Droit international général

Registration is now open for the Summer School ‘Consumer and Market Law in the European Circular Economy’ which will be held from 9 to 18 July 2025: 9-11 July online and 14-18 July in presence at the University of Udine, Italy.

The Summer School is organised by the University of Udine, in cooperation with a consortium of European universities, including University of Essex, De Montfort University of Leicester, University of West Timisoara, East Anglia University, University of Rijeka, University of Belgrade and University of Szeged, within the framework of the Jean Monnet Module CoME CircLE.

The 2025 Summer School will consist of 40 hours of lectures, a workshop and a moot court. Attendees will be offered a comprehensive training on the legal discipline of consumer protection and market regulation in the EU Law, with a particular reference to circular economy, taking into account the following relevant topics: Consumer protection and empowerment issues; Private international law issues; Dispute resolution and redress issues; and Market regulation.

Eligible are undergraduate students, graduatestudents and PhD students, studing Law, Economics, Political Science or International Relations. Application deadline is 31 May 2025, 12.00 pm GMT. Those who are interested in applying, need to fill in the application form and submit it to ip.europeanlaw.uniud@gmail.com.

For details see the programme and the call for application.

In April 2025, Advocate General J. Kokott will deliver her opinion on joint cases C-672/23 , Electricity & Water Authority of the Government of Bahrain e.a., and C-673/23, Smurfit Kappa Europe e.a. The publication is scheduled for Thursday 3. The EAPIL blog has already reported on these (partially identical) Dutch requests for a preliminary ruling concerning […]

HCCH Monthly Update: March 2025

 

Membership

On 5 March 2025, Rwanda deposited its instrument of acceptance of the Statute, becoming the 92nd Member of the HCCH. On the same day, Guatemala applied to become a Member of the HCCH. More information is available here.

 

Conventions & Instruments

On 1 March 2025, the 2005 Choice of Court Convention entered into force for North Macedonia. At present, 37 States and the European Union are bound by the Convention. More information is available here.

On 5 March 2025, Costa Rica signed the 2005 Choice of Court Convention. The Convention will enter into force for Costa Rica?only after it deposits an instrument of ratification pursuant to Art. 31(2) of the Convention. On the same day, Colombia signed and ratified the 2007 Child Support Convention, which will enter into force for Colombia on 1 July 2025. More information is available here.

On 11 March 2025, the Republic of Moldova acceded to the 1996 Child Protection Convention. With this accession, the Convention now has 57 Contracting Parties. It will enter into force for the Republic of Moldova on 1 January 2026. More information is available here.

On 13 March 2025, Bahrain acceded to the 1970 Evidence and 2005 Choice of Court Conventions. The 1970 Evidence Convention, which currently has 67 Contracting Parties, will enter into force for Bahrain on 12 May 2025. As for the 2005 Choice of Court Convention, it currently binds 37 States and the European Union and will enter into force for Bahrain on 1 July 2025. More information is available here.

On 23 March 2025, the 2007 Child Support Convention entered into force for the Dominican Republic. At present, 53 States and the European Union are bound by the 2007 Child Support Convention. More information is available here.

 

Meetings & Events

From 4  to 7  March 2025, the Council on General Affairs and Policy (CGAP) of the HCCH met in The Hague, with over 490 participants joining both in person and online. CGAP mandated the establishment of several new Experts’ Groups (EGs) and Working Groups (WGs) and mandated the continuation of the work of several ongoing EGs and WGs. It also approved the establishment of a Regional Office for Africa, to be hosted by Morocco in Rabat. More information is available here.

From 11 to 13 March 2025, the Regional Workshop on Intercountry Adoption: Sharing Experiences on the Effective Implementation of the 1993 Adoption Convention in Asia was held in Manila (Philippines). More information is available here.

On 19 March 2025, the sixth meeting of the Working Group established to complete the Country Profile and work on the draft Cooperation Request Recommended Model Form for the 1996 Child Protection Convention was held online, hosted by the Permanent Bureau in The Hague. More information is available here.

From 24 to 26 March 2025, the Experts’ Group (EG) on Central Bank Digital Currencies (CBDCs) held its third working meeting. Pursuant to its mandate, the EG made further progress on the study of the applicable law and jurisdiction issues raised by the cross-border use and transfers of CBDCs. More information is available here.

 

Publications

On 4 March 2025, the Permanent Bureau announced the publication of the HCCH 2024 Annual Report. More information is available here.

 

Vacancies

Applications are now open for three- to six-month legal internships for the period from July to December 2025. The deadline for the submission of applications is 25 April 2025. More information is available here.

Applications are now open for a part-time, remote Communications and Outreach Internship, preferably starting in July 2025. The deadline for the submission of applications is 27 April 2025. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

The European Association of Private International Law calls for expressions of interest from its members in participating in a Working Group on the private international law aspects of digital tokens. The immediate goal of the establishment of the Working Group is to prepare for the participation of and represent EAPIL in an Experts’ Group on […]

The European Association of Private International Law has established a Working Group to deal with the private international law aspects of carbon markets. Alex Mills agreed to serve as chair. The immediate goal of the Working Group is to prepare for the participation of EAPIL in the Experts’ Group on the private international law issues […]

The European Association of Private International Law calls for expressions of interest from its members in participating in a Working Group on Trusts and Institutions Analogous to Trusts in the context of the 1985 Hague Trusts Convention. The immediate goal of the establishment of the Working Group is to prepare for the participation of and […]

(This is written by Xiaoxuan Gu, a PhD student in School of Law, University of Macau)

The Foreign State Immunity Law of the People’s Republic of China (CFSIL) took effect on January 1, 2024.[i] To ensure its proper implementation and guide courts nationwide in lawfully and efficiently adjudicating civil cases involving foreign state immunity, the Supreme People’s Court (SPC) formulated supporting procedural rules. On March 26, 2025, the SPC issued the Notice on Procedural Matters Related to Civil Cases Involving Foreign State Immunity (hereinafter the “Notice”), which provides definitive guidance to courts at all levels in handling such novel foreign-related cases.

The Notice stipulates provisions on key procedural matters, including case acceptance criteria, centralized jurisdiction mechanisms, service of process rules, jurisdictional immunity review procedures, and protocols for obtaining evidentiary certifications from the Ministry of Foreign Affairs.

Article 3 of the FSIL explicitly stipulates that foreign states and their property enjoy jurisdictional immunity in Chinese courts unless otherwise provided by the Law.[ii] Therefore, Article 1 of the Notice stipulates that when a plaintiff initiates a civil lawsuit naming a foreign state as a defendant or third party, the plaintiff shall explicitly cite specific provisions of the CFSIL and precisely articulate applicable exceptions to immunity in the petition for judicial review. Petitions that fail to specify the legal basis and remain unclear after judicial clarification by the court shall not be accepted.

At the jurisdictional level, given that civil cases involving foreign state immunity constitute significant new-type foreign-related cases, it is necessary to implement a centralized jurisdiction mechanism to enhance the professional adjudication of such cases. Therefore, Article 2 of the Notice establishes a dual-track system combining centralized jurisdiction and specialized adjudication, which is that the first-instance civil cases involving foreign states as defendants or third parties shall fall under the jurisdiction of intermediate people’s courts with foreign-related civil and commercial jurisdiction at the seats of provincial-level governments (autonomous regions, municipalities directly under the central government) while cases statutorily assigned to specialized courts (maritime, financial, or intellectual property courts) shall remain with such courts due to their domain-specific expertise, notwithstanding foreign state involvement. Where multiple intermediate courts exist in municipalities such as Beijing and Shanghai, the Annex to the Notice explicitly enumerates intermediate courts with centralized jurisdiction. Any other court that has accepted such cases shall issue rulings to transfer them to designated centralized jurisdiction courts in accordance with the Notice.

Articles 3 and 4 of the Notice establish special rules for the service of judicial documents in foreign state immunity cases. Courts shall not employ service by public notice when serving summons or other litigation documents to foreign states, but shall use methods prescribed by international treaties concluded or jointly acceded to by China and the relevant state, or other methods accepted by that state and not prohibited under Chinese law (with no prescribed order of application). Where such methods prove ineffective, courts may effectuate service through diplomatic channels via the Ministry of Foreign Affairs upon approval by the SPC through reporting. Documents requiring service shall include copies of translation in languages specified by applicable international treaties between China and the relevant state; in the absence of such treaties, translations shall be provided in the official language of the foreign state. When serving copies of petitions to foreign states, courts shall concurrently deliver notices of response and notices of evidence submission, informing the recipient to file a statement of defense within three months from the date of receipt. If a foreign country applies for an extension, it shall be examined by the court accepting the case.

Articles 5 and 6 of the Notice prescribe the procedures for courts to review whether foreign states are entitled to jurisdictional immunity. Where a foreign state raises a jurisdictional objection asserting immunity during the jurisdictional period, the court shall conduct a comprehensive review of the immunity claim in accordance with the CFSIL. Even if a foreign state fails to raise such objection or appear in proceedings during the defense period, the court shall conduct active review sua sponte under the aforesaid provisions. The Notice further clarifies that a foreign state’s participation in jurisdictional objection proceedings and presentation of arguments shall not constitute acceptance of jurisdiction. This provision aligns with the legislative intent of CFSIL Article 6(1), which stipulates that a foreign state’s response “solely to assert immunity” shall not be deemed jurisdictional acceptance, while establishing institutional safeguards for foreign states to actively participate in inquiries and evidentiary submissions during objection proceedings, thereby ensuring their procedural rights.[iii]

Article 7 of the Notice stipulates that where a people’s court requires the Ministry of Foreign Affairs to issue evidentiary certifications concerning factual matters related to acts of state in the course of adjudicating civil cases involving foreign state immunity, the court shall, pursuant to Article 19 of the CFSIL submit a request through hierarchical reporting system to the Supreme People’s Court for coordination with the Ministry to obtain such certifications.[iv]

Article 8 of the Notice, as the final provision, specifies that foreign states becoming defendants or third parties through procedural amendments such as party joinder or counterclaims shall be subject to this Notice, while specifically establishing a supplementary mechanism that requires courts at all levels to promptly report issues identified during implementation to the SPC.

[i] See the Law of the People’s Republic of China on Foreign State Immunity at http://en.moj.gov.cn/2023-12/15/c_948359.htm (last visit on March 29, 2025) [hereinafter CFSIL].

[ii] CFSIL Art.3, “Unless otherwise provided by this Law, a foreign State and its property enjoy immunity from the jurisdiction of the courts of the People’s Republic of China.”

[iii] CFSIL Art.6(1),” A foreign State shall not be considered as having submitted to the jurisdiction of the courts of the People’s Republic of China if: 1. it makes a defense for the sole purpose of claiming immunity…”

[iv] CFSIL Art.19, “The courts of the People’s Republic of China shall accept the certifying documents issued by the Ministry of Foreign Affairs of the People’s Republic of China on the following questions of fact concerning acts of State: 1. whether the State involved in a case constitutes a foreign sovereign State as defined in sub-paragraph 1of Article 2 of this Law; 2. whether and when the service of the diplomatic note specified in Article 17 of this Law is effected: and 3. other questions of fact concerning acts of State.

The Ministry of Foreign Affairs of the People’s Republic of China may provide an opinion to the courts of the People’s Republic of China on issues concerning major national interests such as foreign affairs other than those mentioned in the preceding paragraph.”

The author of this post is Antonio Leandro, Professor of Public and Private International Law at the University of Bari (Italy). On 27 March 2025, the Court of Justice delivered its judgment in the Auto1 European Cars case (C-186/24 Matthäus Metzler, acting as insolvency practitioner in insolvency proceedings, v Auto1 European Cars BV), which deals […]

Annual conference

The Annual Conference of the American Association of Private International Law (ASADIP) will take place on 7-9 August 2025 in Rio de Janeiro (Brazil). More information will be available soon.

Moot

ASADIP has its own moot! ASADIP’s moot is free of charge and will be held in Spanish and Portuguese. There is a written and an oral part. Only the 4 highest-scoring teams will participate in the oral rounds, which will take place on 6 August 2025. A few deadlines to bear in mind are:

• Requests for clarification regarding the case must be sent before 23:59 horas (Río de Janeiro time) on 14 April 2025
• Information regarding clarifications will be published on 18 April 2025
• Deadline for team registration is 2 May 2025
• Memorials must be submitted before 23:59 (Río de Janeiro time) on 23 May 2025

The rules of the Moot are available here (including a declaration on the use of AI). The case “Mejía vs. Larrea” is contained in Annex 4.

New Board

A new ASADIP Board was appointed for the period 2024-2027 and is composed of the following officials:

• President: Verónica Ruiz Abou-Nigm (Uruguay).
• Vice-president international relations: Marcos Dotta Salgueiro (Uruguay)
• Vice-president academic matters: Jorge Oviedo Albán (Colombia)
• Vice-president communications and publications: Juan Ignacio Stampalija (Argentina)
• Vice-president financial matters: Felicita Argaña (Paraguay)

Other officials who have been appointed are:

Deputy Vice-presidents, Secretary General (María Mercedes Albornoz (México)) and its Deputy, and vocals. The full names are available here. Many congratulations to all.

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

In Commercial Bank of Dubai v Al Sari [2025] EWHC 400 (Comm) Foxton J discusses at length the identification of the lex causae in a claim that certain of the defendants maliciously prosecuted two sets of DIFC Proceedings.

The losses claimed are legal fees in respect of various proceedings as well as losses alleged to have been suffered from a delay in recovering certain assets.

Claimants contend that the effect of A4(1) Rome II is that the claims for malicious prosecution of relevant DIFC Proceedings are governed by UAE law, or alternatively involve a series of claims, governed, inter alia, by UAE and English law, and that the claims for malicious prosecution of another set of DIFC Proceedings are likewise governed by English law and/or UAE law. In the alternative, by way of a new argument, they contend that UAE law applies as between some parties by virtue of A4(2) Rome II.

It is common ground that the law of the DIFC does not recognise a tort of malicious prosecution of civil claims.

[14] the judge refers to the need consistently to apply concepts in Rome I/II with the same concepts in  Lugano Convention, Brussels Ia although he also, and much justifiably (as I have repeatedly stated) urges caution in doing so for “the cases disclose consideration in the former context of issues which do not seem to be directly germane to the latter.”

[15] Claimants refers to many authorities

“in which the claimant contended it had made what proved to be a worthless, or at least insufficiently valuable, investment in reliance on negligent advice or inaccurate statements. The obvious tension in these cases is whether the place of damage is where the “defective” transaction is irreversibly entered into, the place from which funds are advanced to make it, or where the flaws in the investment subsequently manifest themselves or crystallise (for example through on-sale of the investment at a reduced value).”

The authorities referred to are Kwok Ho Wan v UBS AG [2022] EWHC 245 (Comm), which in turn cited CJEU Kronhofer, CJEU Kolassa, CJEU Universal Music, CJEU Löber v Barclays Bank Plc, CJEU Vereniging van Effectenbezitters v BP. Cockerill J in Kwok suggested that the overall thrust of the CJEU jurisprudence favoured the place of the manifestation of damage, rather than the place of the transaction which led to the damage, as the relevant place for jurisdiction purposes – this was confirmed upon appeal [2023] EWCA Civ 222 where at [33], Sir Geoffrey Vos MR emphasised that the CJEU authorities which the Judge had said were “not entirely clear” reflected their particular facts, and should not be construed as a statute ([33]). The Court of Appeal doubted that there was “a rule that is universally applicable to financial loss cases”. 

Clearly therefore the ‘fact pattern’ [21] needs to be taken into account and specific consideration is made of “two cases which were not defective investment cases, but cases in which a legal wrong had caused the defendant to incur various heads of costs. Those might be said to be closer to the fact pattern here.”: MX1 Limited v Farahzad, and W Nagel v Pluczenik.

[31] ff the judge concludes, with reference (like Kockerill J in Kwok) to prof Dickinson, both his Rome II contribution in Dicey (with the use of ‘reversability’), and [35] his chapter in the Gedächtnisschrift for Professor Jonathan Fitchen : 

“The central submission of this chapter is that the concept of ‘damage’ within EU private international law is an active one which fixes upon the way in which the relevant event brings about its (claimed) effects upon the victim by adversely affecting a legally protected interest of that person to which the claim relates. This opens up the possibility of classifying different kinds of legally protected interests with a view to developing autonomous approaches for locating interference with them”.

[36] the judge then also links this to a ‘rights based’ approach to applicable law for torts, and for torts generally:

The assistance to be derived from the nature of the legally protected right as a relevant factor when identifying what constitutes direct and immediate damage and where it is suffered, coheres with wider right-based tort scholarship (e.g. Robert Stevens, Torts and Rights (2007)).

[37] “Approached from this perspective, the tort of malicious prosecution addresses the very specific interest of not being harassed by bad faith litigation before the sovereign court of a particular state.”

The judge continues (and readers might want to read those passages in full) with further underpinning of the argument that the legal costs etc suffered, all are indirect, consequential damage, and concludes [40] “Applying Article 4(1) to this singular tort, I am satisfied that the place of the invasion of the protected legal interest (and, in this case, of the primary or direct loss) is the DIFC.”

[41] ff Discussion of the fall-back A4(2) option leads to an interesting discussion of on-shore UAE law as a territorial unit per A25 Rome II and a conclusion [48] that A4(2) is engaged so far as the parties habitually resident in Sharjah and Dubai are concerned. [51] ff recourse to A4(3) is discussed ia with recourse to Owen v Galgay and I think (but have to say the judgment by this stage is not entirely clear) that the judge holds that A4(3) operates to displace the A4(2)  presumption viz those parties where it was engaged (reference to Marshall v MIB), [60] ultimately making DIFC law the applicable law for all claims.

I wonder whether the ‘rights based’ approach to purely economic loss will get much traction. Prof Dickinson’s ‘reversability’ approach seems by now to be firmly anchored in English law.

Geert.

EU Private International Law, 4th ed. 2024, Chapters 2 and 4.

Extensive discussion under the assimilated Rome II Regulation identifying the applicable law (held: DIFC) for tort of malicious prosecutionPurely economic loss claxonCommercial Bank of Dubai v Al Sari [2025] EWHC 400 (Comm) http://www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-03-10T09:07:52.373Z

 

https://www.linkedin.com/posts/geert-van-calster-60abab9_lengthy-discussion-of-jurisdictional-issues-activity-7281969805660680193-xIOO?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAHHS6oB7DOA8jUedLLahLDL6cEwepyHYwA

https://x.com/GAVClaw/status/1899023760415506565

As previously noted on this blog, the Centre for Private International Law and Transnational Governance of the University of Aberdeen will host, on 6 June 2025, the third Postgraduate Law Conference of the Centre, under the title New Dimensions in Private International Law. The deadline for submissions has been extended to 4 April 2025. Additional […]

Applications are now open for three- to six-month legal internships at the headquarters of the Permanent Bureau of the Hague Conference on Private International Law (HCCH) in The Hague, for the period from July to December 2025!

Interns work with our legal teams in the Family and Child Protection Law Division, the Transnational Litigation and Apostille Division, and the Commercial, Digital and Financial Law Division. Duties may include carrying out research on particular points of private international law and/or comparative law, taking part in the preparation of HCCH meetings and contributing to the promotion of the HCCH and its work.

Applications should be submitted by Friday, 25 April 2025 at 18.00 (CEST). For more information, please visit the Internships Section of the HCCH website.

 

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

 

A call for papers has been issued for the XI International Conference on Private International Law at the Carlos III University of Madrid, due to take place on 22 and 23 May 2025. This year’s conference will honor Alfonso-Luis Calvo Caravaca on the occasion of his 70th birthday. Selected contributions will be published on the […]

I would like to express my sincere gratitude to MD Sanwar HOSSAIN, LLB (Hons) Wolverhampton University, MSS (Dhaka University), PgDiP (Northumbria University), Barrister at law (Hon’ble Society of Lincoln’s Inn), Advocate (Appellate Division) Supreme Court of Bangladesh and Managing Partner, S Hossain & Associates law office, for bringing the Bangladesh courts’ decisions to my attention.

 

I. Introduction

The breakdown of an international marriage often leads to complex cross-border disputes, especially when children are involved. Tensions can intensify if one parent decides to take the children to their home country, often without the consent of the other parent.

In such cases, when the countries involved are signatories to the HCCH 1980 Child Abduction Convention, the Convention’s mechanisms are designed to facilitate the prompt return of children to their country of habitual residence. This framework aims to prevent unilateral relocations that could have lasting impacts on the child’s stability. However, when one or both countries are not parties to the Convention, resolving such cases becomes significantly more challenging. In such cases, national courts are compelled to address competing custody claims, assess allegations of wrongful removal, and determine whether they have jurisdiction to hear the case, all while balancing, often quite differently, the best interests of the children involved.

The case presented here is just one of many unreported cases where a romance relationship turns sour, leading to lengthy and contentious legal battles across jurisdictions. This note will focus on the Bangladeshi court’s treatment of the case, as it offers useful insights into the court’s approach to handling such complex cross-border disputes.

 

II. The Case

1. Underlying Facts

X, a Bangladeshi citizen who also appears to have also a US citizenship, and Y, a Japanese citizen, met each other in Japan where they got married in 2008 according to the forms prescribed under Japanese law. Their marriage resulted in the birth of three daughters. From 2020, tensions between X and Y began to intensify, mainly due to financial disagreements. By late December 2020, a family dispute arose, after which (on 18 January 2021) Y informed X of her intention to divorce and ask him to leave their home.

On 21 January 2021, while the two elder daughters were on their way home from school, X intercepted them and took them to live with him at a separate residence. On 18 February 2021, while Japanese courts were addressing a custody claim brought by Y, X left Japan with the two children, after obtaining new passports for them. Since then, the daughters have been living and studying in Bangladesh.

 

2. Legal Battle

a) In Japan

On 28 January 2021, Y initiated legal proceedings against X in the Tokyo Family Court, seeking custody of the children and an order to hand over the two daughters. On 31 May 2021, the Tokyo Family Court issued a decree in favor of Y (Hanrei Taimuzu, No. 1496 (2022) p. 247, Hanrei Jiho No. 2519 (2022) p.60). The court reached its conclusion after assuming international jurisdiction on the grounds that the children’s domicile was in Japan (Article 3-15, Article 3-8 of the Domestic Relations Case Procedure Act), and designating Japanese law as the applicable law to the case under the relevant choice of law rules (Article 32 of the Act on General Rules for Application of Laws). The court also refused to take into account an interim custody order issued by Bangladeshi courts, given its non-final and conclusive nature.

 

b) In Bangladesh

i) Custody dispute before the Family Court

On 28 February 2021, shortly after arrived in Bangladesh, X filed a lawsuit seeking sole custody before the competent family court in Bangladesh. On the same day, X obtained from that an interim order on custody and restrained the taking of the children out of Bangladesh (see previous paragraph).

 

ii) Habeas Corpus Petition

In July 2021, Y travelled to Bangladesh, leaving her youngest daughter with the custody of her family members. Encountering difficulties in accessing her daughters, Y filed a habeas corpus petition, seeking a determination on whether the children were being unlawfully held in custody. Y argued, inter alia, that Japanese courts have proper jurisdiction over the custody claim and that their decision should be given effect.

The High Court Division of the Supreme Court of Bangladesh (hereafter, ‘the High Court’) considered that, the children welfare and well-being should be paramount and must be assessed independently by Bangladeshi courts, regardless of any foreign judgment. After reviewing the overall circumstances of the case, and hearing the children, the High Court ruled that daughters remain in X’s custody, while granting Y visitation rights (Writ Petition No. 6592 of 2021 of 21 November 2021. A summary of the decision is provided by S Khair and M Ekramul Haque, “State Practice of Asian Countries in International Law – Bangladesh” (2021) 27 Asian Yearbook of International Law 146).

Dissatisfied with the order, Y appealed to the Appellate Division of the Supreme Court of Bangladesh (hereafter ‘The Appellate Division’). After examining relevant international and domestic laws and precedents, The Appellate Division reiterated that the children’s best interest should be given primary consideration. It concluded that the appropriate forum to resolve the custody dispute is the Family Court, where proceedings were already pending. The Appellate Division ultimately decided to overturn the High Court’s decision, placing the children in Y’s custody, while granting X visitation rights until the Family Court issued its final verdict (Civil Petition for Leave to Appeal No. 233 of 2022 of 13 February 2022. A summary of the case is provided by S Khair and M Ekramul Haque, “State Practice of Asian Countries in International Law – Bangladesh” (2022) 28 Asian Yearbook of International Law 195).

 

iii) Continuation of the Proceedings before the Family Court

The proceedings resumed before the Family Court. On 29 January 2023, the first-instance court dismissed X’s claim on the ground that the Bangladeshi courts lacked jurisdiction since the custody issue had already been decided in Japan, country of the family’s last residence. The court also emphasized that children’s welfare would be better ensured with the mother (Dhaka in Family Suit No. 247 of 2021 dated 29 January 2023). The decision was confirmed in appeal on similar terms (Family Appeal No. 22 of 2023 dated 12 July 2023). Dissatisfied, X appealed to the High Court.

 

iv) Ruling of the High Court

Before the High Court, X challenged the lower courts’ conclusions. X’s key arguments included the following:

(i) The parties had been litigating in Bangladesh for a long time, thus justifying the jurisdiction of the Bangladeshi courts over the dispute

(ii) The lower courts actively engaged in discussing the merits of the case, including the welfare of the children, and parental suitability, therefore, dismissing the claim on jurisdictional ground was illogical,

(iii) The decision rendered in Japan was not binding on the Bangladeshi courts

(iv) The Japanese decree cannot be given effect as it did not grant X any visitation right

 

In her response, Y argued that the lower courts correctly dismissed the case. Y’s arguments include – among others – the following point:

(i) The cause of action in casu arose in Japan, where the children were born and raised. In addition, they had never visited Bangladesh before

(ii) All the parties resided in Japan before the dispute arose

(iii) Since Japanese court had already decided the custody issue, Bangladeshi courts lacked jurisdiction.

(iv) The lower courts thoroughly examined the case, placing emphasis on the children’s welfare and well-being. In addition, all questions of welfare and custody should be addressed at the child’s habitual residence

 

In its decision (Civil Revision No. 3298 of 2023 dated 13 February 2024), the High Court ruled that Bangladeshi courts have jurisdiction over the matter on the ground that:

(i) Although the children were born and primarily raised in Japan, the custody dispute partially arose in Bangladesh where X and the children were residing, at the time when the suit was filed, and continue to reside since then.

(ii) the jurisdiction of the Bangladeshi courts could not be ousted by the decision of Japanese court, given that – as an independent country – the courts are empowered to exercise jurisdiction under domestic law. Such an issue should have been seriously considered with due regard to Bangladesh’s sovereignty, rule of law and the legal aspects of the country.

Regarding the custody determination, the High Court emphasized the importance of carefully considering and balancing various aspects of the case, with a particular focus on the welfare and well-being of the children as the paramount principle. The Court considered that, as a matter of law in Bangladesh, custody should always be granted to the mother, as this is in line with the welfare of the children. The Court also stressed the importance of placing particular emphasis on the opinion of the children and giving precedence to their mental state and intention. Based on such considerations, the Court decided to divide the custody between the parents: custody of the child who wished to stay with the father was granted to X, while custody of the child who wished to return to Japan was granted to Y. The Court also urged the parties to ensure full visitation rights through amicable arrangement based on the principle of reciprocity.

 

III. Comments

The case, along with the manner in which it was handled by Japanese and Bangladeshi courts raise several important legal and practical questions. Among these, the following can be highlighted.

 

1. Relevance of the 1980 HCCH Convention

First, the case highlights the significance of the 1980 HCCH Convention in addressing cross-border unlawful relocation of children. Had Bangladesh been a contracting state, the resolution of the case would have been more straightforward, potentially avoiding the prolonged and conflicting litigation that ensued in both jurisdictions. In this respect, one particularly noteworthy aspect deserves to be mentioned. When submitting the writ petition before the High Court, Y argued that, despite the fact Bangladesh not being not a contracting state, the 1980 HCCH Convention could still be applicable. In support of her argument, Y relied on an earlier High Court decision, in which the 1980 HCCH Convention was recognized as being “part of international customary law” (RMMRU v Bangladesh and others (2020) 72 DLR 420). The High Court, however, did not address this issue.

 

2. Treatment of the Case in Japan and Bangladesh

Second, the contrasting approaches taken by the Japanese courts and the Bangladeshi courts in addressing the custody dispute are striking. In Japan, the courts followed a more classical, structured approach, beginning first by determining whether Japanese courts had international jurisdiction, then determining the applicable law before proceeding to assess the merits of the case. This methodical manner to approach the case was facilitated by the fact that Japan has comprehensively codified its private international law. The existence of a clear applicable legal framework with renders the resolution of such cases a matter of straightforward interpretation and application of the relevant legal provisions (for a brief overview, see my previous post here).

The situation in Bangladesh presents notable differences, as rules of private international law in the country remains fragmented and only partially codified (for an overview, see Mohammed Abdur Razzak, ‘Conflict of Laws – State Practice of Bangladesh’ in S. R. Garimella and S. Jolly (eds.), Private International Law – South Asian States’s Practice (Springer, 2017) 265). An appropriate approach would have been for the High Court to consider whether the Japanese decree could be recognized and enforced in Bangladesh in accordance with the relevant legal provisions (for an overview, see Sanwar Hossain, ‘Cross-Border Divorce Regime in Bangladesh’ in Garimella and Jolly op cit. 102, Abdur Razzak, op. cit., 281). The Court’s approach in the first and second decision appears to conflate the principle of “comity of nations” with the children’s welfare as a paramount consideration that need to be independently assessed by Bangladeshi courts, and the issue of recognition with that of jurisdiction

 

3. Absence of Islamic law influence 

Finally, one of the remarkable aspects of the Bangladeshi court’s decisions is the absence of any discernable influence of Islamic law on the assessment of custody, despite the repeated references in the decisions to the religion of the parties. X, for instance, is described as a ‘religious’ person and ‘a pious Muslim’. The decisions also mention that X and Y’s marriage was celebrated according to Islamic tradition at a local mosque in Japan, following an earlier ceremony at a Shinto Shrine, and only after Y converted to Islam took a Muslim name.

In the High Court 2024 decision, Y is portrayed as an atheist who left Islam and who allegedly threatened X to raise the children in a ‘Japanese culture where drinking alcohol, live together (sic), eating pork are common’. Before Bangladeshi Court, X did raise several Islamic principles related to child custody (notably the fact that, under Islamic law, custody should transfer to the father once the children reach a certain age), and emphasizing on his disagreement with Y who, according to him, ‘refused to follow and respect the Islami life style (sic)’.

Given the significant role of the Islamic principles play in the Bangladeshi legal system, especially in family law matters (for a general overview, see Ahmad Nasir Mohad Yusoff and AHM Shafiqul Islam, ‘The Legal System of Bangladesh: The Duality of Secular and Islamic Laws’ (2024) International Journal of Academic Research in Business & Social Sciences 14(11) 1965), one might expect that the considerations mentioned above would influence the courts’ decisions. For example, as a matter of general principle, the custody of children should not granted to someone who left Islam, particularly, when that person lives in a non-Muslim country (see e.g. the decision of the UAE Federal Supreme court of 10 April 2004 cited in Béligh Elbalti, ‘The Recognition and Enforcement of Foreign Filiation Judgments in Arab Countries’ in N. Yassari et al. (eds.), Filiation and the Protection of Parentless Children (T.M.C. Asser Press, 2019) 397).

Nonetheless, it is remarkable that none of these considerations were raised or taken into account by the judges, who addressed the case in an entirely objective manner. Even more striking, the High Court not only affirmed Y’s suitability as a custodian, but also reiterated its longstanding principle that child custody should generally be granted to mothers. This principle was applied in the present case without any apparent consideration of Y’s and applied this principle to the case without giving any credits to the significance of Y’s religious background or the fact that she declares herself as a non-Muslim who left Islam.

On 4 April 2025, the Catholic University of the Sacred Heart in Milan will host a seminar, in English, on the case of Leonardo Da Vinci’s Vitruvian Man. The Vitruvian Man is a drawing by Leonardo da Vinci. Made around 1490, it is a study of ideal body proportions inspired by the teachings of Vitruvius, […]

Published on behalf of the IJI, Den Haag

In the heart of The Hague, a critical institution of international legal knowledge faces an existential threat. The International Juridical Institute (IJI) (translated in English to mean the Hague Institute for Private International Law), a venerable organization with a century-long history of providing essential legal guidance, stands on the brink of liquidation due to declining government support.

Founded in 1918 at the iconic Peace Palace, the IJI emerged as a unique global resource. Born in the aftermath of World War I, the institute was conceived as a “gift to the world” noble vision supported by leading businessmen, ministers, and statesmen. The IJI has been a beacon of legal expertise for over a hundred years, offering free and cost-effective advice in the complex realm of private international law. The institute’s current predicament is a stark testament to the fragility of specialized legal resources. Successive government cuts, culminating in eliminating the social advocacy subsidy scheme in 2019, have systematically undermined the IJI’s financial stability. What makes this situation particularly alarming is not just the potential loss of an institution but the broader implications for access to justice.

The IJI is not merely an archive of legal knowledge; it is a critical resource for individuals navigating complex international legal challenges. Many of these cases involve vulnerable populations, including children, who rely on expert guidance to traverse intricate cross-border legal landscapes.

Ironically, the government’s cost-cutting measures may ultimately prove counterproductive. The reduction in funded legal aid is likely to generate more protracted and expensive legal proceedings, potentially negating any initial savings.

The IJI is making a final, humble appeal: a modest annual subsidy of €260,000 to continue its vital work. This relatively small investment could ensure another century of legal expertise and maintain critical access to justice for countless individuals.

How You Can Help

The legal community and concerned citizens have a unique opportunity to make a difference:

1. Sign the Petition: Visit the IJI petition page and add your name to support the institute’s continued existence.If you would like to support this cause, we would like to add your signature to the grant application. You can click on the next link: https://petities.nl/petitions/behoud-de-toegang-tot-het-recht-voor-iedereen?locale=de. This leads you to a website where you can sign very easily by giving your name (on the field ‘naam’), email address (on the field ‘emailadres’) and domicile (on the field ‘woonplaats’). You could also tick the box if you want your name visible on the list, if not, you remain anonymous. Please note that after signing, you will receive an email in which you are asked to confirm your signature by clicking on the provided link. Only after confirming, the signature will be registered.
2. Spread Awareness: Share the IJI’s story within your professional networks and social circles.
3. Contribute Ideas: Of course, we are also open to other ideas that can ensure that our wonderful institute can experience a second 100-year term. If you would like to exchange thoughts with us about this, please do send us an email to info@iji.nl and we will get in touch.

The potential loss of the IJI represents more than the closure of an institution. It symbolizes a potential erosion of specialized legal knowledge, international cooperation, and accessible justice.

As members of the legal community, we have a responsibility to support institutions that serve the broader public good. The IJI’s century of service is a testament to the power of dedicated legal expertise in bridging complex international legal challenges.

Together, we can help ensure that this invaluable resource continues to serve global legal needs for generations to come.

Thank you very much for your support!

Reinhard Bork (University of Hamburg) and Michael Veder (Radboud University) edited The UNCITRAL Model Laws on Cross-Border Insolvency and on the Recognition and Enforcement of Insolvency-Related Judgments — An Article-by-Article Commentary with Edward Elgar. The book is part of the Elgar Commentaries in Corporate and Company Law series. The commentary provides an analysis of UNCITRAL […]

The latest issue of the new French journal dedicated to international dispute resolution, Perspectives Contentieuses internationales (PCI), has been released. It is an open access publication and can be freely downloaded here. Unfair Trade Practices The focus of the issue is on unfair trade practices in private international law. It includes the following articles. Hakim […]

On 6 March 2025, the Danish Supreme Court held in a decision that an abducted child should not be returned to Ukraine under the 1980 Hague Convention on the Civil Aspects of Child Abduction (1980 Hague Convention). The court found grounds to refuse the return, emphasizing that while the war in Ukraine influenced the situation, […]

By Adeline Chong, Singapore Management University

1. Introduction

In two decisions decided within a fortnight of each other, the Singapore Court of Appeal considered anti-suit injunctions pursued to restrain proceedings allegedly brought in breach of arbitration agreements. The first case, Asiana Airlines, Inc v Gate Gourmet Korea Co, Ltd (‘Asiana Airlines’)[1] dealt with whether A could rely on an arbitration agreement between A and B to restrain B’s proceedings against C, a third party. The second case, COSCO Shipping Specialized Carriers Co, Ltd v PT OKI Pulp & Paper Mills (‘COSCO Shipping’)[2] considered whether an arbitration agreement covered a tortious claim. To put it in another way, Asiana Airlines mainly concerned the ‘party scope’ of an arbitration agreement while COSCO Shipping concerned the ‘subject matter’ scope of an arbitration agreement.[3] Where the anti-suit application is to restrain foreign proceedings brought in breach of an arbitration or choice of court agreement, ordinarily it would be granted unless ‘strong cause’ is shown by the respondent.[4] This provides an easier path for the anti-suit claimant compared to the alternative requirement of establishing that the foreign proceedings are vexatious or oppressive in nature.

In both judgments, the Court emphasised that forum fragmentation was sometimes inevitable and that the crux was to ascertain parties’ intentions as to the ambit of the arbitration agreement. While both decisions canvassed other private international law issues, the primary focus of this comment is the Court’s approach to construing the scope of dispute resolution clauses. Although both decisions involved arbitration agreements, the same reasoning applies to choice of court agreements.[5] Further, the principles apply equally whether the application concerns a stay of proceedings or an anti-suit injunction.[6]

2. Asiana Airlines

Asiana Airlines (a Korean company) entered into a joint venture agreement with Gate Gourmet Switzerland GmbH (GGS). This joint venture resulted in the establishment of Gate Gourmet Korea (GGK). Asiana entered into a catering agreement with GGK. Both the joint venture and catering agreements contained arbitration agreements. It transpired that the chairman of Asiana had arranged for the two agreements to benefit his own personal interests, in breach of his obligations to Asiana. The chairman was later convicted in Korean proceedings.

Asiana commenced proceedings in Korea against GGK for a declaration that the catering agreement was null and void under Korean law due to its chairman’s breach of trust, and consequently, the arbitration agreement was similarly null and void. It also advanced an argument that the dispute was non-arbitrable due to Korean public policy; all relevant stakeholders were members of the Korean public and the outcome of the proceedings would have an impact in Korea. Subsequently, Asiana also pursued actions against GGS and the directors of the Gate Gourmet Group. It alleged that the directors were actively involved in the chairman’s unlawful conduct and therefore liable in tort under Korean law, and GGS was vicariously liable for their actions. The same points on nullity and public policy were raised.

Gate Gourmet applied for anti-suit injunctions in Singapore to restrain the Korean proceedings. Central to the anti-suit applications was the arbitration agreements in the joint venture and catering agreements. The Court of Appeal, hearing the appeal from a decision of the Singapore International Commercial Court (SICC), held that it was an abuse of process for Asiana to argue that the arbitration agreements were null and void given that it had not pursued previous opportunities to raise this point. Not surprisingly, Asiana’s public policy argument received short shrift; it was too broadly framed as it was inevitable that proceedings involving big companies would have an impact on their home countries. Thus, the Court held that the Korean proceedings against GGK was in breach of the arbitration agreement in the catering agreement and the anti-suit injunction restraining the Korean proceedings against GGK was upheld.

More interesting was the anti-suit injunction restraining the Korean proceedings against the directors. Asiana argued that the directors were non-parties to the joint venture agreement and the arbitration agreement contained therein and as GGS were sued on the basis of vicarious liability, the proceedings were not related to the agreement. The Court applied Korean law, the proper law of the agreement, to construe the arbitration agreement. It observed that under Korean law, arbitration agreements could cover non-contractual claims and that the tortious claims pursued were closely connected with the joint venture agreement. The anti-suit injunction restraining the Korean proceedings against GGS was affirmed. The question which then arose was whether the anti-suit injunction restraining the proceedings against the directors could be maintained on the same basis of breach of the arbitration agreement or could only be maintained if the Korean proceedings against the directors were shown to be vexatious or oppressive in nature. As the Court observed, an anti-suit injunction based on the first ground meant that ‘GGS as the anti-suit claimant would have to show that if Asiana pursued the claim against the [directors], it would breach GGS’s rights under the JVA Arbitration Agreement.’[7]

This question involved the situation where A and B are parties to the dispute resolution clause and B commences proceedings against C in a different forum from that named in the clause. Can A pursue an anti-suit injunction restraining B’s action against C on the ground that that action is in breach of the clause?[8] Another variant of this situation is where C applies for an anti-suit injunction restraining B’s action against C as being in breach of the jurisdiction clause. In a prior decision VKC v VJZ,[9] the Court of Appeal held that section 2(1)(b) of the Contracts (Rights of Third Parties) Act 2001 did not cover exclusive jurisdiction clauses.[10]  In contrast, the New South Wales Court of Appeal in Global Partners Fund v Babcock & Brown[11] took the view that C could rely on the benefit of the jurisdiction clause under the common law provided C was a ‘non-party’ who was intimately involved in the transaction between A and B.[12]

The UK House of Lords in Donohue v Armco Inc[13] held that where an exclusive English choice of court agreement bound some, but not all, of the parties in the foreign proceedings, the avoidance of forum fragmentation amounted to strong reasons not to uphold the choice of court agreement. The requested anti-suit injunction in Donohue, however, involved those who were parties to it: A sought an anti-suit injunction restraining B’s action against A. Nevertheless, Lord Scott of Foscote had commented in obiter that A could in certain circumstances obtain an anti-suit injunction restraining not only proceedings against itself but also proceedings against C if there was a possibility that A and C would be jointly and severally liable. This is provided the wording of the clause was sufficiently wide to cover the proceedings against C and A had a sufficient interest in obtaining the anti-suit injunction, namely, to avoid incurring liability as a joint tortfeasor. The Singapore Court of Appeal rejected Lord Scott’s comments, as it thought that it would be overinclusive and  prohibit legitimate claims against third parties.[14] Instead it cited with approval the decision in Team Y&R Holdings Hong Kong v Ghoussoub; Cavendish Square Holding BV v Ghossoub[15] to the effect that the Fiona Trust[16] principle that the intentions of rational businessmen would be to have a ‘one-stop shop’ for litigation cannot apply with the same force when considering claims involving third parties. Clear language is required before an exclusive jurisdiction clause covers claims brought by or against third parties.[17] The risk of forum fragmentation, which underscored Lord Scott’s suggestion in Donohue, should not be ‘overstated’.[18]

This more narrow construction of the party scope of dispute resolution clauses raises the risk of B manipulating the situation and evading the dispute resolution clause by pursuing claims against C. However, as the Court pointed out, it would be open for A to apply for an anti-suit injunction on the basis that B’s proceedings against C rendered the proceedings between A and B vexatious or oppressive. Additionally, C could also independently seek an anti-suit injunction restraining the proceedings against it on the vexation or oppression ground.[19]

On the facts, the Court held that while the directors had signed the joint venture agreement, they had done so in their capacity as representatives of GGS. There was nothing in the wording of the arbitration agreement to indicate that Asiana and GGS intended the clause to apply to claims against the directors. The anti-suit injunction restraining the action against the directors could not succeed on the basis of breach of the arbitration agreement; it could only succeed on the vexation or oppression ground. However, Gate Gourmet failed to show any bad faith on Asiana’s part in suing the directors. Therefore, the anti-suit injunction was upheld in relation to the action against GGS as being in breach of the arbitration agreement while the anti-suit injunction restraining the action against the directors was discharged.

3. COSCO Shipping

PT OKI (an Indonesian company) had sub-chartered a vessel which belonged to COSCO Shipping (a Chinese company). The head charter and sub-charter contracts each contained a law and arbitration clause for English law and arbitration in Singapore. Further to that, contracts of carriage were entered into between the two companies. These contracts, which were evidenced by or contained in bills of lading, incorporated the law and arbitration clause in the charter contracts. While loading PT OKI’s cargo at the port of Palembang, Indonesia, COSCO Shipping’s vessel allided with the trestle bridge of the jetty, causing damage which allegedly amounted to US$269m. The bridge and port were owned and operated by PT OKI. Various proceedings were pursued by both parties, the most relevant of which were: PT OKI commenced proceedings against COSCO in Indonesia in tort for the damage to the trestle bridge; COSCO applied for an anti-suit injunction in Singapore to restrain PT OKI from continuing with the Indonesian action; and COSCO commenced arbitration against PT OKI before the Singapore International Arbitration Centre (SIAC) in Singapore seeking declarations of non-liability and various reliefs arising out of the allision. COSCO alleged that PT OKI had breached the safe port warranty under the head charter agreement as incorporated into the bills of lading and raised contractual defences also found in the head charter agreement and incorporated into the bills of lading.

The anti-suit application was based on PT OKI’s alleged breach of the arbitration agreement. The Court of Appeal considered the meaning of the phrase ‘arising out of or in connection with this contract’, used in the arbitration agreement and which is standard language in dispute resolution clauses. At first instance, the judge had referred to various tests-such as the ‘parallel claims test’,[20] ‘causative connection test’ and the ‘closely knitted test’[21] to ascertain if the tort claim fell within the scope of the arbitration agreement. The Court of Appeal emphasised that the various tests were ‘simply labels and tools developed to assist the courts’[22] and pushed back against any presumption that parties must always have intended for all their claims to be decided in the same forum. The crux was the parties’ intentions as encapsulated by the wording of the agreement; thus ‘[i]f upon examining the text of the agreement and the nature of the competing claims, a claim is not within its ambit, then forum fragmentation is inevitable and the courts should not steer away from that outcome …’[23]

The Court adopted a two-stage test when ascertaining the scope of an agreement: first, the court should identify the matter or dispute which parties have raised or foreseeably will raise in the foreign proceedings; and secondly, the court must then ascertain whether such matter or dispute falls within the scope and ambit of the agreement. At the first stage, the court is trying to identify the substance of the dispute between the parties. It should not consider only the claimant’s pleaded cause of action but should also take into account defences or reasonably foreseeable defences and cross-claims that may arise. The Court held that it was not necessary for the claims or defences to be connected to the contractual relationship. This is significant because the tort action in Indonesia was not based on the contract between the parties.[24] It concluded that the tort action fell within the scope of the arbitration agreement. The parties must have contemplated that a pure tort claim for damage to the trestle bridge caused during the performance of the contracts of carriage between the parties and where it was foreseeable that defences based on the contract would be raised would fall within the scope of the arbitration agreement. Thus, the anti-suit injunction could properly be founded on breach of the arbitration agreement. There was no consideration if ‘strong cause’ was shown by PT OKI to justify the breach of the arbitration agreement; it did not appear that arguments had been made on this point.

4. Conclusion

The decisions in Asiana Airlines and COSCO Shipping should not be read as the Singapore courts resiling from the Fiona Trust principle, which has been cited and applied in a number of other decisions.[25] The core idea that one should adopt a common-sense approach when construing dispute resolution clauses, bearing in mind that the parties are rational businessmen, still underlines the two judgments. The clarification added by the Court of Appeal was the starting point must always be the wording of the dispute resolution clause and the context in which it was entered into.[26] This is in contrast with the prior approach where sometimes the court tended to start with the presumption that parties intended for ‘one-stop shopping’ and to apply the presumption in the absence of any contrary evidence.[27] There is now an important shift in focus. The court should not go to great lengths to achieve a construction which supports ‘one-stop shopping’ where this is not borne out by the wording of the clause and the circumstances of the case. If this means that there would be parallel litigation across a few jurisdictions, the courts should not shy away from that conclusion.[28] In particular, where third parties are concerned, clear language must be used to bring third parties within the scope of a dispute resolution clause. Ultimately, Asiana Airlines and COSCO Shipping underscore the importance of clear and precise drafting of dispute resolution clauses.

 

 

[1] [2024] SGCA(I) 8; [2024] 2 SLR 279.

[2] [2024] SGCA 50; [2024] 2 SLR 516.

[3] The phrases ‘party scope’ and ‘subject-matter scope’ was coined by the New South Wales Court of Appeal in Global Partners Fund Limited v Babcock & Brown Limited (in liq) [2010] NSWCA 196.

[4] Sun Travels v Hilton [2019] 1 SLR 732 (Singapore CA) [68], [78], [81]-[87].

[5] Asiana [80]-[83].

[6] COSCO [73].

[7] Asiana [58].

[8] See Thomas Raphael, The Anti-Suit Injunction (2nd edn, OUP 2019) para 7.31.

[9] [2021] 2 SLR 753.

[10] This provision allows C to enforce a term of the contract if the term purports to confer a benefit on C.

[11]  [2010] NSWCA 196 (noted A Chong, ‘The “Party Scope” of Exclusive Jurisdiction Clauses’ [2011] LMCLQ 470).

[12] Cf Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 [90] (President Bell) (in the context of a stay application).

[13] [2002] 1 All ER 749 (HL).

[14] Asiana [85]-[88].

[15] [2017] All ER(D) 81 (Nov) [82].

[16] Fiona Trust & Holding Corporation v Privalov [2008] 1 Lloyd’s Rep 254 (UKHL).

[17] Asiana [72]-[73].

[18] Asiana [88].

[19] Asiana [84].

[20] Eastern Pacific Chartering Inc v Pola Maritime Ltd [2021] 1 WLR 5475 (“The Pola Devora”) [37].

[21] Aggeliki Charis Compania Maritima SA v Pagnan SpA (The Angelic Grace) [1995] 1 Lloyd’s Rep 87 (English CA) 89. The Court disagreed with the judge that the ‘closely knitted test’ applies only where the non-contractual claim may be recast as a contractual claim: COSCO [78]-[79].

[22] COSCO [3]

[23] COSCO [5].

[24] The court below had been troubled by the fact that the tort claim could not be recast as a contractual claim. It did not grant the anti-suit injunction: [2024] SGHC 92.

[25] Eg, Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] 2 SLR 1271 (Singapore CA), Allianz Capital Partners GmbH, Singapore Branch v Goh Andress [2023] 1 SLR 1618 (Singapore HC(A)).

[26] See also Rals International Pte Ltd v Cassa di Risparmio di Parma e Piacenza SpA [2016] 5 SLR 455 [34].

[27] Eg, Vinmar Overseas [79].

[28] See to similar effect, Australian Health [90].

[29] Eg, Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] 2 SLR 1271 (Singapore CA), Allianz Capital Partners GmbH, Singapore Branch v Goh Andress [2023] 1 SLR 1618 (Singapore HC(A)).

[30] Eg, Vinmar Overseas [79].

[31] See to similar effect, Australian Health [90].