Droit international général

Information kindly provided by Johannes Ungerer

At the University of Oxford, a conference on ‘Characterisation in the Conflict of Laws’ will be held on 20 and 21 March 2025. It is jointly organised by Dr Johannes Ungerer (University of Oxford and University of Notre Dame in England), Dr Caterina Benini (Catholic University of the Sacred Heart, Milan), and PD Dr Felix Berner (University of Tübingen), and is funded by the Institute of European and Comparative Law and the Faculty of Law.

For more than a century, characterisation has been discussed in the conflict of laws without reaching a consensus on a generally accepted theory. However, it is arguably the most crucial step for a court when determining its international jurisdiction and the applicable law. Characterisation identifies in cross-border litigation the nature or category of a particular cause of action (for instance contractual, tortious, proprietary, corporate, matrimonial), so that the correct connecting factor can be employed. This is difficult where the action is unknown domestically or potentially falls in-between two categories and could thus be litigated in different fora or under different laws, leading to different outcomes. What makes it even more complex are the different techniques proposed for characterisation, depending on the origin of the conflicts rules in question (national, EU, or international rules).

The conference, taking place at St Hilda’s College, will be organised as a round-table discussion, bringing together legal scholars and practitioners from a range of jurisdictions, covering both Common Law and Civil Law traditions, in order to establish a common understanding of the practices and challenges regarding characterisation. It will feature contributions from 15 speakers in three sessions: the programme can be accessed here.

The conference room can accommodate a small number of attendees. Interested scholars and practitioners are invited to express their interest in attending the conference by sending an email to Dr Ungerer by 17 November 2024.

Written by Jidong Lin, Wuhan University Institute of International Law

1. Background

China’s newly amended Civil Procedure Law (“CPL 2024”), which came into effect on 1 January 2024, introduces several distinct and innovative changes. Among the most notable is the incorporation of “other appropriate connections” as a jurisdiction ground. Article 276 of the CPL 2024 addresses the jurisdiction of Chinese courts over foreign-related disputes where the defendant lacks domicile in China. Paragraph 1 of Article 276 lists six jurisdiction grounds, including the place of contract formation, place of contract performance, place of the subject matter, place of distrainable property, place of tort, and place of representative offices. As a supplement, Paragraph 2 provides that “notwithstanding the preceding paragraph, foreign-related civil disputes that have other appropriate connections with the People’s Republic of China may fall under the jurisdiction of the People’s Courts.” The term “other appropriate connections” represents a legal innovation not only within Chinese legislation but also on a global scale. Currently, there is no official interpretation or guidance on its precise meaning, making it essential to analyze and evaluate this jurisdiction ground and its potential implications for jurisdictional practices.

2. Legislative Purposes

Regarding the legislative purposes behind the incorporation of “other appropriate connections”, the then President of the Supreme People’s Court explained at the 38th meeting of the Standing Committee of the 13th National People’s Congress that the purpose is to “increase the types of foreign-related cases under China’s jurisdiction, expand jurisdiction grounds, better protect the rights of both Chinese and foreign parties, and effectively safeguard China’s sovereignty, security, and development interests.”[1] Additionally, the head of the Civil Law Office of the Legal Affairs Commission of the Standing Committee of the National People’s Congress, one of the principal figures involved in drafting the amendment, emphasized that the incorporation of “other appropriate connections” is intended to “expand the jurisdiction of Chinese courts over foreign-related cases.”[2] From these official explanations, it can be concluded that the legislative purposes of incorporating “other appropriate connections” as a jurisdictional ground are threefold: (a) expanding jurisdiction over foreign-related cases, (b) protecting the rights of parties, and (c) safeguarding national and public interests.

3. Potential Function

The legislative purposes outlined in official statements are somewhat broad and indirect. However, scholarly works offer insights into the potential functions of this jurisdiction ground, which help achieve legislative purposes. These functions can be summarized as follows:

a) Filling Jurisdiction Gaps

First, “other appropriate connections” can help fill jurisdiction gaps. This is particularly relevant when the interests of Chinese individuals or companies are infringed upon in a cross-border context while none of the listed jurisdiction grounds apply.[3] Such situations are increasingly common due to rapid social developments that give rise to new types of disputes. In such cases, “other appropriate connections” can serve as a supplementary jurisdiction ground to fill the jurisdiction gaps and protect their interests.

b) Articulating Extraterritoriality Provisions

Second, “other appropriate connections” can strengthen the enforcement of extraterritoriality provisions in Chinese laws. China has introduced extraterritoriality provisions in several regulatory laws, including the Personal Information Protection Law, Anti-Trust Law, and Security Law. However, the previous Civil Procedure Law lacked corresponding provisions that granted Chinese courts adjudicative jurisdiction over related disputes. The incorporation of “other appropriate connections” addresses this gap, allowing courts to assert jurisdiction in such cases.

c) Substituting Necessity Jurisdiction

Third, “other appropriate connections” may act as a substitute for necessity jurisdiction. The CPL 2024 does not formally establish the necessity jurisdiction, despite scholarly calls for its establishment.[4] Although the adoption of necessity jurisdiction in China remains a topic for further discussion, “other appropriate connections” may provide a mechanism for courts to exercise this type of jurisdiction when required.[5]

4. Interpretation

It is necessary to first establish the methodology for the interpretation of “other appropriate connections”. Some scholars argue that future judicial interpretations should continue to follow the enumerative approach—listing several typical jurisdiction grounds to provide a degree of legal certainty. In terms of content, it has been suggested that indirect jurisdiction grounds, as outlined in the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019, should be considered.[6] However, this approach may result in rigidity and a lack of flexibility, which have been the main criticisms of the earlier legislation. As a result, a more flexible and open approach should be adopted instead, one that provides general guidelines while allowing judges to conduct case-by-case analyses.[7]

This method is further illustrated by judicial practices involving “other appropriate connections”. In the first case to adopt “other appropriate connections” as the jurisdiction ground, the Supreme People’s Court addressed a jurisdictional issue arising from a dispute related to FRAND (Fair, Reasonable, and Non-Discriminatory) licensing.[8] The Court stated that whether the dispute has “appropriate connections” with China should be assessed by examining the characteristics of the case. Based on this analysis, the Supreme People’s Court identified several connecting factors that serve as additions to the jurisdiction grounds listed in the previous Civil Procedure Law. The Court concluded that if any of these connecting factors are situated within Chinese borders, the dispute will have “appropriate connections” with China.[9] This practice indicates that the primary method for interpreting “appropriate connections” involves analyzing specific cases to define additional relevant connecting factors or jurisdictional grounds.

The next question regarding interpretation is the extent of connection required by “other appropriate connections”. To clarify this, the wording used must be considered. During the legislative process, the term “appropriate connections” was specifically chosen to distinguish it from terms like “real and substantial connections” and “minimum contacts”, which are commonly used in comparative law and academic literature. This suggests that “appropriate connections” do not necessitate a close connection to “substantial connection”, yet should not be overly broad like “minimum contacts”.[10] However, the precise extent required remains to be determined. It appears that the necessary extent may depend on the interests at stake since the primary purpose of incorporating “other appropriate connections” is to protect China’s private and public interests. Thus, a more vital interest may necessitate a lower threshold for connection, while less vital interests may demand higher.

5. Concluding Remarks

The incorporation of “other appropriate connections” as a jurisdiction ground reflects China’s determination and ongoing efforts to enhance its foreign-related legal framework. It also provides a solid foundation for Chinese courts to actively participate in transnational governance. From the perspective of international law, Chinese practices concerning “other appropriate connections” deserve further examination, since it also serves as a supplementary rule for indirect jurisdiction (Article 301, CPL 2024) and for the allocation of enforcement jurisdiction within borders (Article 304, CPL 2024). It is fair to submit that “appropriate connections” constitutes a fundamental jurisdiction rule of China, potentially contributing to the development of international laws in corresponding fields. However, current practices and guidelines regarding “other appropriate connections” remain insufficient, highlighting the need for continual and further observation.

[1] See Zhou Qiang, ‘Explanation on the Civil Procedure Law of the People’s Republic of China (Draft Amendment)’ (National People’s Congress of the PRC Website, (27 February 2021) <www.npc.gov.cn/npc/c2/c30834/202112/t20211227_315637.html> accessed 13 October 2024.

[2] See Wang Qiao, ‘China’s Civil Procedure Law Completes Revision, Will Better Safeguard Parties’ Litigation Rights and Legitimate Interests – Interpretation of the Newly Revised Civil Procedure Law People’s Court Daily (Beijing, 2 September 2023) 4.

[3] See Shen Hongyu & Guo Zaiyu, ‘Commentary on and Interpretation of the Revised Provisions of the Foreign-Related Part of the Civil Procedure Law’  (2023) 54 China Law Review 70, 73.

[4] See Huang Zhihui, ‘System Positioning and Normative Explanation of Necessary Jurisdiction System of Foreign-related Civil Litigation in China’  (2022) 39 Studies in Law and Business 48, 60-61.

[5] See Huang Zhihui, ‘Study on the International Civil Jurisdiction of Appropriate Connections in the Context of the Foreign-Related Rule of Law’  (2023) 505 Law Science 176, 185-186.

[6] See Liu Guiqiang, The Challenges and Responses Faced by China’s Counter-Sanctions Litigation Recovery System  (2023) 45 Global Law Review 211, 219.

[7] See Guo Zhenyuan, Appropriate Connections Principle in Foreign-Related Civil Litigation Jurisdiction: Theoretical Explanation and Path of Application  (2024) 127 Chinese Review of International Law 127, 137.

[8] Conversant Wireless Licensing S.A.R.L. v. ZTE Corporation Ltd., (2019) Zui Gao Fa Zhi Min Xia Zhong No. 157 (Supreme People’s Court).

[9] Similar reasoning can be seen in Guang Dong Oppo Mobile Telecommunications Corp., Ltd., et al. v. Sharp Corporation., et al., in Supreme People’s Court Gazette, Issue 2, 2022 (Total No. 306) p. 23-30.

[10] See Shen Hongyu & Guo Zaiyu, ‘Commentary on and Interpretation of the Revised Provisions of the Foreign-Related Part of the Civil Procedure Law’  (2023) 54 China Law Review 70, 73.

The CJEU in Grand Chamber held 10 days back in C‑633/22 Real Madrid Club  de Fútbol, AE v EE, Société Éditrice du Monde SA. No English version was yet available at the time of writing.

The Court in essence confirms Spzunar AG’s Opinion which I reviewed here.

Its findings echo the language and sentiment of Article 16 of the EU’s anti-SLAPP Directive 2024/1069 (that Article addressing non-recognition of third country judgments).

The Grand Chamber emphasises mutual trust and the consequential very narrow room for refusal of recognition on ordre public grounds, even in the context of the application of the Charter’s Article 11 freedom of expression grounds: refusal must be exceptional, case-based, and not based on an entirely new balancing act.

However the court of enforcement must refuse to recognise if the Article 11 rights are fundamentally impacted. In exercising that assessment, it must i.a. take account of the distinction between the reputation of a legal cq natural person (the former lacking the ‘moral’ element of impacting on the ‘dignity’ of the person: [58]), the financial capacity of the defendant (accused to have libeled) [68], and the stiffing impact caused by a disproportionate difference between the actual damage suffered, and the libel award [62 ff].

Geert.

EU Private International Law, 4th ed, 2024, 2.619 ff.

 

Editors:

Dr Chukwuma Okoli, Dr Eghosa O. Ekhator, Professor Veronica Ruiz Abou-Nigm, Professor Ralf Michaels, Hans van Loon

We are excited to invite contributions to The Journal of Sustainable Development and Policy for a special issue focusing on “Private International Law and Sustainable Development in Africa.” This is an area with limited scholarship in Africa, as most research has traditionally emphasized substantive laws, often neglecting the critical role of private international law in sustainable development. Interested researchers should consider themes such as the ones explored in Michaels/Ruiz Abou-Nigm/Van Loon (eds.) (2021): The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law. Proposals should emphasise private international law and sustainable development issues that are of particular relevance to the African context.

We encourage researchers to explore the intersection of private international law and sustainable development in relation to issues such as environmental protection, corporate social responsibility, and the protection of vulnerable groups (for example, employees, consumers, migrants, and indigenous peoples). Interesting topics in private international law could include how multinational companies are held accountable to host communities in Africa regarding cross-border environmental issues including climate change, as well as social and economic sustainability. Researchers could engage with the regulatory framework for multinational companies in cross-border transactions affecting corporate social responsibility in Africa, and the enhancement of human rights standards and social justice in cross-border employment matters in Africa .They might also wish to reflect on the implications for Africa of the new EU Directive 2024/1760 on corporate sustainability due diligence, and of similar due diligence legislative initiatives deployed at the national level in different countries. Other relevant topics include the African Continental Free Trade Agreement and its relationship with private international law and sustainable development, as well as the harmonization of private international law in Africa and its relation with sustainability goals, regional economic integration, abuses of party autonomy in international commercial contracts, and the appeal of international commercial adjudication in Africa. These are all themes that can be explored from a sustainability perspective.

We are particularly interested in innovative academic approaches that address these themes within the African context. We welcome proposals from all approaches, including critical, doctrinal, analytical, conceptual, reflexive, interdisciplinary, post-critical and speculative traditions of law, that enable a serious scholarly reflection on private international law and sustainable development. Contributions will start filling a significant gap in the literature and promote a deeper understanding the relationships, the impact and the potential of private international law in sustainable development in Africa.

Guidelines

Applicants are invited to submit a research proposal of up to 500 words, together with a short CV in the same document. Submissions should be sent to c.okoli@bham.ac.uk, and copy E.Ekhator@derby.ac.uk, and info@ogeesinstitute.edu.ng by 16 December 2024 with the email subject clearly marked “Submission Proposal – Special Issue JSDP – PIL and Sustainable Development in Africa”.

Proposals will be reviewed by the editors and selected participants will be informed by the end of January 2025.

Full draft of selected papers of up to 8,000 words inclusive of footnotes should be submitted by 30 June 2025 following the ‘submission guidelines’ section of The Journal of Sustainable Development and Policy: https://www.ogeesinstitute.edu.ng/submissions.

The editors are seeking opportunities for funding to support a conference in late 2025 to discuss draft papers in advance of publication of the special issue in early 2026.

About the project The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law

On 5 February 2024, the Danish government, along with most opposition parties, reached an agreement regarding children born through surrogacy agreements. This political accord aims to address and improve the legal status of children born through surrogacy, particularly in the context of foreign surrogacy arrangements, ensuring their right to legal parents, without the requirement of […]

“Droit international privé – Immunités de juridiction et competence internationales des tribunaux tunisiens” (Private International Law – Jurisdictional Immunity and International Jurisdiction of Tunisian Courts) is the title of the long-awaited book recently published by Prof. Sami Bostanji, a distinguished Professor at the Faculté de droit et des sciences politiques de Tunis, Director of the DRIMAN research center, and one of the leading private international law scholars in Tunisia.

 

The book represents the first detailed and in-depth analysis of the rules and practices governing the judicial function in Tunisian private international Tunisian, viewed through the lenses of jurisdictional immunities and international adjudicative jurisdiction. It offers a systematic approach to the subject drawing on the most recent – and often unpublished – decisions of Tunisian courts. The author justifies his focus on these two aspects of the judicial function by highlighting “the importance of these issues, both on a theoretical and practical level,” which—according to him—demonstrates a “shift in the center of gravity” (déplacement du centre de gravité) in private international law, moving from conflicts of laws to conflicts of jurisdictions (p. 29, para. 16).

The book, which follows the classical French two-parts plan, begins first with a general introduction in which the author discusses some key concepts, briefly introduces some aspects of the legal the history of judicial jurisdiction in Tunisian private international law, and examines the notion of internationality as a prerequisite for the operation of the private international law system in Tunisia, as well as the relevance of the subject.

The book is then divided into two main parts.

Part One focuses on the study of jurisdictional immunities, approached from the perspective of “restrictions on the power to adjudicate” (Les restrictions au pouvoir de juger). In this first part, the author thoroughly examines how immunities are regulated, starting with the broader international rules governing these issues (Title I) before delving into the solutions provided by Tunisian law, particularly the Code of Private International Law (Title II). The author highlights both legal developments and practical applications of these rules in Tunisian court decisions.

Part Two explores the system of international jurisdiction of Tunisian courts through the perspective of “the capacity to adjudicate” (l’aptitude à statuer). Here, the author analyzes the various forms in which this capacity manifests (Les déclinaisons de l’aptitude à statuer), emphasizing their specific characteristics. This part is divided into three titles.

Title I offers a theoretical analysis of international jurisdiction, examining its nature and guiding principles.

Title II, which serves as the core of the book, is dedicated to the grounds of international jurisdiction for Tunisian courts. These grounds can be derived from (limited) international or (primarily) domestic sources, either through statutory provisions or case law and cover a range of issues. These include exclusive jurisdiction; general jurisdiction based – according to the author – on the domicile of the defendant, the agreement of the parties and connexity; special jurisdiction justified by various concerns such as the protection of children, proximity and administration of justice, location of property etc.; the intricate issue of nationality as ground of international jurisdiction and forum necessitatis.

Title III addresses the challenges to the jurisdiction of Tunisian courts, including cases where the defendant contests jurisdiction, either by appearing before the court and raising the issue or when the judge raises it ex officio. It also examines the implications of foreign proceedings (lis pendens) and foreign judgments (res judicata) on the jurisdiction of Tunisian courts.

In a nutshell, this book provides a comprehensive and detailed account of the theory and practice of jurisdiction in Tunisia, making a significant contribution to the field of private international law in the country and abroad. Written in French, it offers French-speaking scholars and practitioners a valuable opportunity to gain insights into Tunisian jurisdictional rules. The publication of the book is particularly timely, considering the ongoing discussions on jurisdiction within the Hague Conference on Private International Law (HCCH). It indeed offers a new perspective that may prove invaluable to those involved in drafting future international frameworks on jurisdiction to take into account different views and approaches from various parts of the world, especially from the standpoint of a North African and an Arab jurisdiction (although the author highlights from time to time along the pages the “exceptional” aspect of the Tunisian regulation of the issue of jurisdiction as compared to other MENA Arab countries).

Lastly, given the expertise of the author and his long experience as a dedicated scholar and law professor, it is hoped that this work will be followed by further volumes addressing other aspects of Tunisian private international law, particularly the recognition and enforcement of foreign judgments and choice of law.

Probably some of these aspects will be addressed in Prof. Bostanji’s forthcoming stimulating course titled “Secularization and Private International Law in the Arab Countries” which will be delivered during next year’s Summer Courses at the Hague Academy of International Law, as recently announced. For more details, see here.

Much remains to be seen and unveiled!!

 

The blurb of the book reads as follows:

L’étendue de la fonction juridictionnelle est une question centrale du droit international privé contemporain. Le pouvoir de juger, en matière internationale, connaît des restrictions qu’illustrent les immunités de juridictions. Par ailleurs, le périmètre de ce pouvoir, qui se déploie sous le rapport de la compétence internationale, présente des singularités sur le plan des critères qui la fondent et des incident affectant sa mise en œuvre. L’intérêt doctrinal porté, au cours de ces dernières années, à ces questions ainsi que la pléthore des décisions rendues, dans domaines, attentent incontestablement de leur importance aussi bien d’un point de vue théorique que pratique.C’est sous ces différents prismes que le présent ouvrage cherche à éclairer l’évolution de la matière en droit international privé tunisien. (The scope of the judicial function is a central issue in contemporary private international law. The power to adjudicate, in the international context, faces some limits, as illustrated by jurisdictional immunities. Moreover, the reach of this power, which is exercised in relation to international jurisdiction, displays certain unique features regarding the criteria that define it and the issues that affect its operation. The scholarly interest in these issues in recent years, along with the abundance of rulings in this area, undeniably attests to their significance from both theoretical and practical perspectives. It is through these various lenses that the present book seeks to shed light on the evolution of this field in Tunisian private international law.)

The book’s Table of content (in French) can be viewed here.

This post was contributed by Vincent Richard, who practices with Wurth Kinsch Olinger in Luxembourg. On 4 October 2024, the Court of Justice delivered its judgment in case C‑494/23 [Mahá]. The decision, which was rendered without an Opinion from the Advocate General, provides a useful clarification on the material scope of Regulation No 1215/2012 (Brussels […]

IE University is seeking applicants for four full-time, tenure-track, positions at the Assistant Professor level at IE Law School (Madrid). The call is open to candidates from all legal fields, with a focus on Private Law, Commercial & Corporate Law, IP Law, Digital & Tech Law, Administrative Law, Environmental & Climate Change Law, and Legal […]

The Japan Commercial Arbitration Association (JCAA), one of the oldest international arbitration institutions in the world, founded in 1950, has published the 5th Volume of its annual journal on commercial arbitration – the Japan Commercial Arbitration Journal.

The journal features articles on international commercial arbitration, mediation, and litigation related to Japan. These articles are authored by prominent scholars and experienced practitioners who are well-versed in the resolution and prevention of international commercial disputes.

 

The Japan Commercial Arbitration Journal is particularly valuable for non-Japanese readers, including foreign researchers and practitioners, as it provides insights into Japan’s approach to international dispute resolution. By offering comprehensive analysis and updates on arbitration, mediation and litigation practices in Japan, the journal helps bridge the knowledge gap for those working in international commercial law. Access to this information is essential for professionals seeking to understand the nuances of Japanese legal procedures and effectively engage with Japan in cross-border commercial matters.

The new volume features the following articles:

Miriam Rose Ivan L. Pereira

Emergency Arbitration at the JCAA: A Review of the Rules and the Changing Landscape

Fumiyasu Miyazaki

Overview of the amendment to Japan’s Arbitration Act

Atsushi FUKUDA, Takahito KAWAHARA

Overview of the Development of International Mediation Legislation in Japan with the Singapore Convention on Mediation

Takanori Kawashima

Multi-Tiered Dispute Resolution Clauses: Effects of Non-Compliance with Pre-Action/Pre-Arbitration ADR Clauses  

Miyuki Watanabe

Due Process in Arbitration – How to Mitigate Due Process Paranoia?

Takanori Abe

Patent royalty claim dismissed due to a demurrer, admitting the reach of an arbitration agreement ?Defendants’ measures and plaintiffs? risk reduction ?

Kazuhiro Kobayashi

Practical Issues in Enforcing International Settlement Agreements Resulting from Mediation

Michael Martinez

Too far, or not enough? Considerations for discovery in the United States and improving efficiency in international arbitration through an analysis thereof

Shuhei Kubota

Arbitration as a Means of Resolving ESG Disputes

Shin-Ichiro Abe

The Development of Sports Arbitration in Japan and Challenges for the Future

Yoshihisa Hayakawa

Advanced Technologies in Tokyo Facilities for Arbitration Hearings

Tony Andriotis, Shingo Okada, Eric Yao

Serving a Party in Japan by Hague Service Convention

Atsushi Shiraki

Asymmetrical Approaches of Extraterritorial Evidence Legislation between the U.S. and Japan

 

 

All volumes can also be freely consulted and downloaded here.

 

I. Introduction

As mentioned in a previous post, Morocco is not only the MENA Arab jurisdiction that has ratified the largest number of the HCCH Conventions (7 in total), but also a country where the HCCH conventions have been actively applied (see here on the application of the HCCH 1980 Child Abduction Convention, and here for a case involving the application of the HCCH 1996 Child Protection Convention). The application of the HCCH Conventions in Morocco offers valuable insights into how these HCCH instruments operate within an Islamic context, challenging the widely held assumption of the existence of an Islamic exceptionalism (though such exceptionalism does exist, but to a varying degree across the Muslim-majority countries. See e.g. Béligh Elbalti, “The Recognition and Enforcement of Foreign Filiation Judgments in Arab Countries” in Nadjma Yassari et al. (ed.), Filiation and the Protection of Parentless Children (T.M.C. Asser Press, 2019), 373-402).

In the case reported here, the authenticity certificate of conversion to Islam issued in Spain and to which an Apostille was attached was the crucial issue that the Supreme Court had to address. It must be admitted however from the outset that the case did not directly involve the interpretation and the application of the HCCH 1961 Apostille Convention – officially known as Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents. Nonetheless, the case does raise some interesting issues regarding the admissibility of apostillised documents (i.e. document for which an Apostille has been issued). The case also brings to light a significant concern regarding interfaith successions from a private international law perspective in the MENA Arab region, particularly in Morocco. However, while the latter issue is particularly important, for the sake of brevity, the focus here will be placed d on the implication of the Apostille Convention in this case.

 

II. Facts

The case involves a dispute over inheritance of A (apparently a Moroccan national). After A’s death, his heirs (collectively here referred to as “Y”) issued a certificate of inheritance that excluded his wife, a Spanish national (here referred to as “X”) from A’s inheritance. X contested this in the Family Court, claiming her legal rights as A’s widow. Shae argued that Y had unfairly excluded here on the grounds that she was not Muslim, despite having converted to Islam by declaring her faith in the presence of an imam in a mosque in Spain before A’s death, and that she was handed over a certificate confirming her conversion. However, due to the emotional toll of A’s sudden death she forgot to bring the certificate with her at the time of A’s death, and to rectify this, she obtained an official notary document confirming her conversion. In support of her request to be included in the list of A’s heirs, X submitted various legal documents as evidence, including the certificate of her conversion to Islam she obtained in Spain with an Apostille attached to it.

Y, however, requested to dismiss the claim arguing, inter alia, that X was still Christian at the time of A’s death, that the conversion declaration that she made after A’s death had no effect and could not make from a legal heir, therefore, she was not entitled to inheritance since there can be no inheritance between a Muslim and a non-Muslim. Y also argued that her certificate of conversion obtained in Spain was void and had no legal validity even if an Apostille is attached to it.

The Family Court, as the first instance court, ruled in X’s favor and recognized her right to inherit. The decision was later appealed on the grounds, among others, X’s conversion to Islam was fabricated as she was seen performing Christian rituals at the funeral. Y also filed a separate challenge to the authenticity of her foreign certificate of conversion to Islam on the grounds that the certificate was forged. The Court of Appeal, however, dismissed the appeal and upheld the Family Court’s ruling in X’s favor.

Dissatisfied, Y filed an appeal to the Supreme Court.

Before the Supreme Court Y argued, inter alia, that the Spanish conversion certificate was a mere piece of paper without any official administrative references with a signature attributed to a Mosque in Spain. Nonetheless, the court accepted this certificate without verifying its authenticity or the context in which it was issued, such as by consulting relevant records or conducting a judicial investigation with Spanish authorities under the judicial cooperation agreement between Morocco and Spain, and also failed to verify whether the widow was even in Spain on the date the certificate was issued.

 

III. The Ruling

In its ruling No. 167 of 5 April 2022, the Moroccan Supreme Court admitted the appeal and overturned the appealed decision with remand stating as following:

“[…] according to the last paragraph of Article 40 of the convention signed between Morocco and Spain on judicial cooperation in civil, commercial, and administrative matters of 30 May 1997, if there is a serious doubt regarding the authenticity of a document issued by the judicial authorities or other authorities of either country, this should be verified through the central authority of both countries.

[Although] the court of the appealed decision ordered an investigation as part of activating the procedure for alleged forgery against the certificate of conversion to Islam [……] issued by the head of the Islamic Center in Spain, and registered under number (…..) in the registry of Islamic associations at the Ministry of Justice there, [it] failed to observe the procedures stipulated in Article 89 of the Code of Civil Procedure, particularly, by hearing the testimony of the person who issued the certificate and examining its authenticity, regularity, the accuracy of the information it contained and its date; and that by way of a rogatory mission to the competent Spanish authorities in accordance with Article 12 of abovementioned Convention [of 1997], in order to base its decision on verified facts.

As a result, the court’s decision lacked a legal basis and was deficient in its reasoning [……], and therefore, it must be overturned.”

 

IV. Comments

1. About the HCCH 1961 Apostille Convention

 The HCCH 1961 Apostille Convention is undoubtedly one of the most successful HCCH conventions, with its 127 contracting parties (as of the date of the writing). The Convention’s status table shows that more than 15 countries are Muslim-majority jurisdictions or have legal systems influenced by or based on Islamic law. Among them are five Arab jurisdictions from the MENA region: Saudi Arabia, Tunisia, Morocco, Bahrain and Oman. Marocco ratified the Convention on 27 September 2015, and it entered into force on 14 August 2016.

As is widely known, the Convention aims at simplifying the process of authenticating public documents for use abroad. The Apostille Convention eliminates the need for a complex and time-consuming legalization process by introducing a standardized certificate called an Apostille. As such, the Apostille, issued by a designated authority in the State of origin, is a simplified certificate that confirms the authenticity of the document’s origin by certifying the signature on the document is genuine, thus allowing it to be recognized in another Contracting States, the State of destination. (For details, see the HCCH Permanent Bureau, Practical Handbook on the Operation of the Apostille Convention (2nd ed. 2023) pp. 25-34 hereafter the “Apostille Handbook”)

Several key principles that underpin the Apostille Convention. These include the following: First, the Convention applies mainly to “public documents” (the Apostille Handbook, p. 51, para. 102). Second, the Convention is based on the premise that the Apostille only verifies the authenticity of a public document’s origin (and not the content) by certifying the signature, the signer’s capacity, and, where applicable, the seal or stamp (see the Apostille Handbook, p. 31, para. 22-23).

The case commented here provides valuable insights concerning these two points. The first issue is whether a certificate of conversion to Islam, issued by a mosque or an Islamic center in Spain, qualifies as a “public document” under the Convention. Even if it does qualify, the second issue concerns the probative value of an apostillised document, particularly when the authenticity of the document itself is contested for forgery or fabrication.

As the ruling of the Supreme Court above indicates, the Court did not address the first question, arguably assuming the validity of the Apostille without further examination. However, a closer review of the first principle mentioned above suggests that this issue may not be as straightforward as the Court seemed to have presumed. This can be supported by the fact that the Court focused more on the allegation of forgery of the apostillised certificate, implying that the validity of the Apostille itself was not in question.

 

2. Certificate of Conversion to Islam as a “public document”

Can a certificate of conversion to Islam issued in Spain be qualified as a “public document” under the Apostille Convention? Answering this question first requires an understanding of what constitutes a “public document” under the Convention.

a) What is a public document under the Convention?

Although the Convention enumerates in a non-exhaustive list the documents deemed to be “public documents” (art.1(2)), and mainly relies on the national law of the State of origin (i.e. where the document was executed) to determine whether the document qualities as “public document” (the Apostille Handbook, p. 52, para. 105), it provides for a useful criterion to determine whether a document is a “public document”. According to the Apostille Handbook, “the term “public document” extends to all documents other than those issued by persons in their private capacity. Therefore, any document executed by an authority or person in an official capacity (i.e. acting in the capacity of an officer authorized to execute the document) is a public document” (p. 51-52, para. 103). Documents that do not meet this criterion are generally not considered “public documents” under the Convention (the Apostille Handbook, p. 64, para. 182).

There are, however, exceptions. A document may still be apostollised if it is notarized or officially certified (art. 1(2)(c) and (d). See the Apostille Handbook, p. 54, paras. 116-122. On the example of educational documents, including diplomas, see p. 59, paras. 150-153). In addition, “[t]he law of the State of origin may consider religious documents, as well as documents executed by official religious courts, to be of public nature and therefore a public document under the Convention” (See the Apostille Handbook, p. 65, para. 185).

b) The Public nature of Certificates of Conversion to Islam

In certain countries, certificates of conversion to Islam are clearly recognized as public documents. For example, in many Muslim-majority jurisdictions such certificates are issued by public organs or institutions affiliated with the state, such as the Ministry of Religious Affairs, or the Ministry of Justice (e.g., in the UAE) or by authorized persons (such as the Adouls in Morocco). In such cases, the conversion certificate possesses the requisite “public” nature under the Apostille Convention.

However, in many non-Muslim countries, no specific public administrative authority is responsible for overseeing religious conversions or issuing certificates to that effect. Instead, individuals wishing to convert to Islam typically approach a local mosque or Islamic center. There, the person publicly professes their declaration of faith in front of an imam and witnesses. While a certificate is often provided for various purposes (e.g., marriage or pilgrimage), these documents lack the “public” character necessary for apostillasation under the Apostille Convention.

In the case commented here, the summary of facts indicates that the Spanish widow had embraced Islam before an imam at a mosque. The Supreme Court’s ruling, however, refers to her conversion in front of the head of an Islamic Center in Spain registered with the Spanish Ministry of Justice (although it is possible that the mosque was part of the Islamic center, and the head of the Islamic center serves also served as the imam). In any event, it doubtful that either the Imam or the head of the Islamic center acted “in the capacity of an officer” to issue the conversion-to-Islam certificate. Indeed, even when registered as non-profit or religious organization or association, mosques and Islamic centers generally do not possess the authority to issue “public documents” within the meaning of the Apostille Convention. This applies to other types of certificates these centers or mosques may issue such as marriage or divorce certificates. Such certificates are generally not recognized by the states unless duly registered with civil authorities. Where registration is not possible, these documents primarily serve religious purposes within the community.

There is also no indication in the Supreme Court’s decision that the certificate in question falls under the exceptions outlined above (see IV(2)(a)). Therefore, it remains unclear on which grounds the certificate of conversion was apostillised, as “[t]he Convention does not authorize the issuance of an Apostille for a document that is not a public document under the law of the State of origin [Spain in casu], even if the document is a public document in the State of destination [Morocco in casu]” (the Apostille Handbook, p. 52, para. 107).

 

3. Contestation for forgery of an apostillised document

It is worth recalling here that the case reported here concerned the invalidation of a certificate of inheritance that excluded a Spanish widow, who claimed to have converted to Islam, from her deceased husband’s estate. To support her claim, the widow submitted, among other documents, an apostillised certificate of conversion to Islam issued in Spain. Before the Supreme Court, the appellants argued that the certificate of conversion had no legal value because it was forged and lacked sufficient elements to establish its authenticity. The Supreme Court admitted the appeal on the grounds that the authenticity of the certificate had to be examine pursuant to the relevant provisions of the 1997 Moroccan-Spanish Convention on Legal Assistance in Civil, Commercial and Administrative Matters.

The position of the court should be approved on this particular point. the Apostille Handbook makes it clear that the Apostille has no effect on the admissibility or probative value of a foreign public document (the Apostille Handbook, p. 32, para. 25). Indeed, since the Apostille does not relate to or certify the content of the underlying public document, issues concerning the authenticity of the foreign public document and the extent to which it may be used to establish the existence of a fact are left to be dealt with under the law of the State of destination. In this case, the applicable provisions are found the Moroccan code of civil procedure and the Hispano-Moroccan bilateral convention on judicial assistance, as indicated in the Court’s decision.

This post has been written by Reef Alfahad, a PhD candidate at King’s College London. On 17 October 2024, a conference on ‘The Anglo-French Approaches to Arbitration’ will take place at King’s College London, UK. This conference will discuss how the French and English approaches differ when dealing with corruption in arbitration and anti-suit injunctions, […]

By Reef Alfahad,  PhD Candidate at Kings College London

On 17 October 2024, a conference on ‘The Anglo-French Approaches in Arbitration’ will take place at King’s College London (UK). This conference will discuss how the French and English approaches differ when dealing with corruption in arbitration and antisuit injunctions, particularly in light of the recent UK Supreme Court decision in UniCredit v RusChemAlliance.

The event will bring together renowned experts in international arbitration and international commercial litigation.

Welcome remarks: Dr Manuel Penades (King’s College London)

The first panel will address corruption in arbitration and the review by national courts. The speakers will be:

• Jason Fry (KC): Global Head of International Arbitration at Clifford Chance,
• Dr. Jan Kleinheisterkamp, Arbitrator, JK ADR, and Visiting Professor at LSE,
• Karolina Latasz, Senior Associate, Squire Patton Boggs
• Chair: Reef Alfahad, PhD Candidate at KCL, organiser

The second panel will be dedicated to anti-suit injunctions concerning foreign seated arbitrations. The panellists will be:

• The leading counsels for both parties in UniCredit v RusChemAlliance, Alexander Gunning (KC) and Professor Jonathan Harris (KC)
• Raphaël Kaminsky, French law expert and Partner, Teynier Pic,
• Professor Dr. Maxi Scherer, Professor, Queen Mary School of Law and Arbitrator, ArbBoutique.
• Chair: Marie Berard, Head of UK Arbitration, Clifford Chance (London).

The conference will be held in English. The program is available here https://www.kcl.ac.uk/events/the-anglo-french-approaches-to-arbitration.

Registration is required at https://www.eventbrite.co.uk/e/the-anglo-french-approaches-to-arbitration-tickets-1024955999987?aff=oddtdtcreator

As reported earlier on this blog, the Cour de cassation ruled in a judgment of 2 October 2024 that a foreign surrogacy recognised in France produces the legal effects provided by foreign law and need not be considered as a full adoption of French law. Background In that case, a couple of French men had […]

This post was written by Mathilde Codazzi, who is a doctoral student at Paris II Pantheon-Assas. On 2 October 2024, the French Cour de cassation issued two decisions regarding respectively the conditions for declaring enforceable foreign judgments establishing legal parentage between a child born abroad to a surrogate mother and the intended parents and the effects […]

By Poomintr Sooksripaisarnkit, Lecturer in Maritime Law, Australian Maritime College, College of Sciences and Engineering, University of Tasmania

On 24th September 2024, Mimmie Chan J handed down the judgment of the Court of First Instance of the High Court of the Hong Kong Special Administrative Region in Bank A v Bank B [2024] HKCFI 2529. In this case, the Plaintiff (Bank A) with its base of operation in Germany was under the supervision of the German Federal Financial Supervisory Authority (BaFin). Its majority shareholder was the Defendant (Bank B) who held 99.39% shares. In turn, the Defendant was a Russian bank whose majority shareholder was the Government of the Russian Federation.

Between the predecessor of Plaintiff (as, at the time before the court in Hong Kong, the Plaintiff bank was already in voluntary liquidation) and Defendant, there existed an ISDA agreement dated 23 July 2023. Following the war between Russia and Ukraine which broke out in February 2022, Germany followed the “Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty, and independence of Ukraine” which Article 2 provides:

“1. All funds and economic resources belonging to, owned, held or controlled by any natural persons or natural or legal persons, entities or bodies associated with them as listed in Annex I shall be frozen.

2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural persons or natural or legal persons, entities or bodies associated with them listed in Annex I.”

As a result, BaFin barred Plaintiff from making payments or other transfers of assets to companies, including Defendant. Moreover, it also barred Plaintiff from accepting new deposits, granting loans, or making payments to Russian borrowers. The defendant was subsequently listed in the Annex I of the EU Regulation. On that same day, Plaintiff and Defendant entered into a Termination and Settlement Agreement (TSA) under which Plaintiff was to pay Defendant EUR 112, 634, 610. The TSA contained a choice of the English law clause and an arbitration clause for any dispute to be resolved by the Hong Kong International Arbitration Centre (HKIAC) arbitration.

After the defendant was added to Annex I, BaFin denied the defendant’s right to vote in the plaintiff’s meetings and also barred the plaintiff from taking any instructions from the defendant. Defendant tried to demand payment from Plaintiff according to the TSA but Plaintiff denied that, citing the infeasibility due to the EU Regulation.

The defendant hence commenced proceedings before the courts in Russia. Among other things, the Russian Court granted a ‘Freezing Order’ prohibiting any transfer of securities that Plaintiff had in its account with Defendant’s bank. The plaintiff’s attempt to challenge the jurisdiction of the Russian Court based on the arbitration clause contained in the TSA was unsuccessful. Hence, on 27 October 2023, the plaintiff sought an interim anti-suit junction from the court in Hong Kong.

Regardless of the interim anti-suit injunction, the defendant commenced again the proceedings in Russia where the Russian Court issued an anti-suit injunction prohibiting the plaintiff from continuing any proceedings in Hong Kong, and subsequently the defendant obtained another injunction prohibiting the plaintiff from initiating arbitration proceedings at the HKIAC.

In late 2023, the Russian Court gave judgment in favor of the defendant to seek the settlement payment under the TSA and granted the final injunction restraining the plaintiff from pursuing the HKIAC arbitration.

The plaintiff hence came to the court in Hong Kong seeking a final injunction to restrain the defendant from pursuing or continuing any proceedings in Russia. The defendant resisted that by raising the arguments based on Article 19 and Article 13 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990 Promulgated by Order No. 26 of the President of the People’s Republic of China on 4 April 1990 Effective as of 1 July 1997) (hereinafter the “Basic Law”) (which is effectively a mini-constitution for Hong Kong) SAR):

“Article 13

*The Central People’s Government shall be responsible for the foreign affairs relating to the Hong Kong Special Administrative Region.

The Ministry of Foreign Affairs of the People’s Republic of China shall establish an office in Hong Kong to deal with foreign affairs.

The Central People’s Government authorizes the Hong Kong Special Administrative Region to conduct relevant external affairs on its own in accordance with this Law.

Article 19

The Hong Kong Special Administrative Region shall be vested with independent judicial power, including that of final adjudication.

The courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained.

*The courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs. The courts of the Region shall obtain a certificate from the Chief Executive on questions of fact concerning acts of state such as defence and foreign affairs whenever such questions arise in the adjudication of cases. The certificate shall be binding on the courts. Before issuing such a certificate, the Chief Executive shall obtain a certifying document from the Central People’s Government.”

 

Mimmie Chan J summarised the rule concerning the anti-suit injunction which has been established through authorities in Hong Kong at [34]:

“Foreign proceedings initiatied in breach of an arbitration agreement will ultimately be restrained by the grant of an injunction, unless there are strong reasons shown to the contrary … For contractual anti-suit injunctions, the courts have emphasized that there is no need to prove that the arbitral tribunal is the most convenient forum … Nor is there need for the Court to feel diffidence in granting the injunction, or to exercise the jurisdiction sparingly and with great caution,  for fear of giving an appearance of undue interference with proceedings of a foreign court. The restraint is directed against the party which has promised not to bring the proceedings otherwise than in accordance with the arbitration agreement, and effect should ordinarily be given to the agreement in the absence of strong reasons for departing from it…”

So far as the argument based on the act of state in Article 19 of the Basic Law is concerned, the judge found there was no proof that the defendant was a state entity despite its majority shareholder being the Government of the Russian Federation. Neither the defendant’s argument that Germany was somehow involved in the plaintiff convinced the judge because, as she found in [50], Bafin was a regulatory authority. Its act was not that of the state. Since there is no doubt about neither party in the case, there is no basis to obtain the certificate from the Chief Executive according to the third paragraph of Article 19 of the Basic Law (citing the Court of Final Appeal in Democratic Republic of Congo v FG Hemisphere Associates LLC (No 1) (2011) 14 HKCFAR 95).

 

The judge then came to conclude in her ratio decidendi at [59] and [60]:

“In my judgment, what is pertinent is that the question for determination by the Court in this case is simply whether there is a valid and binding arbitration agreement between the Plaintiff and the Defendant, which covers the scope of the dispute between the two parties and the claims made by them in these proceedings and in the two sets of Russian proceedings, and whether to grant the injunctions on the Plaintiff’s application. It is trite, that the arbitration agreement contained in the Arbitration Clause is severable from and separate to the underlying TSA between the parties. Any illegality of the TSA, and any alleged impossbility to perform the TSA, cannot affect the validity and operation of the arbitration agreement. Nor does the impossibility of performance of any award obtained in the HK Arbitration affect the validity and enforceability of either the arbitration agreement, the HK Arbitration itself, or the award obtained …

… It is simply not necessary for the Court to decide whether the issue and application of the EU Sanction confers a good answer to the Defendant’s claim for payment under the TSA, whether the Plaintiff can be excused from payment, and the effect of the EU Sanction on the TSA are all matters which go to the merits of the claim in the HK Arbitration, and it should not be forgotten that the Court does not consider the merits of the underlying dispute when it decides the Plaintiff’s claim for the injunctions – which are made solely on the basis of a valid arbitration agreement. This is also a reason to reject the Defendant’s assertion that by granting the injunctions to the Plaintiff, the Court is implementing or facilitating the EU Sanction. Any injunction which the Court grants in this case is to facilitate the arbitration agreement between the parties, and nothing else”.

 

The judge also denied that the EU Regulation is in any way contradictory to the public policy of Hong Kong or that of the People’s Republic of China since it does not affect the rights or property of any Chinese entity or Hong Kong entity.

Overall, this is a fair case that the judge chose to uphold the effect of the arbitration agreement. It was somewhat curious that the parties agreed to the English law in the TSA agreement, knowing that, under the English law, the EU Regulation is likely to be effective. It is not known for what reason the Court in Russia found for the defendant regarding its entitlement to the payment under the TSA. For sure, a hard burden falls on arbitrators at the HKIAC (as per the TSA, the tribunal should consist of 3 arbitrators). There has been much discussion on the impact of any unilateral sanction upon arbitrators in recent years. Arbitrators will continue facing this challenge so long as the conflict remains, being that between Russia and Ukraine or that in the Middle East.

 

 

 

The Hague Judgments Convention of 2 July 2019 entered into force for Uruguay on 1 October 2024. Uruguay had ratified it on 1 September 2023. As a result, the Judgments Convention is currently in force for 28 States and one Regional Organization of Economic Integration, namely the European Union. Specifically, the States bound by the […]

The latest issue of the Journal of Private International Law (Volume 20, Issue 2) features eight articles. Reid Mortensen & Kathy Reeves, The common law marriage in Australian private international law, 249-279 The common law marriage is a curiosity in the private international law of marriage in the Commonwealth and Ireland. In some cases, a marriage […]

On 26 and 27 June 2025, Brigitta Lurger, Martina Melcher, Florian Heindler, and Simon Laimer organize the forth edition of the Austrian Private International Law Workshop. This year, it is hosted by the University of Graz, Austria. The organizers aim to facilitate an open and lively discussion on questions of private international law. Presentations will be delivered in German.

Confirmed speakers are Barbara Egglmeier-Schmolke, Burkhard Hess, Martin Lutschounig, Sören Segger-Piening and Bea Verschraegen.

Details can be found on the flyer and here. Participation is free of charge. Please register via ipr-workshop@uni-graz.at.

Just two days after losing to LOSC Lille in the Champions League, Real Madrid suffered another defeat against a French opponent. Among the 44 (!) judgments published this Friday by the CJEU – a flurry of decisions reminiscent of the madness that is the current Champions League format –, the Court decided a true ‘clásico’ of European private international law in Case C-633/22 Real Madrid Club de Fútbol.

The decision has long been awaited: eigth months after the Opinion by AG Szpunar (discussed here) has been published and almost 18 years since the facts of the case. It concerns an article published by leading French newspaper Le Monde in 2006, which claimed that both FC Barcelona and Real Madrid had retained the services of Eufemiano Fuentes, a sports doctor heavily implicated in numerous doping scandals. Real Madrid and a member of their medical team sought damages for the harm to their reputation and were eventually awarded payment of € 390,000 to the former and of € 30,000 to the latter by a Spanish court in 2014. Their attempts to enforce those awards in France were thwarted, though, with the Paris Court of Appeal holding that they were violating French public policy by deterring the media’s freedom of expression as guaranteed by Art 11. of the Charter of Fundamental Rights of the European Union. The French Cour de cassation finally referred the case to the CJEU in 2022, raising questions as to whether such a deterrent effect on freedom of expression would be a valid ground of public policy to refuse enforcement based on (what is now) Art. 45(1)(a) Brussels Ia and, if so, how it could be established.

In its decision (not yet available in English), the Court largely follows the Opinion of its Advocate General. After reiterating the importance of striking the right balance between swift recognition and enforcement of judgments between Member States and the defendant’s right of defence (paras. 29–31), the Court emphasises that – except in exceptional circumstances – the courts of the Member State of enforcement must not review the substance of the foreign decision (paras. 36–39) and may even have to presume that the fundamental rights of the defendant, including those derived from EU law, have been respected (paras. 42–43). Yet, a violation of the freedom of expression enshrined in Art. 11 of the Charter (and Art. 10 of the European Convention of Human Rights) may constitute such exceptional circumstances (paras. 45–53).

Focusing on the present case, the Court then goes on to emphasise the role of the press as a ‘public watchdog’ (using the English term even in the French original), not least with regard to reporting on doping in professional sports, and the risks of a deterring effect, relying extensively on jurisprudence by the European Court of Human Rights (paras. 54–56). According to the Court, it follows that in this context,

‘toute décision accordant des dommages-intérêts pour une atteinte causée à la réputation doit présenter un rapport raisonnable de proportionnalité entre la somme allouée et l’atteinte en cause.’ (para. 57)

In order to establish the existence of such a reasonable proportion, the courts of the Member State of enforcement may indeed consider, in particular, the amount awarded: if it exceeds the material and immaterial damage, or if it is significant in comparison to the ressources of the defendant, a deterrent effect may be found (paras. 62–64). What is more, the courts may also take into the account ‘la gravité de la faute [des personnes condamnées]’ (para. 68).

While it remains for the French courts to apply these criteria to the Spanish decision – and to potentially refuse enforcement to the extent (!) that it has a deterrent effect on freedom of expression (i.e. not entirely; see para. 72) on this basis –, the Court of Justice certainly appears open towards the possibility of such a deterring effect being found to exist in the present case.

The Hague Academy of International Law has made known the programme of the summer course of Private International Law of 2025. The course will be opened by Linda Silberman (Clarence D. Ashley Professor Emerita at New York University School of Law) with a lecture on Cooperation and Communication in Private International Law. The general course, […]