Flux des sites DIP

The Judges’ Newsletter is an open-access biannual publication of of the Hague Conference on Private International Law devoted to judicial co-operation in the international protection of children. The latest issue tbrings together the contributions presented at the conference entitled 15 Years of the HCCH Washington Declaration – Progress and Perspectives on International Family Relocation, which took […]

The fourth issue of the Journal du droit international for 2025 has been released. It contains two articles and several case notes relating to private international law issues, including the 2024 case-law review dedicated to EU private international law prepared by Louis d’Avout, Jean-Sébastien Quéguiner, Stefan Huber, Patrick Kinsch, Lukas Rass-Masson, Sixto Sánchez-Lorenzo and Michael Wilderspin. […]

The German Law Journal has published a Special Issue featuring the proceedings of the international conference on Informed Consent to Dispute Resolution Agreements, held in Bremen on 20–21 June 2024 (see our earlier announcement here).

Edited by Gralf-Peter Calliess and Nicholas Mouttotos of the University of Bremen, the special issue brings together contributions from leading scholars in private international law, international civil procedure, and international arbitration. Contributors include: Symeon C. Symeonides, Nancy S. Kim, Gralf-Peter Calliess, Frederick Rieländer, Peter McColgan, Laura E. Little, Kermit Roosevelt III, Sören Segger-Piening, John F. Coyle, Hannah L. Buxbaum, Marta Pertegás Sender, Stephen Ware, Stefan F. Thönissen and Nicholas Mouttotos.

The collection addresses a central tension in modern dispute resolution: how to reconcile party autonomy in forum and choice-of-law agreements with the requirement of consent, and how informed should consent be, particularly where such agreements are embedded in standard-form contracts affecting weaker parties such as consumers and employees.

The issue encompasses perspectives from both the United States and the European Union, examining questions of constitutional fairness, access to justice, and the legitimacy of contractual self-determination. Contributions trace the historical development of party autonomy, critique the adequacy of existing consent models, examine their outward abandonment while also exploring comparative regulatory approaches to protecting vulnerable contracting parties.

The special issue is available in the German Law Journal, Volume 26, Special Issue 5, and the editorial can be found here. The German Law Journal is a pioneering (Gold) open-access, peer-reviewed forum for scholarship and commentary on comparative, European, and international law, offering free and unrestricted online access to its publications since 1999.

Julien Chaisse (City University of Hong Kong) is the author of Advanced Introduction to International Commercial Contracts, recently published by Edward Elgar. This practical, globally focused book explains how international commercial contracts are structured, negotiated, and enforced across major economies and key trade hubs. Instead of centring on a single jurisdiction, it provides comparative insights […]

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

Operafund Eco-Invest Sicav Plc & Anor v Spain [2025] EWHC 2874 (Comm)  is a truly exciting judgment for many reasons, most of all Pelling J’s entirely opposite view on the assignability of ICSID, ECT awards as compared to Stewart J in the Federal Court of Australia.

The latter, in Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028, reviewed here by Claudia Wortmann, held [287] ff that neither under public international law (the ICSID Convention and the Energy Charter Treaty): [304] ff nor under domestic Australian law, there is a bar to the principle of assignment of ICSID and indeed ECT awards.

In current English case the claim is one for substitution as claimants, of Opera Fund Eco Invest Sicav Plc and Schwab Holding AG, by Blasket Renewable Investments LLC. The claim failed.

The judge first of all held that Spain is not estopped from making assignment objection in the English proceedings. Before a foreign judgment can give rise to an estoppel, the judgment must be capable of being registered in E&W and that is not currently the position in relation to the FCA proceedings: the order is not yet final under Australian law and Spain has not submitted to the Australian proceedings. The judgment in the FCA proceedings is not final or binding therefore which in and of itself rules out issue estoppel. An additional argument by Spain that there can be no issue estoppel on a point of law was correctly dismissed with reference [29] ia to SKAT v MCML 2025] EWCA Civ 371.

Next however the judge here diverges entirely from the approach in Australia on assignment. Stewart J at the FCA held that there is no basis in public international law to read into the ICSID Convention a prohibition on assignment, and neither is there in in Australian law. [His findings on public international law essentially mean that the notoriously dualist approach of the Australian courts is in fact of little relevance to the judgment].

I am inclined to agree, including with the arguments in his judgment concerning the object and purpose of the Convention. Stewart J [309] ff and Pelling J [42] ff come ia to a different conclusion on the meaning of ‘party’ in A 54(2) ICSID.

I understand Hanno Wehland’s argument, cited in the English judgment, that investment law is a particularly sensitive area closely linked to issues of sovereignty. I also appreciate that this makes assignment of the right to bring a claim as an investor (transfer of standing as it were) particularly problematic.

Yet that is in my view radically different at the enforcement stage where the award effectively has become a money judgment.

Permission to appeal in the English case would seem guaranteed, and in the Australian case it is one as of right (which Spain is yet to effect but has said it will). Upon appeal both judgments might be reversed, either still leading to an opposite approach in both courts or to alignment in either direction.

A judgment of most high relevance.

Geert.

High Court: ICSID, ECT awards are unassignable Exciting issues viz issue estoppel following foreign judgment (Spain not having submitted in the AUS proceedings) & treaty interpetation, customary international lawOperafund v Spain [2025] EWHC 2874 (Comm)www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-11-11T22:19:41.389Z

When I reported Airgas USA v Universal Africa Lines ECLI:NL:HR:2025:1665 on BlueSky last Saturday,  it led to a rather wonderful reply which I am now definitely including in my conflict of laws slides.

A quick note on the judgment (Ekaterina Pannebakker meanwhile also looks at the background here) which for its Rome I discussion is fairly uncontroversial imo.

The relevant clause in the bill of lading (transport of dangerous goods by sea) reads [2.1 of the judgment]

The law of The Netherlands, in which the Hague-Visby Rules are incorporated, shall apply. Nevertheless if the law of any other country would be compulsorily applicable, the Hague-Visby Rules as laid down in the Treaty of Brussels of 25th August 1924 and amended in the Protocol of Brussels of 23rd February 1968 shall apply, save where the Hamburg Rules of the UN Convention of the Carriage of Goods by Sea of 1978 would apply compulsorily, in which case the Hamburg Rules shall apply. If any stipulation, exception and condition of these conditions would be found inconsistent with The Hague-Visby Rules or Hamburg Rules, or any compulsory law, only such stipulation, exception and condition or part thereof, as the case may be, shall be invalid. In case of carriage by sea from or to a port of the USA, this Bill of Lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved 16th April 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. The provisions stated in said Act shall, except as may be otherwise specifically provided herein, govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in custody of the carrier. The carrier shall not be liable in any capacity whatsoever for any delay, non-delivery or mis-delivery, or loss of or damage to the goods occurring while the goods are not in the actual custody of the carrier.

Choice of court in the bill of lading is for the Netherlands. For choice of law, the Bill employs dépeçage: Dutch law was picked as the lex voluntatis (the law freely chosen by the parties), with one carve-out: for goods carried by sea from or to a port in the United States, the 1936 Carriage of Goods by Sea Act of the United States (COGSA) was chosen to apply. With COGSA the US implemented the 1924 Hague Rules. I understand that COGSA is considered lois de police in the US, for any goods carried by sea from or to a US port.

The appealing party argued [3.1.1] that because COGSA is only part of the law of a State and not all of it, the dépeçage or carve-out is invalid.

The Supreme Court suffices with holding [3.1.3] very sec that under Rome I parties may select parts only of a given State law to apply dépeçage-style. In my view that is clearly correct (and with Rob Rooman I expand on choice of law per Article 3 Rome I in a forthcoming chapter for Pietro Franzina’s Edward Elgar’s commentary on Rome I).

The dépeçage at issue is not redundant, despite parties’ clearly being aware that COGSA is lois de police (overriding mandatory law) in the US. With the clause the application of COGSA is extended even when, such as here, not a US but a Dutch court hears the case. 

The remainder of the (succinct) judgment deals with  issues of ius (alienum) novit curia under Dutch CPR.

Dépeçage does not often reach the courts and for that reason it is worthwhile reporting on it. 

Geert.

EU Private International Law, 4th ed. 2024, 3.37

 

 

A new issue of ZEuP – Zeitschrift für Europäisches Privatrecht is now available and includes contributions on EU private law, comparative law and legal history, legal unification, private international law, and individual European private law regimes. The full table of content can be accessed here: https://rsw.beck.de/zeitschriften/zeup.

The following contributions might be of particular interest for the readers of this blog:

• Mathias Reimann: The Elusive Goal of Private Law Unification – The Creation, Implementation, and Effect of Uniform Laws in the United States and Potential as a Model for Europe
  Mathias Reimann on The Elusive Goal of Private Law Unification – The Creation, Implementation, and Effect of Uniform Laws in the United States and Potential as a Model for Europe as an examination of how, in the United States, the core of private law is left to the individual states and thus often, and at times highly, diverse. A prominent vehicle for achieving greater uniformity has been the drafting and adoption of uniform and model laws, mainly under the auspices of the National Conference of Commissioners for Uniform State Laws (NCCUSL), now more commonly called the Uniform Law Commission (ULC). Since its foundation in 1892, this institution has produced hundreds of such laws and presented them to the state legislatures for enactment. While some have been (almost) universally adopted, most notoriously the Uniform Commercial Code, such success is far more the exception than the rule – the majority of uniform laws have been enacted by, at best, a small minority of states and, thus, failed significantly to enhance legal uniformity. Even where a statute’s text has been widely adopted, it is unclear how much uniformity that has created in terms of actual practical outcomes. On the whole, the uniform law movement has somewhat diminished, but it has not broadly overcome, the diversity of American private law. Its mediocre track record suggests that the uniform law approach would scarcely be a suitable model for the unification of private law in Europe; this is especially true since the conditions for producing, adopting, and uniformly interpreting such laws are much less favorable here than in the United States.
• Stefan Thönissen: Die Kommunikation der obersten Gerichte
  Stefan Thönissen on Die Kommunikation der obersten Gerichte as an exploration of how the relevance of supreme courts’ communication of their decisions is closely connected with the purpose of contributing to legal development and unification. Although this purpose is – to different degrees – common to all supreme courts, the way they communicate through their decisions significantly differs. In recent years, there have been substantial developments. However, these developments have not necessarily led to a convergence.
• Matteo Bruno Fontana: Die verjährungshemmende Wirkung europäischer Kollektivklagen nach Umsetzung der Verbandsrichtlinie
  Matteo Bruno Fontana on Die verjährungshemmende Wirkung europäischer Kollektivklagen nach Umsetzung der Verbandsrichtlinie as an analysis of how the new Consumer Rights Enforcement Act (VDuG) empowers consumer associations to bring representative redress actions (Sec. 14 et seq. VDuG). While the suspension of the limitation period by representative actions brought before a domestic German court is addressed in detail in Sec. 204a (1) German Civil Code (BGB), the suspensory effect of a foreign collective action is only partially governed by Sec. 204a (2) BGB. Against the backdrop of the discussion on the suspensory effect of individual actions brought in a foreign forum, this article lays out why foreign collective redress actions should be deemed to have a suspensory effect on the limitation period under German substantive law.

The volume also features to book reviews related to private international law:

• Alan Brown reviews Jens M. Scherpe/Stephen Gilmore (eds): Family Matters: Essays in Honour of John Eekelaar (Intersentia 2022)
• Tobias Lutzi reviews Eva Jueptner: A Hague Convention on Jurisdiction and Judgments. Why did the Judgments Project (1992–2001) Fail? (Intersentia 2024)

The Jean Monnet Chair in Legal Aspects of Migration Management in the EU and in Türkiye and Bilkent University Faculty of Law cordially invite you for the next Migration Talk by Professor Paul James Cardwell (King’s College London) on “Decoding the Language of Law in the post-Migration Crisis Period: the Informalisation of Migration”.

The author of this post is Massimo Benedettelli, formerly a Professor of International law at the University of Bari “Aldo Moro”. One of the leading jurists of the twentieth century has passed away. If the Italian academic tradition requires all international law professors to be versed in conflicts and the law of nations at once, […]

 

In Airgas USA v Universal Africa Lines (7/11/2025 ECLI:NL:HR:2025:1665), the Supreme Court of the Netherlands considered the interpretation of a so-called ‘Paramount clause’ in a bill of lading. Such clauses commonly signpost which rules govern the international carriage of goods by sea. The Court addressed such clause as a choice of law and held that article 3(1) of the Rome I Regulation does not preclude the parties from agreeing on such clause.

Facts

The dispute concerned liability for fire damage that occurred during the discharge of dangerous goods (refrigerated liquid ethylene in containers) transported by sea from the USA to Angola under a bill of lading.

The conditions of the bill of lading provided for jurisdiction of the Dutch courts; this is how the parties Airgas USA (Radnor, Pennsylvania, US) and Universal Africa Lines (Limassol, Cyprus) came to litigate in the Netherlands.

These conditions also included a so-called ‘Paramount clause’. Such clauses have been used in contracts for the international carriage of goods by sea, primarily to designate which uniform substantive law convention on the carriage of goods by sea applies. The clause in this case provided that Dutch law governed the contract and declared that if the goods were carried by sea from or to a port in the United States, the 1936 Carriage of Goods by Sea Act of the United States (COGSA) applied. The COGSA is the U.S. implementation of the 1924 Hague Rules.

Dispute

As the regimes of liability diverge across the conventions containing uniform law, and across national laws, this dispute revolved around the choice of law. The cassation claim advanced various arguments against the application of COGSA (and in favour of the mandatory application of Dutch law which implied a different limitation of liability).

The main arguments were that COGSA is not a ‘law of a country’ that may be chosen within the meaning of the Rome I Regulation, that even if the GOGSA applied, its application should not set aside those provisions of Dutch law that may not be modified by contract, and that the lower courts applied the COGSA incorrectly (requiring the Court to review this application, arguing that the COGSA’s content was identical to the Hague-Visby Rules and to Dutch law).

Decision

In its decision, the Supreme Court of the Netherlands referred to article 3(1) of the Rome I Regulation. First, it held that, according to this provision, the parties are free to choose the law governing their contract. They may choose either the law applicable to the entire contract or the law applicable to a specific part of the contract. This part of the contract is then governed by the chosen rules of law, which replace national law in its entirety, including those rules of national private law which cannot be modified by contract (at [3.1.2]).

Second, the Court held that article 3(1) of the Rome I Regulation does not preclude the parties from designating a part of a national legal system — and not that system in its entirety — as the applicable law. In this case, the parties had the right to choose COGSA as applicable law, while for matters not regulated in the COGSA the parties should fall back on Dutch law (at [3.1.3]).

Finally, the Court reminded that the question of whether lower courts correctly applied foreign law cannot, in principle, lead to a claim in cassation under Dutch civil procedure laws. Only if the lower courts had compared the rules of the legal systems potentially applicable and held that the outcome was identical to Dutch law could an exception be made; this was not the case in this dispute (at [3.2.1] e.v.).

Comment

The decision in Airgas USA v Universal Africa Lines sheds light on the exact effects, in Dutch courts, of a contract clause widely used in contracts for the international carriage of goods by sea. This enhances legal certainty. At the same time, one inevitably runs into various questions cognate to this decision. For example, should the Court’s considerations on partial choice of law be understood as confined to ‘Paramount clauses,’ or do they have broader implications? In this regard, does it matter that rules such as COGSA implement an international treaty (the Hague Rules)? Or is the ‘partial’ character of the choice of law related only to carriage to or from U.S. ports? These and undoubtedly other questions are themes for further reflection.

For inspiration: the clause that gave rise to the dispute in this case as quoted by the Supreme Court of the Netherlands at [2.1] is this:

‘The law of The Netherlands, in which the Hague-Visby Rules are incorporated, shall apply. Nevertheless if the law of any other country would be compulsorily applicable, the Hague-Visby Rules as laid down in the Treaty of Brussels of 25th August 1924 and amended in the Protocol of Brussels of 23rd February 1968 shall apply, save where the Hamburg Rules of the UN Convention of the Carriage of Goods by Sea of 1978 would apply compulsorily, in which case the Hamburg Rules shall apply. If any stipulation, exception and condition of these conditions would be found inconsistent with The Hague-Visby Rules or Hamburg Rules, or any compulsory law, only such stipulation, exception and condition or part thereof, as the case may be, shall be invalid. In case of carriage by sea from or to a port of the USA, this Bill of Lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved 16th April 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. The provisions stated in said Act shall, except as maybe otherwise specifically provided herein, govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in custody of the carrier. The carrier shall not be liable in any capacity whatsoever for any delay, non-delivery or mis-delivery, or loss of or damage to the goods occurring while the goods are not in the actual custody of the carrier.’

A conference on ‘the concentration of cross-border litigation’ (La concentration des contentieux transfrontières) will take place on 13 and 14 November 2025 at the University Toulouse Capitole. Background The event is jointly organised by the DANTE Research Centre (Univ. Versailles Saint-Quentin-en-Yvelines, Paris-Saclay) and the Institut de Recherche en Droit Européen, International et Comparé (IRDEIC) of the University Toulouse Capitole, […]

What does it mean to respect family life in modern Europe? With families increasingly diverse and cross-border by nature, the concept of family law is undergoing profound legal, cultural, and institutional changes. A newly published academic volume — El Derecho de Familia a la Luz del Derecho Fundamental Europeo al Respeto a la Vida Familiar — offers a rich and timely exploration of this transformation.

Edited by María Victoria Cuartero Rubio and José Manuel Velasco Retamosa, this book brings together leading voices in European family law, private international law, and human rights to examine how the fundamental right to respect for family life (Article 8 ECHR, Article 7 EU Charter) is reshaping family law across jurisdictions.

This collective volume is notable for its interdisciplinary scope and comparative approach. Contributors address legal challenges that sit at the intersection of: Family Law (marriage, parenthood, equality, succession); Private International Law (cross-border family relations, recognition of status); Fundamental Rights Law (interpretation of Article 8 ECHR); European Union Law (Brussels II ter Regulation, work-life balance directive); Family Policy & Socio-Legal Perspectives (gender equality, LGBTQ+ rights, surrogacy).

The book features contributions from a distinguished panel of legal scholars and practitioners, including: Rafael Arenas García (UAB); Katarina Trimmings (University of Aberdeen); Margherita Salvadori (University of Turin); Amélie Benoistel (Paris); Afonso Patrão (University of Coimbra), alongside a wide range of Spanish and international legal academics.

The volume is divided into four thematic parts, each exploring a key area of contemporary family law from a fundamental rights perspective:

1. Evolving Family Models (How are legal systems adapting to non-traditional families, cohabitation, reconstituted households, and gender dynamics within family law?)

2. Equality, Non-Discrimination & Diversity (Topics include discrimination in inheritance, recognition of same-sex parenthood, and the intersection of sexual/gender identity and private life under the ECHR)

3. Identity, Parenthood & Cross-Border Legal Status (Chapters address the legal recognition of parentage, surrogacy, nationality, and the right to personal identity — all within the context of European mobility)

4. European and International Cooperation (Focus on Brussels II ter, forum non conveniens, judicial cooperation, and the cross-border recognition of family rights in an EU context).

While the majority of the chapters are written in Spanish, the volume also includes important contributions in English and French, reflecting the book’s comparative and international character. For example, Katarina Trimmings contributes a chapter in English on Article 8 ECHR and children’s identity rights; Margherita Salvadori writes in English on the Italian ban on surrogacy and its cross-border effects; Amélie Benoistel contributes a chapter in French on reserved heirship and the ECHR.

This volume is more than a scholarly collection — it’s a map of the evolving European legal landscape on family life. Its strength lies in combining legal theory with practical analysis, using the right to family life as a unifying framework across jurisdictions.

For those working i.a. on cross-border custody or parental rights cases, legal recognition of same-sex or surrogate families, harmonisation of family law within the EU, or human rights protections in private family disputes, the book provides important insights.

 

Full text available here:
https://ruidera.uclm.es/server/api/core/bitstreams/7cd3dc93-51aa-4c8f-9df1-142fdd00ede3/content

Written by Hadrien Pauchard (assistant researcher and doctoral student at Sciences Po Law School)

The third issue of the Revue critique de droit international privé of 2025 has been released last month. It gathers four articles, six case notes and seven book reviews. In line with the Revue Critique’s recent policy, the doctrinal part will soon be made available in English on the editor’s website (for registered users and institutions).

The issue opens with Prof. Thibaut Fleury Graff’s (Université Paris Panthéon-Assas) and Dr. Inès Giauffret’s (Université Paris-Saclay, UVSQ) survey of Le droit des étrangers et ses temporalités. Retours choisis sur la jurisprudence 2024 en matière de migrations (Immigration law and its temporalities. Selected reviews of 2024 case law on migration). A valuable addition to the dossier that the Revue critique recently devoted to the reform of French immigration law, its abstract reads as follows:

The adoption of the Law of 26 January 2024 “on controlling immigration and improving integration” marked the beginning of 2024 in the field of migration. Supplemented by its implementing decrees, the law has already given rise to initial litigation, discussed in this paper, alongside the more traditional case law interpreting the rules governing the rights and status of foreigners in France, as well as the conditions of their detention. These rulings reflect the current period, caught between legislative facilitation of detention and removal on the one hand, and judicial protection of the rights and freedoms of non-nationals on the other.

In the second article, Prof. Étienne Farnoux (Université de Strasbourg) elucidates the subtle connections between Les droits fondamentaux, l’exception d’ordre public et la prohibition de la révision au fond dans le système de Bruxelles I (Fundamental rights, public policy exception and the prohibition of review on the merits in the Brussels I system) from the Real Madrid case. At the crossroads of private international law and European integration, the contribution answers fundamental questions raised by this now notorious judicial saga. Its abstract reads as follows:

The case, which arose when recognition was sought in France of a Spanish court’s ruling against a French newspaper ordering it to pay heavy damages, highlights the conflict between the European objective of mutual trust and the protection of fundamental rights, particularly the freedom of the press. In a decision dated October 4, 2024, the Court of Justice (on a preliminary reference by the Cour de cassation) outlined the general methodology for controlling the proportionality of a financial penalty imposed abroad, on the basis of international public policy, a mechanism strongly influenced by European law. This control, which was subsequently implemented by the Court de cassation in a ruling dated May 28, 2025, is severely limited by the European principle of prohibition of the review on the merits.

In the third article, Prof. Fabienne Jault-Seseke (Université Paris-Saclay, UVSQ) points out Les non-dits du droit européen du numérique en matière de droit international privé : l’exemple du règlement sur les services numériques (DSA) (The unspoken private international law aspects of European digital law: the example of the Digital Services Act (DSA)). In light of cyberspace’s peculiarity, the study paves the way for a clearly articulated policy of private international law in the digital sphere. Its abstract reads as follows:

The Digital Services Act (DSA) addresses issues of private international law in a very limited way. It mainly defines its territorial scope using a unilateral rule : it applies to any intermediary service provider that targets users in the European Union, regardless of its place of establishment. It is largely silent on other aspects of the private international law, such as determining the law applicable to illegal content or to actions for injunctions and damages. In terms of jurisdiction, it refers to the Brussels I bis Regulation, whose provisions are poorly adapted to the specificities of the digital world. The preference that the DSA seems to give to public enforcement rather than private enforcement cannot justify its silence on most questions of PIL, which are essential if we are to ensure effective protection of rights in the digital environment, which is almost always cross-border.

The doctrinal part wraps up with Dr. Marcel Zernikow (Université d’Orléans) study of Le renouvellement des méthodes de la coopération judiciaire au service du droit au procès équitable : l’instrument du certificat et la numérisation (Renewing judicial cooperation methods to uphold the right to a fair trial: the instrument of the certificate and digitalisation). The growing importance of international cooperation in cross-border proceedings indeed requires a modernized approach, which the author proposes to pursue as follows:

Judicial cooperation is an object of study in private international law that is justified by the need to make the State’s jurisdictional activity effective in a foreign territory. Since it describes the connection between State or judicial authorities of two different States, it is governed by their respective territorial procedural laws. This field is nevertheless undergoing a renewal of its methods, which will be studied through the prism of the introduction of a new instrument: the certificate. The latter is gradually being used to accompany public documents or judicial decisions or for evidentiary purposes. How has this development become the basis for digitalization, which relies on the interconnection of legal systems and individuals via the internet? The renewal of methods is universal insofar as it is based on the guarantee of the right to a fair trial in international civil proceedings.

The full table of contents is available here.

Previous issues of the Revue critique (from 2010 to 2024) are available on Cairn.

This post was written by Aygun Mammadzada, Lecturer (Assistant Professor) in Law at the Swansea University. It is the fifth contribution to the EAPIL online symposium on the Law Commission of England and Wales’s Consultation Paper on Digital Assets and Electronic Trade Documents in Private International Law. The post is based on the author’s presentation […]

This post was written by Sagi Peari, Associate Professor in Private and Commercial Law at the University of Western Australia Law School. It is the fourth contribution to the EAPIL online symposium on the Law Commission of England and Wales’s Consultation Paper on Digital Assets and Electronic Trade Documents in Private International Law. Readers are encouraged […]

The sixth and final issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) for 2025 has been published on 1 November. The following abstracts have been kindly provided by the editor of the journal. M. Weller: Fundamental innovations in international art restitution: “Restatement of Restitution Rules for Nazi-Confiscated Art” and introduction of an “Arbitral […]

This post was written by Matthias Lehmann, Professor at the University of Vienna. It is the third contribution to the EAPIL online symposium on the Law Commission of England and Wales’s Consultation Paper on Digital Assets and Electronic Trade Documents in Private International Law. Readers are encouraged to participate in the discussion by commenting on the […]

The latest issue of RabelsZ has just been released. It contains the contributions to the symposium in honor of Jürgen Basedow that was held in Hamburg in November 2024. The table of contents is available here. All content is Open Access: CC BY 4.0 and more articles are available Online First.

Eva-Maria Kieninger, Konrad Duden and Ralf Michaels, Preface to the Symposium Issue, pp. 409–410, https://doi.org/10.1628/rabelsZ-2025-0046

 

Hannah L. Buxbaum, The New Unilateralism in EU Cross-Border Regulation: Objectives, Methods, Institution, oo. 411–431, https://doi.org/10.1628/rabelsZ-2025-0043

For years, Europe was a site of resistance to regulatory unilateralism, particularly as practiced by the United States. Today, though, there are signs of a robust unilateralism at work in EU regulatory practices. To some extent it simply mirrors practices adopted in the United States and elsewhere: Like other lawmakers, the EU has begun to act unilaterally where necessary to achieve effective regulation of its own markets and to protect local interests. In other respects, though, the new unilateralism in the EU presents quite differently. First, the EU increasingly uses its own legislation not to advance purely local regulatory interests, but rather to achieve international or global goals – classically a more multilateral objective. Second, under EU law individual regulations in particular substantive areas are embedded in a larger framework of norms and values that claim universal appeal. In both of these regards, the EU version of unilateralism appears more benign than purely »self-interested« unilateralism. It nevertheless raises important questions about the way that local laws and institutions are used to project regulatory power in the international arena. The goal of this article is to explore these questions. It begins by describing the characteristics of this new unilateralism, in terms of both its doctrinal foundations and its regulatory objectives. It then focuses on one particular mechanism: the adequacy regime established under EU data protection law.

Dagmar Coester-Waltjen, Einheitsrecht – prinzipiell oder sektoral? [Uniform Law – a Principle- or Sector-based Approach?], pp. 432–450, https://doi.org/10.1628/rabelsZ-2025-0040

The purpose of this article is to shed some light on the possible future of uniform law. Notwithstanding the possible hinderances and difficulties faced by unification activities, especially a possible lack of interest in such activities, the article considers the question of which actors are and will be involved in legal unification and what types of uniform law can be expected. The growing involvement of private actors (the so-called commercial approach) and the concentration on different kinds of soft law promise an increasing degree of sectoral projects featuring a functional approach. However, it is essential to continue work on general principles that have applicability in specific areas of law; such principles are needed as interpretative aids and serve an important gap-filling function. Jürgen Basedow recommended keeping general principles in mind already at the stage of formulating a sectoral project. Thus, it can be expected that both the concept of principles and a sectoral approach will play an important role also in the future.

 

Christian Kohler, Zur Außenprivatrechtspolitik der Europäischen Union, [On the External Policy of the European Union in the Field of Private Law], pp 451–482, https://doi.org/10.1628/rabelsZ-2025-0041

The policy of the European Union in the field of private law is primarily aimed at shaping the internal market, but it also affects relations with non-EU states in a variety of ways as regards both regulatory private law and the conflict of laws. The EU’s underlying »external private law policy« is pursued in two ways. First, legal instruments include unilateral scope rules which bring persons or events in third states within the scope of the measure and which should promote the regulatory objectives at issue. Second, agreements on private law matters are concluded by or on behalf of the EU with third states. However, institutional weaknesses and the Union’s notorious lack of competence make it difficult to develop a coherent external private law policy. In the field of conflict of laws, the conclusion of multilateral agreements makes the unilateral extension of EU rules to situations involving third states not redundant. There is no discernible political will to extend the Union’s powers in the field of private law and thereby change the conditions under which the EU’s external private law policy is currently formed.

 

Matteo Fornasier, Modelle europäischer Privatrechtsharmonisierung. Die prozedurale Harmonisierung als neue Form der Rechtsvereinheitlichung in der EU? [Harmonization of Private Law in Europe. Procedural Harmonization as a New Path Towards the Approximation of National Laws in the EU?], pp. 483–505, https://doi.org/10.1628/rabelsZ-2025-0042

The article offers an overview on the variety of regulatory approaches towards the harmonization of private law in Europe, covering both negative and positive harmonization, including full, minimum, and optional harmonization. Particular attention is devoted to what appears to be a new model of harmonization, which is referred to in this article as procedural harmonization. Procedural harmonization occurs where the EU legislature or, in some cases, the EU Court of Justice confines itself to setting common European procedural standards for the protection of certain individual rights, without harmonizing the substance of those rights. The article draws on a number of examples from EU employment law, which is an important element of the system of EU private law, though it is often marginalized in European private law discourse.

 

Herbert Kronke, Weil Wissenschaft Wissen schafft: Zu Jürgen Basedows »Uniform Law« [Because Scholarship Generates Knowledge: On Jürgen Basedow’s »Uniform Law«], pp 506–521, https://doi.org/10.1628/rabelsZ-2025-0045

The article highlights the innovative nature of Basedow’s third major monograph relative to other »modern classics« on uniform law, noting in particular its combination of (almost) encyclopaedic coverage, systematic structure, and critical analysis, incorporating well-known central topics along with commentary on numerous uniform legal instruments. In addition, there are new and surprising elements awaiting comparative commercial law scholars, such as the topic of »negative harmonization«. The author of the article also discusses hypotheses, arguments, and conclusions in regards to perpetual themes of transnational law, such as the choice between a classic international treaty or the now frequent alternative of a soft law instrument, the dynamic of mutual influence between uniform law and non-uniform national law, and the relationship of uniform law and private international law. Finally, the article looks at institutional, cultural, and economic framework conditions and – politically determined – obstacles to the development of modern uniform law, as felt by the institutions, as well as experts involved in their work.

 

The issue also contains several reviews of literature in the fields of comparative private and private international law and on related topics (pp. 522–610).

This post was written by Burcu Yüksel Ripley, Professor at the University of Aberdeen School of Law. It is the second contribution to the EAPIL online symposium on the Law Commission of England and Wales’s Consultation Paper on Digital Assets and Electronic Trade Documents in Private International Law. Readers are encouraged to participate in the […]

The Bahrain International Commercial Court (BICC) was launched on 5 November 2025. It joins the long established Dubai International Financial Centre Courts, Abu Dhabi Global Market Courts and Qatar International Court and Dispute Resolution Centre in the Middle East as a specialist court devoted to resolving international commercial disputes and operating under special procedural rules.

The BICC was developed in partnership with the Singapore International Commercial Court (SICC). It shares many key features with the SICC such as a multinational bench, foreign counsel representation and use of the English language in proceedings. Of particular note is the appeal mechanism for BICC judgments; as discussed previously here, appeals from the BICC will be heard by the International Committee of the SICC.