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

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

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

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

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

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

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

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

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

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

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

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

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

Geert.

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Facts of the case

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

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

Recent Spanish case law and practice on surrogacy

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

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

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

Potential enforcement in Mexico

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

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

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

The human rights angle

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

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

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

 

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

The author of this post is  Javier Carrascosa González who is a Professor of Private International Law at the University of Murcia. A new book under the title “Libre circulación de personas y libre circulación de las familias: análisis de derecho internacional privado” (“Free movement of persons and free movement of families: analysis of private […]

This post was written by Chrisoula M. Michailidou, Dr. jur. (Heidelberg), Working Group member for Greece in the EAPIL Working Group on Anti-SLAPP Directive Transpositions and Member of the Greek Drafting Committee. As already noted on this blog, the process of transposing Directive (EU) 2024/1069 – the Anti-SLAPP Directive – in Greece was under way […]

Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’) – the ‘Anti-SLAPP Directive’ – marks an important step in the development of a European framework against strategic lawsuits […]

Youseph Farah (University of East Anglia) and Elisabetta Bergamini (Università degli Studi di Udine) edited the second edition of the Research Handbook on EU Private International Law. Published by Edward Elgar in its Research Handbooks in European Law series, the second edition of the Research Handbook addresses key questions and challenges in EU private international […]

The publisher’s blurb is as follows. Readers of the blog may use the discount code indicated below to get 20% off.

Conflicts of Worldviews and Private International Law

Sandrine Brachotte

 

This book develops a decolonial theory of European private international law. To do so, it begins with Western court cases involving what the author terms a ‘conflict of worldviews’: a clash between the legal frameworks governing the dispute and the worldviews of the formerly colonised parties involved, referred to here as ‘postcolonised worldviews’.

 

Through three case studies – respectively addressing religious arbitration, Indigenous sacred land, and sexual minorities in the Global South – the book demonstrates that courts routinely overlook these conflicts. As a result, the claims of formerly colonised parties are inadequately addressed. To remedy this structural discrimination within European private international law, the book proposes a pluralised theory of choice of court, foreign law, and international jurisdiction, more empowering of the postcolonised worldviews present in the case studies, and supportive of the emancipation of vulnerable identities among postcolonised people.

 

Sandrine Brachotte is an FWO Postdoctoral Researcher at the University of Antwerp, Belgium, and a Guest Professor in Legal Theory at UCLouvain and UCLouvain Saint-Louis Bruxelles.

 

Sep 2026   |   9781509978533   |   416pp   |   Hbk   |    RRP: £100

Discount Price: £80

Order online at www.hartpublishing.co.uk  – use the code GLR BD8 to get 20% off!

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This post was written by Cayetana Santaolalla Montoya, Associate Professor of Private International Law, Public University of Navarra. The review of Regulation (EU) 2023/1114 under Articles 140 and 142 is mostly being read as an exercise in supervisory calibration. Which services belong on the list, how asset-referenced tokens should be treated, where the perimeter of […]

This post was written by Cayetana Santaolalla Montoya, Associate Professor of Private International Law, Public University of Navarra The European Commission has opened a targeted consultation on the review of Regulation (EU) 2023/1114 on markets in crypto-assets, the review being mandated by Articles 140 and 142 of that Regulation. The deadline, which was extended, is […]

South Africa occupies a strategic position in African and Global South trade networks, yet its economy continues to lag behind its BRICS partners and many of its African peers. A recurring, if underexamined, contributor to this underperformance is the state of its private international law governing the recognition and enforcement of foreign judgments (REFJ). The article, published in the Journal of African Law (2026), investigates why and how the principle of comity might help resolve this issue.

The empirical picture is striking. Of the reported South African REFJ cases collated for this study, roughly 44 per cent of foreign judgments brought for enforcement are refused. Contrary to what one might expect, the leading cause is rarely fraud or public policy. Instead, over half of all refusals (53 per cent) turn on a single, narrow ground: the rendering court’s lack of “international competence” under South African law. Under the framework laid down in Jones v Krok (1995), a foreign court is internationally competent only where the debtor was resident in, or voluntarily submitted to, that court’s jurisdiction. Every other basis for jurisdiction recognised elsewhere – the place of contractual performance, the place where harm occurred, or a valid choice-of-court agreement standing alone- is, on the weight of authority, insufficient.

The doctrinal puzzle at the heart of the article is comity’s curious position within this framework. South African courts have invoked comity rhetorically and sporadically for well over a century, from Acutt, Blaine & Co v Colonial Marine Assurance Co (1882) through to Richman v Ben-Tovim (2006) and Government of the Republic of Zimbabwe v Fick (2013). Yet in each instance, comity’s role has been exceptional, ad hoc, and ultimately subordinate to the ad personam residence-or-submission requirement. Even the closest thing to an operative use of comity: Duarte v Lissack (1973), where enforcement followed despite the absence of personal jurisdiction, was swiftly confined and effectively overruled. The result is a doctrine that is normatively invoked but structurally inert: comity as symbol, not substance.

The article argues that this need not remain the case. Drawing on the Canadian Supreme Court’s development of the “real and substantial connection” test (Club Resorts v Van Breda; Chevron Corp v Yaiguaje), it proposes a tailored adaptation for South Africa, allowing courts to recognise a foreign court’s competence where a genuine and substantial connection exists between the dispute and that forum, without collapsing into an unbounded “doing justice” inquiry that risks forum shopping, particularly in cross-border IP and e-commerce disputes. To guard against the corresponding risk of default judgments enforced against debtors with only tenuous links to the foreign forum, the article further proposes strengthening the natural justice defence, requiring proof of adequate notice and a proper evidentiary basis for the judgment, bringing South Africa closer to the approach already taken in India and other Commonwealth African jurisdictions.

Finally, the article situates this proposed judicial reform in relation to the possibility of treaty accession, considering what ratification of the 2005 Hague Choice of Court Convention and the 2019 Hague Judgments Convention would mean for South Africa’s REFJ regime, as the UK and Singapore have both illustrated in recent years.

The full article, including an appendix collating 39 reported South African REFJ decisions and their outcomes, is open access at the Journal of African Law: https://doi.org/10.1017/S0021855326101089

In May 2025, the Norwegian official report NOU 2025:6 proposed a comprehensive Cohabitation Act. The proposed Act (see NOU 2025:6, pp. 211–217) would regulate cohabitees’ financial relations during their relationship and upon separation, including co-ownership, division of assets and compensation. Following a public consultation completed in December 2025, the proposal remains under consideration. This post […]

As frequent readers of this blog and private international law afficionados will appreciate, conflict of laws can often seem like an entirely different creature in international arbitration. General rules of private international law are usually taken not to bind tribunals, and what legislators provide in their stead is often quite open-ended. Despite this, there is […]