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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 (Mons), Angelo Chianale (Turin), Francesco Schurr (Liechtenstein) and Julien Perrin (Lausanne).

Discussions will be held partly in French and partly in English.

The full programme is available here.

Participants may join onsite in Lausanne or online. The registration form can be found here. University scholars may contact the organizer for discounted rates (at andrea.bonomi@unil.ch).

This note has been co-authored with Dr. Samuel Vuattoux-Bock, LL.M. (Kiel). It is based on a legal expert opinion for White and Case LLP, Frankfurt. A more comprehensive version – in German – is forthcoming in the Zeitschrift für Internationales Wirtschaftsrecht (IWRZ).

 

I. Introduction
International enforcement regarding the performance of actions that may be taken by others pursuant to Section 887 of the German Code of Civil Procedure (ZPO) raises complex questions within the Brussels Ibis Regulation. These issues concern the correct classification of such enforcement measures, the legal status of a third-party debtor in the context of the enforcement of monetary claims, and potential grounds for refusing enforcement that may arise with respect to international jurisdiction and any defects in service of process. Currently, French courts are seized of the question as to whether a German judgment—in which the German creditor of a Russian debtor was awarded an advance on costs pursuant to Section 887(2) ZPO—can be fully enforced in France by means of a garnishment order directed against a French third-party debtor.

II. The facts of the case
The Creditor (C) is Germany’s largest gas importer and supplies energy providers as well as major industrial customers nationwide with gas. Pursuant to long-term contracts, it sources a significant portion of its imports from the Debtor (D), a company belonging to a corporate group controlled by the Russian state. The agreed place of delivery in each instance was located in Bavaria. However, on June 14, 2022, D largely suspended its gas deliveries to C. On July 22, 2022, the Regional Court of Weiden ordered D to continue supplying C with gas for a further three months. The Regional Court rejected a motion filed by C seeking authorization to have the existing contracts fulfilled by a third party of its choice. Following an immediate appeal lodged by C, the Higher Regional Court (OLG) of Nuremberg issued a ruling on September 12, 2022, authorizing C to have the performance owed by D—within the scope of fulfilling the contracts concluded between the parties—rendered by a third party of C’s choice at D’s expense; furthermore, pursuant to Section 887(2) ZPO, the Court ordered D to make an advance payment to cover the costs incurred in rendering said performance. Subsequently, on November 17, 2022, the Higher Regional Court of Nuremberg issued a certificate regarding this decision pursuant to Art. 53 of the Brussels Ibis Regulation, in which the order for the advance payment was classified as a decision on the substance of the matter (Field 4.6.1). On May 9, 2023, C initiated the garnishment of claims held by D against a French third-party debtor (F) in order to recover a partial amount of the advance payment owed by D. Notice of this attachment was served upon D on May 17, 2023, by means of a letter addressed to the competent authority of the Russian Federation, pursuant to the Hague Service Convention; a copy thereof was sent via registered mail with return receipt requested. On December 21, 2023, F filed a lawsuit against C before the Tribunal Judiciaire de Nanterre seeking the lifting of the measures taken against it. This lawsuit was dismissed on December 20, 2024. D subsequently lodged an appeal against this decision with the Cour d’appel de Versailles, which was granted on January 8, 2026. Cassation proceedings are currently pending before the Cour de Cassation.

III. Enforcement by Substitute Performance
The compulsory enforcement of claims requiring an act, toleration, or forbearance is governed under German law by Sections 887 et seq. ZPO. These provisions apply to all acts that do not relate to the settlement of a monetary claim, the surrender of a specific object, or the submission of a declaration of intent. Specifically, a distinction is drawn between actions that may be taken by others—to which Section 887 ZPO applies—and actions where this is not the case, the enforcement of which is governed by Section 888 ZPO. Actions may be taken by others if they can be performed not only by the debtor personally but also by a third party. This clearly applies to the gas deliveries at issue in the present case. In such instances, the creditor is not compelled to force the debtor personally to render the performance owed. Rather, pursuant to Section 887(1) ZPO, the creditor may apply to the court of first instance for authorization to have the act performed by a third party at the debtor’s expense. Concurrently, the creditor may request that the debtor be ordered to make an advance payment to cover the costs that will be incurred in performing the act (Section 887(2) ZPO). In the case at hand, the OLG Nuremberg granted such an advance payment of costs to the creditor.

IV. A “judgment” within the meaning of Art. 2(a) of the Brussels Ibis Regulation
“Judgments” within the meaning of Art. 2(a) of the Brussels Ibis Regulation—as distinguished from mere enforcement measures—are characterized by the fact that they do not yet result in the final satisfaction of the creditor but rather still require compulsory enforcement. Already in 2009, the Federal Court of Justice (BGH) held that the granting of an advance on costs pursuant to Section 887(2) ZPO constituted a decision within the meaning of Art. 32 of the Brussels I Regulation, which could be recognized and enforced abroad. This view is further supported by the fact that the BGH compared the enforcement of fungible acts under Section 887(2) ZPO with the cross-border enforcement of coercive fines which today is governed by Art. 55 of the Brussels Ibis Regulation. Notwithstanding the position of Section 887(2) ZPO within German procedural law, it should be noted that the rule is structured identically to comparable obligations to make advance payments for substitute performance under substantive law (e.g., under the law of contracts for work and services). Such claims may, of course, be recognized and enforced pursuant to the Brussels Ibis Regulation. Moreover, in the well-known Realchemie case, the CJEU ruled that a decision imposing a coercive fine to enforce an obligation to act or to refrain from acting (Section 890 ZPO) may be enforced pursuant to the Brussels I Regulation. However, the distinction between Section 887(2) ZPO and Section 890 ZPO can, in individual cases, prove quite difficult. Particularly in the case of continuing obligations—such as the ongoing supply of parts or raw materials—the boundary between a substitutable act (Section 887 ZPO) and an obligation to refrain from acting (Section 890 ZPO) is fluid: depending on the wording of the operative part of the judgment, the same factual situation can be framed either as a positive obligation to perform or as an obligation to refrain from interrupting delivery, and enforced accordingly. This practical interchangeability of enforcement methods illustrates how inappropriate it would be to treat the resulting enforcement orders differently at the European level.
In addition, an argumentum a fortiori applies: since, according to the case law of the CJEU (Realchemie), an order imposing a coercive fine under Section 890 ZPO –which constitutes merely a sanction without a compensatory function – qualifies as a “judgment” within the meaning of the Brussels Ibis Regulation, then this must apply all the more to an order for an advance on costs under Section 887(2) ZPO, because the latter decision is based on a judicial assessment of the anticipated costs of substitute performance and thus qualifies as a judgment on the merits unlike a mere coercive fine. It would therefore be inconsistent to characterize a decision imposing a coercive fine as an enforceable “judgment” within the meaning of Art. 2(a)(1) of the Brussels Ibis Regulation, while denying this classification for a decision ordering an advance payment pursuant to Section 887(2) ZPO.
Nor does Art. 2(a)(2) of the Brussels Ibis Regulation preclude the classification of this ruling as a “judgment”; this provision contains specific stipulations regarding the classification of provisional measures as judgments within the meaning of Chapter III of the Brussels Ibis Regulation. Pursuant to this provision, where a decision has been rendered without the defendant having been summoned, the decision embodying the measure must have been served on the defendant prior to enforcement. In this regard, it is important to emphasize that an order to pay an advance on costs does not constitute a mere ancillary ruling to the preceding provisional injunction, but rather a procedurally independent order to pay, possessing its own distinct substantive content. In particular, following the issuance of the decision regarding the advance payment, a distinct enforcement proceeding is conducted pursuant to Section 794(1) No. 3 ZPO in conjunction with Sections 803 et seq. ZPO; this proceeding adheres to the provisions governing the enforcement of monetary claims and is independent of the enforcement of the preliminary injunction.
Furthermore, in the present case, the French courts—with regard to the classification of the Nuremberg decision as a “judgment” within the meaning of Art. 2(a) of the Brussels Ibis Regulation—must observe the binding effect of the certificate issued pursuant to Art. 53 of the Brussels Ibis Regulation, in which the decision on the advance payment was characterized as a judgment on the substance (Field 4.6.1). Art. 53 of the Brussels Ibis Regulation provides that the court of origin shall issue a certificate to enable the enforcement of the judgment in the requested Member State. This certificate confirms that the judgment is enforceable and must be submitted to the courts of the requested Member State (see, in particular, Art. 37(2), Art. 42(1)(b), and Art. 43(1) of the Brussels Ibis Regulation). In this respect, the Cour d’appel de Versailles rightly held that the classification of the decision at issue as a judgment on the merits within the meaning of Art. 2(a)(1) and Art. 39 of the Brussels Ibis Regulation may not be called into question by the French court. In order to clarify the binding nature of the Art. 53  certificate, the Federal Court of Justice recently referred this question to the CJEU. In light of the pertinent conclusions of the Advocates General in preceding cases, a positive answer is expected. As AG Bobek explained in the Salvoni case, “[t]he purpose of the Art. 53 Certificate is to authoritatively [!] state that the judgment is enforceable. […] Whereas, in the system established by [the Brussels I Regulation], production of the certificate in question was not required, it became obligatory with the entry into force of [Brussels Ibis]. That is because the new regulation, doing away with the need for an exequatur, provides for a simplified procedure based on the principle that a decision issued in a Member State should be treated as if it had been issued in the Member State addressed.” And AG Pikamäe was even more explicit in the case of J v H Limited: “[I]t is common ground that the court of origin drew up and issued the certificate on the basis of its order of 20 March 2019, which therefore falls within the scope of Regulation No 1215/2012. Under these circumstances, there is indeed, a priori, an enforceable judgment given in a Member State within the meaning of Art. 2(a) and Art. 39 of Regulation No 1215/2012 that comes within the system of direct enforcement laid down in that regulation, a factual reality that is binding upon the court addressed.”

V. The Legal Status of the Third-Party Debtor in the Enforcement of Claims
Enforcement proceedings may also—particularly in cases of attachment of claims—involve third-party debtors. In this regard, the question arises as to whether such parties can avail themselves of the mechanisms provided by the Brussels Ibis Regulation for the refusal of the enforcement of a judgment. In this context, a distinction must be drawn between the refusal of recognition (Art. 45 Brussels Ibis Regulation) and the refusal of enforcement (Art. 46 Brussels Ibis Regulation). With regard to the refusal of enforcement of a foreign judgment, Art. 46 of the Brussels Ibis Regulation stipulates: “On the application of the person against whom enforcement is sought, the enforcement of a judgment shall be refused where one of the grounds referred to in Art. 45 is found to exist.” The German version of Art. 46 is even clearer, unequivocally speaking of “an application of the debtor” (“auf Antrag des Schuldners”). The wording of this provision thus excludes third-party debtors or other interested third parties. Consequently, based on a grammatical interpretation, standing to apply is vested exclusively in the debtor—i.e., the person against whom enforcement is sought —or, where applicable, their legal successor.
The legislative history corroborates this interpretation. Already under Art. 43 of the Brussels I Regulation, all remedies that national procedural law made available to interested third parties against the authorization of enforcement were excluded. While the enactment of the Brussels Ibis Regulation did indeed abolish the requirement for exequatur—and thus the separate procedure for declaring a judgment enforceable in the requested Member State (Art. 39 of the Brussels Ibis Regulation)—this reform was intended solely to further facilitate and expedite the cross-border enforcement of claims (see Recital 26 Brussels Ibis). Conversely, this measure was not intended to expand the powers of third parties to invoke grounds for refusal of enforcement pursuant to Art. 46 of the Brussels Ibis Regulation. This is evidenced by the fact that a proposal submitted by the Spanish delegation—seeking to extend the scope of Art. 46 of the Brussels Ibis Regulation to cover “any interested party”—was not adopted during the legislative process.
Finally, when interpreted systematically, this is also confirmed by an a contrario argument based on the wording of Art. 45 of the Brussels Ibis Regulation, given that it refers there not solely to the debtor, but to “any interested party”. Since Art. 46 of the Brussels Ibis Regulation was deliberately drafted more narrowly than Art. 45 of the Brussels Ibis Regulation with regard to standing to apply, it is impermissible to allow a third-party debtor to invoke the grounds for refusal of recognition under Art. 45 of the Brussels Ibis Regulation in the guise of national enforcement law. To do so would allow national enforcement law to frustrate the clear intention of the European legislature. In this respect, the principle remains that the procedure for the refusal of enforcement under the Brussels Ibis Regulation constitutes an autonomous and self-contained system. Consequently, Art. 46 of the Brussels Ibis Regulation precludes legal remedies that national law makes available to interested third parties against the authorization of enforcement.

VI. The International Jurisdiction of German Courts
A potential ground for refusing enforcement could arise under Art. 46 in conjunction with Art. 45(1)(e)(ii) of the Brussels Ibis Regulation. This would be the case under two conditions: First, international jurisdiction to decide an advance on costs (Section 887(2) ZPO) would have to derive from the exclusive jurisdiction established in Art. 24(5) of the Brussels Ibis Regulation; and second, that provision would have to preclude the recovery, in another Member State, of an advance on costs awarded in Germany. However, the decision rendered pursuant to Section 887(2) ZPO does not, in itself, exert any coercive effect upon the debtor. According to the Federal Court of Justice, such an effect would be a prerequisite for classifying the advance order as an enforcement measure. Even in a purely domestic context, a decision regarding an advance on costs constitutes merely an enforceable judgment within the meaning of Section 794(1) No. 3 ZPO—one that is enforced, like an ordinary monetary claim, in accordance with Sections 803 et seq. ZPO. The exclusivity of international venues in the matters specified in Art. 24(5) of the Brussels Ibis Regulation applies invariably only to the adjudicatory proceedings, and not to the subsequent enforcement of a resulting judgment regarding a monetary claim. Furthermore, this would result in an objectively unjustified disparity in the treatment of obligations to advance costs, depending on whether such obligations are governed by substantive law (e.g., Section 637(3) of the German Civil Code – BGB) or by the respective procedural code (e.g., Section 887(2) ZPO).

VII. Effective Service
A further ground for refusing enforcement could arise from Art. 46 in conjunction with Art. 45(1)(b) of the Brussels Ibis Regulation. In this regard, the Versailles Court of Appeal based its reasoning on the following findings: The debtor D had not been formally summoned to appear before the Nuremberg Higher Regional Court; instead, this Court had dispensed with formal service via mutual legal assistance “for reasons of expediency” and had simply transmitted the documents by email on 9 September 2022; D had been granted a period of only three days (including a weekend) to submit a response, even though the matter involved a claim amounting to € 5.7 billion; and the certificate issued under Art. 53 of the Brussels Ibis Regulation noted that the decision had been rendered in default proceedings but left blank the field for the date of service of the document instituting the proceedings.
The CJEU has recognized that service by public notice, effected in accordance with national law, does not infringe Union law, provided that the requested court has satisfied itself that all inquiries required by the principles of diligence and good faith have been carried out to locate the defendant. This reasoning also applies to a situation where, despite the creditor and the court of origin knowing the debtor’s address, it is practically impossible to effect service in the debtor’s State due to a lack of cooperation from local authorities. This is the case where the court of origin has attempted to effect service on the debtor in accordance with national and international law (specifically the Hague Service Convention) and where—as in the present case—the success of that service was thwarted by the authorities of the State that exercises legal and economic control over the debtor company. The effective protection of a creditor who has obtained a judgment enforceable within the EU against a debtor established in a third State would be disproportionately jeopardised if the mere refusal—potentially in bad faith—of a third State to effect service were to prevent any enforcement within the Union in a State other than that of the court of origin.
Moreover, since the debtor company had become aware of the content of the order in good time, it could also have lodged an objection based on a breach of the right to be heard pursuant to Section 321a ZPO. However, it failed to do so; consequently, refusal of enforcement on the grounds of a defect in service is precluded under Art. 46 in conjunction with Art. 45(1)(b), final clause, of the Brussels Ibis Regulation. According to established case law of the CJEU, this ground for refusal is excluded if the defendant could have challenged the decision in the State of origin but failed to do so. The concept of a legal remedy is to be interpreted autonomously and broadly; it encompasses any measure capable of subsequently affording the defendant the right to be heard, expressly including an application for restoration of the status quo ante.

VII. Summary
German judgments regarding the payment of an advance on costs for a substitute performance pursuant to Section 887(2) ZPO—much like decisions concerning cost advances based on substantive law—may be enforced abroad pursuant to Art. 39 Brussels Ibis Regulation; these constitute “judgments” within the meaning of Art. 2(a) Brussels Ibis. If the court of origin has certified, pursuant to Art. 53 Brussels Ibis, that the original decision falls within the scope of Art. 2(a) in conjunction with Art. 39 Brussels Ibis, the requested court is bound by that certification; this is likely to be confirmed by the CJEU in the reference proceedings initiated by the German Federal Court of Justice. The exclusive jurisdiction established under Art. 24(5) Brussels Ibis does not preclude the cross-border enforcement of a judgment regarding an advance on costs by means of the attachment of claims.
The fact that Art. 46 Brussels Ibis limits the standing to invoke grounds for refusal of enforcement solely to the debtor is based on a deliberate legislative decision to expedite the cross-border enforcement of claims. This underlying policy must not be undermined by third-party debtors invoking grounds for refusal of recognition under Art. 45 Brussels Ibis while ostensibly acting under the guise of national enforcement law. This applies in particular to grounds for refusal intended solely to safeguard the principal debtor’s right to be heard (Art. 45(1)(b) Brussels Ibis).
Furthermore, when examining potential defects in service, it must be taken into account whether a third state has delayed or frustrated service requested by the creditor pursuant to the Hague Service Convention; this behaviour must not operate to the detriment of a creditor seeking to enforce, under the Brussels Ibis Regulation, a judgment regarding an advance on costs obtained within the EU. If the mere refusal of judicial assistance by a third state were to result in a judgment validly obtained in Germany being incapable of full enforcement in other EU Member States, the effectiveness of European enforcement law vis-à-vis debtors in third states would be at stake.

The following announcement has kindly been shared with us by Dr. Benedikt Schmitz.

Save the Date: 4 November 2026

Online Book Launch – Choice of Law or Consumer Contracts in Theory and Practice

 

We are pleased to announce an upcoming virtual book launch for Dr. Benedikt Schmitz’s new monograph, Choice of Law for Consumer Contracts in Theory and Practice (Edward Elgar Publishing). The event is hosted by the WEAKER PIL research line (weakerparties.eu).

• Date & Time: 4 November 2026, 15:00 – 17:00 CET, online
• Topic: The event will examine cross-border consumer protection and the complex conflict-of-laws frameworks regulating the global surge in online shopping. Panelists will discuss many aspects of Article 6 Rome I Regulation, including the historical dimensions of consumer protection in applicable law, the targeting test and consumer definition, the restriction to party autonomy, its ex officio application, and the US American approach to cross-border consumer contracts.

 

Featured Speakers

• Benedikt Schmitz, Assistant Professor of Private International Law and Comparative Contract Law (University of Groningen, the Netherlands)
• Beatriz Añoveros Terradas, Full Professor of Private International Law (University of Barcelona, Spain)
• Zhen Chen, MSCA Postdoctoral Fellow (University of Edinburgh, United Kingdom)
• Jerca Kramberger Škerl, Full Professor of Civil and Commercial Law (University of Ljubljana, Slovenia)
• Stephen Ware, Frank Edwards Tyler Distinguished Professor of Law (University of Kansas, United States of America)

 

Registration
Registration details for the online event will be posted here closer to the date. In the meantime, you may sign up to be notified the moment registration opens (click here) and/or the monograph is available for purchase at Edward Elgar Publishing.

This post was written by Felix M. Wilke (Full Professor at the EBS University Law School, Oestrich-Winkel, Germany). He was granted prior access to the book reviewed here. Just recently, German publishing house Nomos made available “Statutenwechsel und Gerichtsstandswechsel” by Christoph Gramlich-Altenburg, a book on the conflit mobile under Rome I, Rome II, and Brussels […]

On 2 July, the Court will deliver the opinion by M. Richard de la Tour in case C-300/25, Duftošek. The Nejvyšší soud (Czech Republic) is asking the Court to rule for the first time on Regulation 2016/1103 on matrimonial property regimes: Do proceedings for the dissolution and liquidation of joint ownership interests in an immoveable property, acquired by […]

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).