Flux des sites DIP

by Shantanu Kanade, Assistant Professor, Dispute Resolution, Jindal Global Law School, India 

The Federal Court of Australia (“Federal Court”), in its recent judgement in the Republic of India v. CCDM Holdings, LLC[1] (“Judgement”), held that the Republic of India (“India”) was entitled to jurisdictional immunity from Australian Courts in proceedings seeking recognition and enforcement of foreign arbitral awards dealing with disputes arising from ‘non-commercial’ legal relationships. The Court’s judgment was rendered with respect to an appeal filed by India against an interlocutory judgement of a primary judge of the same court, rejecting India’s sovereign immunity claim.

Background of the Dispute

Three Mauritian entities of the Devas group (“Original Applicants”) had commenced arbitration proceedings in 2012 under the 1998 India-Mauritius BIT, impugning India’s actions with respect to an agreement for leasing of space spectrum capacity entered between Devas Multimedia Private Limited (an Indian company in which the Original Applicants held shares) and Antrix Corporation Limited (an Indian state-owned entity). In 2011, India’s Cabinet Committee on Security decided to annul the said agreement, citing an increased demand for allocation of spectrum towards meeting various military and public utility needs (“Annulment”). The arbitration proceedings that followed culminated in a jurisdiction and merits award in 2016[2] and a quantum award in 2020 (“Quantum Award”)[3]. The Original Applicants have since sought to enforce the Quantum Award against India in different jurisdictions, discussed here.[4]

 

Proceedings Before the Primary Judge

The Original Applicants commenced proceedings before a primary judge of the Federal Court (“Primary Judge”) in April 2021 for recognition and enforcement of the Quantum Award. In May 2023, the Original Applicants were substituted with three US entities of the Devas Group which were respectively assignees of each of the Original Applicants (collectively the “Applicants”).

India asserted that it was immune to the jurisdiction of the Federal Court under section 9 of the Foreign State Immunity Act, 1985 (“Act”), which states: “Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.” An exception to this general rule of immunity is provided in section 10(1), which states: “A foreign State is not immune in a proceeding in which it has submitted to the jurisdiction in accordance with this section.” Section 10(2) further provides that a State may submit to jurisdiction “by agreement or otherwise”. The Applicants argued that by ratifying the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (“Convention”), India has submitted to the jurisdiction of Australian courts by agreement within the meaning of Section 10(1) and (2) of the Act in relation to proceedings for recognition and enforcement of foreign arbitral awards.

In deciding whether India has waived its immunity, the Primary judge invoked the judgement of the High Court of Australia (“High Court) in Kingdom of Spain v Infrastructure Services (“Spain v. Infrastructure Services”)[5], which dealt with a similar claim of jurisdictional immunity by Spain with respect to enforcement of an ICSID Convention award. Observing that that the “standard of conduct for submission by agreement under Section 10(2) requires either express words or an implication arising clearly and unmistakably by necessity from the express words used”, the Primary Judge held that ratification of the Convention by India amounts to a “clear and unmistakable necessary implication” that it has agreed to submit to the jurisdiction of Australian courts as per Section 10(2).[6] The Primary Judge opined that permitting India to take a sovereign immunity defence would be inconsistent with Article III of the Convention, which requires all Contracting States to “recognize arbitral awards as binding and enforce them”.[7]

The Primary Judge noted that India had made a commercial reservation to the Convention, per which it would “apply the Convention only to differences arising out of legal relationships [. . . ] which are considered as commercial under the Law of India.” (“Commercial Reservation”). However, he did not consider this to be relevant to the instant case as enforcement of the Quantum Award was sought in Australia, which had made no such reservation.[8]

The Primary Judge thus rejected India’s claim to jurisdictional immunity, while granting leave to appeal to the Full Court of the Federal Court (“Full Court”).

 

The Full Court Judgement

 India appealed the judgement of the Primary Judge to the Full Court, contending that he erred in rejecting India’s plea on jurisdictional immunity. The Full Court framed two issues for consideration: (1) by ratifying the Convention, did India waive foreign state immunity in respect of enforcement of an award that is generally within the scope of the Convention but excluded by its Commercial Reservation (“Issue 1”), and (2) is the Quantum Award outside the scope of India’s Commercial Reservation? (“Issue 2”).[9]

On Issue 1, India asserted that it had not submitted to the jurisdiction of Australian courts with respect to proceedings for recognition and enforcement of awards that fell outside the scope of its Commercial Reservation. The Applicants submitted that the Commercial Reservation is a unilateral reservation that does not oblige other contracting States to the Convention (“Contracting States”) to limit recognition and enforcement of such awards in the same manner.

In considering these submissions, the Full Court undertook a detailed analysis of the rules set out in the Vienna Convention on the Law of Treaties (“VCLT”) that deal with the legal effects of reservations made by a State while expressing its consent to bound by a treaty. The Court observed that as the Commercial Reservation is a reservation “expressly authorised” by Article I (3) of the Convention, it falls within the terms of Article 20(1) of the VCLT and does not require any subsequent acceptance by other Contracting States. To determine the legal effects of the Commercial Reservation, the Court turned to Article 21 of the VCLT, read with the Guide to Practice on Reservations to Treaties published by the International Law Commission. Based on the foregoing analysis, the Court concluded that “the effect of a reservation is that between the reserving and accepting state (which in the case of the New York Convention is all other states), the reservation modifies the provision of the treaty to the extent of the reservation for each party reciprocally (. . .).”[10] Applying the said understanding, the Full Court opined that obligations under the Convention undertaken towards or by a Contracting State that has made a commercial reservation are limited by such reservation. Both India and Australia thus had no obligation towards each other to enforce awards that do no not pertain to “commercial” relationships under Indian law.[11]

The Full Court then considered whether India’s ratification of the Convention, qualified by its Commercial Reservation, entails a “clear and unmistakable necessary implication” that it has waived its immunity from Australian courts (as per the standard articulated in Spain v. Infrastructure Services). The Court found that no such implication arises as India’s ratification of the Convention subject to the Commercial Reservation is “a sufficiently (un)equivocal expression of India’s intention not to waive foreign State immunity in proceedings enforcing the Convention in respect of non-commercial disputes (. . . ).” [12]

Despite the parties not contesting Issue 2, the Full Court determined the issue for the sake of completeness of legal analysis. Interestingly, given the absence of evidence on what constitutes “commercial” relationships under Indian law, the Full Court approached the question of whether the Quantum Award fell within the scope of the Commercial Reservation from the perspective of Australian law (following case law from the High Court[13]). In doing so, the Court considered Section 11 of the Act, which provides for a “commercial transaction” exception to foreign State immunity. While acknowledging that considerations under Section 11 and those concerning India’s Commercial Reservation are different, the Full Court opined that there is a significant overlap between the two and proceeded to analyse the Quantum Award under Section 11. The Applicants had invoked the exception under Section 11 as a separate ground before the Primary Judge, which he rejected on the ground that the Annulment “was made by the body vested with the highest form of executive policy-making in India, and was stated to be for reasons of public policy” and was not thus not a “commercial transaction”. Reiterating the Primary Judge’s reasoning, the Full Court concluded that the Quantum Award is not an award dealing with differences arising from a “commercial” relationship.[14]

It is interesting to consider if the court’s approach would have been any different if it were answering this question from an Indian law perspective. The position under Indian law on whether awards rendered in investor-State arbitrations (“Investment Awards”) can be considered as pertaining to “commercial” relationships is ambiguous. Of particular relevance are two Delhi High Court judgements, in which the court opined that Investment Awards cannot be considered “commercial”  for the purposes of enforcement under Part II of the Arbitration and Conciliation Act (which implements the Convention in India).[15] Critics of these judgements, on the other hand, have emphasised that there is enough basis in Indian law and policy to suggest that Investment Awards are commercial in nature. Perhaps the strongest argument in this regard is that India’s 2016 Model BIT expressly states that Investment Awards “shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention.”[16]

 

Reflections on the Judgement

The Applicants have filed a special leave to appeal the Full Court judgement (“Judgement”) to the High Court. The reflections shared below are thus subject to a potential reconsideration of the Judgement by the High Court.

Firstly, prevailing uncertainty regarding enforceability of Investment Awards in India (as discussed above) is what has prompted investors such as Devas to seek enforcement of such awards in other jurisdictions. In this regard, the Judgement could render Australia an unfavourable enforcement jurisdiction for Investment awards to which India is a party. This is because India could invoke jurisdictional immunity in all future enforcement proceedings until the ambiguity concerning the commercial nature of Investment Awards under Indian law is resolved (either through legislative action or a Supreme Court ruling).

Secondly, this Judgement may have significant implications for enforcement in Australia of all Investment Awards not rendered under the ICSID Convention and thus subject to enforcement under the Convention (“Convention Awards”). Spain v. Infrastructure Services has settled the position that jurisdictional immunity is not available to a foreign State under Australian law with respect to enforcement of ICSID Convention awards. This Judgement, however, casts a shadow of doubt on the enforceability of Convention Awards in Australia by leaving the door open for other Contracting States that have made a commercial reservation to the Convention to invoke jurisdictional immunity in enforcement proceedings for such awards.

Given its likely implications, it is no surprise that the Judgement has come in for criticism by some commentators[17] who have highlighted the following issues: (1) the Full Court’s approach to commerciality of Investment Awards is inconsistent with that of courts in comparable jurisdictions such as the US and Canada, which have enforced Convention Awards despite these States having made a commercial reservation to the Convention, and (2) the characterisation of the Quantum Award as ‘non-commercial’  is contrary to the wide interpretation of term “commercial” envisaged in the UNCITRAL Model Law[18], which has the force of law in Australia.[19]

All stakeholders will now have to wait and watch how the High Court, if and when it takes up the appeal, deals with the Full Court’s findings.

 

[1] Republic of India v CCDM Holdings, LLC [2025] FCAFC 2 (“Judgement”).

[2] CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited, and Telcom Devas Mauritius Limited v. the Republic of India, PCA Case No. 2013-09, UNCITRAL (“CC/Devas Arbitration”), Award on Jurisdiction and Merits (25 July 2016).

[3] CC/Devas Arbitration, Award on Quantum (13 October 2020).

[4] Jeanne Huang, The Indian Satellite Saga and Retaliation: Recognizing the Supreme Court of India’s Judgment Abroad?, Coonflictoflaws.net, https://conflictoflaws.net/2024/the-indian-satellite-saga-and-retaliation-recognizing-the-supreme-court-of-indias-judgment-abroad/#_edn1.

[5] Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11.

[6] CCDM Holdings, LLC v Republic of India (No 3) [2023] FCA 1266, ¶ 51 (“Primary Judgement”).

[7] Primary Judgement, ¶43.

[8] Primary Judgement, ¶58.

[9]  Judgement, ¶54.

[10] Judgement, ¶67.

[11] Judgement, ¶68.

[12] Judgement, ¶72.

[13] Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54.

[14] Judgement,¶82.

[15] Union of India v. Vodafone Group, 2018 SCC OnLine Del 8842, ¶¶ 90-91; Union of India v. Khaitan Holdings (Mauritius) Limited & Ors, SCC OnLine Del 6755, ¶¶ 29-30.

[16]Model Text for the Indian Bilateral Investment Treaty (2016), Article 27.5, https://dea.gov.in/sites/default/files/ModelBIT_Annex_0.pdf.

[17] Micheal Lee, Check for NYC Reservations: Federal Court of Australia Affirms India’s Sovereign Immunity Against Recognition and Enforcement of Non-ICSID Arbitral Award, Steptoe Clients Alerts (26 March 2025), https://www.steptoe.com/en/news-publications/check-for-nyc-reservations-federal-court-of-australia-affirms-indias-sovereign-immunity-against-recognition-and-enforcement-of-non-icsid-arbitral-award.html?tab=overview.

[18] UNCITRAL Model Law on International Commercial Arbitration (1985),  Article I(1), footnote 2 states as follows: “The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. [. . . ].”

[19] International Arbitration Act 1974, Section 16(1).

On 27 March 2025 the Court of Justice handed down the judgment in the Ławida case (C-57/24) concerning the scope of jurisdiction to receive declaration on waiver of succession under Article 13 of the Succession Regulation. The preliminary question originates from Poland. Facts of the Case BA is a minor habitually resident in Poland. The deceased […]

The author of this report is Meltem Ece Oba (Koç University, Istanbul). The post is being published simultaneously on Conflictoflaws.net and on the EAPIL blog.

 

 On 20-21 March 2025, a conference on “Characterisation in the Conflict of Laws” was convened at St Hilda’s College, Oxford. Under the auspices of the Institute of European and Comparative Law in the Law Faculty of the University of Oxford, the conference was jointly organised by Dr Johannes Ungerer (University of Oxford and Notre Dame University in England), Dr Caterina Benini (Catholic University of Sacred Heart, Milan) and PD Dr Felix Berner (University of Tübingen). The conference brought together scholars and practitioners from several jurisdictions around the world.

 

The conference’s topic, characterisation, is the process for identifying 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 which then points to the applicable law or to the competent court. Characterisation poses difficulties where the action is domestically unknown or falls in-between two categories and could thus be potentially litigated in different fora or under different laws, leading to different outcomes. Different methods proposed for characterisation make this process even more complex. In this conference, participants explored characterisation from historical, methodological, critical, practical, and further perspectives with the aim to shed light on some of the most pressing and controversial issues of what arguably is the most crucial step for a court when determining its international jurisdiction and the applicable law.

 

Following the opening remarks by the three organisers, the first presentation addressed the history of characterisation. Professor Martin Gebauer (University of Tübingen) explored three main themes: striking parallels in time and content, strong contrasts, and finally the tensions in characterisation. Gebauer initially touched upon the ‘discovery’ of characterisation as ‘a child of the nineties of the 19th century’ in the works of Franz Kahn and Etienne Bartin. This was followed by the examination of the internationalist approaches. This led him to discuss autonomous characterisation and functional comparative law approaches as the ‘third direction’ through the work of Scipione Gemma and the changed views of Franz Kahn. Gebauer highlighted that the doctrinal views in this decade reflected the ideological battles over the foundations of private international law. He further discussed the developments in characterisation in the 20th century, such as the developments in comparative law and Rabel’s approach to characterisation. Finally, Gebauer considered characterisation in transnational and European law and its contribution to the homogenous understanding of conflict-of-laws rules within the EU. In the discussion following his presentation, the challenges of comparative law methodology and the need to consider a range of perspectives on characterisation (instead of a single one) were debated amongst other aspects.

 

The following presentations were dedicated to the process and particular problems of characterisation. The paper given by Professor Andrew Dickinson (University of Oxford) raised the question of “Is there any magic in characterisation?” with a focus on the courts of England and Wales. He provided seven steps of dealing with how the courts must engage with characterisation. Using a metaphor, he compared the attempts of describing the characterisation process to an attempt of describing the elephant in the Indian parable of ‘blind men and an elephant’. In this regard, Dickinson underlined that one can only provide an informative tool kit and cannot describe a full process of characterisation. He emphasised that all parts of a given rule and most importantly its purpose must be taken into account when characterising it. In this regard, he explained that ‘substance’ should be valued higher than ‘form’ and that ‘labels’ should not play a major role. Dickinson considered characterisation as being more of a practical issue from the common law perspective, and a process of interpreting a rule or a particular subset of settings; he thus concluded that there is no ‘magic’ in characterisation. Participants used the subsequent discussion for instance to contrast the Common law position with the Civilian approaches and to question the role of the judge and the parties when characterising a claim.

 

The next presentation was delivered jointly by Associate Professors Brooke Marshall and Roxanna Banu (both University of Oxford) on characterisation’s role in the jurisdictional inquiry in English courts. They began with an overview of the instances where the choice of law questions are raised at the jurisdictional stage in the context of granting permission for service out of the jurisdiction, exploring the relevant gateways in the Practice Direction 6B of the Civil Procedure Rules. Marshall critically examined the UK Supreme Court decision in UniCredit Bank v RusChemAlliance, demonstrating how the choice of law matters affect the international jurisdiction of English courts. Banu, from a more theoretical point of view, then discussed the a priori application of the lex fori to jurisdictional matters and the importance of theorising characterisation to understand the reasons why jurisdiction and substance are to be distinguished. The presentation was followed by a fruitful discussion which, among other issues, highlighted the problematic circular reasoning employed at the intersection of choice of law and jurisdictional characterisation.

 

The last paper of this session was presented by Professor Pietro Franzina (Catholic University of Sacred Heart, Milan) on ‘renvoi de characterisation’, that is, characterisation for the purposes of renvoi. At the beginning, he set the scene with regard to the meaning of renvoi and characterisation as well as the distinction between primary and secondary characterisation. Franzina explained that where the private international law of the forum contemplates the possibility of renvoi, the conflict of laws conceptions of a foreign applicable law should also be appreciated. In that regard, Franzina demonstrated through examples how the ‘second characterisation’ should reflect the taxonomy of the designated legal system (and, in some instances, the taxonomy of the different system specified under the conflict-of-laws rules of the latter system). He explained that characterisation for the purposes of renvoi is not given as much attention today as it used to receive, especially due to the greater weight that substantive policy considerations have progressively gained in private international law. The subsequent discussion addressed concerns over consistency in the interpretation of connecting factors in jurisdictional and applicable law matters.

 

The next session of the conference consisted of four presentations on challenges of characterisation in specific areas. The first speaker, Assistant Professor Joanna Langille (University of Western Ontario), focused on the distinction between substance and procedure. In this regard, Langille critically examined the use of the traditional common law distinction of rights and remedies for characterisation purposes. She took a Kantian rights-based approach to explain that the idea of right and remedy essentially merged or ‘shaded into’ one another. Langille argued for an alternative distinction between substance and procedure based on the nature of private rights. The adjudication process through which that determination is made should be subjected to the lex fori as the law of the community. In that sense, she viewed procedural law as being about publicity or the capacity of the courts to make law for the community as a whole and hence operating on a vertical plane. On the other hand, where the court is faced with a question that relates only to the horizontal relationship and, thereby, the reciprocal rights and duties between the two parties, foreign substantive private law should apply. Accordingly, the ‘provisions that are determinative of the rights of both parties’ were considered as substantive, whilst ‘the machinery of the forum court’ as procedural. She exemplified her views by reference to statutes of limitation. Among the issues raised during the subsequent discussion were the role of procedural law and of the lex fori in light of state sovereignty as well as the transcending boundaries of substance and procedure in instances like limitation statutes.

 

The next paper was delivered by Professor Yip Man (Singapore Management University) on the characterisation of equitable doctrines. While characterisation might have to start from a domestic law understanding, she embraced a functional approach in characterisation and argued for the pursuit of uniformity with an internationalist spirit and therefore against being constrained by domestic law notions. In that regard, she emphasised the importance of understanding the function of equity in arriving at the appropriate category. The conceptual diversity and complexity of equitable doctrines in Common law systems both in conflict of laws and domestic laws were discussed. Yip Man highlighted the objective of identifying the predominant characteristic of a legal institution, which she illustrated by reference to both remedial and institutional features. The relationship between the parties underlying the equitable obligations and remedies were also discussed as possibly being the predominant features to be taken into account. Finally, Yip Man analysed two recent decisions, Xiamen Xinjingdi Group Co v Eton Properties of the Hong Kong Court of Final Appeal and Perry v Esculier of the Singapore Court of Appeal. The discussion addressed the challenge of characterising equitable doctrines in Civilian courts, possible advantages when differentiating between substance and procedure when characterising equitable concepts, and the ‘fusion’ approach.

 

Moving on to the insightful presentations by two academically distinguished practitioners, Dr Alex Critchley (Westwater Advocates, Edinburgh) spoke about the characterisation of contractual arrangements in the context of family law where some of the most challenging questions arise. Critchley focused on two main issues, namely the way family law agreements differ from other contracts (or as to whether they can be characterised as contracts at all) and the extent to which they relate to other fields of law such as company law. In this context, he explained the international framework for contracts in international family law by exploring the EU and HCCH rules. He then exemplified family law agreements and their different forms such as nuptial agreements, care arrangements for children or agreements addressing corporate or property relationships between family members. This led to a discussion among all participants about choice of law rules for nuptial agreements, the characterisation of maintenance agreements, the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations, and case law referenced by Critchley, such as F v M 2021 SLT 1121.

 

Looking at a very different area of law, Dr Thomas Klink (Higher Regional Court of Stuttgart) addressed characterisation in international M&A disputes, where issues arise in judicial practice especially when the purchase agreement did not contain a relevant and valid choice of law clause. In his presentation Klink initially examined the characterisation of purchase agreements both in the form of a ‘share deal’ or – less common – an ‘asset deal’. He hinted at the tricky ramifications if the selling shareholder is a natural person and could be considered to be a consumer for the purposes of Article 6 of the Rome I Regulation. He then moved on to characterisation challenges encountered in the preparation of the transaction and in respect of non-disclosure agreements/letters of intent, access to information, exclusivity, and the issues arising from the termination of negotiations such as break-up fees. Klink also touched upon company law issues such as the transfer of shares. Post-M&A disputes such as fraud cases were also addressed. Looking ahead, he expressed his expectation that the number of M&A disputes in the newly established International Commercial Courts will increase, which was then also discussed further by the conference participants. Other issues in the discussion included the consumer status of investors, the parallels between choice of law and jurisdictional characterisation in M&A disputes, and the latest case-law developments on concurrent claims. This concluded a day full of fruitful debates.

 

The second day of the conference began with a session on what the organisers had termed rethinking characterisation, exploring novel and more critical approaches to characterisation.

 

The first speaker in this session was Professor Jeremy Heymann (University of Lyon III Jean Moulin). Heymann’s presentation was entitled ‘characterisation from a unilateralist perspective’. He outlined the approach of unilateralism in contrast to multilateralism. Heymann argued that, from a methodological point of view, it is necessary to first identify a ‘legal order of reference’ and then to determine if the legal issue at hand and the facts of the case fall under the scope of this ‘legal order of reference’. Whilst indicating that the ‘legal order of reference’ of the judge should be the lex fori in most instances, he also highlighted that the law to be taken into account should correspond to the expectation of the parties. Through this conception of unilateralism Heymann argued that the law applicable to characterisation should be ‘much more the lex causae than lex fori’. In the subsequent discussion, the designation of the ‘legal order of reference’ was debated in addition to the challenges of taking into account the expectations of the parties. Heymann further commented on how some EU Regulations might provide for unilateral rules on certain private international law matters, such as the GDPR and the Air Passenger Regulation.

 

The second presentation in this session was delivered jointly by Philomena Hindermann and Professor Ralf Michaels (both Max Planck Institute for Comparative and International Private Law, Hamburg) with the provocative title ‘Against Characterisation?’. Michaels began the paper with a critique of the current approach to characterisation with reference to the English decision in Macmillan v Bishopsgate Investment Trust. He explained how such a methodology in fact conceals the real essence of legal reasoning behind characterisation. He then touched upon the attempts of the American Conflicts Revolution to overcome characterisation through interest analysis. Whilst acknowledging that overcoming characterisation is not possible, he argued for taking account of the policies behind legal rules in the process of characterisation. In this regard, Michaels criticised a process of characterisation through preliminary categories and argued instead that characterisation should be an ‘end result’. Building on this finding, Hindermann continued with the question as to whether there could be such a thing as ‘post-categorical characterisation’. She also criticised characterisation as reflecting certain presumptions and as omitting the policies and various functions of legal rules. Considering characterisation as an epistemological process she then questioned the need for categories and advocated for embracing a non-exhaustive / post-categorical functional approach. Therefore, instead of reducing characterisation to a pre-determined taxonomy, she argued that categories should be built based on each case by way of looking at the functions of the legal institution at hand. Participants to the discussion engaged with the reasons why the American realist thinking approach might or might not be compelling and also deepened the discussion from an EU perspective. The idea of categories under national laws having an open-ended nature as opposed to close-ended categories was further discussed on the one hand, as well as the concerns of legal uncertainty on the other hand.

 

The last speaker of this session was Professor Veronica Ruiz Abou-Nigm (University of Edinburgh). Her presentation covered characterisation as a tool to manage diversity and hence she focused on an epistemic change of perspectives in characterisation. Her paper started off with an explanation of the creation of a new delict under Scottish substantive law in relation to domestic violence. Furthermore, Ruiz Abou-Nigm considered a possible interplay with the 1980 Child Abduction Convention where under Article 13(1)(b) domestic abuse might constitute a reason to refuse the return of a child. Recognition and enforcement of civil protection orders were also discussed through this lens. As a conclusion Ruiz Abou-Nigm called for an internationalist approach to characterisation that takes into account feminist perspectives as well as the interplay of cultures. Ruiz Abou-Nigm argued that instead of taking the lex fori as a starting point, one should embrace an epistemological and pluralistic approach. In her view, the ‘order of reference’ of the judge in characterising a matter should be much more complex and international than the categories under the lex fori. Participants asked her how this inter-cultural approach should affect the application of the new Scottish law in a cross-border setting and raised the problem that embracing an inter-cultural approach might not appear to be supportive of a feminist normative approach. Participants also suggested ways that might foster pluralistic thinking with a feminist approach and commented on how the Istanbul Convention on Preventing and Combating Violence Against Women and Domestic Violence could be used for characterisation or interpretation.

 

The last session of the conference focused on the interplay of private and public international law. Professor Alex Mills (University College London) spoke about private international law treaty interpretation and characterisation. He started by examining the English common law approach to characterisation in order to draw comparisons between the methodology in the common law regarding the characterisation and the interpretation of international treaties. He explained that, since treaties are implemented through national laws in dualist systems, statutory interpretation is needed in their application whilst principles of international treaty interpretation are also taken into account. Mills argued that international treaty interpretation has commonalities with the common law approaches to characterisation, but that the judge should acknowledge where choice of law rules belong to an international body of law. He used the 2019 Hague Judgments Convention as an example and pointed to its explanatory report which indicates the ‘international spirit’, echoing the English common law approach. In the subsequent discussion, the internationalist interpretation was generally welcomed but its practical implications were questioned. The idea that international treaty interpretation was reflecting the common law approach was challenged by Civilian representatives, though Continental European approaches could also be understood as being too ‘rigid’ from the point of view of the English common law doctrine. Participants also pointed to the process in which the 2005 and 2019 Hague Conventions were drafted and how the consistency in the internationalist approach in both Conventions reflected a common understanding of the drafters.

 

The final paper of the conference was delivered by Professor Marta Pertegás Sender (Maastricht University and the University of Antwerp) discussed how characterisation questions were addressed at the Hague Conference for the purposes of drafting Conventions. Three main examples were given: first, Pertegás Sender explained that drafters increasingly employ provisions that regulate the scope of a Convention. As a second example of instances where the HCCH takes into account characterisation matters, she demonstrated how rather broad terms are preferred in the drafting of Conventions’ provisions that would establish a common ground for contracting states. Finally, she pointed out the fact that there does not exist a lex fori for the drafters of such international Conventions. Sender also highlighted that especially in the last two decades all of the Conventions emphasise the autonomous interpretation and the promotion of uniformity in their application. The preference for broad terms was challenged in the subsequent discussion as being too vague, especially in the absence of a special court system for the interpretation of HCCH Conventions. Interestingly, the consequences of ‘negative characterisation’ were discussed in relation to the aspects which are kept outside of the scope of the HCCH Conventions, in contrast to a true or ‘positive characterisation’ of what is within the scope of a particular Convention.

 

Concluding the conference proceedings, the three organisers expressed their gratitude to all speakers for their papers and to all attendees for their fruitful contributions to the discussion.

The author of this report is Meltem Ece Oba (Koç University, Istanbul). The post is being published simultaneously on Conflictoflaws.net and on the EAPIL blog. On 20-21 March 2025, a conference on “Characterisation in the Conflict of Laws” was convened at St Hilda’s College, Oxford. Under the auspices of the Institute of European and Comparative […]

The news about the Supreme People’s Court of the People’s Republic of China issuing the Notice on Procedural Matters Related to Civil Cases Involving Foreign State Immunity has been previously reported on this blog.

Following this significant development, Professor Susan Finder, a distinguished Scholar in Residence at Peking University School of Transnational Law, has kindly shared her insights on the matter. Her post was originally published on the Supreme People’s Court Monitor. Given its valuable contribution, we decided to repost it here.

Our sincerest thanks to Professor Susan Finder for her thoughtful analysis and generosity in sharing her thoughts.

 

At the end of March, the Supreme People’s Court (SPC) issued procedures to implement China’s Foreign State Immunity Law (the Law) in the form of a  “Notice on Procedural Matters in Civil Cases Involving Foreign State Immunity” (– Guanyu she waiguo guojia huomian minshi anjian xiangguan chengxu shixiang de tongzhi) (Notice). That law has been in force since the beginning of 2024.  Consistent with its practice, the SPC published a press release along with the text of the notice.  The press release, in the form of the head of the SPC’s #4 Civil Division’s answers to reporters’ questions, provides useful background. I surmise that the press release is an edited version of materials submitted to SPC leadership for approval (as described in my 2024 article). I had anticipated that the SPC would do so, after additional research and soliciting comments from both inside and outside the court system but had guessed that a notice would be issued in 2024.  Although the notice does not so state, I surmise that foreign state immunity cases will be considered “important and difficult” and therefore subject to special internal procedures.  See Professor William Dodge’s article for comparisons to US law and comments on the Law.  Professor Huo Zhengxin provides another perspective. This post summarizes the major points of the notice, with my comments.

1.  The general rule is that foreign governments and their property have immunity, with exceptions as set out in the Foreign State Immunity Law.  The press release usefully makes clear that Article 1 of the Notice requires that a plaintiff filing a civil lawsuits against a foreign state as a defendant or third party, must list in the complaint the specific provisions of the Law the lawsuit is based on, and explain which exception it falls into for the court to review. The court also has the responsibility to clarify (– Shiming) the complaint in the process of receiving the complaint. “Clarify/clarification” here is a term in Chinese Civil Procedure Law, analogous to a judge’s right in other civil legal systems–the “right to ask, suggest to or require the parties to clarify or supplement their ambiguous, insufficient or improper claims, submissions or evidence.” If the plaintiff still fails to set out the legal basis after the court’s clarifications,  the plaintiff should be deemed to not have met the court’s requirements, and the court should reject the case.
2. For those first instance civil cases that fall into the exceptions to the Foreign State Immunity Law, certain intermediate courts in provincial capitals (or their equivalent in directly administered cities, etc) have jurisdiction, as well as financial and intellectual property courts.  The notice limits the number of courts that can hear foreign state immunity cases (as I had surmised), through centralizing jurisdiction ( – Jizhong guanxia), but permits financial courts and intellectual courts to hear them and requires other courts to transfer cases that they have accepted to ones with jurisdiction.
3. Article 3 concerns service of process, which must be according to relevant treaties or conventions, or other means not prohibited by the law of the foreign country, or alternatively by diplomatic note (via the Ministry of Foreign Affairs) (Article 17 of the Law).  Service by announcement is prohibited.
4. The court must serve the complaint and other documents with a translation accompanying the original Chinese.  The foreign government has three months to file a defense. The court has the discretion to permit an extension of time.
5.  If the foreign state objects to the jurisdiction of the Chinese court, the court shall engage in a comprehensive review ex officio and may hear the views of the parties.  Participation in an objection procedure is not deemed acceptance of Chinese jurisdiction (also Article 6 of the Law).  If the foreign state does not respond or participate in the Chinese proceedings, the Chinese court must proactively review whether the foreign state has immunity and can hear the views of the parties.  (Article 18 of the Law). The press release provides guidance to lower courts on the review:  first, the people’s court should examine whether the reasons put forward by the foreign country for enjoying jurisdictional immunity are valid; second, if the reasons put forward by the foreign country are not valid, the people’s court should also conduct a comprehensive review on its own initiative, that is, in addition to the reasons, examine whether the foreign country really enjoys jurisdictional immunity and does not fall into the exception to jurisdictional immunity.
6.  If a court requires a certificate  on factual issues of state behavior from the Ministry of Foreign Affairs (further to Article 19 of the Law), it shall report to the Supreme People’s Court level by level (– Zhuji bao)  to consult and request ( – Shangqing) the Ministry of Foreign Affairs to issue a certificate.  This one sentence conveys the bureaucratic operation of the Chinese court system and the nuances of inter-bureaucracy relations.

An attachment to the notice lists the authorized courts. The SPC has approved some of these courts to establish international commercial tribunals (courts).  It is likely that those tribunals will hear sovereign immunity cases:

1. Beijing Fourth Intermediate People’s Court (with an international commercial tribunal)
2. Tianjin No.3 Intermediate People’s Court
3. Shijiazhuang Intermediate People’s Court of Hebei Province
4. Taiyuan Intermediate People’s Court of Shanxi Province
5. Hohhot Intermediate People’s Court of Inner Mongolia Autonomous Region
6. Shenyang Intermediate People’s Court, Liaoning Province
7. Changchun Intermediate People’s Court of Jilin Province
8. Harbin Intermediate People’s Court of Heilongjiang Province
9. Shanghai No.1 Intermediate People’s Court (with an international commercial tribunal)
10. Nanjing Intermediate People’s Court of Jiangsu Province (with an international commercial tribunal)
11. Hangzhou Intermediate People’s Court, Zhejiang Province (with an international commercial tribunal)
12. Hefei Intermediate People’s Court, Anhui Province
13. Fuzhou Intermediate People’s Court of Fujian Province
14. Nanchang Intermediate People’s Court of Jiangxi Province
15. Jinan Intermediate People’s Court, Shandong Province
16. Zhengzhou Intermediate People’s Court of Henan Province
17. Wuhan Intermediate People’s Court, Hubei Province
18. Changsha Intermediate People’s Court of Hunan Province
19. Guangzhou Intermediate People’s Court, Guangdong Province
20. Guangxi Zhuang Autonomous Region Nanning Intermediate People’s Court
21. Hainan Provincial First Intermediate People’s Court
22. Chongqing First Intermediate People’s Court
23. Chengdu Intermediate People’s Court of Sichuan Province
24. Guiyang Intermediate People’s Court, Guizhou Province
25. Kunming Intermediate People’s Court, Yunnan Province
26. Lhasa Intermediate People’s Court of Tibet Autonomous Region
27. Xi’an Intermediate People’s Court of Shaanxi Province
28. Lanzhou Intermediate People’s Court of Gansu Province
29. Xining Intermediate People’s Court of Qinghai Province
30. Yinchuan Intermediate People’s Court of Ningxia Hui Autonomous Region
31. Urumqi Intermediate People’s Court, Xinjiang Uygur Autonomous Region

 

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, […]