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On 8 September 2026 Andrea Bonomi and the Centre for Comparative, European and International Law of the University of Lausanne are organizing a conference titled „Wills substitutes” in comparative and private international law. Speakers include: Michael W. Galligan (New York), Edward Reed (London) and Jeffrey Talpis (Montreal), Charlotte Wendland (Munich), Sophie Lambert (Aix-Marseille), François Derème […]

The University of Coimbra Institute for Legal Research (UCILeR), in cooperation with the Associação de Estudos Europeus de Coimbra (AEEC – Coimbra Association of European Studies), is organising the international symposium Crossing Dialogues, Disciplines and Borders: How far can Private International Law go?, which will take place on 9–10 October 2026 at the Colégio da […]

This post was written by Matthias Weller and Achim Czubaiko-Güntgen, both at the University of Bonn, Germany. Matthias is a Director of the Institute for German and International Civil Procedural Law there. Achim is a PhD Student there who works on the HCCH Conventions on judicial cooperation in civil and commercial matters.

Recently, the Hague Conference on Private International Law (HCCH) published the responses to the public consultation issued in November 2025 (all available on hcch.net here). Whilst each of the 72 reports is valuable in its own right, when viewed collectively they also provide an insight in the general perception of the HCCH’s Jurisdiction Project, as it is currently standing. We would like to take this opportunity to highlight certain aspects that are widely agreed upon, as well as others that still remain subject to further debate.

I. Broad Overall Support for the Project (in principle ….)

In principle, the Draft Text received broad support (75% of the responses), but little to none unreserved approval. Roughly 14 submissions are clearly supportive (19.44%),[1] whereas the majority of the positive responses (55.56%), while sharing the view that there is a need for a multilateral instrument on the coordination of concurrent court proceedings in general, nonetheless call for further substantive amendments to the Draft Text.[2] In contrast, only seven contributions express serious skepticism towards the project (9.72%)[3] with seven responses being effectively opposed to its continuation (9.72%).[4] Finally, six responses do not take a clear overall stance on the Draft Text (5.56%).[5]

II. Consensual Points 1. Geographical Scope (Art. 1 (2) Draft Text)

Almost complete consensus prevailed against the adoption of habitual residency as a further criterion for the geographical scope in Art. 1 (2) Draft Text. It was widely perceived as unjustified, scope-narrowing and impractical. Both, the Austrian Bar and CCBE, draw the comparison with the difficulties of interpretation regarding the Centre of Main Interest (COMI) in the European Insolvency Regulation. Notably, however, the response from the Doshisha University (Japan) defends the requirement as “(1) enhancing the effectiveness and ratifiability of the Convention, and (2) ensuring the predictability for the defendant.”

We share the majority position: As with the HCCH 2019 Judgments Convention, an additional element of habitual residence should be dispensed with. Moreover, it would be counterproductive, as it could jeopardise the applicability of the Draft Text in relation to International Commercial Courts (ICC) as potential proponents of the HCCH Conventions, which regularly promote themselves as neutral dispute resolution centres for non-residents (SIDRA Report 2024, pp. 55 and 57 et seq.).

2. Alignment with HCCH 2019

There is also broad agreement that frictions with the HCCH 2019 Judgments Convention should be avoided, although views differ on the appropriate extent. For example, Mrs. Justice Julia Dias (High Court of England & Wales) warns that “any deviation from the Judgments Convention [creates] further complexity and scope for tactical litigation.” In the same vein, the submission from the PIL Department of the Autonomous University of Madrid reminds us that the possible future instrument would establish „un sistema internacional completo de Derecho procesal civil transfronterizo.” At the same time, PEOPIL states that “[i]t is vital that international legal instruments do not exclude vulnerable parties from the legal certainty that is afforded to commercial parties through international legal instruments and the Hague Convention regime”.

For our part, we read the consistency with the HCCH 2005 and 2019 Conventions as a strength, but consider some of the exclusions premature: in particular, the exclusions of intellectual property and consumer and employment matters should be reconsidered, so that the instrument does not fall short of the very situations in which conflicting decisions often arise. In addition, the jurisdictional filters of Art. 5 HCCH 2019 Judgments Convention cannot simply be transplanted into the framework of Art. 8 (2) Draft Text, but must rather be adapted to the new regulatory context that simultaneously assumes the perspective of two or more courts involved, e.g. through explicit rules on the burden of prof and applicable law for this assessment.

3. Addressing Anti-Suit Injunctions

Furthermore, a significant number of respondents strongly encourage the HCCH to address explicitly anti-suit injunctions in the management of concurrent proceedings under the Draft Text. Yet, while the German Council on Private International Law advocates for a complete ban of anti-suit injunctions between Contracting States, Mr. Justice Andrew Henshaw (Commercial Court of England & Wales), to the contrary, wants to preserve the ability of the courts to issue such injunctions as an “important means of protecting party autonomy”. As a more nuanced middle ground, the EAPIL proposes a provision under which anti-suit injunctions would be excluded only if they conflicted with specific treaty obligations, but would otherwise be permissible (for example, as a procedural remedy in the event that another court itself fails to fulfil its treaty obligations).

In our own response, we suggested an express exclusivity clause. The use of anti-suit injunctions reflects a deep mistrust in the administration of justice in foreign courts, which is unwarranted between the Contracting States, if not a kind of unilateral judicial  “imperialism”. Hence, all Contracting States should be required to refrain from interfering with the functioning of the coordination mechanism – most notably through anti-suit injunctions – thereby putting an end to escalation circles (“ping pongs”) of ASIs, responding AASIs, and again responding AAASIs, which is reality already, and potentially AAAASIs and more in the future. Instead, we should strive for cooperation, perhaps even an adequate degree of mutual trust. A provision implementing such a policy could inter alia draw on Art. 13 (2) HCCH 2019 Judgments Convention and Principle 7.1 of the Leuven/London Principles.

4. More Precise Definitions of “Parallel Proceedings”/”Related Actions” (Art. 3 (1) Draft Text) 

Perhaps the most frequently point highlighted in the responses concerns the definitions of “parallel proceedings” and “related actions”. Most commentators are concerned that the drafting of these terms is not precise enough to reliably fulfill their role as gateway questions for the application of the whole legal instrument. For instance, the ASADIP and Özçelik suggest the inclusion of a “triple identity test” that would also require the existence of the “same object”. With regard to the “same parties”, Hess points to the difficulties in the application of that narrow concept in collective redress proceedings. Meanwhile, Knoll stresses that a broad wording risks infringing on the privity of contract. Furthermore, the Australasian Association of Private International Law (AAPrIL) asks for more clarification on the expression of the “same subject matter”, explicitly, in contrast to the test on “relatedness” test provided for in Art. 3 (1) lit. b) Draft Text. More generally, the Law Society of Scotland and Dasser/Oreiller emphasise the benefits a formal body vested with the power of authoritative interpretation would bring to the uniform interpretation of the Draft Text.

Here, we agree with most of the arguments put forward. Although the decision to adopt the broader notion of ‘subject matter’ rather than that of the same ‘cause of action’ is to be welcomed, this undoubtedly requires substantial guidance in a future Explanatory Report – potentially, and cautiously, inspired by the case law of the CJEU (Gubisch, C-144/86) – so that domestic courts do not simply fall back on the national concepts with which they are familiar. However, given the ambiguities surrounding the interpretation of these gateway terms, we would go one step further and recommend at least considering replacing the specific frameworks for ‘parallel proceedings’ and ‘related actions’ with an umbrella scheme for ‘concurrent proceedings’ (see below in more detail).

III. Contentious Aspects 1. Need for a Special Instrument

Some respondents strongly advise against the adoption of an international instrument at all. This sentiment appears to be particularly strong with respondents from common law jurisdictions. For example, Fentiman casts serious doubts on whether the issue of concurrent proceedings truly poses a pertinent problem in practice, and argues that, in these rare cases, the provisions existing in national legal systems are more effective than a uniform legal instrument. In this regard, Rt. Hon. Lord Hamblen of Kersey (UK Supreme Court) perceives an “increased incentive for parties to instigate tactical litigation”. Complementary, Dias expresses the opinion that “all states have their own rules […] which seem to operate perfectly well in practice”. But commentators from civil law countries, e.g. Castro (Mexico) and Dasser/Oreiller (Switzerland), also question whether the volume of cases warrants the implementation of a complex instrument. Despite his/her general support for the Draft Text, the Judge from Korea also raises the questions whether the project should not better take the form of a protocol to the HCCH 2019 Judgments Convention.

In our view, a binding multilateral instrument is needed precisely to hedge in unilateralistic “weapons” – anti-suit injunctions and torpedo actions – that currently drive unproductive satellite litigation in cross-border disputes. We do, however, share the concern that the practical relevance of the issue should be significant enough to justify yet another HCCH Jurisdiction Convention.

2. Limitation to Contracting States Only (Art. 1 (1) Draft Text)

Some of the respondents also voiced strong criticism regarding the scope of application. Fentiman points to the “incoherent and unacceptable outcome” that the Convention resolves any conflict of jurisdiction “as one between the Contracting States alone […] without reference to the claim of the non-Contracting State to be the preferable forum”. In addition, Henshaw cautions that “[b]ecause the Convention would apply only where parallel proceedings exist in Contracting States, it would be liable to result in proliferation of litigation”.

In our view, both points of criticism are valid: The second aspect relates primarily to the decision against not to regulate direct grounds of jurisdiction. Nonetheless, a responsible party can still make use of the proposed framework by proactively bringing about a situation of double pendency with another, presumably more appropriate court, thus enabling at least a second-best solution in this regard. The first aspect appears reasonable in the light of the ‘forum non conveniens’ doctrine, which takes into account all potential jurisdictions universally, but is nevertheless applied in a unilateral manner by the court seised. In contrast, the Draft Text strives for the implementation of a common cooperative mechanism that probably requires some degree of reciprocity. Furthermore, the Draft Text, so far, relates only to positive conflicts of jurisdiction. Hence, the courts are not prohibited from declining jurisdiction in favour of a Non-Contracting State under their own rules of procedure.

3. Reworking of the List of Connections (Art. 8 Draft Text)

Few provisions attract such diverse and polarized comments than the list of connections in Art. 8 Draft Text. As this is a “complex provision covering two full pages” that also “entails a double-check of jurisdiction”, Hess advocates its complete deletion in favour of a more streamlined version of the mechanism in Art. 9 and 10 Draft Text. Furthermore, McIntosh and Pitel reject the underlying assumption that a listed connection makes a court the more appropriate forum. Meanwhile, the Canadian Bar Association notes that the connection requirements constitute a clear departure from the real and substantial connection test for court to assume jurisdiction. Similarly, Teo (Singapore) and Henshaw, believe that the list “should certainly be wider”.

For our part, we would retain the list but reconceive its function. The ‘bases for proceedings’ in Art. 8 (2) Draft Text could be drafted to revive Arthur von Mehren’s model of a ‘mixed convention’, operating as a ‘white list’ of admissible grounds. Such an approach would remain consistent with the HCCH 2019 Judgments Convention if the catalogue of ‘bases for proceedings’ in Article 8(2) of the draft text were attributed the presumptive effect of being an ‘appropriate jurisdiction’ for the dispute, which could then be rebutted if the parties or the foreign court proved that their jurisdiction was also or even ‘clearly more appropriate’.

4. Determination Framework of the “More Appropriate Court” (Art. 9 Draft Text)

Given that the HCCH itself explicitly recognised the need to ask which of the two mechanisms for determining the more appropriate court was preferred, it is not surprising that the responses differ significantly. First, a plurality leans towards primarily giving the determination to the court first seised, whilst the other courts are reserved the option to depart from that determination under certain conditions at a later stage [Approach 1]. Proponents of this view, such as Gomaa and Tsirat, underline legal certainty and the avoidance of forum shopping as their reasons. Second, a smaller group prefers to allow any court to primarily carry out that determination while the court first seised is not required to deal with this question at any time [Approach 2]. Among others, the Pontifical Catholic University of Rio de Janeiro considers this approach to be more consistent with the principle of sovereign equality of States. Scholars from the Dalian Maritime University (China) also warn that the criteria are “very likely to be ‘localized’ interpreted by domestic courts”. Third, a substantial part consider both approaches flawed, as they either embed an ‘irrational’ preference for the court first seised or permit continued parallel determinations. The Law Reform Institute (USA) also stresses that the first approach creates tactical incentives to file suit in a slow forum. For these reasons, the EAPIL proposes a hybrid approach that combines the strong features of both approaches.

Our own position comes down clearly in favour of the first approach. In our view, it is crucial to the success of the instrument that the courts involved be encouraged to discuss the situation of parallel proceedings pro-actively, and the passive role assigned to the court first seised under the second approach would be detrimental to precisely that objective. On this reading, the court first seised would not enjoy any priority of outcome, but merely the advantage of being the first to give its opinion on the ‘more appropriate court’ – a benchmark with which the other courts would then have to contend. That court should, however, expressly retain the option of concluding that allowing the concurrent proceedings to continue is in the best interests of the administration of justice, subject to a certain threshold so as to prevent its misuse as a simple way out.

IV. Outlook

The HCCH Council on General Affairs and Policy (CGAP) has deliberately decided to make the future of the Jurisdiction Project contingent on the outcome of the public consultation (as reported on col.net here). In our opinion, the responses received show that there is still considerable interest from various parts of the world in continuing the project, whilst also indicating that the Draft Text still requires in-depth discussion and substantial amendments before it is finalised. At present, the overall sentiment can probably best be described as: “Yes, in principle, but not quite there yet…”

 

[1] See Submission by María Susana Najurieta (University of Buenos Aires – Argentina), Question 13.2: “No todas las normas, pero una buena parte de ellas mejorarían el status quo”; Submission by the Austrian Bar (ÖRAK – Austria), Question 14; “in most instances, a step towards enhancing legal certainty, predictability, and access to justice”; Submission by Mohamed Gomaa (Ministry of Justice – Egypt), Question 13.2: “Yes, significantly.”; Submission by the German Council on Private International Law (PIL Council – Germany ), para. 10: “limitations of the existing EU rules highlight the advantages of a multilateral instrument” (Authors: Martin Gebauer, Wolfgang Hau); Submission by Odín Alberto Guillén Leiva (National Autonomous University – Honduras), Question 13.1: “La intención de la Convención está bien plasmada y desarrollada en el proyecto”; Submission by Teresa Sergi (Attorney at Law – Italy), Question 14: “it is hoped that the Draft Text will be implemented”; Submission by Takasugi Naoshi/Choi Jaewon/Kawato Yuriko/Shinohara Rena/Yamamoto Taiga (Doshisha University – Japan), Question 13.1: “[T]his draft Convention ensures legal clarity”; Submission by M.F.J.N. (Tijn) van Osch (IAJ/UIM – The Netherlands), Question 1.1: “I think it is a good and honest effort”; Submission by the Nigerian Group on Private International Law (NGPIL – Nigeria) (Authors: Onyoja Momoh, Chukwuma Okoli, Abubakri Yekini, Pontian Okoli, Chukwudi Ojiegbe); Submission by the Judge from Panama I (Judge – Panama), Question 13.2: “El Proyecto ayudaría porque ofrece una metodología más clara para identificar el tribunal más apropiado, favorece la coordinación entre tribunales, y refuerza la predictibilidad para las partes”; Submission by Rosa Lima (High Judicial Council – Portugal), Question 1.1: “Very positive opinion”; Submission by Lai Lai-Kuan (Private International Law Association – Taiwan), Question 1.2: “This integrated approach, which incorporates diverse national legislative practices, is a highly commendable model for international legislation”; Submission by Gennadii Tsirat (Attorney at Law/National University of Kyiv – Ukraine), Question 13.1: “The rules provided for in the Draft should achieve the goals of the future instrument.”; Submission by Eduardo Vescovi (Universidad de la República – Uruguay), Question 14: “Corresponde en primer lugar felicitar a la Conferencia de la Haya por el abordaje de un tema de importancia primordial, y cada vez más frecuente en la realidad actual”.

[2] See Submission by the American Association of Private International Law (ASADIP – Americas); Submission by IntLaw LLP (Argentina); Submission by María Blanca Noodt Taquela/Carolina Daniela Iud (University of Buenos Aires – Argentina); Submission by Australasian Association of Private International Law (AAPrIL – Australasia); Submission by Burkhard Hess (University of Vienna – Austria/Germany); Submission by Dorothée Vermeiren (Clifford Chance LLP – Belgium); Submission by Lotte Vanfraechem (Business lawyer – Belgium); Submission by the Brazilian Federal Judge (Judge – Brazil); Submission by Nadia de Araujo/ Daniela Vargas/ Lauro Gama/Theophilo Miguel/Lidia Spitz (Pontifical Catholic University of Rio de Janeiro – Brazil); Submission by Dalian Maritime University (DMU – China); Submission by Chinese legal professional (Legal professional – China); Submission by Guojian Xu (Shanghai University of Political Science and Law – China); Submission by Du Tao (East China University of Political Science and Law – China); Submission by the Council of Bars and Law Societies of Europe (CCBE – Europe); Submission by the European Association of Private International Law (EAPIL – Europe); Submission by Philippine Blajan/Sandrine Clavel/Fabienne Jault-Seseke (Paris-Saclay University/UVSQ – France); Submission by Matthias Weller (University of Bonn – Germany); Submission by Stephan Madaus (Martin-Luther-University Halle-Wittenberg – Germany); Submission by Hungarian Judge (Judge – Hungary); Submission by David Knoll (AYR – Israel); Submission by Gaetano Vitellino (Università Carlo Cattaneo – Italy); Submission by Vilnius University / MOTIEKA (Lithuania); Submission by María Virginia Aguilar (Practitioner – Mexico); Submission by Aarushi Sahrawat (Practitioner – Netherlands); Submission by Vesna Lazic (Utrecht University / T.M.C. Asser Institute – Netherlands); Submission by the (Anonymous) Judge from Panama II (Judge – Panama); Submission by Associação Ius Omnibus (AIO – Portugal); Submission by Korean Judge (Judge – Korea); Submission by Iuliana Boghez (Legal adviser – Romania); Submission by Vladimir Kostsov/Ivan Zinovich/Mikhail Galperin (ICLRC – Russia); Submission by the Faculty of Advocates (FOA – Scotland); Submission by Alan K Koh/Shouyu Chong (Nanyang Technological University/University of Leeds – Singapore); Submission by Marcus Teo (NUS – Singapore); Submission by the Department of Private International Law, Autonomous University of Madrid (UAM – Spain) (Members: Pilar Dominguez Lozano, María Jesús Elvira Benayas, Laura García Gutiérrez, Francisco José Garcimartín Alférez, Iván Heredia Cervantes, José Ignacio Paredes Pérez, Elena Rodríguez Pineau, Elisa Torralba Mendiola y Jaime Vázquez Garcia); Submission by Gülüm Özçelik (Bilkent University – Türkiye); Submission by Law Reform Institute (NPO Organisation – United States); Submission by Stutee Nag (Cross-Border Family Law practitioner – United States); Submission by William Sullivan (Practitioner – United States); Submission by Eugenio Hernández-Bretón/Claudia Madrid Martínez/José Antonio Briceño Laborí (Academia – Venezuela); Submission by Tung Xuan Le (Legal researcher – Vietnam).

[3] See Submission by Stephen Pitel (Western University – Canada); Submission by the Canadian Bar Association (Canada); Submission by Leonel Pereznieto Castro (Retired academic – Mexico); Submission by Maura McIntosh (Herbert Smith Freehills Kramer – United Kingdom); Submission by Academic (Academia – United Kingdom); Submission by Sir Andrew Henshaw (Commercial Court of England and Wales – United Kingdom); Submission by Sarah Garvey/Sarah Shearman (Mayer Brown International LLP – United Kingdom).

[4] See Submission by Janet Walker (Osgoode Hall Law School– Canada), Question 13.3: “The race to judgment might merely be replaced by a race to the courthouse.”; Submission by Pan-European Personal Injury Lawyers (PEOPIL – Netherlands), Question 13.3: “We are concerned by the scope for tactical and satellite litigation which would be introduced by this Convention”; Submission by Felix Dasser/Sébastien Oreiller (University of Zurich/Homburger – Switzerland),Question 14 (3): “In sum, the project should be discontinued. We are surprised and frankly dismayed that such notoriously inefficient common-law concepts should be adopted for a global convention. The Hague Conference should know better.”; Submission by Richard Fentiman (University of Cambridge – United Kingdom), Question 14: “The avoidance of parallel proceedings may be an issue which is inevitably best left to national law.”; Submission by Julia Dias (High Court of England and Wales – United Kingdom), Question 13.1: “The draft convention seems to be a solution in search of a problem.”; Submission by the Rt. Hon. Lord Hamblen of Kersey (UK Supreme Court – United Kingdom), Question 13.2: “Regrettably I am of the view that the convention would not improve the status quo and potentially be to its detriment”; Submission by Stewarts Law LLP (United Kingdom), Question 13.2: “[W]e do not think the proposed Convention would improve the status quo.”.

[5] Submission by Chinese Judge (Judge – China); Submission by SUN Jin (Legal professional – Hong Kong SAR); Submission by Family Law Bar Association (England and Wales – United Kingdom); Submission by Law Society of Scotland (United Kingdom).

On 10 September 2026, the University of Ljubljana, Faculty of Law, in cooperation with the Institute for Comparative Law, will host the Second Private International Law Conference, a regional forum dedicated to current developments and emerging challenges in private international law. The conference will bring together leading academics, judges, attorneys, arbitrators, and legal practitioners from Slovenia and across Europe to discuss some of the most significant issues arising in cross-border legal practice. With the aim of engaging the international private international law community while also fostering the development and use of Slovenian legal terminology, the conference programme is divided into two parts: a morning session in Slovenian and an afternoon session in English. Abstracts of all presentations will be available in both languages.

International colleagues are warmly invited to join the afternoon programme, which features the following speakers:
Stefania Bariatti of the University of Milan,
Hans van Loon, former Secretary General of the Hague Conference of Private International Law,
Gilles Cuniberti of the University of Luxemburg and President of EAPIL,
Ivana Kunda of the University of Rijeka,
Marko Bošnjak, judge at the Court of Justice of the CJEU,
Ana Kerševan, State Attorney General of Slovenia, and
Judita Dolžan of the Permanent Representation of the Republic of Slovenia to the European Union.

The morning session (in Slovenian) with Vesna Rijavec, Aleš Galič, Jerca Kramberger Škerl, Andrej Bebler, Filip Dougan, Urban Vrtačnik, and Borut Leskovec, will focus on practical and doctrinal issues, such as the cross-border effects of enforceable notarial deeds, applicable laws in international commercial arbitration, strategic lawsuits against public participation (SLAPP), reinsurance contracts, the European Payment Order, cross-border property relations of couples, and international family law disputes.

More information is available in the Programme.

Registration: IPP-PF : Inštitut za primerjalno pravo – Registration form PIL conference

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

 

L. Schwannecke: Challenging the European Certificate of Succession: Prerequisites and consequences after the CJEU decision in Albausy [German]

According to Art. 67 of the EU Succession Regulation, a European Certificate of Succession shall not be issued if the elements to be certified are being challenged. In Germany, it was disputed whether the provision included challenges presented during the process for issuing the Certificate itself, or whether it referred solely to challenges pending in other proceedings. In its decision in Albausy, the CJEU addressed this question and clarified that all challenges must prevent the competent authority from issuing a European Certificate of Succession. While this has been implemented in the German literature and jurisprudence, the Higher Regional Courts as competent courts for the redress procedure governed by Art. 72 continue to differ on whether they are allowed to decide on the merits of said challenges during the redress procedures. This article provides an overview of the discussion in the German academic literature prior to Albausy and the subsequent treatment and implementation of the CJEU’s decision in the German jurisprudence. It places a particular focus on the scope of competence of the higher regional courts in dealing with redress procedures under Art. 72 EU Succession Regulation.

 

A. Masser/Y. Chatard: Anti (anti) suit injunctions of German courts? [German]

Anti-suit injunctions carry the potential to produce effects that ripple across jurisdictions, to constrain the authority of foreign courts and to operate at the intersection of law and geopolitics. While neither the remedy nor its implications are novel, the recent wave of anti-arbitration injunctions issued by Russian Arbitrazh courts, arguably aimed at shielding Russian companies, has thrust anti-suit injunctions back into the spotlight. German procedural law does not recognize anti-suit injunctions as a remedy, yet substantive claims for injunctive relief may serve as their functional equivalent. This article examines the viability of such substantive claims as a response to the ongoing surge of Russian anti-arbitration injunctions.

 

W. Wurmnest: The economic unit doctrine and multiple defendants under Art. 8 Brussels I (Recast) Regulation [German]

In Athenian Brewery, the CJEU clarified that a parent company that was not directly involved in an antitrust law infringement of its subsidiary can serve as anchor defendant, so that the courts at the seat of the parent company have international jurisdiction for damages claims against both companies (Art. 8 (1) Brussels I (Recast) Regulation), even if the parent company was not the addressee of a prior decision of a competition authority. Basing jurisdiction on Article 8 (1) Brussels I (Recast) Regulation requires, however, that the two companies form an economic unit which can be assessed by applying the control presumption known from public enforcement. The convincing judgment strengthens the possibilities for plaintiffs to engage in forum shopping.

 

J. Richter: The limits of Article 8(3) Brussels Ibis: No application by analogy to non-EU defendants [German]

After several German courts had declined jurisdiction in a cross-border dispute (between Germany and Liechtenstein), the Bavarian Highest Regional Court (BayObLG) had to determine jurisdiction. The ruling on local jurisdiction – which lay at the heart of the conflict due to an exclusive choice of court agreement – was in line with established case law and was therefore hardly surprising. Of broader general interest and significance was the issue (only briefly addressed by the ruling) whether Article 8(3) of the Brussels Ibis Regulation, concerning jurisdiction on counter-claims, applies to Non-EU Defendants. With regard to this contentious question the BayObLG has now articulated a rejecting position.

 

R. de Barros Fritz: The localization of the place of injury regarding claims to recover losses incurred in connection with participation in online games of chance under the Rome II Regulation and the application of the doctrine of double-relevant facts (“Lehre von den doppelrelevanten Tatsachen”) under the Brussels Ibis Regulation [German]

In Wunner, the CJEU had its first opportunity to rule on the law applicable to a claim to recover losses incurred in connection with participation in online games of chance offered by a Maltese gambling company not holding a gambling licence. The questions referred to the Court addressed the substantive scope of the Rome II Regulation and its general conflict-of-laws rule on torts. The importance of the preliminary ruling procedure in Wunner goes, however, well beyond the interpretation of Articles 1 and 4 of the Rome II Regulation. An analysis of the procedural history leading to the request for a preliminary ruling provides an opportunity to address one of the general principles of international civil procedure, namely the “Lehre von den doppelrelevanten Tatsachen”.

 

J. P. Schmidt: Habitual residence and applicability of the Hague Convention on child abduction in cases of shared custody [German]

In cases where, despite living in different countries, parents share the custody of their child and take turns in its exercise for extended periods of time, the determination of the child’s habitual residence poses difficulties. In court practice and legal writing, three different approaches have been adopted or proposed: according to the first, the child acquires two habitual residences simultaneously; according to the second, the habitual residence alternates each time the child moves to the other parent; according to the third view, the habitual residence remains where it was before the parents separated. The decision on this matter becomes particularly relevant if the child is removed or retained by one parent in breach of the custody agreement and the return of the child is requested by the other parent under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. In that situation, further disputes come to light, namely whether the Convention also applies in case of simultaneous habitual residences and whether conflicts of the above-mentioned kind should be covered at all by the Convention. A decision of the Court of Appeal Nuremberg from 2024 highlights the danger of creating unjustified asymmetries between the parents by “locking-in” the child’s habitual residence at the place where it was prior to the separation. Whereas this approach will usually lead to adequate results with regard to the law governing custody, simultaneous habitual residences should be admitted for the purposes of the 1980 Hague Convention in order to treat the parents equally.

 

D. Messner-Kreuzbauer: Jurisdiction for disclosure claims against platform operators [German]

Those affected by violations of personality rights on social media often require information from the platform operators regarding the identity of anonymous tortfeasors when pursuing their claims. The Austrian Supreme Court makes it easier for victims of online abuse to force disclosure of this information: it considers Austrian courts to be competent where claimants pursue substantive rights to information against platforms based in other EU jurisdictions, provided that the centre of interest of those seeking relief is located in Austria. The Austrian Supreme Court bases this special jurisdiction on Article 7(2) of the recast Brussels I Regulation, as interpreted by the CJEU. While the present case note criticises the Austrian Supreme Court’s reasoning for classifying substantive disclosure claims as tortious, it welcomes the result and offers an alternative doctrinal argument in its defence.

 

F. Niggemann: Concurring claims under the CISG and product liability – a decision of the French supreme court of 17.5.2023 [German]

The decision of the French Cour de Cassation of 23.5.2023 gives rise to analyse the question whether the application of the CISG excludes product liability claims. Whereas the French supreme court holds in favor of an exclusive application of the Convention and thus adopts an opinion so far only once expressed in international cases having applied the CISG, two decisions of the same court, rendered just a month earlier, come to the opposite result when applying national sales law and product liability. The exclusion of product liability claims under the CISG leads to a critical appraisal of the currently prevailing opinion. The legal situation created by the decision of the French Supreme Court additionally entails surprising possibilities for choice of law clauses of French law.

 

M. Uitz: Examining the validity of foreign forced child marriages in Austria – comparative remarks on the German and Austrian private international legal regimes [German]

Child marriages and forced marriages present multifarious challenges to the private international legal systems of many states. A recent decision by the Austrian Supreme Court of Justice on the potential validity of the forced marriage of a fifteen-year-old Afghan girl to her twenty-year-old cousin under Austrian private international law has generated new momentum in the ongoing discourse. First, this article analyzes the consequences of this decision for the adjudication of cases of forced child marriage brought before Austrian courts enjoying international jurisdiction. Second, this investigation compares the Austrian and German provisions of private international law on forced child marriage in order to illuminate the commonalities and discrepancies between both legal systems.

 

K. Bälz: Arbitration according to Sharia law? [German]

May an arbitral tribunal render an award on basis of the principles of Islamic law (Sharia), if the parties so agree? This is the subject matter of a decision of the Regional Court of Vienna of 2 May 2025. The court approved a respective choice of law and denied a violation of public order.

 

M. Gebauer/W. Hau: Statement by the Special Commission of the Second Commission of the German Council on Private International Law on the draft text of a future Hague Convention on parallel proceedings and related actions [English]

 

S. Grundmann: 100. Geburtstag International Academy of Comparative Law: Weltkongress 2026 in Berlin im Zeichen fundamentaler Pluralität [German]

 

On Tuesday, July 7, 2026, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 03:30 p.m. – 05:00 p.m. (CEST).

Christopher Whytock (University of California) will speak, in English, about the topic

“Conflict of Laws Through a Human Rights Lens”

The relationship between human rights and conflict of laws (private international law) is the subject of extensive scholarship in Europe, but almost entirely neglected in the United States. Inspired by European scholarship, this project attempts to extend human rights-oriented analysis to conflict of laws in the United States. It proposes a conceptual framework for understanding the relationship between human rights and conflict of laws in the abstract, applies the framework to conflict of laws in the United States, and offers comparative insights.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

This post was contributed by Eirini Tsikrika, a PhD candidate at National and Kapodistrian University of Athens and a practising lawyer. As already announced on this blog, on 4 June 2026 Advocate General Norkus delivered his opinion in Case C-41/25, Orsay, concerning a request for a preliminary ruling referred to the Court of Justice by […]

The fourth issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) for 2026 will be published on 1 July. The following advance abstracts have been kindly provided by the editor of the journal. L. Schwannecke, Challenging the European Certificate of Succession: Prerequisites and consequences after the CJEU decision in Albausy (German) According to Art. 67 […]

 

This post was kindly prepared by Sai Ramani Garimella, Associate Professor, Faculty of Legal Studies, South Asian University.

 

A judgment-creditor is often concerned about the enforcement of foreign court orders, and that concern is not completely misplaced in India. The Supreme Court’s decision in Messer Griesheim v Goyal MG Gases is a useful illustration of the law governing the enforcement of foreign court orders and of the discussion of their finality and binding nature. Twenty-three years after the underlying loan transaction, and after much litigation, the Court has finally closed the chapter, refusing to enforce a 2006 English court’s summary judgment for roughly USD 5.8 million. Along the way, it has also clarified two recurring questions that often come up whenever a foreign money decree is sought to be executed in India:

• (i) When does a summary or “leave to defend” judgment qualify as a judgment “on the merits” under Section 13(b) of the CPC, and
• (ii) What is the real effect of a conditional RBI/foreign-exchange approval on the enforceability of a decree?

A JV was contracted between a German company, Messer Griesheim GmbH (hereinafter, Messer Griesheim) and Goyal MG Gases (hereinafter, Goyal), an Indian company engaged in the industrial gases business, in 1995. To fund capital expenditure, Goyal arranged an External Commercial Borrowing (ECB) of USD 7 million from Citibank, London, with Messer Griesheim standing as guarantor. The Foreign Exchange Regulation Act, 1973 (FERA), required both the Government of India and the Reserve Bank of India (the Central Bank) to approve borrowing and guarantees. The RBI’s approval letter dated 3 September 1997 imposed conditions, amongst others, that “in case of invocation of guarantee, no liability whatsoever will extend to the Indian company.” When Goyal defaulted, Citibank invoked the guarantee in 2001, and Messer Greisheim paid USD 4.78 million. It then sought reimbursement from Goyal by way of contractual subrogation. Goyal refused, asserting that the payment had been adjusted against its own unrelated claims against Messer (arising from alleged breaches of the JV and non-compete arrangements), claims it said were worth roughly Rs. 500 crore. Unable to recover amicably, Messer Greisheim sued in England.

 

The English Court Proceedings

1. 2003: Messer Greisheim obtained an ex parte default judgment after Goyal failed to appear.
2. Ill-advised on the difficulty of enforcing such orders in India, Messer Greisheim applied to have it set aside and sought a summary judgment instead.
3. Goyal responded that it had genuine defences, including three alleged oral side-agreements under which Messer Greisheim had supposedly agreed not to seek recourse against Goyal or to absorb the loan liability as part of a settlement.
4. On 7 February 2006, the English Court rejected Goyal’s defences as lacking a “real prospect of success” and entered summary judgment for approximately USD 5.8 million, plus interest and costs. Goyal did not appeal.

 

The Indian Execution Proceedings

Messer Greisheim applied to the Indian court for execution of the said order under Section 44A of the Code of Civil Procedure, 1908. The journey through the Indian courts was itself convoluted:

1. The Single Judge of the Delhi High Court (2013) held the judgment enforceable.
2. The Division Bench (2014) of the DHC ruled against jurisdiction as per the requirements of Section 44A.
3. The judgment-creditor appealed to the Supreme Court, which held that the DHC possessed jurisdiction in its original civil capacity and sent the matter back for a decision on the merits.
4. On remand, the DHC’s Division Bench finally refused enforcement, holding that the English court’s order violated Section 13 of the CPC, both for failing to be a judgment “on the merits” and for disregarding the RBI’s conditional approval.

5. On appeal, the Supreme Court agreed with the Division Bench of DHC (though for partly different reasons), bringing the saga to a close.

 

The Statutory Framework: Section 13 read with Section 44A, CPC

Under Section 44A CPC, an order from the competent court of a “reciprocating territory” (the UK is one such) can be applied for execution before a district court in India. However, such enforcement may be denied if it is hit by the exceptions listed in CPC, S 13: absence of jurisdiction, judgment not on merits, incorrect view of international law or refusal to recognise Indian law, violation of natural justice, fraud, or a claim founded on breach of Indian law.

The Supreme Court reaffirmed that these exceptions must be construed narrowly, in keeping with the principle of comity of courts; such a narrow construction may not be interpreted as against scrutiny at all.

 

Issue I: Was the English Summary Judgment “On the Merits”?

Pivoting upon jurisprudence from the Privy Council (Daniel Thomas Keymer v P. Viswanatham Reddi (AIR 1916 PC 121) and L. Oppenheim and Co. v. Hajee Mahomed Haneef Sahib (AIR 1922 PC 120)) as well as Indian decisions such as International Woollen Mills v Standard Wool (UK) Ltd, Middle East Bank v Rajendra Singh Sethia (AIR 1991 CAL 335), and K.M. Abdul Jabbar v Indo-Singapore Traders Pvt Ltd. (1980 SCC OnLine Mad 186) the Supreme Court held that a judgment entered merely because a defendant was refused leave to defend, without any real investigation into the rival contentions, cannot be treated as a judgment “on the merits” within Section 13(b).

Significantly, the Court did not treat “summary judgment” as a dirty word. It referred to the English law on summary judgment (Civil Procedure Rules 24.2, and the decisions in Easyair v Opal Telecom and Swain v Hillman). The Court noted that the English law required the defence to lead evidence of only a “realistic,” not a “fanciful,” prospect of success, and that a court should hesitate to finally decide a case without trial wherever a fuller investigation of the facts could affect the outcome. The point of the analysis was not that English procedure is somehow defective, but that this very test, properly applied to Goyal’s defences, should have led to a trial rather than summary disposal.

The Court found that Goyal’s defences were not fanciful:

1. There were contemporaneous statutory documents, board-approved Balance Sheets for FY 2001-02 and FY 2002-03, and Minutes of Board Meetings recording that Goyal owed nothing to Messer and that the loan repayment had instead been adjusted against Goyal’s own claims. These were signed by Messer Greisheim’s own nominee director, Mr Winfrid Schmidt, who had also seconded the relevant resolutions. Under Sections 194, 210, 211, and 215 of the Companies Act, 1956, such board-approved financial statements carry presumptive evidentiary value.
2. An e-mail dated 20 February 2003, in which Goyal disputed the claimed liability, did not appear to have been placed before or weighed by the English Court at the summary stage.
3. Goyal’s defence rested on disputed oral agreements, exactly the kind of factual controversy that, in the Court’s view, calls for cross-examination and a full trial rather than summary adjudication.

Importantly, the Supreme Court was careful to state that it was not adjudicating the merits of these defences itself; it addressed only whether they crossed the threshold of being “triable.” Having found that they did, the Court held that denying Goyal leave to defend amounted to a denial of fair trial, attracting both Section 13(b) (not on merits) and Section 13(d) (violation of natural justice) of the CPC. This alone was sufficient to dismiss the appeal and refuse enforcement.

86. […] The adjudication by way of summary judgment in the presence of bona fide triable issues renders the judgment one not delivered on merits within the meaning of Section 13(b).

The Court also revisited the Indian “leave to defend” jurisprudence under CPC, Order XXXVII (IDBI Trusteeship v Hubtown; B.L. Kashyap v JMS Steels), reiterating that denial of leave to defend is meant to be the exception, reserved for cases where the defence is frivolous or vexatious — not the default response to a contested claim.

 

Issue II: The FERA Angle; Adjudication vs Enforcement

1. Section 47(1)/(2): A contract that evades FERA cannot be enforced, but a contract conditioned on obtaining RBI/Government permission is not itself invalid merely because permission is pending.
2. Section 47(3): This provision states that nothing prevents legal proceedings from being brought in India to recover sums otherwise due; however, “no steps shall be taken for the purpose of enforcing any judgment or order” except to the extent permitted by the RBI/Central Government.

The Court  interpreted Section 47 as creating a clear two-stage scheme:

1. Stage 1-Adjudication: Courts may determine liability and order a decree without any prior RBI clearance. There is no bar on access to justice at this stage.
2. Stage 2-Enforcement: Before the execution of such a decree under Order XXI CPC, the RBI/Government permission becomes a precondition.

The Court held that the 1997 RBI condition operated as a regulatory precondition to execution, not a substantive defence that extinguishes the underlying liability. To that limited extent, the Court reversed the Division Bench’s reasoning on this specific point of law.

 

The Takeaways from Messer Greisheim

1. Summary and default judgments travel poorly across borders. A foreign judgment valid in its home jurisdiction could fail the Section 13(b) “merits” test in India only if the foreign court did not substantively engage with a defendant’s documented, triable defences. Foreign claimants strategising for default-to-summary judgments (switching from default judgment to summary judgment to improve enforceability) are alerted to the risk of failure. However, Messer Greisheim rejected the idea of inherent suspicion against summary judgments, the Court held that a 13(b) hit applies only when the record of the case establishes an unfair truncation of a legitimate dispute.

40. At the same time, the jurisdiction to grant summary judgment is not intended to convert the proceeding into a “mini-trial”, but rather to enable cases where there is no real prospect of success to be disposed of summarily.

1. Contemporaneous corporate records can defeat a foreign decree at the enforcement stage, even years later.
2. Foreign exchange regulatory permissions regulate execution, not adjudication. The judgment offers welcome clarity that conditional RBI approvals do not operate as a permanent shield against liability. They instead govern the timing and quantum of actual remittance once a decree is to be executed, a sensible accommodation between access to justice and India’s exchange-control regime.

 

Conclusion

Does the Indian law appear to allow a merits examination, a revision au fond? Messer Greisheim answered that in the negative. It was observed that by relying strictly on a summary procedure to dismiss a genuinely triable defence, the English court bypassed a full trial on the merits. A reading of CPC, S 13, indicates that Indian courts are prohibited from conducting a revision au fond.

• The executing court cannot act as an appellate court.
• It cannot re-examine the substantive facts, reweigh the evidence, or substitute its own view on the merits for that of the foreign judge.

Messer Griesheim is ultimately a cautionary tale about procedure trumping substance. Messer Greisheim may have had a sound claim under the loan agreement’s subrogation clause. But by obtaining a summary judgment that bypassed Goyal’s triable defences instead of testing them at trial, it ended up with a decree that, twenty years and several rounds of litigation later, wasn’t enforceable in India. For foreign judgment creditors eyeing Indian assets, the lesson is unambiguous: a decree obtained without the Indian defendant being allowed a genuine opportunity to contest disputed facts is a fragile asset in the Indian execution courts, however efficiently it may have been obtained abroad. Section 13(b) thus speaks loud and clear – such summary judgment becomes suspect when it appears to have been entered solely to bypass a highly contested matter. Courts in India can review the record, as Messer Greisheim observed, only to identify whether the decision related to a summary procedure was indeed based upon sound reasons and wasn’t aimed at truncating an otherwise triable dispute.

On 10 September 2026, the University of Ljubljana, Faculty of Law, together with the Institute for Comparative Law, will host the Second Private International Law Conference, a unique regional event dedicated to contemporary developments in private international law. The conference will gather distinguished academics, judges, attorneys, arbitrators, and legal practitioners from Slovenia and Europe to […]

Gralf-Peter Calliess and Moritz Renner have edited the fourth edition of Rome Regulations: Commentary published by Wolters Kluwer. The volume provides an article-by-article analysis of the three Rome Regulations and takes account of developments that have occurred since the publication of the previous edition in 2020. These include recent case law of the Court of […]

The following call for papers has kindly been shared with us by the editors of The Journal of Law, Market & Innovation (JLMI).

The Journal of Law, Market & Innovation (JLMI) welcomes submissions for its second issue of 2027.

The Call for Papers for this second issue is devoted to European Regulatory and Supervisory Bodies in the Digital Realm.

You can find the call with all the details at the following link:

A NEW CONSTELLATION OF EU STATE REGULATORY AND SUPERVISORY BODIES IN THE DIGITAL REALM

Prospective articles should be submitted in the form of full papers to submissions.jlmi@iuse.it within 1 December 2026. The publication of the issue is set for the end of July 2027.

For further information, or for consultation on a potential submission, you can contact us by email at editors.jlmi@iuse.it.

Visit our website to read the full announcement.

This post was written by Giacomo Marola (PhD). On 18 June 2026, following AG Rantos’ Opinion, discussed on this blog, the CJEU delivered its judgment in Case C-232/25, Idziski, concerning jurisdiction under Article 5(3) of the Brussels I Regulation, now Article 7(2) Brussels I bis, over personality rights infringements. Facts of the Case Idziski arises […]

In case C-14/25, Thüringer Aufbaubank, a request for a preliminary ruling lodged on 15 January 2025, the Oberster Gerichtshof (Supreme Court, Austria) is asking the Court to interpret several provisions of Regulation 805/2004 creating a European Enforcement Order for uncontested claims: Is Article 21(2) in conjunction with Article 25 of Regulation No 805/2004 […] to be interpreted […]

For those (like myself) who view private international law as we know it today as essentially a European invention of the 19th century it is fascinating to see examples of earlier and non-European regimes. One example is Article 48 (on ‘Infringements between peoples outside civilization’) of the Tang Code (653 CE) which reads:

For the people outside [our] civilisation, if infringements occur between those of the same kind, they will be judged by their customary law. If they are of different kinds, then the law [of our empire] shall be applied.
諸化外人, 同類自相犯者, 各依本俗法; 異類相犯者, 以法律論

There has long been a debate of whether this is a true conflicts rule, much of which rests on how broadly to define what conflict of laws actually is and presupposes (for earlier discussion see, e.g. Qingkun Xu, The Codification of Conflicts Law in China: A Long Way to Go, 65 Am. J. Comp. L. 919, 925-6 (2017) with references).  Thảo Anh Hoàng (Huế University, Vietnam), in a new article, sides with those who view this as a true conflict of laws rule and also discusses its reception and application in Vietnam and elsewhere in Asia. (Thảo Anh Hoàng, Early conflict-of-laws rules: Vietnam’s Lê Code (1483) in East Asian and global contexts, 14 Comp. Leg. Hist. 29–54(2026). In addition, she  provides a fascinating and enlightening discussion of the risks of applying modern concepts to ancient phenomena that is instructive to everyone interested in private international law beyond its black letters. Based on parts of her doctoral thesis currently being written at Montpellier under the supervision of Carine Becharef Jallamion, the article is a tribute to both the productive potential of comparison beyond Europe and North America, and the promising young researchers from Asia.

 

Thảo Anh Hoàng, Early conflict-of-laws rules: Vietnam’s Lê Code (1483) in East Asian and global contexts, 14 Comp. Leg. Hist. 29–54 (2026).

This post was contributed by Dr. Augustin Gridel, who is associate professor at the Faculty of law of Nancy, University of Lorraine, France. On 4 June 2026, in Terve v Intesa (C-791/24), the Court of Justice ruled for the first time on the allocation of jurisdiction under the Brussels I bis Regulation in the field of […]

The Faculty of Laws of University College London is looking to appoint as Research Fellow in Law one or more outstanding candidates with research interests in law and related fields. This Post Doctoral Research Fellowship provides a development opportunity for early career researchers in law who have exceptional potential, for a fixed and non-renewable term of two years. While the Fellowship is not limited to any particular area of legal study, conflict of laws is one of the areas in which applications are particularly welcome. UCL Laws is a world-leading academic institution, with a long tradition of private international law research and teaching, which is currently led by Professor Alex Mills, Professor Ugljesa Grusic and Joshua Folkard. The deadline for applications is 1 July 2026. More information about the post is available here. If you have any specific questions about this post and/or the duties attached to it, please contact Professor Colm O’Cinneide, Vice-Dean (Research).

The proceedings of the 18th Jornadas ASADIP in Rio de Janeiro 2025 have been published. María Mercedes Albornoz César González, Jaime Moreno-Valle and Verónica Ruiz Abou-Nigm as editors have collected no less than 46 contributions (plus a prologue and a foreword) by authors from Latin America and elsewhere to the 800 page tome entitled “Imaginario regional – resonancia global. El derecho internacional privado interamericano y el escenario mundial”. Most  are in Spanish or Portuguese, a few in English. They cover a vast array of topics, doctrinal and/or theoretical, structured along seven themes: (i) foundations, (ii) normative structure, (iii) procedure, (iv) substantive protections, (v) digitization, (vi) human rights, (vii) teaching of private international law. The volume  once again demonstrates both the ambition and the  high quality of private international law reasoning on the continent. It can, as can many other excellent OAS publications, be downloaded  free of charge from the OAS website.

The Faculty of Laws of University College London is looking to appoint as Research Fellow in Law one or more outstanding candidates with research interests in law and related fields. This Post Doctoral Research Fellowship provides a development opportunity for early career researchers in law who have exceptional potential, for a fixed and non-renewable term […]

On 15 and 16 October 2026 the EUSuccess Project will host a conference entitled EU Succession Regulation: First Decade of Application, Strengths, Challenges, Future Outlooks taking place at the Faculty of Law and Administration of the Jagiellonian University in Kraków (Poland).  The event will bring together academics and practitioners to discuss functioning in practice of the […]