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The following announcement has kindly been provided by Silvia Marino

The new extensive Volume Multistate Torts in European Private International Law was just published by Edward Elgar Publishing. This book is the outcome of the second edition of the EAPIL Winter School in Private International Law. The contributions are based on the lectures given during the course, which took place at the Department of Law, Economics and Cultures, University of Insubria, Como, Italy, from 10 to 15 February 2025. It is edited by Silvia Marino (University of Insubria, Como), Anna Wysocka-Bar (Jagiellonian University, Kraków) and Javier Carrascosa González (University of Murcia).

The chapters discuss the current and future challenges related to the resolution of complex cases of cross-border torts and related damages. Globalisation and digitalisation are particularly crucial in these areas, where the lack of a truly common regulatory fragmentation could leave victims in a situation of helplessness. New challenges, such as distance delicts and the rise of modern social sensibilities, risk affecting the traditional goals of private international law, such as predictability and legal certainty, but especially substantive targets, as the protection of the victim and the enhancement of human rights. The Chapters of this book address these newest challenges with particular regard.

Silvia Marino sets the scenario, analysing the causes that lead to a potential multiplicity of courts granted with jurisdiction multiplicity of applicable law. The immediate reaction is the transnational treatment of lis pendens and related actions (Bartosz Trocha). In the EU, one of the torts that gave rise to the most heated debates is the violation of personality rights, especially online. Javier Carrascosa González deals with the delicate issue of jurisdiction and, after an analysis of the general rule of Article 4 of the Rome II Regulation, examines the consequences of libel tourism. The specific problems derived from the SLAPPs are specifically analysed in the light of the new EU Directive (Caterina D’Osualdo). In a vertical approach, climate change litigation, private enforcement of EU competition law, AI-related harm are separately examined, signaling characterisation difficulties and the potential globality of losses (Magdalena Ličková, Silvia Marino, Olivera Boskovic, Benedetta Cappiello). The clear risk of rendering potentially conflicting judgments by different courts makes it essential to deal with the cross-border recognition and enforcement of judgments (Francisco José Garcimartín Alférez, Sara Sánchez Fernández) also in the framework of the human rights protected by the ECHR (Satu Heikkilä). Anna Wysocka-Bar stresses in the last chapter how coordination problem can arise in other subject matters, such as cross-border succession.

The blurb reads as follows:

This book provides theoretical and practical insights into emerging problems concerning multistate torts in private international law. Prominent authors analyse the issue of multistate torts in the context of the core of the European legal system and its classic coordination tools.

The book highlights how cross-border torts can cause difficulties of localisation, including the complexities associated with the involvement of a high number of national courts with full or partial jurisdiction. It examines how this can lead to simultaneously pending proceedings, conflicting judgments and a multiplicity of applicable laws for the same claim. Chapters evaluate the main areas in which tort cases can arise, including cases of online defamation with a focus on Strategic Lawsuits Against Public Participation (SLAPP), the violation of competition law, climate change litigation, AI-related harm and product liability and succession matters. The book will also address the problem of inconsistent judgments that limit the circulation of enforcement proceedings in human rights cases.

Multistate Torts in European Private International Law is an essential reference for students and scholars of private international law and comparative law. With an in-depth analysis of contemporary issues, it is also relevant to legal practitioners facing related cases.

The table of contents can be accessed here. The book may be purchased or accessed online here.

 

Choice of forum clauses are an important means of managing litigation risk in international commercial contracts. Their effectiveness, however, depends on how courts understand and enforce the parties’ agreement. This well-researched book offers a substantial comparative examination of that problem across seven Asian jurisdictions: Singapore, Hong Kong, Malaysia, the Philippines, China, Indonesia and Japan. Presented as the first work devoted to this particular comparative inquiry, it makes a valuable contribution to Asian private international law and offers insights that will interest readers working on choice of forum agreements elsewhere.

The selection of jurisdictions gives the study considerable comparative breadth. Singapore, Hong Kong and Malaysia represent common law systems strongly influenced by English law. The Philippines provides a mixed legal tradition shaped by American and Spanish influences, while China, Indonesia and Japan represent civil law traditions, with Dutch law having exerted a particularly significant influence on Indonesia. By bringing these systems together, the author examines how shared problems are addressed through different legal concepts and procedural arrangements.

The book’s analytical framework, introduced at the outset, comprises six connected questions: the characterisation of choice of forum clauses; party autonomy; the procedures available for enforcement; judicial discretion in granting relief; the applicable law; and the overriding effect of forum state and international interests (p 1). This framework is one of the book’s principal strengths. It connects questions that are often examined separately and demonstrates why the practical effectiveness of a clause cannot be assessed solely by reference to its contractual wording. The central argument is persuasive: choice of forum clauses can help manage the risks associated with international commercial transactions, but their effectiveness requires careful drafting and coherent judicial treatment.

Chapter 2 provides the conceptual foundation by examining competing understandings of the nature of choice of forum clauses. It explores the tension between their contractual or substantive character, commonly associated with traditional common law approaches, and their procedural or public character, associated with civil law approaches. The author appears to favour an approach that recognises both dimensions. I agree with this position. A choice of forum agreement records a private commitment, but its enforcement also affects the exercise of judicial authority. An account that accommodates both features provides a convincing basis for understanding the questions addressed throughout the book.

The chapter also considers the relationship between choice of forum clauses and arbitration agreements, their effects on non-parties, and their interaction with other contractual provisions. The comparison with arbitration is useful because both mechanisms enable parties to organise the resolution of future disputes. The author distinguishes the dual public and private character of choice of forum clauses from the contractual nature of arbitration agreements, thereby clarifying the conceptual basis of the book’s subsequent analysis.

Chapter 3 develops the discussion of party autonomy by distinguishing the parties’ freedom to determine the contents of their clause from their freedom to control the conduct of litigation. This distinction is helpful: agreement on a forum does not necessarily give parties unrestricted control over the court’s response. The treatment of the ouster rule illustrates the tension between private agreement and judicial authority. The book describes the movement away from the traditional objection that parties cannot oust the jurisdiction of common law courts, while showing the continuing influence of that objection in the Philippines. Its discussion of the Hague Choice of Court Convention 2005 places these domestic approaches within a broader framework for giving effect to party autonomy.

Chapter 4 examines the relief and remedies available in Singapore, Hong Kong, Malaysia and the Philippines. The comparative account reveals important differences within jurisdictions influenced by the common law. Singapore emerges as particularly receptive to contractual enforcement and party autonomy, whereas the Philippine treatment of choice of forum agreements as venue stipulations, together with the continuing influence of the ouster rule, limits their effect. Malaysia places greater emphasis on judicial discretion. The chapter also examines anti-suit injunctions and the recognition and enforcement of foreign judgments associated with the enforcement or breach of choice of forum agreements.

The Singapore discussion is especially instructive. The Singapore International Commercial Court and the operation of the Hague Choice of Court Convention demonstrate the jurisdiction’s commitment to facilitating international commercial dispute resolution. Yet the coexistence of different enforcement regimes also creates complexity. Parties may encounter different approaches depending on the court concerned, the applicability of the Convention, the exclusive or non-exclusive character of the clause, and the involvement of third parties. Singapore’s experience therefore illustrates a recurring theme of the book: strong support for party autonomy must be accompanied by rules whose practical operation parties can understand and predict.

Chapter 5 considers judicial discretion, including England’s judicial influence of The Eleftheria and Spiliada on the treatment of exclusive and non-exclusive jurisdiction clauses in Singapore, Hong Kong and Malaysia. Its examination of whether those clauses should be subjected to similar tests raises an important question about the relationship between contractual commitment and the assessment of the appropriate forum. The discussion helps explain why a court’s stated commitment to party autonomy does not, by itself, determine the outcome of an enforcement application.

Chapter 6 examines the relationship between choice of forum clauses and choice of law, focusing on existence, validity and interpretation. The account of Singapore, Hong Kong and Malaysia shows the influence of English common law approaches, including reliance on the law governing the main contract and the reservation of certain questions to the law of the forum. The operation of the Hague Choice of Court Convention in Singapore introduces a different reference to the law of the chosen court for substantive validity.

The discussion of exclusivity is also valuable. The cases examined suggest that, outside the relevant Convention framework, courts in Singapore, Hong Kong and Malaysia approach exclusivity principally as a question of contractual interpretation rather than through a general presumption. This finding reinforces the practical importance of clear drafting. Parties who intend to confer exclusive jurisdiction should express that intention in terms that minimise uncertainty about the scope and effect of their agreement.

Chapter 7 broadens the analysis by considering forum state and international community interests. Mandatory rules, public policy, comity and related concepts may affect the existence, validity and interpretation of clauses, the availability of relief, and the recognition and enforcement of resulting judgments. The attention given to weaker parties is particularly welcome. Asymmetric agreements, standard-form contracts and consumer transactions reveal why formal consent may not provide a sufficient justification for enforcement in every case. This chapter strengthens the book’s account of party autonomy by examining the interests that may legitimately qualify its operation.

Chapter 8 applies the preceding framework to China, Indonesia and Japan. Its discussion demonstrates both the usefulness and the limits of broad classifications into common law and civil law traditions. The Chinese treatment of disputes involving Hong Kong, Macau and Taiwan introduces distinctive questions concerning conflicts between legal systems. The discussion of forum non conveniens, anti-suit injunctions and asymmetric jurisdiction agreements further reveals how familiar mechanisms may acquire different functions within a particular legal system. In particular, the book contrasts the emphasis on efficiency in the Chinese approach to forum non conveniens with the attention to justice in the English approach.

The Indonesian analysis identifies difficulties arising from the conflation of choice of law and choice of court, including reliance on a foreign choice of law clause as a basis for declining jurisdiction. This is a useful illustration of the practical consequences of failing to distinguish two different exercises of party autonomy. The Japanese discussion addresses the special circumstances test, the presumption of exclusivity, the treatment of asymmetric clauses, and rules protecting consumers and employees. Together, these accounts show that support for choice of forum agreements operates within procedural and regulatory arrangements that vary considerably across the jurisdictions examined.

Interestingly, the book reveals differing approaches to asymmetric jurisdiction agreements in the civil law jurisdictions examined. Chinese courts enforce such agreements, while a Japanese court has treated an asymmetric jurisdiction clause as exclusive. The Japanese approach nevertheless operates within a framework that includes the special circumstances test and protections for weaker parties, particularly consumers and employees. These findings suggest that asymmetry does not, by itself, necessarily prevent enforcement in China or Japan.

The final chapter draws the comparative findings together effectively. Characterisation shapes the legal tools available; party autonomy guides judicial approaches; forum procedure determines the means of enforcement; and discretion remains an important element of the court’s response. The applicable law also matters, although the allocation of questions of existence, validity and interpretation differs between systems. Finally, forum state and international interests may override both private agreement and the otherwise applicable law. These findings support the book’s emphasis on careful drafting, predictable judicial analysis and procedural reform. They also provide a basis for considering wider participation in the Hague Choice of Court Convention and the Hague Judgments Convention 2019.

A modest criticism concerns the presentation of the findings. The chapters generally begin with clear and helpful introductions, but more consistent concluding sections would have made it easier to identify and compare their principal lessons. In a study of this breadth, short chapter conclusions could also have helped readers retain the relationship between the detailed national analysis and the book’s overarching framework. The strong final chapter substantially compensates for this omission.

Overall, this is an impressive and richly analysed comparative study. Its contribution lies in bringing contractual commitment, procedural rules, judicial discretion and public interests into a sustained examination of choice of forum clauses across diverse Asian legal systems. It will be valuable to scholars and practitioners of Asian private international law, while also providing a useful framework for comparative work beyond the region. I will certainly return to it, particularly when examining choice of forum agreements in African jurisdictions.

This post was written by Dr. Emeric Prévost, Research fellow at the University of Vienna (Austria) and currently visiting scholar at the University of Kyushu (Japan). As it has been already reported on this blog (here and here), the European Commission (EC) is currently consulting the public by means of a general and targeted consultations […]

As the readers of this blog will recall, the Lindemann Fellowship for Private International Law was established in 2024 to provide early-career researchers with the opportunity to build a network with academics from all over Europe. Fellows are accepted for a three-year period, with new Fellows joining each year, as existing Fellows complete their tenure. […]

Sandrine Brachotte (University of Antwerp, UCLouvain, UCLouvain Saint-Louis Bruxelles)’s Conflicts of Worldviews and Private International Law is out. This book develops a decolonial theory of European private international law. To do so, it begins with Western court cases involving what the author terms a ‘conflict of worldviews’: a clash between the legal frameworks governing the […]

Professor Ulla Liukkunen, a distinguished scholar of private international law, comparative law, and labour law at the University of Helsinki, celebrated her 60th birthday on 12 September. The collected volume Navigating Interconnected Social Justice: Liber Amicorum in Honour of Ulla Liukkunen pays tribute to Professor Liukkunen. Edited by Katja Karjalainen and Iina Tornberg and published […]

Private international law in Egypt has often been described as being in a state of stagnation. After enormous efforts by the government since the end of the 19th century, and particularly during the beginning of the 20th century, Egypt succeeded in developing a relatively comprehensive PIL framework, covering choice of law (Arts 10–28 of the 1948 Civil Code), international jurisdiction (Arts 28–35 of the 1968 Code of Civil and Commercial Procedure), and the enforcement of foreign judgments (Arts 296–301 the 1968 Code of Civil and Commercial Procedure), alongside other rules scattered across various pieces of legislation. While these rules could be considered relatively modern and well developed, and broadly in line with the general tendencies of comparative law at the time, they have since become quite outdated and, in many respects, old-fashioned. This, however, has not prevented Egyptian law from exerting considerable influence throughout the region, with more recent codifications often reproducing or adapting Egyptian solutions.

The influence of Egyptian law is due not only to its legislation, but also to the role played by Egyptian scholars in laying the foundations of a genuine Egyptian PIL scholarship. Early treatises were, more often than not, encyclopedic in scope, deeply engaged with comparative law and attentive to judicial practice. In this respect, one may cite the seminal work of Ezzeddine Abdallah, Al-qānūn ad-Duwalī al-Khāṣ [القانون الدولي الخاص – Private International Law], which consists of two volumes: Volume I, dealing with Nationality, Domicile and the Status of Aliens (1986), and Volume II, dealing with Conflict of Laws and Conflict of Jurisdictions (1986). This work remains, in my view, one of the leading and most authoritative scholarly works in the field.

Slowly, however, the golden age of Egyptian scholarship in private international law entered a period of decline. Much recent scholarship has, more often than not, contented itself with reproducing the work of the great early scholars, while often neglecting the comparative-law dimension from primary sources that was so prominent in those earlier works. Indeed, it is not uncommon for recent publications to refer to existing descriptions of old French case law, to engage in detailed discussions of issues with little practical relevance for Egypt, such as renvoi, or to refer to private international law systems that no longer exist, such as those of Czechoslovakia and Yugoslavia. Some also continue to cite, without any particular relevance to the issues under discussion, rather outdated French scholarly works.

More importantly, recent scholarship has generally paid insufficient attention to developments in case law. Rather than systematically examining the more recent decisions of the Egyptian Court of Cassation, despite their relative accessibility, many works continue to rely heavily on older French decisions or on relatively old Egyptian Court of Cassation judgments. This is particularly unfortunate in a field such as private international law, where the practical meaning and development of legal rules can often be understood only by looking closely at how courts actually apply them.

In this regard, the publication of Professor Abdel Moneem Zamzam‘s book on Egyptian private international law provides a useful opportunity to examine the current state and development of Egyptian law and legal scholarship in this field. Professor Zamzam, who is also Head of the Department of Private International Law at the Faculty of Law, Cairo University, is an outstanding scholar of private international law and international civil procedure, including international insolvency and arbitration, as well as international investment law. He obtained his PhD from the University of Dijon in 2003 with a thesis entitled “Overriding Mandatory Rules in State Courts and International Arbitration: A Comparative Franco-Egyptian Study” (Les lois de police dans la jurisprudence étatique et arbitrale : étude comparée franco-égyptienne). The thesis was first published in 2004 by the Atelier national de reproduction des thèses and was republished in 2021 by Éditions universitaires européennes. Professor Zamzam has also published several works in English, notably an article published in 2010 in the Journal of Private International Law, entitled “Bankruptcy Jurisdiction and Enforcement of Foreign Bankruptcy Judgments in Egypt”.

The book, entitled Al-muṭawwal fī al-Qānūn al-Duwalī al-Khāṣ [المطول في القانون الدولي الخاص – The Treatise on Private International Law] (Dar al-Nahḍa al-ʿArabiyya, 2027), revives an old Egyptian tradition of lengthy legal treatises, running to approximately 1,100 pages. It covers the core areas of private international law, namely choice of law, international jurisdiction and the recognition and enforcement of foreign judgments, with particular reference to the case law of the Egyptian Court of Cassation (Maḥkamat al-Naqḍ / محكمة النقض).

The book, kindly made available by the author here for the benefit of Arab PIL scholars and other Arabic-speaking readers, consists of three main parts, preceded by a general introduction.

Part I deals with the general theory of private international law, notably the nature and scope of private international law and its branches (Chap. I), the nature of the conflict-of-laws rule (Chap. II), the application of the conflict-of-laws rule (Chap. III), and disregarding the conflict-of-laws rule and correcting its application (Chap. IV).

Part II deals with the substantive rules of the conflict of laws, notably conflict of laws in personal status matters, or The Principle of the Personal Law (Chap. I), conflict of laws in immovable and movable property, or The Principle of the Territorial Law (Chap. II), conflict of laws in international contractual obligations, or The Principle of Party Autonomy (Chap. III), and conflict of laws in international non-contractual obligations, or The Principle of the Local Law (Chap. IV).

Part III deals with procedural private international law and is divided into two main sections: the first concerns conflicts of international adjudicatory jurisdiction and the international jurisdiction of Egyptian courts (Chap. I), while the second deals with the recognition and enforcement of foreign judgments (Chap. II).

The book has several notable strengths. First, it builds on the existing literature while proposing a broader treatment of private international law in Egypt, often advancing positions that are original, or at least distinct from those prevailing in Egyptian scholarship. Second, it gives an important place to the case law of Egyptian courts, particularly that of the Egyptian Court of Cassation. Finally, in keeping with the tradition of Egyptian scholarly works, it adopts a comparative-law approach, presenting different approaches in major legal systems.

Despite these strong points, there are also some aspects that could, in my view, be taken into account by the author in future editions.

First, I found it particularly unfortunate that the book pays relatively little attention to private international law in other Arab countries. For instance, when discussing the trend towards comprehensive codifications of private international law, the author refers, inter alia, to the Swiss codification of 1984 and the Italian codification of 1995. Surprisingly, however, he also refers to a number of outdated codifications that have since been repealed and replaced by new legislation, such as the Turkish codification of 1982, which was replaced by new legislation in 2007, the Hungarian PIL Law-Decree of 1979, replaced in 2017, and the Romanian PIL Act of 1992, whose substantive provisions were subsequently incorporated into Book VII of the Civil Code, adopted in 2009 and in force since 2011. He also refers to instruments that, although bearing the title “private international law”, deal essentially with choice of law and therefore cannot properly be regarded as comprehensive codifications, such as the Polish Act of 1965, which was replaced by a new Act in 2011.

Surprisingly, the author does not refer to the Tunisian Code of Private International Law of 1998, despite its being available in both Arabic and French. This could have provided a particularly relevant point of reference for a comparative examination of Arab private international law systems. More generally, this reflects a second aspect that, in my view, deserves closer attention: a more systematic comparative-law approach would have benefited from references to the EU regulations, recent developments in US conflict of laws, and, importantly, the work of the Hague Conference on Private International Law (HCCH), including the more recent conventions and other instruments adopted in areas such as international jurisdiction, the recognition and enforcement of foreign judgments, choice of court agreements, and international family law. It would also have been useful to consider contemporary developments observable in other Arab jurisdictions. These developments are largely overlooked, with the author relying instead on classical references found in classical Egyptian legal literature, together with citations to older French textbooks that have since been substantially revised, updated or, in some cases, ceased to be regarded as authoritative references, except in relation to the historical issues that were relevant at the time of their publication.

Another aspect that deserves attention is the use of the case law of the Egyptian Court of Cassation. The author’s effort to identify and discuss relevant cases is certainly to be appreciated. At times, however, the references to the case law appear to be more illustrative than substantive. The treatment of derogative choice-of-court agreements provides a good example. The author cites only two decisions in which the Court of Cassation appears to uphold the validity of such agreements. A closer examination of the available case law on the issue, however, reveals a considerably more complex picture, and one that does not necessarily support the author’s position in favour of derogative choice-of-court agreements. It is also unfortunate that some recent decisions, including cases reported on this blog (here, here, here, here, and here) together with the relevant references to the case law, as well as other useful and more recent sources, have not found their way into this latest contribution to Egyptian private international law.

A third point, and in my view the most important one, concerns the history of Egyptian private international law, which is almost entirely overlooked in the book, as if its development had begun only in 1948 with the adoption of the Egyptian Civil Code and the set of private international law rules contained therein. A historical approach to Egyptian private international law, however, would reveal the broader context in which the present rules were developed, the tensions surrounding their adoption, the extraordinary work undertaken by the early scholars, and, above all, the important role played by the case law of the Mixed Courts in shaping the Egyptian private international law that we know today.

These comments may appear critical, but my intention is simply to express the hope that the tradition of the classical authors, who through meticulous comparative research combined with close attention to judicial practice succeeded in bringing Egyptian private international law to a remarkably advanced level for its time, can be revived. In this sense, the challenge today is not merely to describe the current state of Egyptian private international law by largely reproducing the prevailing literature, but to build on the foundations laid by earlier generations while engaging seriously with contemporary comparative developments and the evolving case law of Egyptian courts. If Egyptian private international law is to regain the dynamism and intellectual ambition that characterised what might be described as its golden age, future editions could benefit from a broader comparative perspective, more systematic and substantive engagement with the case law of Egyptian courts, including the Court of Cassation, and greater attention to the historical experiences that have shaped the present system. Such an approach would not simply document the current state of Egyptian private international law; it could also contribute to reviving the golden age of Egyptian private international law and laying the foundations for its further development.

Despite the above comments, the book remains an important contribution to the field and a valuable addition to the literature on Egyptian private international law. It provides a comprehensive account of the current state of Egyptian PIL and, importantly, brings together the relevant statutory provisions, doctrinal debates and judicial developments in a single work. I hope that it will stimulate further discussion and research and, in future editions, contribute even further to the renewal and development of Egyptian private international law.

Judgment by the CJEU in Case C-320/24 Soledil engages with two long-standing principles of EU law.

Firstly, the need for courts motu proprio to raise arguments that contractual terms in B2C contracts may not stand the test of the EU’s Unfair Terms in Consumer Contracts Directive 93/13/EEC (‘UCTD’).

Next, the principle that claims between parties must not be allowed to be infinitely pursued and relitigated (named here by the CJEU under the broad term ‘res judicata’). In Soledil the CJEU engaged in essence, and not for the first time, with the balance that needs to be struck between consumer protection and sound administration of justice. It came down firmly in favour of the former.

My note on the case in the  Journal of European Consumer and Market Law is here.

Geert.

The coming weeks will bring two developments in the case law of the Court of Justice in the field of judicial cooperation in civil matters.  The Opinion of Advocate General Campos Sánchez-Bordona in case C-697/25, Appenzell, is scheduled to be delivered on 1 October. In September 2024, the Debt Enforcement and Bankruptcy Office of Appenzell […]

The latest issue of the Oxford Journal of Legal Studies (Volume 46, Issue 3) features two articles of relevance to private international law. Roxana Banu, Constructing Imperial Authority: The Intersection of British Imperial Constitutional Law and Private International Law, 597–623 Historians and constitutional law scholars are starting to uncover the imperial dimensions of the British […]

If you do use the blog for research or database purposes, and of course for practice 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.

Like all my posts, this post is entirely AI free.

I reviewed the Opinion of Emiliou AG (as he then was; meanwhile he has been appointed judge in the ECtHR) in Case C-176/25 [Steizer], IU v BT, here. The CJEU held last week, confirming the AG’s view.

As I suspected, the CJEU replied on point, in 20 succinct paras. The judgment does not as such settle the ‘proprietary rights’ issue viz Rome I that I flag in my review of the Opinion.

[40], having recalled the core definitions of ‘contract’ and ‘non-contractual’ with reference to the usual Handte and Kalfelis authorities (the Court refers to recentish core applications, Ergo and Kerr) and to the need for consistency between Rome I, II and Brussels Ia, the Court confirms “‘non-contractual obligation’, within the meaning of the Rome II Regulation, must be understood as meaning an obligation which derives from one of the events listed in Article 2 of that regulation.”

[41-42] BT’s claim against IU, allegedly the infringer of the (allegedly established) copyright, clearly is a non-contractual one, covered by A8(1) Rome II’s lex loci protectionis provision.

However [46] the Vorfrage, the formal validity of the contract assigning the exclusive rights of use allegedly infringed, is held instead to be subject to Rome I. This also leads to legal certainty (reference here to Liechtensteinse Landesbank):

“Treating that formal validity as a contractual matter thus provides legal certainty and a degree of predictability which it would not be possible to achieve were that aspect treated as a non-contractual matter.” (For in the latter case it would be subject to a patchwork of leges causae, linked to each of the Member States of infringement).

[53] The CJEU seeks additional support in A12 Rome I (the lex contractus governs, inter alia, the consequences of nullity of the contract):

“it is the law applicable to the contract which determines whether or not the assignee of a formally invalid contract must be considered to be the holder of the rights concerned, since that question is a consequence of the primary issue of the formal validity of the contract.”

[55] The infringement of the exclusive rights of use (were the national court to hold that formal validity is established), need to be assessed in the light of the law established by A8(1) Rome II.

The Court refers [48] to the European Commission’s professed split between proprietary rights and those capable of being the subject of Rome I, and [49] it refers to the AG’s implicit deference to that distinction, but it does not in so many words itself make that distinction, and of course intellectual property rights, and their limited territorial scope, may make one or two things in the judgment distinguishable.

As things stand therefore, in the words of Vlas AG in Tavrida Central Museum (at the Dutch SC), a different view IMO is still possible on the issue of proprietary rights and Rome I.

Geert.

 

 

 

The transatlantic debate over the European Union’s corporate sustainability framework has entered a new phase. Following the substantial amendments introduced through the EU’s recent simplification agenda, in August 2026 the Government of the United States has submitted detailed comments on the forthcoming implementation guidance for Directive (EU) 2024/1760 (the Corporate Sustainability Due Diligence Directive – […]

Ulla Liukkunen (University of Helsinki) has kindly shared the attached programme for the Second Seminar of the Global Network on Private International Law, Employment, and Labour Relations (GNPILE).

The event is open to all, but registration is required.

On Tuesday, October 6 2026, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST).

Sandrine Brachotte (University of Antwerp) and María Julia Ochoa Jiménez (Comillas Pontifical University) will speak, in English, about the book

“Conflicts of Worldviews and Private International Law” (Hart Publishing, 2026).

This book brings together European private international law and decolonial thinking. It examines how European courts deal with conflicts between legal frameworks and postcolonised worldviews. Through three case studies—religious arbitration, Indigenous sacred land, and sexual minorities in the Global South—it shows that these conflicts are often overlooked. This results in the inadequate protection of the claims and identities of formerly colonised peoples. The book therefore proposes a more pluralist approach to jurisdiction, choice of court, and foreign law, giving greater weight to postcolonised worldviews. Prof. Ochoa Jiménez will comment on it, while focusing on private international law.

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 written by Laima Vaigė, Associate Professor and Senior Lecturer in Private International Law at Uppsala University. On 8 September 2026, the European Court of Human Rights (ECtHR) delivered its judgment in A.A. v the Netherlands (Application no. 7481/23), concerning a refusal of family reunification between a refugee father living in the Netherlands […]

Luis de Lima Pinheiro (University of Lisbon) has posted Law Applicable to International AI Torts – A Note on a Forthcoming Contribution on SSRN. The abstract reads: This note summarizes the analysis, key insights and proposals advanced in the contribution “Law Applicable to International AI Torts: An Introduction”, forthcoming in Memorial Publication in Honour of Prof. […]

On 1 September 2026, the European Commission launched an open public consultation and a call for evidence as part of the formal review of Regulation (EU) No 1215/2012 (Brussels Ia Regulation). The initiative seeks feedback on the functioning of the Regulation and on possible targeted amendments to simplify, modernise and clarify the existing framework governing […]

In a decision of 27 August 2026, the Danish Supreme Court held that the Organization for Security and Co-operation in Europe’s Parliamentary Assembly (OSCE PA) could not invoke immunity from jurisdiction in proceedings brought by a dismissed employee. The Court found that the OSCE PA’s internal disciplinary procedure did not offer a reasonable alternative means […]

Written by Nicolás Zambrana-Tévar LLM, PhD (KIMEP University)

Facts of the case

An unreported judgment of the Family, Childhood and Capacity Section of the Tribunal de Instancia de Alicante (No. 3), dated 29 April 2026, has attracted attention for ordering a Mexican gestational surrogate to pay child maintenance to the Spanish father for whom she carried a child, despite having no custody, no exercise of parental authority, and no contact rights (here and here).

A Spanish man, described in some reports as resident in Alicante province and in others as working in Switzerland, had a child through gestational surrogacy in Mexico using his own sperm and a donor egg; the surrogate has no genetic link to the child. The child was born on 24 April 2024 and travelled to Spain in January 2025, since when he has lived with the father. A separate, earlier 2024 judgment of the same Alicante court had already determined the father’s biological paternity and registered the child, under ordinary Spanish civil-registry rules, with the father’s and the surrogate’s surnames. In the April 2026 judgment, at the Prosecutor’s request and applying Arts. 154 and 158 of the Spanish Civil Code (CC), the court declined to strip the surrogate mother of parental responsibility (patria potestad) but suspended its exercise, gave the father sole custody, denied the mother contact and, because she remains the child’s legal mother, ordered her to pay €150/month plus half of extraordinary expenses.

Recent Spanish case law and practice on surrogacy

The Alicante case follows a line the Spanish Supreme Court has been building with similar facts. In STS 496/2025, of 25 March 2025 (ROJ: STS 1262/2025), the Court dealt with a case originating from a surrogacy arrangement in Tabasco, Mexico. The surrogate contributed no genetic material, and the contract expressly stated she was not the legal, biological or genetic mother and renounced patria potestad and custody in the father’s favour. The children were registered in Tabasco with the father’s two surnames, but the Spanish consular registration ultimately recorded the gestational carrier as mother. Years later the father sued in Spain to have her maternal filiation struck entirely and the surrogate mother herself supported his claim. The Spanish Court of Appeal (Audiencia Provincial) granted it; the Public Prosecutor appealed in cassation, and the Spanish Supreme Court reversed, reinstating her as legal mother. The Supreme Court applied Art. 10.2, Ley 14/2006 which expressly provides that the maternal filiation of children born through gestation by substitution is determined by childbirth. The Supreme Court treated this as a mandatory rule that could not be circumvented by agreement or by an action challenging the maternal filiation (Arts. 131, 139 CC). The court also rejected a request to refer the question to the CJEU because it considered that nothing in Arts. 19 and 20 TFEU was offended by it. The Court also cited its own earlier judgment, STS 1626/2024 of 4 December 2024, for the related but distinct proposition that a foreign judgment attributing parentage to intended parents cannot be recognised in Spain (exequatur) on the same public-policy grounds.

The current administrative framework is set out in the guidelines of the Spanish Ministry of Justice (DGSJFP Instruction of 28 April 2025). The Instruction expressly leaves without effect the earlier Instructions of 2010 and 2019. It provides that a foreign civil-status certificate, a declaration accompanied by medical evidence of birth, or even a foreign judicial decision determining parentage is not, by itself, a sufficient title for registration of a child born through surrogacy. Instead, filiation is to be established through the ordinary mechanisms recognised by Spanish law, including biological filiation and, where appropriate, subsequent adoption.

This doctrine is not merely a registration technicality; it holds even where both the father and the surrogate want the registration undone, which is a stronger statement than a case about recognition of a foreign judgment. Second, the Alicante court’s own earlier 2024 filiation ruling, and its 2026 refusal to go further than suspending (rather than terminating) parental responsibility, both sit squarely within this line: once the gestational carrier was treated as the child’s legal mother, the ordinary legal consequences of parenthood, including the duty to contribute to the child’s maintenance, followed. The Alicante court did not deprive her of parental responsibility; instead, it suspended its exercise, while assigning custody exclusively to the father and excluding contact.

Potential enforcement in Mexico

Whether Mexican law would recognise the same maternal relationship the Spanish courts are drawing consequences from is doubtful. STS 496/2025 illustrates the potential divergence particularly clearly: the contract stated that the gestational carrier was not the legal, juridical or biological mother, and the children were registered in Tabasco with the father’s two surnames, whereas the Spanish courts ultimately treated the gestational carrier as the legal mother under Spanish law. Mexican rules on surrogacy and parentage are state-specific, making it necessary to identify the law applicable to the particular arrangement before drawing conclusions about the status that Mexican law would attribute to the gestational carrier. On that view, the child in the Alicante case could be, simultaneously, solely his father’s child under Mexican law and jointly his and the surrogate’s under Spanish law. That divergence matters practically: a Mexican court asked to enforce the Spanish maintenance order might see the underlying “motherhood” it rests on as itself inconsistent with Mexican public policy, not merely as a foreign court applying stricter substantive rules.

Filiation is governed by Art. 9.4 CC, pointing primarily to the law of the child’s habitual residence at the time when filiation is established, with nationality only a fallback. Maintenance is governed, per Spain’s own conflicts rule (Art. 9.7 CC), by the 2007 Hague Protocol, whose Art. 3(1) points primarily to the creditor’s habitual residence and which, per its Art. 2, applies even where the resulting law is that of a non-Contracting State. The press record is unclear on the relevant facts: the father is described both as Alicante-based and as working in Switzerland, and the child reportedly holds a Swiss passport. A passport evidences nationality, not habitual residence, and nationality isn’t the operative factor for either rule, but if the family’s actual centre of life was split between Spain and Switzerland, that bears on which law governed the 2024 filiation ruling in particular, made before the child’s reported move to Spain.

If pursued in Mexico, recovery of the Spanish maintenance order would fall under the 1956 UN Convention on the Recovery Abroad of Maintenance (Mexico: party since 1992; Spain: since 1966), since the 2007 Hague Child Support Convention doesn’t bind Mexico and the 1989 Spain-Mexico bilateral convention expressly excludes maintenance from its scope. The Mexican authorities or courts would still have to apply the applicable Mexican rules governing recognition and enforcement, including any applicable public-policy limitations. However, the father has reportedly said he won’t pursue enforcement of the order. The EU proposal on parenthood recognition does not solve this problem either. The proposal is designed to govern recognition of parenthood established in one Member State by another Member State; it expressly leaves recognition of parenthood established in a third State to national law. Negotiations on the proposal remain ongoing. Thus, even if adopted in its present basic structure, it would not govern recognition in Spain or elsewhere of a parent-child relationship established in Mexico.

The human rights angle

The case sits at an angle to the ECtHR’s surrogacy jurisprudence. Mennesson v. France found a violation of Article 8 in respect of the children’s right to respect for private life because of the failure to recognise their legal relationship with their biological father, while finding no violation as to the parents’ own family-life claim; Paradiso and Campanelli v. Italy, on referral to the Grand Chamber, found no violation where the intended parents had no biological link to the child at all; Valdís Fjölnisdóttir and Others v. Iceland likewise found no violation in the non-recognition of a same-sex couple’s intended parenthood, given the practical continuity secured through foster care. All three cases concern the position of intended or genetic parents seeking recognition, not, as in the Alicante case, the position of a gestational carrier who is treated as a legal parent for purposes of imposing parental obligations while her exercise of parental responsibility and contact with the child have been suspended or excluded

The ECtHR’s 2019 Advisory Opinion concerning France (P16-2018-001]) further clarified that Article 8 does not require a State to register the details of a foreign birth certificate in order to recognise the legal relationship between a child born through gestational surrogacy and the intended mother. The Court held that another means of recognition, such as adoption, may satisfy the requirements of Article 8, provided that the procedure available under domestic law can be implemented promptly and effectively and in accordance with the child’s best interests. The Advisory Opinion therefore leaves States a choice as to the legal mechanism through which the relationship with the intended mother is recognised, rather than imposing direct registration as the only permissible solution.

The Alicante case raises a different question. Its human-rights significance lies not primarily in the refusal to recognise intended parenthood, but in the consequences of attributing legal motherhood to the gestational carrier. The Strasbourg case law does not appear to have addressed the precise question raised here: whether the attribution of legal motherhood to a gestational carrier may subsequently generate parental obligations, including maintenance, despite the absence of an intended parental relationship between that woman and the child.

 

On 15 September 2026, the European Association of Private International Law (EAPIL) submitted a position paper in response to the public consultation on the Draft UNIDROIT–ICC Principles and Model Clauses for International Investment Contracts. The paper was prepared by a working group formed by Olaf Meyer (University of Applied Sciences Frankfurt, Germany), Albert Henke (Università […]