced labour in the supply chain, he likely did not have the claim in mind at his testimony).

Defendants in personal injury claims (whether or not linked to business and human rights) have quite the series of avenues available to them to try and derail the claims in the English courts. These include (Mr Holland discusses some of these)

objections to jurisdiction, including the infamous doctrine of forum non conveniens;

the prospect of (handy for its freezing effect) very considerable adverse costs orders whether or not coupled with security for costs; and (with impact on the costs issue)

a tendency to entertain issues of both jurisdiction and applicable law at considerable length.

Other jurisdictions of course suffer from similar challenges and I for one am not going to complain about a good conflict of laws yarn. Moreover, Lord Briggs denouncing mini-trials at the jurisdictional stage in Vedanta (Turner J in current case refers to this [15]), and the Court of Appeal’s instructions on forum non in Dyson, ought to bring more discipline to at least some of this maneuvering.

Sean Abram and others v UEFA and UEFA Events SA [2025] EWHC 483 (KB) engages with another means to try and bounce the case away from England and Wales: namely the doctrine of foreign act of state.  For an excellent primer and discussion of the future of the principle see Mary Newbury here.

[5] The principal basis for UEFA’s jurisdiction challenge is that the claims would require the English Court to adjudicate on the lawfulness or validity of acts of a foreign state (France) performed within its own territory, which, UEFA argue, would be impermissible under said “Foreign Act of State Doctrine”.

I have posted quite a few times on the doctrine: see among others

Crane Bank Ltd & Ors v DFCU Bank Ltd & Ors [2023] EWCA Civ 886 which [13] defined the doctrine as courts “will not adjudicate or sit in judgment on the lawfulness or validity under its own law of an executive act of a foreign state, performed within the territory of that state” and which entertained a number of exceptions to the doctrine, as well as in my opinion leaving a potential incompatibility of (some of the implications of) the doctrine with Article 6 ECHR underdiscussed;

SKAT [Skatteforvaltningen v Solo Capital Partners Llp [2022] EWCA Civ 234] in which both the Court of Appeal and later the Supreme Court focused on the substance rather than the context of the claim (in my post I flag the echos of the Brussels /Lugano ‘civil and commercial’ discussions);

Reliance v India  [2018] EWHC 822 (Comm) where Popplewell J (as he then was) held on whether the doctrine applies to arbitration tribunals;

Servis-Terminal LLC v Drelle [2025] EWCA Civ 62 which flags the need to seek formal recognition of a foreign judgment before its enforcement with Newey LJ suggesting the similar roots of this requirement as the foreign act of state doctrine.

There is certainly merit in holding on jurisdictional issues separately, before extensive engagement with the merits, at least where these objections are not obviously spurious and cannot be summarily addressed. Even in those States where civil procedure rules (CPR) give defendants a procedural right to hear the jurisdictional objections first (the E&W means is Part 11 of the CPR), and despite Turner J’s appreciation that the matter must be dealt with concisely (and note [17] his rejection of defendants’ request to delay even further and squeeze this jurisdictional objection even more), I think continental rules would not have allowed the discussion in current case to take on the extensive nature that it has, with all the costs and time delay this has already caused. And there is potential for an appeal I imagine.

The foreign act of state element of the discussion at issue, if of any relevance at all, clearly in my view is entirely incidental or ‘contextual’ and not substantial, per UKSC SCAT above and therefore simply cannot lead to rejection at the jurisdictional stage. The summary [65] in my view is poignant:

claimants make no direct allegations of unlawfulness in their Particulars of Claim in respect of the conduct of the French police or any other state entity. The defendants contend, however, that the issue of the lawfulness of such conduct is nevertheless bound to arise as an important issue
in the proceedings if the case were to be permitted to proceed further.

There is no suggestion that the way in which the claim has been formulated is designed as it were to circumvent the Foreign Act of State doctrine and that the real object of the proceedings as it were is to hold on the validity of actions by a French state entity. The pleaded case as is clear from Abram v UEFA [2024] EWHC 1518 and as summarised here [64] focuses genuinely on UEFA and consorts’ (in)actions.

Defendants contend, however, that the issue of the lawfulness of such conduct is nevertheless bound to arise as an important issue in the proceedings if the case were to be permitted to proceed further, ([126] ff they point to issues of French law to support this argument) and (ia [77]) argue that there cannot be a ‘threshold requirement’ below which the assessment of a foreign act of state becomes de minimis and does not engage the doctrine.

The judge, after having made a thorough and clear overview of both the principle (including [82] ff the absence of established authority on what amounts to an act of state) and its exceptions (much more entertained in case-law) as applied by the authorities,

[91] notes that the principle must not extend beyond the natural bounds required to fulfil the aims which it is intended to achieve (international comity, GAVC);

[106] accepts that “some aspects of the conduct of the French government and the other listed public bodies through its higher officials may (and I stress may) amount to acts of state”; however that “the task of determining which, if any, of these acts do engage the Doctrine cannot be confidently carried out on the present incomplete state of the pleadings and evidence”.

[108] ff Two relevant exceptions to the rule are further discussed obiter. The second exception is discussed [122] ff: where challenges to foreign acts
of state are merely ancillary to the claim or by way of collateral aspersion. I know this exception has been so determined by the authorities yet in my opinion would be better formulated not as an exception but as a substantive limitation to the rule.

As a side-note, there appears to be some confusion on the law that will apply to the merits of the case: see [18] ff

18. Until very shortly before the hearing of the application before me,
the claimants had been proceeding under the assumption that
French law applied to the claims of all the claimants. Experts in
French law were duly instructed to report on behalf of the
claimants and defendants respectively.
19. However, it transpires that the position may have been less clear
cut because only some of the claimants had purchased tickets
from the UEFA online ticket portal. Others had bought them
directly from Liverpool FC. Owing to the lateness of the
realisation of the true position, the claimants’ skeleton arguments
deployed for the purposes of the hearing before me had been
drafted on the premise that all of the claims were governed by
French law.
20. The position of the claimants, as now articulated in a letter dated
2 October 2024, is that their claims in tort are subject to French
law regardless of their provenance and so too is any contractual
claim in respect of those tickets purchased from the UEFA online
ticket portal. However, contractual claims brought by claimants
who received their tickets from Liverpool FC involve the
imposition of an English contractual duty to take reasonable skill
and care to be considered in regard to French health and safety
laws and regulations as applicable to the stadium. No purpose
would here be served by articulating their reasons for reaching
this view.

No doubt the cross-over between contractual claims (subject to assimilated Rome I) and non-contractual claims (Rome II, ditto assimilated) and, I imagine, the application of the consumer section of Rome I, will be made clearer in the continuation of the claims.

Geert.

 

The Riga Graduate School of Law will host on 7 and 8 June 2025 a conference to discuss the current weaknesses of EU private international law and share suggestions for improvements. The event aims to cover all areas of EU private international law. Those interested at making a presentation at the conference, are invited to […]

 

As was mentioned before on this blog, increasing the participation of African states in the HCCH appears to be the most promising avenue to strengthen judicial cooperation on the African continent in the context of intracontinental, interregional as well as global judicial integration. Following several unsuccessful attempts to establish a physical presence on the African continent,[1] the HCCH Council on General Affairs and Policy (CGAP) has now warmly welcomed the Kingdom of Morocco’s proposal to host and, perhaps most importantly, entirely fund a HCCH Regional Office for Africa (ROAF) in Rabat.[2] While the capital of multilingual Morocco, at the crossroads of North Africa with both Europe and the Arab world, seems to be an ideal location for such an endeavor, the proposal does not (yet?) appear to also include the Arabian Peninsula. However, as the Moroccan Ministry of Justice is explicitly seeking to play an active role in the framework of the League of Arab States (LAS) as well,[3] it is not unlikely that the ROAF will follow the example of the Regional Office for Latin America and the Caribbean (ROLAC) in Buenos Aires and the Regional Office for Asia and the Pacific (ROAP) in Hong Kong and cover a broader regional spectrum.

 

The excerpt from the HCCH CGAP 2025 Conclusions and Decisions (C&D) reads as follows:

A. Proposal for the Establishment of a Regional Office for Africa

83 CGAP warmly welcomed the proposal of the Kingdom of Morocco to host a Regional Office for Africa (ROAF) and decided that the office may be opened in accordance with the 2020 Rules for the Establishment of Regional Offices (2020 Rules). The Regional Office, which will be located in Rabat, shall operate continuously for a period of five years. CGAP will conduct a Performance Review, in accordance with Rules 6 to8 of the 2020 Rules.

84 CGAP noted with satisfaction, and thanks, the Kingdom of Morocco’s commitment to fund the entire operation of the Regional Office. CGAP also reaffirmed that the Representative shall report exclusively to the Secretary General of the HCCH. The Government of the Kingdom of Morocco and the Secretary General will finalise the Host Seat Agreement in light of the comments made by Members at CGAP 2025. The final version of the Agreement shall be shared with Members for information.

 

The full HCCH CGAP 2025 C&D are now available on the HCCH Website (here).

[1] See HCCH Prel. Doc. No. 6 of 2015 – Africa Strategy, paras 7 and 10.

[2] HCCH CGAP 2025 C&D, paras. 83 et seq.

[3] Press Release of the Kingdom of Morocco’s Ministry of Justice of March 2025.

 

 

The Japanese Yearbook of International Law  (JYIL) is a leading reference publication that provides in-depth analysis and commentary on developments in international law from a Japanese perspective.

Published by the International Law Association of Japan since 1957 (originally as the Annual Yearbook of Private International Law until 2007), the JYIL covers a broad spectrum of topics, from public and private international law to comparative law, bringing together insights from top scholars and legal experts in Japan and beyond.

Each issue dives into key legal cases, legislative updates, and emerging trends, making it a must-read for researchers, academics, and professionals looking to stay in the loop on Japan’s legal landscape.

 

On that note, the latest volume of the JYIL (Vol. 67, 2024) has recently been released. Readers of this blog may find particular interested in selected articles, case notes, books review and English translations of court decisions related to private international law.

 

LEGAL ANALYSIS ON SUCCESSION SUBSTITUTES

(Author’s note: This Volume’s PIL Special Issue)

 

Dai Yokomizo

Introductory Note (p. 162)

 

OSHIMA Lisa

The Potential and Limitations of Contracts That Function as Succession Substitutes (p. 164)

 

Dai Yokomizo

Succession Substitutes and Japanese Conflict of Laws: Including the Possibility of Introducing Limited Professio Juris to Japanese Choice-of-Law Rule Relating to Succession (p. 180)

 

Takami Hayashi

Conflict-of-Law Issues Regarding Succession Substitutes with a Focus on Trusts (p. 195)

 

Charlotte Wendland

The Law Applicable to Succession Substitutes: European Perspective (p. 214)

 

Takeshi Fujitani

Succession Substitutes and Taxation – An Analysis from the Perspective of Party Autonomy and Tax Neutrality – (p. 253)

 

CASES AND ISSUES IN JAPANESE PRIVATE INTERNATIONAL LAW

(Author’s note: Case Notes)

 

Yusuke Tanemura

Breach of the Arbitrator’s Obligation of Disclosure in Article 18(4) of the Arbitration Act (p. 446)

 

Naohiro Kitasaka

Application Mutatis Mutandis of Art. 117(1) of the Child Abduction Convention Implementation Act to a Return Agreement in an In-Court Conciliation (p. 460)

 

BOOK REVIEWS

(Author’s note: Selection only)

 

Corporate Environmental Responsibility in Investor-State Dispute Settlement: The Unexhausted Potential of Current Mechanisms, by Tomoko Ishikawa. Cambridge and New York: Cambridge University Press, 2023. Pp. xxxix, 302.

Reviewed by NISUGI Kento (p. 489)

 

Chugoku ni okeru Kokusaitorihikifunso Kaiketsuho [International Commercial Dispute Resolution Law in China], by Yukio Kajita. Tokyo: Nihonhyoronsha, 2022. Pp. 344

Reviewed by Xi Feng (p. 506)

 

Kokusaidairishokeiyakuho no Kenkyu [International Aspects of the Law of Commercial Agency], by KIM Mihwa. Tokyo: Shinzansha, 2022. Pp. xii, 382

Reviewed by Masayo Kataoka (p. 516)

 

The International Law of Sovereign Debt Dispute Settlement, By Kei Nakajima. Cambridge: Cambridge University Press, 2022. Pp. xxx, 339

Reviewed by Yuka Fukunaga (p. 522)

 

Ko no Hikiwatashi-Tetsuzuki no Riron to Jitsumu [Theory and Practice of the Procedure for Ha-nding-Over a Child in Custody Disputes], edited by Kazuhiko Yamamoto. Tokyo: Yuhikaku, 2022. Pp. x, 373

Reviewed by Hajime Sakai (p. 536)

 

Kokusaihochitsujo to Gurobaru Keizai [International Legal Order and Global Economy], edited by Masaharu Yanagihara, Koichi Morikawa, Atsuko Kanehara, and Taro Hamada. Tokyo: Shinzansha, 2021. Pp. xvi, 614

Reviewed by Satoru Taira (p. 541)

 

JUDICIAL DECISIONS IN JAPAN

II. Private International Law

(Author’s note: Case Law Translation)

 

Osaka High Court; Adjudication, May 26, 2021 (p. 581)

International Child Abduction – Habitual Residence – Infant

 

Tokyo High Court, Judgment, January 25, 2023 (p. 584)

Applicable Law to Vicarious Liability – Traffic Accidents of an Employee on Overseas Business-Trips – Escape Clause

 

Tokyo High Court, Judgment, October 30, 2023 (p. 589)

State Immunity – Un recognized States – jurisdiction – Place of Tort – Continuous Tort

 

Tokyo District Court, Judgment, May 9, 2022 (p. 594)

Validity of Agreements on jurisdiction – Sea Carriage Contracts – Surrender Bill of Lading (B/L)

 

Tokyo District Court, Judgment, March 27, 2023 (p. 597)

Applicable Law – Labor Contracts – Mandatory Provisions – Place with Which the Labor Contract Is Most Closely Connected – Place of Business at Which the Worker Was Employed – International Airline Cabin Crew

 

Yokohama Family Court, Judgment, March 30, 2021 (p. 602)

Recognition and Enforcement of Foreign judgments on Child Custody

 

• The full table of contents will be made available soon on the JYIL’s website.
• More information about the Yearbook and the content of its previous volumes can be found here.
• The full contents of Vols. 1-65 (1957-2022) are available on HeinOnline.

The conclusions and decisions adopted by the Council on General Affairs and Policy (CGAP) of the Hague Conference on Private International at its 2025 meeting, which ended today, have just been made available here. Ongoing Projects In the coming months, additional meetings will be convened of the Working Groups in charge of the Parentage / […]

I am much pleased that Dr Brooke Marshall has accepted to write on CJEU Lastre for the blog. Dr Marshall has written the guiding volume on the issue (highlights of the book’s launch are here). True to form, her analysis below is as complete as it is on point, and a most excellent addition to the analysis already out there.

Geert.

 

CJEU on substantive validity and on asymmetric clauses: what we now know, and what we (still) don’t.

The background to Case C-537/23 Società Italiana Lastre ECLI:EU:C:2025:120, and commentary on it, has already been expertly provided by François Mailhé, Gilles Cuniberti, and Geert van Calster. It is a privilege for me to contribute to that discussion on this excellent blog.

My post confines itself to the questions that the French Cour de cassation asked and the answers which the CJEU gave (and did not give). My analysis draws heavily from my book on the subject, so pinpoint references to that are given in each section below.

The asymmetric jurisdiction clause in issue said:

‘the court of Brescia [(Italy)] will have jurisdiction over any dispute arising from or related to this contract. [SIL] reserves the right to bring proceedings against the purchaser before another competent court in Italy or elsewhere’.

The preliminary questions of the Cour de cassation, in essence, were:

(1) Is a complaint about a clause’s asymmetric character or imprecision an autonomous (EU law) question or a question of the clause’s substantive validity? Or should substantive validity be interpreted restrictively ‘and regarded as relating purely to the material grounds for invalidity, which are principally fraud, error, deceit, violence and incapacity’?

(2) If it is an autonomous question, is a clause like the one in issue compatible with Art 25 of the Recast?

(3) If asymmetry goes to substantive validity, how does the conflict-of-laws rule in Art 25 of the Recast work? Which court’s law applies and does that law include renvoi?

These were all good questions, each deserving an answer. Regrettably, the Court only answered the first two.

The Court’s decisions on the first question:

I. The phrase ‘null and void as to its substantive validity’ must be interpreted autonomously

The Court begins at [30] by resolving several uncertainties attending the process of characterisation and the substantive validity rule, which are relevant to jurisdiction clauses generally. The first is as to which law applies to the interpretation of the phrase ‘null and void as to its substantive validity’ in Art 25(1). It had hitherto been uncertain whether the meaning of that phrase and the scope of the issues it covers was a question to be resolved by the law of the court seised, by reference to an autonomous interpretation or by reference to the law applicable to substantive validity of the clause itself, as designated by the conflict-of-laws rule in Art 25(1).

Sensibly, and unsurprisingly in my and Gilles Cuniberti’s view, the Court decides that this question is to be resolved by an autonomous interpretation. This ensures that issues of substantive validity, governed by national law, do not overlap with other aspects of Art 25(1) which are governed by an autonomous approach. Several of those other aspects are pointed out by the Court at [35], namely: that ‘the parties … have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship’, which the Court describes as requirements as regards a jurisdiction agreement’s ‘substance’; and that the agreement complies with conditions as to form. In this respect, the Court’s decision coheres with its decision in C- 519/ 19 Ryanair DAC, paras 41, 48– 61. There, the Court observed that it is for the court seised to ascertain first whether a jurisdiction agreement satisfies the requirements of form and consensus under the Recast before turning to the separate issue of substantive validity. So far, so good.

Asymmetric Jurisdiction Clauses (OUP 2023), para 6.35.

 

II. Few issues can be characterized as issues of substantive validity (and asymmetry is not one of them)

At [36] and [37], the Court resolves a second uncertainty of general application, namely as to which kinds of issues can be characterized as issues of substantive validity, adopting a restrictive approach. It rules that ‘that concept covers the general causes of nullity of a contract, namely, in particular, those which vitiate consent, such as error, deceit, violence or fraud, and incapacity to contract’ and that it must be interpreted as ‘referring solely to [a jurisdiction agreement’s] nullity in respect of general causes of nullity of a contract’ (my emphasis). In other words, the issues that we knew were already covered by the substantive validity rule are covered but nothing else.

That nothing else is covered is a surprising result, given that there had been some sign that the CJEU might favour a broad interpretation in C- 519/ 19 Ryanair DAC, para 50. One of the reasons the Court gives for its approach is to reflect the solution taken in the 2005 Hague COCA Convention (at [40]). It does not say anything more, but the Court seems to be insinuating that since there is some support for the view that the null and void rule under Art 5(1) of the COCA Convention should be interpreted restrictively (see the COCA Convention’s Explanatory Report, para 126), so too should the substantive validity rule under the Recast. I, therefore, share Gilles Cuniberti’s view that the Court may seek to align its interpretation of the null and void rule in the COCA Convention and the substantive validity rule in the Recast.

Asymmetric Jurisdiction Clauses (OUP 2023), para 6.37, cf paras 6.38-6.48, 6.52–6.55

 

III. A complaint about asymmetry in a jurisdiction clause is an autonomous question (and only an autonomous question)

In light of the Court’s restrictive approach to the characterization of issues relevant to substantive validity, the Court consequentially rules at [51] that ‘the validity of an agreement conferring jurisdiction in view of its alleged asymmetry must be examined having regard not to criteria relating to the causes of an agreement being ‘null and void as to its substantive validity’, within the meaning of the first sentence of Art 25(1) of the Brussels Ia Regulation, but to autonomous criteria which are derived from that Art 25 as interpreted by the Court.’

Seemingly, to justify that autonomous approach, the Court relies on the fact that the former Art 17(4) of the Brussels Convention expressly provided for clauses to the benefit of one party and that asymmetric jurisdiction agreements which favour consumers, insureds etc, and employees are contemplated and permitted by Recast: [48]–[50], [52]. For cogent criticism on the latter point, see Geert van Calster’s post.

Asymmetric Jurisdiction Clauses (OUP 2023), paras 1.27–1.36 cf paras 6.69–6.82

 

IV. Whether a jurisdiction clause is sufficiently precise is a question to be resolved by applying an autonomous standard

The Court reiterates the requirement that the court or courts on which the agreement confers jurisdiction must be sufficiently precisely identified, and that this applies to Art 25(1) of the Recast, as it did to the Recast’s predecessors: [45]. Any complaint about an asymmetric jurisdiction clause being insufficiently precise must, therefore be resolved autonomously: [47].

Frustratingly, the Court merely repeats the crux of that previous case law without elaboration at [42]:

‘It is sufficient that the clause state the objective factors on the basis of which the parties have agreed to choose a court or the courts to which they wish to submit disputes … Those factors, which must be sufficiently precise to enable the court seised to ascertain whether it has jurisdiction, may, where appropriate, be determined by the particular circumstances of the case being examined by the court.’  (C-387/98 Coreck, para 15; C-222/15 Hőszig, para 43).

Asymmetric Jurisdiction Clauses (OUP 2023), paras 6.05–6.07

 

The Court’s decisions on the second question:

 V. Assessed autonomously, an asymmetric jurisdiction clause is valid under EU law and sufficiently precise where the optional limb can be interpreted as contemplating proceedings only before an EU Member State or EFTA Lugano State court

The Court rules that an asymmetric jurisdiction is in principle valid/admissible under EU law, relying especially on the need to protect party autonomy (recital 19) (see [56], [58], [64], [65]). No surprises there, until one does a double take at [58]: what the Court rules is valid is an asymmetric jurisdiction clause the optional limb of which is limited to courts with jurisdiction under the Recast and the 2007 Lugano Convention. More on that in a moment (see VI).

So far as the requirement of precision of content is concerned, the Court rules at [59] that an asymmetric agreement clause which designates a particular EU Member State or EFTA Lugano State court, on the one hand, and courts which have jurisdiction under the Recast and 2007 Lugano Convention, on the other, ‘satisfies the requirement of precision resulting from Art 25(1) of that regulation and the objectives of foreseeability, transparency and legal certainty, set out in recitals 15 and 16 of that regulation.’ Subject to the reservations I have as to what the Court means by the word ‘designate’ (see VIII below), that seems to me to be a cogent conclusion:  ‘any court with jurisdiction’ is an objective factor that is sufficiently precise, assessed from the perspective of a court seised: any court EU Member State or EFTA Lugano State court which would otherwise regard itself as competent has jurisdiction.

Asymmetric Jurisdiction Clauses (OUP 2023), paras 6.09–6.10

 

VI. Assessed autonomously, an asymmetric jurisdiction clause is not sufficiently precise and contrary to EU law where the optional limb is to be interpreted as contemplating proceedings before a Third State court

The Court rules at [60] that, if, in referring to ‘another competent court … elsewhere’, the agreement ‘must be interpreted’ as meaning that it also designates the courts of one or more Third States, it would be contrary to the Recast. Put another way, the asymmetric clause in issue ‘is incapable of satisfying the requirement of precision, … unless it may be interpreted as designating the court of Brescia and the courts of Member States or States that are parties to the Lugano II Convention as having jurisdiction to resolve disputes between the parties’: [62] (my emphasis). In practical terms, if the words ‘another competent court … elsewhere’ could encompass an English court, for example, because one of the parties has some connection to England, the clause would not be valid under the Recast.

What I find curious about this aspect of the Court’s decision is the lack of clarity in the reasoning it used to get there. It reasoned, at [60], that where the optional limb can be interpreted as contemplating proceedings before a Third State court:

‘that agreement conferring jurisdiction would not be consistent with the objectives of foreseeability, transparency and legal certainty referred to in recitals 15 and 16 of that regulation, to the extent that EU law does not, in itself, make it possible to designate the courts which have jurisdiction, as that designation is, where appropriate, the result of the application of the rules of private international law of third countries.’

While it is true that whether a Third State court is competent is not the result of EU law, it is difficult to see why that matters if the requirement of precision applies to the clause as a whole and is to be assessed only from the perspective of a court seised. Indeed, it is difficult to see why the criterion ‘another competent court … elsewhere’ is not an objective factor or why it is insufficiently precise, assessed only from the perspective of a court seised: any court which would otherwise regard itself as competent has jurisdiction, whether that court is a Third State court or not. Although the optional limb does not, in my view, confer jurisdiction on those courts (only the clause’s first sentence designating the courts of Brescia does that), the optional limb provides a criterion allowing any court that is seised to determine whether it is one of the courts before which the parties had contemplated that the option holder could bring proceedings.

Instead, the Court could have more persuasively justified its decision by elaborating on its previous case law in C-387/98 Coreck and C-222/15 Hőszig to clarify that the requirement of precision applies as much to the parties as it does to the court. Put another way, the Court could have clarified that the requirement of precision is not to be examined purely from the perspective of a court seised; rather, as a result of the ‘objectives of foreseeability, transparency and legal certainty, set out in recitals 15 and 16’ of the Recast,  it also requires that the parties be able to foresee from a jurisdiction clause where they may be called upon to defend proceedings. Reference to C-566/22 Inkreal paras 28–29 would have done the job. There, the court said that an agreement conferring jurisdiction coheres with the aim of legal certainty because it ‘helps the applicant to ascertain the court before which he or she may bring proceedings and the defendant to foresee the court before which he or she may be sued, and enables the national court seised to be able readily to decide whether it has jurisdiction’. (The Court did refer to Inkreal but, unfortunately, not to make this point.)

I had foreshadowed the Court’s decision at [60] and [62] as a possible problem for asymmetric clauses of this kind, albeit on the argument that an aspect of the requirement of precision under EU law ought to be that the agreement should allow a reasonably well-informed defendant to foresee the courts before which they may be sued. I had suggested that since it was uncertain what the CJEU may say, it might be thought prudent for drafters to specify (expressly) that ‘any competent court’ is restricted to those within the EU or to an EFTA Lugano State, if that was their intention. In light of the CJEU’s decision, that suggestion may well warrant some serious consideration.

The Court’s decision may also give cause to reconsider non-exclusive jurisdiction clauses which designate one EU Member State or EFTA Lugano State court, to the extent that these impliedly permit both parties to bring proceedings before any other competent court, including Third State courts.

Asymmetric Jurisdiction Clauses (OUP 2023), paras 2.31–2.33, 5.50, 6.10, 6.14–6.24

 

Unanswered questions

VII. So is the clause in Case C-537/23 Società Italiana Lastre sufficiently precise and compatible with the Recast?

This is not a question for the CJEU to answer and, on my reading, it is not one which the Court did. For a different view, see Gilles Cuniberti’s post. Note that the Court’s careful use of conditional language in [60] and [62] ‘if’ … ‘unless’… One may only speculate on how a French court will now interpret the clause against the backdrop of the CJEU’s rulings.

 

VIII. Which court(s) does an asymmetric clause ‘designate’? And how does the substantive validity rule work for them?

The Court, is to my eyes, vague or perhaps ambivalent as to which court or courts an asymmetric clause typically ‘designates’ (ie confers jurisdiction on/ prorogates the jurisdiction of). Does it designate (1) only the ‘anchor court’ (to use Richard Fentiman’s words), here Brescia, and merely preserve the special or general jurisdiction that other courts have under the Recast or 2007 Lugano Convention for one of the parties? Or (2) does it ‘designate’/confer jurisdiction on/prorogate the jurisdiction of all those courts? The Court’s reasons at [55] suggest the latter and [59] appears to contemplate both possibilities.

This opacity is regrettable for multiple reasons. One reason is that the conflict-of-laws rule in Art 25(1) for determining a clause’s substantive validity presupposes that the clause confers jurisdiction on/designates only one court. That conflict-of-laws rule necessitates the following interpretation for an asymmetric clause of this kind: only the anchor court is ‘prorogated’ and the jurisdiction under the default rules of the courts the subject of the option is preserved but not prorogated. On that argument: if the anchor court is seised by either party, it should apply the law selected by its conflict-of-laws rules to the substantive validity of the clause (assuming renvoi is included – see IX below). If, instead, another court is seised, it should apply the law selected by the anchor court’s conflict-of-laws rules to the clause’s substantive validity. Whether that other court is seised by the option holder, according to the agreement, or by the non-option holder, contrary to it, is immaterial for the purposes of the rule.

Put another way, if that argument is wrong and an asymmetric clause of this kind ‘designates’ more than just the anchor court, the Court will (again) be called upon to explain how the substantive validity rule is supposed to work for a clause that ’designates’ multiple courts. It is a shame that it did not grasp the nettle and do so in this case.

Asymmetric Jurisdiction Clauses (OUP 2023) paras 5.07–5.09, 5.33, 6.58–6.59

 

IX. Is renvoi included in the substantive validity rule?

Also unfortunate is that the Court did not clarify whether the conflict-of-laws rule for substantive validity in Art 25(1) includes renvoi as recital 20 suggests. At [33], as Geert van Calster has highlighted, the Court quotes recital 20 in its entirety but for the crucial words ‘including the conflict-of-laws rules of that Member State’. Alignment of the conflicts rule in Art 25(1) with the COCA Convention, which the Court appears to favour (see II above) would militate in favour of including renvoi. What one should make of the Court’s misleading truncation of recital 20 is, therefore, anyone’s guess.

Asymmetric Jurisdiction Clauses (OUP 2023), paras 6.50–6.51

 

Luxembourg should expect more questions to come…

Brooke Marshall.

The Court of Justice gave on 6 March 2025 its ruling in Anikovi. The case concerns the scope of application of the Brussels II ter Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and its relationship with conventions concluded by a Member State with a […]

The OSAKA UNIVERSITY LAW REVIEW (OULR) is a prestigious international academic journal on law and politics with a rich history. Published annually by the Graduate School of Law and Politics at Osaka University since 1952, the OULR offers a valuable platform for discussing and sharing information on Japanese law and politics, all presented in English and other foreign languages including French and German from a comparative law perspective.

The OULR’s ultimate goal is to foster debate and facilitate the exchange of ideas between Japanese and international scholars, while promoting and disseminating original research in the fields of Japanese law and politics and other related areas.

 

That said, the latest volume (No. 72) features some papers that might be of interest to the readers of this blog, as well as researchers and practitioners of private international law. These papers highlight important legal developments in China, particularly in the areas of international civil procedure and sovereign immunity.

 

Hongman QIN, Yongping XIAO, and Xiaoke LUO

New Developments in Chinese International Civil Procedure Law: A Perspective from the Fourth Restatement of the Foreign Relations Law of the United States

Asbtract:

This paper explores and compares the 2023 amendments to the Civil Procedure Law of the People’s Republic of China with the corresponding rules in the Fourth Restatement of the Foreign Relations Law of the United States. It finds that China’s new rules on international civil jurisdiction, the doctrine of forum non conveniens, service and evidence-taking abroad, and the structured mechanisms for recognizing and enforcing foreign judgments are clearer and more detailed for respecting other countries’ sovereignty and facilitating the participation of Chinese and foreign parties in litigation before Chinese courts. These updates reflect China’s efforts to modernize its legal framework, enhance judicial efficiency, align with international norms, promote cross-border legal cooperation, and ensure the protection of national interests while facilitating cross-border legal interactions.

 

Zhengxin HUO

A Landmark Change from Absolute to Restrictive Immunity: A Commentary on Foreign Sovereign Immunity Law of the People’s Republic of China

Abstract:

On 1 September 2023, the Chinese national legislature adopted the ‘Law of the People’s Republic of China on Foreign State Immunity’. Comprising 23 articles, the Law represents a landmark change in China’s foreign state immunity doctrine from absolute to restrictive immunity. The Law deals with a foreign state’s immunity and property from civil lawsuits in Chinese courts and judicial enforcement in the People’s Republic of China, representing a new chapter for foreign states in Chinese courts. The adoption of the restrictive immunity doctrine significantly increases the scope of proceedings to be pursued against foreign states with respect to their commercial transactions and enforcement actions to be implemented against foreign states’ commercial assets within China. Parties entering commercial transactions with foreign states will benefit from this law in the event that a dispute arises, and thus, enforcing their rights against a state in Chinese courts becomes necessary.

 

These papers are available online for free—just click and save them to your preferred device!

You can find all past issues of the OULR in the Osaka University Journal Repository. [here].

 

I personally had  the opportunity to publish an article on the recognition and enforcement of foreign judgments in Japan in the OULR in the past.

 

The OULR also welcomes submissions in foreign languages, including French or German. Those who are interested in having their research published in the OULR, please refer to our Guide for Authors [available here]. As a tradition, the submission deadline for manuscripts is the first Tuesday of the first week of November. All details about submissions can be found in the Guide for Authors.

 

For those able to read Portuguese, 3 new books of great interest have been published in the last months.

In January 2025, Professor Luís de Lima Pinheiro published a new, 4th edition of Volume I of the treatise on Private International Law. In more than 600 pages, the book gives an introduction to Conflict of Laws and deals with the General Part of this field. Along with the in-depth analysis of all those subjects, a comprehensive list of legal literature can be found at the beginning of each Chapter.

In November 2024, Professor Dário Moura Vicente published the 5th volume of his PIL “Essays” collection. It gathers 22 scholarly contributions of the author divided into five categories, namely general issues of Private International Law, jurisdiction and recognition of foreign judgments in the EU, international unification of Private Law, the information society and its international regulation, and international arbitration.

And in October 2024, Professor Elsa Dias Oliveira published a book on Conflict of Laws in the EU. It deals with the «general part» issues that for decades have been puzzling many European private international lawyers, due to the fact that for some of them, such as renvoi or ordre public, we may find explicit rules in many PIL regulations, while for others, such as characterization or the application of foreign law, that is not the case.

Lauren Clayton-Helm and Ana Speed (both Northumbria University) are hosting a Modern Law Review funded conference at Northumbria University Law school on the 24th April entitled ‘Gender-based violence across borders: challenges and opportunities to establishing routes to safety in a migratory world’.

Further information can be found on the poster.

There will be space for up to 40 attendees.

Registration is mandatory under this link.