Conflictoflaws

University of Ljubljana is organising Private International Law Conference with sessions in Slovenian and English. The conference, which will take place in Ljubljana (Slovenia) on 18 September 2025, will gather reknown academics and practitioners who will address current topics in European and international PIL.

The programme is available by clicking here: PIL-Ljubljana2025 and for more infromation you are welcome to contact the organisers at: ipp.pf@pf.uni-lj.si.

Recently, the Hague Academy of International Law published the 2026 programme of its renowned Winter Courses in International Law (12-30 January 2026). Unlike the Summer Courses, this program presents lectures on both Public and Private International Law and therefore provides for a particularly holistic academic experience. Once again, the Academy has spared no effort in inviting legal scholars from around the world to The Hague, including speakers from countries as diverse as Argentina, Belgium, China, France, Japan, the United Kingdom, and the United States, offering its audience a truly global perspective on the topic.

Following the Inauguaral Lecture by Silvia Fernández de Gurmendi (Former President of the International Criminal Court), this year’s General Course will focus on “The Contemporary International Legal Order” and will be delivered by Bing Bing Jia (Tsinghua University). Furthermore, Special Courses will be offered in English by Catherine Amirfar (Debevoise & Plimpton LLP), Caroline Foster (University of Auckland), Schuichi Furuya (Waseda University) and Antonios Tzanakopoulos (University of Oxford), while Xavier Boucobza (University of Paris-Saclay) and Yannick Radi (Université Catholique de Louvain) will deliver their presentations in French. As always, all lectures will be simultaneously interpreted into English or French and vice versa.

Advanced Students, especially those who are ambitious to sit for the prestigious Diploma Exam, are highly encouraged to apply for the Academy’s Directed Studies as well. The French edition of these interactive afternoon seminars will be directed by Vaios Koutroulis (Université libre de Bruxelles), while English-speaking candidates are taught by Guy Fiti Sinclair (University of Auckland).

Registration will be open from  1 May to 1 October 2025 via the institution’s own Online Registration Form . Students who whish to apply for the Academy’s scholarship opportunities need to submit their application by 1 May to 31 July 2025. For further information on the HAIL 2026 Winter Courses and the Hague Academy in general, please consult the HAIL Homepage or refer to the enclosed PDF Programme.

 

Prologue

On 15 April 2025, the new federal UAE law on personal status (Federal Decree Law No 41 of 14 October 2024) officially entered into force ( “2024 PSL”). This law fully replaces the 2005 Federal Act on Personal Status (Federal Law No. 28 of 19 November 2005 as subsequently amended) (“2005 PSL”). The new law marks the latest step in the UAE remarkable wave of legal reforms, particularly regarding personal status matters. It follows a series of significant developments at both the federal and local levels. At the federal level, this includes the adoption of the law on Civil Personal Status (Federal Decree-Law No. 41 of 3 October 2022 on Civil Personal Status) (“2022 CPSL”) and its executive regulation. At the local level, specific legislations were adopted in the Emirate of Abu Dhabi, most notably the 2021 Law on Civil Marriages and its Effects (as subsequently amended) (“2021 ADCML”), and its Procedural Regulation. These legislative efforts collectively address what is commonly referred to as “civil family law” (for further details see previous posts on this blog here, here, here, and here). Together with the new 2024 PSL, these instruments will collectively be referred to as the “Family Law Regulations” (see Table below).

This overactive legislative activity has inevitably impacted on the articulation between the different legislative texts, both within the federal framework and between the federal and local levels. At the federal level, there is a need to consider the interaction between the 2024 PSL and the 2022 CPSL. At the intergovernmental level, this extends to the interplay between these two federal laws and 2021 ADCML.

The icing on the cake – or perhaps the tipping point – is when private international law enters the equation. This is because the above family law regulations include provisions determining their scope of application, and in some cases allow for the application of foreign law under some conditions. This necessarily bring them into contact with the conflict of law rules contained in the 1985 Federal Act on Civil Transactions (Federal Law No. 5 of 21 March 1985, as subsequently amended) (“1985 FACT”).

Moreover, with the exception of the federal regulation on civil personal status, the other legislative texts also contain detailed rules on international jurisdiction. This leads to further interaction with the 2022 federal law on Civil Procedure (Federal Decree-Law No. 42 of 10 October 2022 on the Civil Procedure). This aspect, however, will not be addressed in this post. For a comparative overview of international jurisdiction in divorce matters, see my previous post here.

 

Table of relevant legislative texts:

Legislation Federal level Local Level Family Law Regulations Federal Decree-Law No. 41 of 3 October 2022 on Civil Personal Status (*)

• Art. 1: Scope of application and applicability of foreign law
• Art. 11(3): Possibility of applying foreign law in successions and wills?

Abu Dhabi Law No. 14 of 7 November 2021 On Civil Marriage and its Effects in the Emirate of Abu Dhabi (as subsequently amended)

• Art. 3: Direct application of the law
• Art. 11(3): Possibility of application of foreign law in matters of successions and wills
• Art. 17bis: International jurisdiction

Procedural regulation (Resolution No. (8) of 1 February 2022 concerning the Marriage and Civil Divorce Procedures in the Emirate of Abu Dhabi)

• Art. 4: International jurisdiction (confusingly referred to as territorial jurisdiction in the Regulation)
• Art. 5: Scope of applicationadjd.gov.ae/…/regulation 8 2022 family law.pdf

Federal Decree Law No 41 of 14 October 2024 on Personal Status

• Art. 1: Scope of application and applicability of foreign law
• Arts. 3 and 4: International jurisdiction

Private International law Federal Decree-Law No. 42 of 10 October 2022 on the Civil Procedure

• Arts. 19 – 23: International jurisdictions

Federal Law No. 5 of 21 March 1985 on Civil Transactions

• Arts. 10 – 28: Conflict of laws rules

(*) One of the unresolved questions is whether the 2022 CPSL also applies in Abu Dhabi—at least in a way that would override the provisions of the Abu Dhabi Law that are inconsistent with the federal legislation. This aspect is briefly addressed below.

 

It must be acknowledged that the current framework is highly complex, marked with multiple layers of interaction, and at times, inconsistencies and unresolved questions. The aim of this short post is simply to highlight these difficulties, particularly those relating to the scope of application and the interplay with choice of law rules, leaving a more-in-depth analysis for another occasion.

 

I. Innovations and clarifications

 

1. Scope of application

One of the most significant innovations introduced by the new 2024 PSL is its clear delineation of its scope of application, particularly in relation to the other foundational law, that is the 2022 CPSL. Indeed, the latter has already defined its scope by limiting its application to family law matters between non-Muslims, whether nationals or foreigners. Accordingly, it can be inferred that 2024 PSL limits its scope to family law matters involving Muslims. This is explicitly stated in respect of family relations involving UAE citizens. As for non-citizens, since family relations of foreign non-Muslims are primarily governed by the 2022 CPSL, the reference to “non-UAE citizen” in 2024 PSL should be understood as referring to “foreign Muslims”.

2024 PSL 2022 CPSL Art. 1 [Scope of Application]:

(1) The provisions of this Law shall apply to UAE citizens if both parties of the relationship or one of them is Muslim. Art. 1 [Scope of Application]:

(1) The provisions of this Decree-Law shall apply to non-Muslims who are national citizens of the United Arab Emirates, and to non-Muslim foreigners residing in the state […] Art. 1 [Scope of Application]:

(3) The provisions of this Law shall apply to non-UAE citizens […]

(*) All translations are based on the officially adopted versions, with modifications made where necessary. Own underlines and Italics.

 

2. Parties’ agreement

Another point worth highlighting is that both federal personal status laws contain provisions suggesting that a certain degree of party autonomy is permitted. However, the extent of this autonomy remains unclear. This issue will be discussed below.

2024 PSL 2022 CPSL Art. 1 [Scope of Application]:

(2) The provisions of this Law apply to non-Muslim UAE citizens unless […] they agree to apply another law permitted by the legislation in force in the State. Art. 1 [Scope of Application]:

(2) The persons governed by the provisions of this Decree-Law … may agree to apply other legislation regulating the family or personal status matters currently in force in the State instead of applying the provisions of this Decree-Law. Art. 1 [Scope of Application]:

(3) The provisions of this Law shall apply to non-UAE citizens unless […] any other law that has been agreed to be applied, as permitted by the legislation in force in the State.

 

3. Possibility of applying foreign law

Finally, like the 2022 CPSL and the now-repealed 2005 PSL, the 2024 PSL also allows for the application of foreign law. What is particularly noteworthy, however, is that the formulation originally found in the repealed 2005 PSL was not reproduced in the newly adopted 2024 PSL, despite its inclusion – albeit with some modifications – in the 2022 CPSL (see the underlined portion below). The reasons for this divergence remain unclear.

2024 Personal Status Law 2022 Civil Personal Status Law Art. 1 [Scope of Application]:

(3) The provisions of this Law shall apply to non-UAE citizens unless one of them invokes the application of his law [….] (*) Art. 1 [Scope of Application]:

(1) The provisions of this Decree-Law shall apply to non-Muslims who are national citizens of the United Arab Emirates, and to non-Muslim foreigners residing in the state, unless one of them invokes the application of his law, with regard to matters of marriage, divorce, successions, wills, and establishment of filiation, without prejudice to the provisions of Articles (12), (13), (15), (16), and (17) of the Federal Law No. (5) of 1985[on Civil Transactions] (**).

(*) The Gender biased formulations found in the original texts are maintained.

(**) Art. 1(3) of the now-repealed 2005 PSL stated as follows: “The provisions of this Law shall apply to non-UAE citizens, unless one of them invokes the application of his law, without prejudice to the provisions of Articles (12), (13), (15), (16), (17), (27) and (28) of the Federal Law No. (5) of 1985 on Civil Transactions”.

The numbered articles concern respectively, conflict of law rules in matters of marriages (12), divorce (13), maintenance (15), guardianship and other institutions of protection of persons with limited capacity and absentees (16), successions and wills (17), as well as public policy (27) and failure to prove foreign law (28).

 

II. Ambiguities and persistent problems

 

1. Ambiguities

a) Scope of application

i) The 2021 ADCML and its 2022 Procedural Regulation

One of the most crucial points concerns the relationship between federal and local law. As previously mentioned, the Emirate of Abu Dhabi took the initiative in 2021 by enacting its “Law on Civil Marriage and Its Effects”. This law – originally titled the “Personal Status Law of Non-Muslim Foreigners” – defined its scope of application in a more restrictive manner compared to the 2022 CPSL. While the latter applies to both foreign and local non-Muslims, the 2021 Abu Dhabi law was limited, as its title suggests, to foreign non-Muslim only.

  2021 ADCML (before amendment) 2022 CPSL Art. 1 [Definitions]:

Foreigner: Any male or female non-Muslim foreigner, having a domicile, residence or place of work in the Emirate. Art. 1 [Scope of Application]:

(1) The provisions of this Decree-Law shall apply to non-Muslims who are national citizens of the United Arab Emirates, and to non-Muslim foreigners residing in the state […] Civil Marriage: A union that is intended to be of indefinite duration according to the provisions of this Law, between a foreign man and woman, both non-Muslim.

Only a few weeks after its adoption, the 2021 ADCML was amended. Notably, in addition to the change of the title of the as mentioned above, all references to “foreigners” and “foreign non-Muslims” were replaced with the more neutral phrase of “persons covered by the provisions of this law” and new jurisdictional rules adopted (Art. 17bis). Despite this amendment, and somewhat surprisingly, the amended law continues does not only define “persons covered by the provisions of this law” in an ambiguous manner (see some critical comments here), it also continues to define civil marriage as union “between a foreign man and woman, both non-Muslim”. This has reinforced the impression that both the original law and its subsequent amendments were enacted without thorough consideration of their internal consistency or of the broader legal context in which they would operate.

  2021 ADCML (after amendment) Art. 1 [Definitions]:

Civil Marriage: A union that is intended to be of indefinite duration according to the provisions of this Law, between a foreign man and woman, both non-Muslim.

Persons covered by the provisions of this law: Foreigners and Nationals, non-Muslims, whether male or female. (*)

(*) The original ambiguity in the formulation is maintained in purpose.

 

In 2022, a Procedural Regulation (“2022 Procedural Regulation”) was adopted with the intention of clarifying, inter alia, the scope and application of the 2021 ADCML. However, this instrument has introduced more inconsistencies and ambiguities than it has resolved. This is particularly evident with regard to the definition of “civil marriage”, as well as the ratione personae and ratione materiae of both the 2021 ADCML and its accompanying 2022 Procedural Regulation.

 

  Abu Dhabi 2021 Law (after amendment) The 2022 Procedural Regulation Art. 1 [Definitions]:

Civil Marriage: A union that is intended to be of indefinite duration according to the provisions of this Law, between a foreign man and woman, both non-Muslim. Art. 1 [Definitions]:

Civil Marriage: Marriage that is concluded and registered under statutory laws and regulations, without taking into account of any particular religious law. Persons covered by the provisions of this law: Foreigners and Nationals, non-Muslims, whether male or female Persons covered by the provisions of this law: Foreigners and non-Muslims Nationals, whether male or female Article 5 (Persons covered by the provisions of this law): 

The provisions of this law govern civil marriages and their effects, as well as all matters concerning the civil family according to the following cases:

1)       Non-Muslim citizens

2)       A foreigner who holds the nationality of a country that does not primarily apply Islamis Sharia in matters of personal status […] In the case of multiple nationalities, the nationality to be taken into account shall be the one used based on the person’s status of residence in the State.

3)       Where the marriage is concluded in a country that does not primarily apply Islamic Sharia provisions in matters of personal status [….]

4)       Where the marriage is concluded in accordance with the provisions of civil marriage.

5)       Any other case for which a decision is issued by the Head of the Department.

Problems of interpretation and application generated by the ambiguities and inconsistencies of the 2021 ADCML and its 2022 Procedural Regulations have already been addressed on this blog (see here, here, and here). These issues particularly concern the application of these instruments to foreign Muslims, a possibility permitted under the 2021 ADCML and its 2022 Procedural Regulations as confirmed by recent case law, but not allowed under the 2022 CPSL.

 

ii) Constitutional implications

Given the differing scopes of application, a crucial issue has arisen: whether the 2022 CPSL overrides the local law in this respect. In other words, does the Federal Civil Personal Status Law also apply in Abu Dhabi?

From a constitutional perspective, the answer should be affirmative (see Article 151 of the Federal Constitution). However, the issue remains largely unresolved. In practice, lower courts in Abu Dhabi appear to give little weight to the federal law, applying the local law and its regulations instead. (The Abu Dhabi Supreme Court seems to follow a slightly different approach, as on some occasions it cited the 2022 Federal Law on Civil Personal Status. For examples, previous posts here, and here).

 

iii) Impact of the 2024 PSL

The situation, however, changes significantly with the adoption of the 2024 PSL. It is undisputed that this new federal law applies in Abu Dhabi as well. The absence of any local regulation on personal status (other than the 2021 ADCML and its 2022 Procedural Regulation) makes the application of the new federal law self-evident. Therefore, even if one were to argue (for the sake of discussion) that the 2022 CPSL does not apply in Abu Dhabi, it will still be necessary to observe how Abu Dhabi courts will reconcile the new law, which explicitly applies to Muslims (regardless of their nationality or whether their country of origin applies Islamic sharia in personal status matters), with the existing local regulations. A typical case would be a Muslim couple from Europe or elsewhere where Islamic Sharia does not primarily apply in matters of personal status, or Muslims from Muslim jurisdictions who got married under the 2021 ADCML, but then one of the parties claims the application of the 2024 PSL because they are Muslim, and therefore subject to the federal and not local law.

 

b) The Parties’ agreement

As mentioned above, both federal laws allow the parties to “agree” to apply “another law permitted by the legislation in force” (2024 PSL) or “other legislation regulating family or personal status matters currently in force” in the UAE (2022 CPSL). The formulations used here are highly problematic, as their exact meaning remains unclear.

For instance, it is unclear, whether the phrase “legislation in force” includes also local laws, notably the 2021 ADCML. Assuming that the 2022 CPSL does not override the 2021 ADCML, could parties residing in Dubai agree to apply it? This remains unresolved.

Moreover, an open question also concerns the form that such an agreement must take. Is an explicit agreement required, e.g., one that is formally recorded in the marriage contract? Or can consent be implied, such that a party’s reliance on the provisions of a given law is sufficient to infer tacit agreement?

Finally, and more importantly, it is not clear whether “non-UAE citizens” under the 2024 PSL, which applies primarily to Muslims (see above), would be allowed to choose the application non-Muslim law. While this can be somewhat “tolerated” in matters of marriage or divorce as the practice now in Abu Dhabi clearly shows (see previous post here, although the boundaries of such “tolerance” remains certainly unclear notably in other Emirates. From a broader perspective, see examples cited in Béligh Elbalti, “The Recognition and Enforcement of Foreign Filiation Judgments in Arab Countries”, in Nadjma Yassari et al. (eds.), Filiation and the Protection of Parentless Children (T.M.C. Asser Press, 2019), 397), such a possibility seems to be inconceivable in matters of successions, giving the longstanding position of UAE courts to consider that the Federal Personal Status Law – which is largely based on Islamic Sharia – should apply whenever one of the parties (the deceased or the heir) is Muslim (for detailed analyses and overview of applicable case law, see Béligh Elbalti, “Applicable Law in Succession Matters in the MENA Arab Jurisdictions – Special Focus on Interfaith Successions and Difference of Religion as Impediment to Inheritance”,  88(4) RabelsZ  2024 748, 751).

 

2. Persistent problems

Two are particularly relevant here, both concern (a) the applicability of foreign law, and (b) the interplay of the family law regulations with private international law.

 

a) Applicability of foreign law

A key difference between the 2021 ADCML and the 2022 CPSL (as well as the 2024 PSL) lies in the fact that the former excludes the very application of foreign law, rendering the 2021 ADCML directly and automatically applicable in all disputes that enter into its scope of application (it must be acknowledged, however, that a recent Abu Dhabi Supreme Court’s ruling suggests otherwise. Upon examination, though, the Court’s reference to choice of law rules does not have any tangible implication on the above stated conclusion). The only exception concerns matters of succession and wills, for which, a reference to choice of law rules is explicitly provided for within the law itself.

  2021 ADCML (after amendment) 2022 CPSL Article 3 [Scope of Application] (*) (**):

(1)    If the marriage is concluded in accordance with this law, it shall be the applicable law governing the effects of the marriage and its dissolution.

(2)    This law shall apply to wills and succession matters concerning persons subject to its provisions, provided that the estate or the bequeathed property is located within the State. Art. 1 [Scope of Application]:

(1) The provisions of this Decree-Law shall apply to non-Muslims who are national citizens of the United Arab Emirates, and to non-Muslim foreigners residing in the state, unless one of them invokes the application of his law, with regard to matters of marriage, divorce, successions, wills, and establishment of filiation […] Article 11 [Distribution of Estate]:

(3) Notwithstanding paragraph (2) of this Article [testate succession], any heir of the foreign deceased may request the application of the law governing the estate in accordance with the provisions of [1985 FACT], unless a registered will provides otherwise. Article 11 [Distribution of Estate]:

(3) Notwithstanding paragraph (2) of this Article [testate succession], any heir of the foreign deceased may request the application of the law governing the estate in accordance with the provisions of [1985 FACT], unless a registered will provides otherwise.

(*) It is worth noting that article 3 in its original form was similar to that of Article of the 2022 CPSL. It stated as follows: “Unless the foreigner requests the application of their national law, the court shall apply this law to foreigners in matters relating to marriage, divorce, inheritance, wills, and the establishment of parentage.”

(**) See also Article 5 of the Procedural Regulation cited above.

 

This does not only give rise to problems of inconsistency with the federal personal status laws, but also with the 1985 FACT.

 

b) Interplay with choice of law rules

This is arguably the main issue that remains unresolved despite the various reforms and amendments. As mentioned above, the federal laws allow “one of the parties” to invoke the application of “his law”. Theoretically, if properly invoked, the foreign law would apply instead of the federal provisions. However, this possibility raises three core issues:

1) who is exactly meant by “one of the parties” (ahadihim)?

2) what is meant by “his law” (qanunihi), and

3) what is the current relevance of choice of law rules governing family matters as set out in the 1985 FACT?

 

i) Meaning of “one of the parties”

Regarding 1), there is a range of diverging opinions. For instance, the Explanatory Report of the now-repealed 2005 PSL referred to the “adversary party” (al-khasm). Certain strands in literature, contra legem, suggest that this concerns any party, but only when both of them share the same nationality. Case law, however, reveals more diverse scenarios: courts addressed the issue of the application of foreign law regardless of whether the parties hold the same nationality or not, and when the foreign is invoked by any of them. Yet, to the best of our knowledge, UAE courts have not provided a definitive answer to this question, often focusing instead on whether the party’s claim could be accepted or not.

 

ii) The Meaning of “his law”

Regarding 2), case law has largely clarified that “his law” refers to the lex patriae. Still, ambiguity remains in cases involving parties of different nationalities. Prior to 2020, the main connecting factor in matters of marriage and its dissolution was the lex patriae of the husband. It was thus unclear whether the wife could invoke the application of “her law” or whether she should claim the application of the lex patriae of her husband, when the latter based his claim on UAE law. In any case, where a party holds multiple nationalities, Article 24 (still in force) states that the lex fori (UAE law) shall apply.

However, in 2020, an amendment to the 1985 FACT introduced significant changes, shifting away from lex patriae as the main connecting factor in personal status. Particularly, articles 12 and 13 dealing respectively with marriage and its dissolution now refer to lex loci celebrationis. Moreover, Article 17 dealing with successions and wills grants considerable weight to professio juris, allowing a person in testate successions to designate the law that shall govern their estate. These changes have further deepened the discrepancy between the federal personal status regulations and the choice of law provisions contained in the 1985 FACT.

 

iii) Relevance of choice of law rules

Regarding 3), an as a result of what was stated above, resolving conflicts of law and coordinating the application of the various legislative instruments has become particularly difficult without significantly stretching the wording, and arguably, the intended meaning of the law. This difficulty is especially evident when the lex loci celebrationis differs from the parties’ lex patriae.

Article 1(2) of the 2022 CPSL offers somehow better articulation by including a two-part clause: “unless one of the parties invoke the application of his law, without prejudice to the provisions of Articles (12), (13), (15), (16), and (17)” of the 1985 FACT. Nevertheless, this articulation becomes problematic when both parties share the same nationality but have concluded their marriage abroad.

In any case, both laws remains silent on the consequences of the parties invoking his lex patriae when it conflicts with the law designated under the conflict of laws rules included in the 1985 FACT.

 

Epilogue

In practice, these theoretical complexities are often resolved in a far more radical and pragmatic way: foreign law is rarely applied, even when validly invoked by one or both parties.

It is against this backdrop that one can understand the rationale behind the adoption of civil family law regimes and the recent adoption of the 2024 PSL: rather than refining the existing conflict-of-law mechanisms, these instruments aim to sidestep them altogether by offering a self-contained and directly applicable alternative.

 

The first issue of the Journal of Private International Law for 2025 was published today. It contains the following articles:

Pietro Franzina, Cristina González Beilfuss, Jan von Hein, Katja Karjalainen & Thalia Kruger, “Cross-border protection of adults: what could the EU do better?†”

On 31 May 2023 the European Commission published two proposals on the protection of adults. The first proposal is for a Council Decision to authorise Member States to become or remain parties to the Hague Adults Convention “in the interest of the European Union.” The second is a proposal for a Regulation of the European Parliament and the Council which would supplement (and depart from, in some respects) the Convention’s rules. The aim of the proposals is to ensure that the protection of adults is maintained in cross-border cases, and that their right to individual autonomy, including the freedom to make their own choices as regards their person and property is respected when they move from one State to another or, more generally, when their interests are at stake in two or more jurisdictions. This paper analyses these EU proposals, in particular as regards the Regulation, and suggests potential improvements.

 

Máire Ní Shúilleabháin, “Adult habitual residence in EU private international law: an interpretative odyssey begins”

This article examines the first three CJEU cases on adult habitual residence in EU private international law, against the background of the pre-existing (and much more developed) CJEU jurisprudence on child habitual residence. While the new trilogy of judgments provides some important insights, many questions remain, in particular, as to the scope for contextual variability, and on the role of intention. In this article, the CJEU’s treatment of dual or concurrent habitual residence is analysed in detail, and an attempt is made to anticipate the future development of what is now the main connecting factor in EU private international law.

 

Felix Berner, “Characterisation in context – a comparative evaluation of EU law, English law and the laws of southern Africa”

Academic speculation on characterisation has produced a highly theorised body of literature. In particular, the question of the governing law is the subject of fierce disagreement: Whether the lex fori, the lex causae or an “autonomous approach” governs characterisation is hotly debated. Such discussions suggest that a decision on the governing law is important when lawyers decide questions of characterisation. Contrary to this assumption, the essay shows that the theoretical discussion about the governing law is unhelpful. Rather, courts should focus on two questions: First, courts should assess whether the normative context in which the choice-of-law rule is embedded informs or even determines the question of characterisation. Insofar as the question is not determined by the specific normative context, the court may take into account any information it considers helpful, whether that information comes from the lex fori, the potential lex causae or from comparative assessments. This approach does not require a general decision on the applicable law to characterisation, but focuses on the normative context and the needs of the case. To defend this thesis, the essay offers comparative insights and analyses the EU approach of legislative solutions, the interpretation of assimilated EU law in England post-Brexit and the reception of the via media approach in southern Africa.

 

Filip Vlcek, “The existence of a genuine international element as a pre-requisite for the application of the Brussels Ia Regulation: a matter of EU competence?”

Under Article 25(1) of the Brussels Ia Regulation, parties, regardless of their domicile, may agree on a jurisdiction of a court or the courts of an EU Member State to settle any disputes between them. The problem with this provision is that it remains silent on the question of whether it may be applicable in a materially domestic dispute, in which the sole international element is a jurisdictional clause in favour of foreign courts. Having been debated in the literature for years, the ultimate solution to this problem has finally been found in the recent judgment of the ECJ in Inkreal (C-566/22). This article argues that the ECJ should have insisted on the existence of a material international element in order for Article 25 of the Regulation to apply. This, however, does not necessarily stem from the interpretation of the provision in question, as Advocate General de la Tour seemed to propose in his opinion in Inkreal. Instead, this article focuses on the principle of conferral, as the European Union does not have a legal base to regulate choice-of-court clauses in purely internal disputes. Accordingly, with the Regulation applying to legal relationships whose sole cross-border element is a prorogation clause, the Union legislature goes beyond the competence conferred on it by Article 81 TFEU. Such an extensive interpretation of the Regulation’s scope, which is, in reality, contrary to the objective of judicial cooperation in civil matters, is moreover prevented by the principle of subsidiarity as well as the principle of proportionality. Finally, this approach cannot be called into question by the parallel applicability of the Rome I and II Regulations in virtually analogous situations as those Regulations become inherently self-limiting once the international element concerned proves to be artificial.

 

Adrian Hemler, “Deconstructing blocking statutes: why extraterritorial legislation cannot violate the sovereignty of other states”

Blocking statutes are national provisions that aim to combat the legal consequences of foreign, extraterritorial legislation. They are often justified by an alleged necessity to protect domestic sovereignty. This article challenges this assumption based on an in-depth discussion of the sovereignty principle and its interplay with the exercise of state power regarding foreign facts. In particular, it shows why a distinction between the law’s territorial scope of sovereign validity and its potentially extraterritorial scope of application is warranted and why, based on these foundations, extraterritorial legislation cannot violate foreign sovereignty. Since Blocking Statutes cannot be understood to protect domestic sovereignty, the article also discusses how they serve to enforce international principles on extraterritorial legislation instead.

 

Michiel Poesen, “A Scots perspective on forum non conveniens in business and human rights litigation: Hugh Campbell KC v James Finlay (Kenya) Ltd”

In Hugh Campbell KC v James Finlay (Kenya) Ltd the Inner House of the Court of Session, the highest civil court in Scotland subject only to appeal to the UK Supreme Court, stayed class action proceedings brought by a group of Kenyan employees who claimed damages from their Scottish employer for injuries suffered due to poor labour conditions. Applying the forum non conveniens doctrine, the Court held that Kenya was the clearly more appropriate forum, and that there were no indications that the pursuers will suffer substantial injustice in Kenya. Campbell is the first modern-day litigation in Scotland against a Scottish transnational corporation for wrongs allegedly committed in its overseas activities. This article first observes that the decision of the Inner House offers valuable insight into the application of forum non conveniens to business and human rights litigation in Scotland. Moreover, it argues that the decision would have benefitted from a more rigorous application of the jurisdictional privilege in employment contract matters contained in section 15C of the Civil Jurisdiction and Judgments Act 1982

 

Hasan Muhammad Mansour Alrashid, “Appraising party autonomy in conflict-of-laws rules in international consumer and employment contracts: a critical analysis of the Kuwaiti legal framework”

Party autonomy plays a vital role in international contracts in avoiding legal uncertainty and ensuring predictability. However, its application in international employment and consumer contracts remains a subject of debate. Consumers and employees are typically the weaker parties in these contracts and often lack the expertise of the other party, raising questions about their autonomy to choose the applicable law. Globally, legal systems differ on this point with some permitting full party autonomy, others rejecting it outrightly and some allowing a qualified autonomy with domestic courts empowered to apply a different law in deserving cases to protect the employee or consumer. Kuwaiti law allows full autonomy only in international consumer contracts but prohibits it in international employment contracts. This paper critically analyses Kuwait’s legal approach to find an appropriate balance between the principle of party autonomy in the choice of law and the protection of employees and consumers.

 

Alexander A. Kostin, “Recognition and enforcement of foreign judgments in bankruptcy and insolvency matters under Russian law”

This article addresses the role of certain Russian Federal Law “On Insolvency (Bankruptcy)” provisions (eg Article 1(6)) for resolving bankruptcy and insolvency matters under Russian law. The author argues that the “foreign judgment on the insolvency matters” term covers not only the judgments on initiation of bankruptcy/insolvency, but also other related judgments like those on vicarious liability, avoidance of transactions and settlement agreements. The issues associated with enforcing foreign judgments on the grounds of reciprocity under Article 1(6) of the Federal Law “On Insolvency (Bankruptcy)” are being explored and valid arguments in favour of recognition simpliciter (recognition of foreign judgments without extra exequatur proceedings at the national level) are provided. The legal effects of foreign judgments on the initiation of bankruptcy/insolvency proceedings recognition are analysed as well as the interconnection between relevant provisions of the Russian legislation on lex societatis of a legal entity and the rules for recognising foreign judgments on the initiation of bankruptcy/insolvency proceedings.

On the occasion of the 150th anniversary of the Swiss Federal Tribunal, the Swiss Institute of Comparative Law (SICD) is pleased to announce its 35th Conference on Private International Law, to be held on 19–20 November 2025 in Lausanne.

The conference addresses how courts, lawyers, and litigants have shaped—and how they continue to shape—private international law. Special emphasis will be placed on how legal practice drives the development of private international law at both the national and supranational levels. Judges, through landmark rulings, have clarified conflicts of laws rules, set precedents on the recognition of foreign judgments, and adapted legal frameworks to globalization and digital commerce. Lawyers, by crafting novel arguments, have influenced judicial reasoning and contributed to evolving legal doctrines. Finally, strategic litigation, led by litigants and advocacy groups, has driven major jurisprudential shifts, particularly in fundamental rights, corporate liability, and cross-border regulation. The conference will analyse these actors’ distinct but interconnected roles in shaping contemporary private international law.

We invite scholars (both established and early-career researchers), legal practitioners, and policymakers to submit papers addressing these issues.

Possible topics include:

• The role of national and supranational courts in shaping private international law
• The impact of key judicial decisions on cross-border legal relationships
• The influence of legal practitioners in driving jurisprudential change
• Strategic litigation as a tool for legal evolution in private international law
• Comparative approaches to judicial reasoning in international private law cases
• Judicial responses to global challenges such as migration, digital commerce, corporate responsibility, and human rights protection

Paper Submission
Please submit an abstract (up to 500 words) of your proposed paper by 11 May 2025 to Ms. Marie-Laure Lauria (marie-laure.lauria@isdc-dfjp.unil.ch), with the subject line “ISDC 35th PIL Conference Submission“. Abstracts may be submitted in English, German, or French.

All submissions will undergo a double-blind peer review and decisions will be communicated by 3 June 2025. Accepted papers will be considered for publication in an edited volume or a special journal issue.

Organization
The conference will be hosted by the Swiss Institute of Comparative Law.

Funding
The Swiss Institute of Comparative Law will provide funding for the travel costs and accommodation of all presenters.

In April, the Aberdeen Centre for Private International Law and Transnational Governance will be relaunching its Crossroads in Private International Law research seminar series. It will feature both online and hybrid events.

For the upcoming term, six events have been scheduled:

23 April 2025 at 14:00 (UK time) | “Consumer Protection and Justice in Israeli Private International Law” by Prof Sharon Shakargy (The Hebrew University of Jerusalem) | online and in-person

In 1933, Professor David Cavers argued for rethinking the choice of law process by prioritizing justice and party expectations over formal rules, sparking the American choice of law revolution. While this movement had some lasting impacts, it ultimately was mostly unsuccessful. Nearly 90 years later, the issue of justice in conflict of laws remains relevant, especially regarding power disparities between major tech companies and consumers. This paper calls for a renewed focus on justice within this context, outlining its implications for the existing legal framework.

24 April 2025 at 14:00 (UK time) | “Collisions and Autonomous Ships: A Challenge for the Collision Convention 1910” by Ms Luci Carey (University of Aberdeen) | online only

The introduction of Maritime Autonomous Surface Ships (MASS) whereby human crews are replaced by AI driven navigation systems raises novel legal questions. One of these relates to the liability of the vessel in the event of a collision. The International Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels 1910 (1910 Collision Convention) apportions liability between colliding ships based upon the degree of fault. The introduction of artificial intelligence is making the determination of fault or liability in negligence increasingly difficult. This seminar questions whether fault-based liability for collisions involving ships navigated without human control is appropriate, enquires if strict liability is the logical solution or if the 1910 Collision Convention is robust in its current form to accommodate technological developments.

30 April 2025 at 12:00 (UK time) | “A Skewed Bargain? Platforms get the King’s Protection for little or no Obedience or Allegiance” by Prof Uta Kohl (University of Southampton) | online only

Common law jurisprudence on civil jurisdiction over non-resident defendants has occasionally made explicit reference to the justification of jurisdiction as formulated in Calvin’s Case (1608): ‘when an alien in amity cometh into England, because so long as he is within England he is within the King’s protection; therefore so long as he is here he oweth unto the King a local obedience or ligeance, for the one (as it hath been said), draweth the other.’ This justification is powerful in so far as it demonstrates that territorially based jurisdiction (in civil and criminal cases) is one side of a two sided bargain: obedience and allegiance in exchange for protection. In this talk I will reflect on how this bargain has played out – or not played out – in the case of online platforms, and on how we might use Calvin’s Case to fundamentally rethink the treatment of platforms.

7 May 2025 at 11:00 (UK time) | “Should the Rules on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters Be Harmonised in Africa? A Comparative and Empirical Assessment” by Dr Chukwuma Okoli (University of Birmingham) | online only

This study examines 200 decided cases from 18 African legal systems, focusing on the recognition and enforcement of foreign judgments in civil and commercial matters. It reveals significant disparities in outcomes and grounds for recognition and enforcement and refusal. It underscores the diversity of legal frameworks, procedural rules, and judicial interpretations across the continent. The findings highlight the challenges posed by this fragmentation and make a strong case for harmonisation. A more unified approach, the study argues, would not only streamline cross-border legal processes but also foster economic development and strengthen investor confidence across Africa.

14 May 2025 at 14:00 (UK time) | “Navigating Generative AI, Copyright Protection, and Private International Law in Europe” by Dr Michiel Poesen (University of Aberdeen) | online and in-person

Generative AI has an intellectual property problem. This seminar enquires whether the current framework of private international law in the European Union is fit to deal with cross-border copyright infringement litigation concerning (i) the use of copyrighted work to train and develop GenAI and (ii) AI-generated content (AIGC) which resembles protected work.

21 May 2025 at 10:00 (UK time) | “Platform Governance and Wikilegality” by Prof David Nelken (UCL) (Joint seminar with the Aberdeen Centre for Constitutional and Public International Law) | online and in-person

Registration for all events is possible here.

Stefano Dominelli (Università di Genova) has just published a book titled Regolamento Bruxelles I bis e US jurisdiction in personam: riflessioni e proposte su condivisioni valoriali, influenze e osmosi di metodi with Editoriale Scientifica. The book is written in Italian but also features conclusions in English.

The author has kindly shared the following summary with us:

The book analyses the basic principles of the EU’ and US international civil procedure in contract and tort law. The investigation shows how both systems are partly inconsistent with their respective premises – of legal certainty, on the one hand, and fairness and justice, on the other. The juxtaposition of the dogmatic approaches and their contextualisation in the light of the law in action makes it possible to reconstruct a common and shared principle which shapes solutions in both systems – that of the necessary existence of a minimum connection between the jurisdiction and the case. This conclusion opens up, to a limited extent, to a conceptual rapprochement between legal systems and to reflections on possible legal transplants that respect the characteristics of the local legal culture.

The whole book is available open access under this link.

Dr. Carlos Santaló Goris, Postdoctoral researcher at the University of Luxembourg, offers an analysis of the Opinion of Advocate General de la Tour in CJEU, Case C-713/23, Trojan

From Coman to Trojan

On 5 June 2018, the Court of Justice of the European Union (‘CJEU’) rendered its judgment in the case C-673/16, Coman. In this landmark ruling, the CJEU decided that Member States are required to recognize same-sex marriage contracted in another Member Stated to grant a residence permit to the non-EU citizen spouse of an EU citizen under the EU Citizens’ Rights Directive. The pending case C-713/23, Trojan goes a step further than C-673/16, Coman. On this occasion, the CJEU was asked whether EU law requires a civil registry of Poland, a Member State that does not provide any form of recognition to same-sex couples, to transcribe the certificate of same-sex marriage validly contracted in another Member State. A positive answer would imply that the same-sex marriage established under German law would be able to deploy the same effects as a validly contracted marriage under Polish law. While the CJEU has not yet rendered a judgment, on 3 April 2025, Advocate General de la Tour issued his Opinion on the case. While the CJEU might decide differently from AG de la Tour, the Opinion already gives an idea of the solution that might potentially be reached by the CJEU. This post aims to analyse the case and explore its implications should the CJEU side with AG de la Tour.

Background of the case

Mr. Cupriak-Trojan, a German-Polish citizen, and Mr. Trojan, a Polish national, got married in Germany, where they used to live. Then, they moved to Poland, where they requested to transcribe the German marriage certificate in the Polish civil registry. Their request was rejected on the ground that marriage is not open to same-sex couples under Polish law. It was considered that the transcription of the certificate would go against Polish public policy. Upon the rejection, the couple decided to contest the decision before Polish administrative jurisdiction. They considered that refusal to transcribe the certificate contravenes the right to freedom of movement and residence enshrined in Article 21 of the Treaty on the Functioning of the European Union (‘TFEU’) and Article 21 of the EU Charter of Fundamental Rights (‘EUCFR’) in light of the principle of non-discrimination under Article of 7 of the EUCFR. In other words, when they decided to move to Poland, the non-recognition of their marriage under Polish law hindered their right to freedom of movement and residence. Eventually, the case reached the Polish Supreme Administrative Court, which decided to submit the following preliminary reference to the CJEU:

‘Must the provisions of Article 20(2)(a) and Article 21(1) TFEU, read in conjunction with Article 7 and Article 21(1) of [the Charter] and Article 2(2) of Directive [2004/38], be interpreted as precluding the competent authorities of a Member State, where a citizen of the Union who is a national of that State has contracted a marriage with another citizen of the Union (a person of the same sex) in a Member State in accordance with the legislation of that State, from refusing to recognise that marriage certificate and transcribe it into the national civil registry, which prevents those persons from residing in the State in question with the marital status of a married couple and under the same surname, on the grounds that the law of the host Member State [(18)] does not provide for same-sex marriage?’

AG de la Tour’s analysis

AG de la Tour starts his analysis by acknowledging that matters concerning the civil status of persons depend on the national law of the Member States. However, the right of freedom of movement and residence imposes on Member States the recognition of the civil status of persons validly established in other Member States. In this regard, he recalls that the CJEU adopted a two-fold approach to civil status matters. In matters concerning an EU citizen’s identity (e.g. name or gender), Member States are required to include those identity details in the civil registries. However, in civil status matters concerning ties legally established in other Member States (e.g. marriage or parenthood), there is no such obligation, and recognition of those ties is limited to the ‘sole purpose of exercising the rights which the person concerned derived from EU law’ (para. 29).

In the present case, AG de la Tour considers that the non-recognition of the same-sex marriage amounts to a ‘restriction on the exercise of the right’ to freedom of movement and residence under EU law (para. 32). Subsequently, he proceeds to examine whether such restriction is compatible with the right for respect for private and family life guaranteed by Article 7 of the EU Charter of Fundamental Rights (‘EUCFR’). He examines this issue through the lens of the European Court of Human Rights (‘ECtHR’) case law on Article 8 of the European Convention of Human Rights (‘ECHR’), the equivalent provision of Article 7 of the EUCFR. It should be reminded that the EUCFR expressly acknowledges in its Article 53 the ECHR and the ECtHR case law as the term of reference for establishing the minimum standards for its interpretation. In this regard, the ECtHR has repeatedly stated that Article 8 of the ECHR requires its contracting States to provide same-sex couples with a ‘specific legal framework’. Nonetheless, contracting States are not required to legalize same-sex marriages and enjoy a margin of discretion to decide how the recognition of the same-sex couple provided.

Based on the referred ECtHR case law, it appears that the non-recognition would constitute a restriction on the right to freedom of movement and residence incompatible with the EUCFR. At this point, the question arises whether such recognition should be done by entering the same-sex marriage certificate into the civil registry. Here, AG de la Tour considers that EU law does not require the marriage licence transcription. As he mentioned at the beginning of his reasoning, ‘Member States’ obligations in terms of civil status relate only to the determination of a Union citizen’s identity’ (para. 38). In his view, the registration of foreign marriage certificate ‘falls within the exclusive competence of the Member States’ (para. 42). Member States can thus refuse the transcription of the marriage certificate if the recognition of the same-sex marriage can be achieved through other means. This discretion is given to Member States to decide whether they enter a foreign same-sex marriage in their civil registry or not would also be in line with the ECtHR case law, which acknowledges States a wide margin of appreciation on how to recognize foreign same-sex marriages.

In the case of Poland, since there is no kind of legal framework for same-sex couples in this Member State, the only possible solution appears to be the registration of the marriage certificate. Therefore, as an exception, and given the specific Polish circumstances, AG de la Tour considers that Poland would be required to entry into its civil registry of the same-sex marriage.

Recognition yes, transcription no

The fil rouge of AG de la Tour’s reasoning was to find a manner to provide recognition for same-sex marriages without overstepping on the Member States’ competences in matters concerning the civil status. Finding that right to freedom of movement and residence entails an obligation to transcribe the marriage certificate would not be ‘in strict compliance with the division of competences between the European Union and the Member States’ (para. 55). That would imply that an understanding of the ‘freedom of movement and residence of Union citizens which may be exercised without limit so far as concerns personal status’ (para. 56). Such a solution that would depart from the well-established CJEU case law on this matter, moving ‘from an approach based on the principle of free movement of a Union citizen that is limited to his or her identity, to an approach based solely on the right to respect for his or her family life’ (para. 57). This why AG de la Tour adopted a solution that allows recognition without the need for transcription of the marriage licence in the civil registry.

Regarding the recognition of same-sex marriages, it should also be noted that AG de la Tour leaves the Member States with wide discretion on how same-sex marriage is recognized. This means that the marriage does not necessarily need to be recognized as a marriage. They could be recognized in the form of a civil partnership. That is, for instance, the solution that exists under Italian law. Article 32bis of the Italian Private International Law Act provides that ‘a marriage contracted abroad by Italian citizens with a person of the same sex produces the effects of the civil union regulated by Italian law’. Based on AG de la Tour’s reasoning, had Poland had a similar, he would have accepted the recognition of a same-sex marriage in the downgraded form of a civil partnership and the transcription of the marriage certificate would have been required.

Promoting the effectiveness of the ECtHR case law through EU law

On its reasoning, AG de la Tour strongly relies on the ECtHR case law. This does not come as a surprise. Other LGBT rights cases involving civil status matters and the right to freedom of movement contain similar references to the ECtHR jurisprudence. The most recent example is the C-21/23, Mirin in which the CJEU found that Romania had to recognize the gender change that occurred in another Member State. The main basis of this ruling was the ECtHR judgment, in which Romania had been found in violation of Article 8 of the ECHR because Romanian law did not provide a clear procedure to obtain legal gender recognition (X and Y v. Romania).

Such reliance on the ECtHR case law also serves to expose that Member States do not duly implement the ECtHR rulings. Poland has been found twice in violation of Article 8 of the ECtHR for not providing same-sex couples with any kind of formal legal recognition (Przybyszewska and Others v. Poland and Formela and Others v. Poland). While the Polish government has proposed an act introducing a civil partnership regime open to same-sex couples, it has not been approved yet. Furthermore, such an initiative only appeared after a more progressive government emerged out of the 2023 Polish general election. The situation is similar in other Member States such as Romania or Bulgaria. These Member States have been also called out by the ECtHR (Buhuceanu and Others v. Romania and Koilova and Babulkova v. Bulgaria) for not providing any sort of legal recognition for same-sex couples. However, unlike in Poland, no legislative changes are expected on this matter in the near future. If the CJEU adopts AG de la Tour’s solution, all these Member States would have to allow the recognition of same-sex marriages contracted in other Member States, even if in the downgraded form of civil partnership. Unlike the Council of Europe with regards to the ECtHR rulings, the EU counts with more effective means to ensure that CJEU rulings are followed by Member States. Formally, the Commission could even trigger an infringement procedure against them in case they do not comply with the judgment in C-713/23, Trojan. Therefore, EU law would become the indirect path to make Member States comply with the ECtHR rulings.

The potential for reverse discrimination

The solution proposed by AG de la Tour entails the risk of recreating a situation of reserve discrimination of same-sex couples that have not left Poland against those who have obtained certain legal status for the relationship in other Member States while exercising the right to freedom of movement. A same-sex couple moving who married or entered a civil partnership in a Member State would be able to attain the recognition of their marriage or civil partnership in a Member State that does not provide any legal framework for same-sex relationships. This is as far as EU law can go in this matter, given domestic family law matters strictly fall within the scope of Member States competencies.

It should also be noted that going to another Member State to get a marriage licence because the Member State where the same-sex couple resides does not provide any legal recognition would not be sufficient to achieve the recognition of such marriage in the Member State of residence. As AG de la Tour pointed out in his Opinion in C-4/23, Mirin, a close link needs to exist between the person and the Member State where the legal gender recognition is obtained (para. 71 and 72). Otherwise, there would be an abuse of EU law. The same would apply in the case of a marriage. Going to another Member State with the only purpose of obtaining a marriage licence and circumventing domestic law that does not provide a legal status for same-sex couples. The same-sex couple would have to establish a close link with the Member State where they seek to contract their marriage.

 

On 4–5 December 2025, the Department of Law at the University of Ferrara will host the XXII edition of the Conference of Young Scholars of International Legal Studies, dedicated to “The Principle of Good Faith in International and European Union Law”.

The organizers have issued a call for papers open to scholars of public and private international law and EU law, who are currently enrolled in a PhD program or who have obtained their PhD no more than five years ago.

To apply, authors must submit an abstract (no more than 600 words), in either Italian or English, along with a curriculum vitae, by 22 June 2025, to the following email address: giovaniinternazionalisti2025@gmail.com.

Further information is available here.

The Ulrich Huber round of the Pax Moot competition ended on Friday in the Meuse-Rhine Euroregion, at the University of Maastricht to be precise.

During three fierce days 34 Moot teams from all over Europe and as far as Georgia, Kazakhstan, India, Singapore and Uzbekistan pleaded against each other. They argued about whether self-employed content moderators for social media companies could be considered employees; about how to locate the damage that consists of the stress and mental health harm suffered by these digital nomads; about whether a UK subsidiary of an Irish company could be considered to be domiciled in the EU; about whether the proceedings instituted by a foundation under the Dutch WAMCA should be characterised as contract or tort; about whether a settlement in front of a UK court could be recognised under the 2019 Hague Judgments Convention and much more. They relied on old and new case law, reports and legal scholarship.

At the end, the University of Ljubljana won the competition, with Jindal Law School as the runner-up. The other two teams that made it to the semi-finals were the Universities of Sofia and Paris-Saclay.

The prize for the best memorials went to ESADE Business School, with the University of Ghent in second place, and Paris Dauphine and Sofia Universities in shared third places.

Jana Ušen won the best pleader’s award, followed by Brin Smole, both of Ljubljana University. In the third position was Joshua Tan and in fourth Ong Xin Yan, both of Singapore Management University.

Under the inexhaustible leadership of Marta Pertegás, expect the Pax team to be back with a new case in October/November, to be pleaded in Sofia in roughly one year’s time. Pax Moot is co-funded b y the European Commission.

Reciprocity in the field of recognition and enforcement of foreign judgments has long been a subject of passionate debate. While some scholars question its desirability, others firmly defend it as a legitimate legal requirement. What remains undeniable is that the topic continues to spark intense discussion and scholarly interest.

A clear illustration of this ongoing debate is provided by two recent publications addressing the issue from different perspectives and jurisdictions.

The first is an enlightening open-access article by Eszter PAPP and Nobumichi TERAMURA, titled “Enforcing Singapore Judgments in Cambodia: Reciprocity Under the Loupe“. The paper explores the practical and legal challenges related to the enforcement of Singaporean money judgments in Cambodia, with a specific focus on the requirement of reciprocity.

The abstract reads as follows:

Abstract:
This article examines the feasibility of enforcing Singapore money judgments in Cambodia, focusing on the “guarantee of reciprocity” – an ambiguous yet critical condition. It is ambiguous because Cambodian courts have not yet interpreted it. It is critical because it is perceived as the main obstacle to enforcing foreign judgments. Without a treaty-based mutual enforcement mechanism between Cambodia and Singapore, it is unclear whether a Singapore money judgment could be enforced in Cambodia or if a judgment creditor’s application would be dismissed in any event citing lack of reciprocity. Following an analysis of the laws of Cambodia, Singapore, and Japan, the article concludes that there is no legal obstacle before the Cambodian courts to enforce a Singapore money judgment. The flexible interpretation of the guarantee of reciprocity outlined in this article would enhance access to justice, eliminate a trade barrier, and make the investment environment more attractive in Cambodia.

The second is a case comment written by myself (in French) on a decision of the Tunisian Cour de cassation that addresses the reciprocity requirement in the context of the enforcement of foreign judgments, under the title “La réciprocité en matière d’exequatur?: Quoi de nouveau?? Observations sous l’arrêt de la Cour de cassation n° 6608 du 13 mars 2014” (Reciprocity in the Recognition of Foreign Judgments: What’s New? Commentary on Court of Cassation Ruling No. 6608 of 13 March 2014)

The (English) abstract reads as follows:

Abstract:
The enforcement of foreign judgments in Tunisia is governed by Article 11 of the 1998 Code of Private International Law, which states that enforcement cannot be allowed if, inter alia, the reciprocity principle is not observed. This case note analyzes and reviews this issue in light of the Tunisian Cour de cassation’s decision No. 6608 of 13 March 2014. In this decision, the Court ruled that, in the absence of an international cooperation agreement, reciprocity is a factual matter, and its respect must be presumed. It is therefore up to the party contesting this presumption to provide evidence of its non-existence. This decision provides a valuable clarification of the nature and legal framework of reciprocity under Tunisian law, particularly regarding the burden of proof.

Together, these two contributions offer a concise yet comprehensive look at how the principle of reciprocity is interpreted and applied in different legal systems.

By Ryan Joseph, final-year BBA LLB (Hons) student, Jindal Global Law School, India.

Introduction

The recent decision of the UK High Court (“Court”) in Tyson International Company Limited (“Tyson”) v. General Insurance Corporation of India (“GIC”) sets a critical precedent for cases that lie at the intersection of arbitration, contractual hierarchy, and judicial intervention through anti-suit injunctions. The principal issue in the case revolved around the harmonious application of two conflicting dispute resolution clauses contained in two separate agreements pertaining to the same transaction. While one provided for dispute settlement through arbitration seated in New York, the other was an exclusive jurisdiction clause that provided for dispute settlement by England and Wales courts. To resolve this apparent conflict between the two clauses, the Court relied on a confusion clause (also known as a hierarchy clause) in the parties’ agreement to rule that the exclusive jurisdiction clause, in favour of  England and Wales courts, prevails over the arbitration clause. Based on this conclusion, the Court issued an anti-suit injunction against GIC from arbitrating the dispute in New York.

Factual Background

Tyson entered into a reinsurance agreement with General Insurance Corporation of India (“GIC”), a state-owned-entity. The transaction involved two agreements; a Market Reforms Contract (“MRC”) and second Facultative Certificates (“Certificates”). The MRC contained an explicit choice of law and an exclusive jurisdiction clause, submitting disputes to English courts to be governed by the laws of England and Wales (“English DRC”). However, the subsequently issued Certificates introduced an arbitration clause referring disputes to arbitration in New York to be governed by the laws of New York (“Arbitration Clause”). A pivotal provision, termed the “Confusion Clause,” was embedded within the Certificates, stipulating that in the event of a confusion, the MRC would take precedence over the Certificates.

The dispute arose when GIC claimed that Tyson had undervalued certain commercial numbers on which the insurance premium was based. Therefore, GIC sought to initiate arbitration in New York pursuant to the arbitration clause in the Certificates. In response, Tyson approached the High Court for an anti-suit injunction against the arbitration, arguing that  pursuant  to the English DRC, English courts would have exclusive jurisdiction over any dispute emanating from the transaction.

The Court stressed on the importance of circumspect judicial intervention when interfering in arbitration. However, considering the existence of the “confusion clause”, Tyson argued that the arbitration agreement did not come into existence. Therefore, the principal  question before the Court was: what is the effect of the confusion clause when interpreting the two agreements? If the confusion clause had the effect of a hierarchy clause (as argued by Tyson) and hence gave precedence to the MRC, the arbitration agreement wouldn’t come into existence and the anti-suit injunction would be granted. On the other hand, if the confusion clause was merely to give meaning to confusing terms in the Certificates (as argued by GIC), the two agreements would be read harmoniously without giving preference to either. GIC argued this can be done in two ways. First, the conflicting clauses could be read as an agreement between parties to treat the arbitration as a condition precedent to raising any claims before the English Courts. Or in the alternative, the two agreements would be read together to mean that English Courts will have jurisdiction to supervise the New York arbitration. Either ways, the arbitration agreement would be valid and hence the anti-suit injunction should fail.

Submissions of Parties

The Court summarised the principles governing anti-suit injunctions in Times Trading Corp v National Bank of Fujairah[1] to hold that an anti-suit injunction can be granted in all cases where it is just and convenient to do so.[2] However, such power must be exercised with circumspection where the claimant can demonstrate a negative right to not be sued. Tyson can establish such a right if it can demonstrate that an arbitration agreement was not concluded between the parties. Crucial to this conclusion would be determining the effect of the confusion clause in the Certificates.

The judge cited various authorities; specifically Surrey County Council v Suez Recycling and Recovery Surrey Limited[3], to discuss principles of contractual construction and summarised the position in that the role of the court is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. GIC made the following submissions in this regard: First, the phrase “confusion” in the clause refers to obscurity or uncertainty in the meaning of provisions and does not refer to a conflict or a contradiction. They relied on the meaning of the word “confusion” in the Oxford dictionary to support this premise and submitted that the clause operates to address any uncertainty that may arise when reading the provisions of the Certificates. Such uncertainties must then be addressed by interpreting the provisions in light of the MRC. However, the clause does not operate to address a conflict between the MRC and the Certificates, for such an instance is a “conflict” and not a “confusion”. Lastly, they submitted that there is no confusion because the arbitration clause in the Certificates should be read as a Scott v. Avery[4] clause[5] or, a clause conferring English Courts with supervisory jurisdiction over the New York arbitration.

Tyson submitted that by using the phrase “takes precedence” in the confusion clause, the clear objective intent of the parties is to create a hierarchy between the MRC and Certificates whereby in case of a confusion, the terms contained in the MRC will prevail over those in the Certificates. They further submitted that GIC is taking a very narrow interpretation of the word “confusion” and is reading it in isolation of the remainder of the clause to arrive at its conclusion. The word “confusion”, when read in the context of the provision, has a broader purport to cover circumstances of contradicting terms between the MRC and the Certificates that create confusion regarding which clause will prevail. Thus the clause operates as a hierarchy clause whereby it clears the confusion by giving precedence to clauses in the MRC.

 

The Judgement

The Judge agreed with the submissions of Tyson and found that GIC’s interpretation of “confusion” was too narrow to reflect an objective meaning of the language used by parties. He ruled that confusion can also arise where there are two clauses within a contract which are inconsistent such that there is confusion as to the intent of the parties as to their respective rights and obligations under the contract because of such inconsistency. Second, when the MRC grants exclusive jurisdiction to English Courts and the Certificates provide for disputes to be resolved through arbitration in New York, there is an obvious confusion as to which dispute resolution clause should apply. The judge noted that English courts must give generally give effect to an arbitration clause but this is a case of routine construction of contracts wherein courts cannot rewrite the parties’ agreement. Accordingly, when parties have explicitly agreed that the MRC must take precedence in case of a confusion, such intention must be given effect. The Court opined that any attempt to resolve the confusion through any other means such as viewing arbitration as a condition precedent to any right of action or allowing the arbitration to continue under the supervision of English Courts would amount to rewriting the contract. As a sequitur, the court ruled in favour of Tyson and granted an anti-suit injunction against GIC.

 

GIC’s Attempt to Appeal

In response to the judgment, GIC sought permission to appeal on two grounds (i) the court misconstrued the Confusion Clause in the Certificates and (ii) the court misconstrued the MRC and the Certificates in concluding that the English Court did not have jurisdiction over New York arbitration. When considering whether to grant an appeal, the test is whether GIC has a real prospect of success in relation to any of its grounds.

In order to discharge this burden, GIC made the following arguments: (1) the ‘confusion’ language is novel and has not been interpreted by courts in the past which gives it considerable scope to argue about its meaning; (2) the Certificates were contractual documents intended to supersede the MRC and not merely administrative documents; and (3) the Court has failed to consider the strong policy adopted by English courts in favour of giving effect to arbitration agreements whereby the conflict should be interpreted in a manner that upholds the agreement to arbitrate. Tyson in response argued that (1) the Court’s construction of the word “confusion” gives effect to the meaning of the word in light of the clause as a whole whereas GIC’s construction focuses only on the word ‘confusion’ in isolation of the entire clause. (2) GIC’s interpretation of the Confusion Clause runs against commercial common sense; for an overriding effect would essentially nullify many of the provisions contractually agreed to in the MRC. (3) judicial precedents[6] that have ruled in favour of arbitration by resolving potential conflicts between contractual provisions lacked a hierarchy clause necessitating the courts to engage in the endeavour of contractual interpretation. In this case, where a hierarchy clause exists, it is not a matter of resolving conflicts by applying judicial standards of interpreting contracts but one giving effect to the parties’ method of resolving confusion between conflicting provisions.

Based on the submissions, the Judge concluded that GIC did not have a realistic prospect of success on either of its grounds. At the outset, although one could accept GIC’s construction of the Confusion Clause, it still lacks the realistic prospect of persuading the Court of Appeal to eschew the construction adopted by the Court and instead acceding to GIC’s construction. Finally, the Confusion Clause in this case is a relevant factor that distinguishes this case from  previous cases favouring arbitration because it operates as a hierarchy clause to mitigate any confusion when reading the Certificates and the MRC together. Since the parties have contractually agreed to the hierarchy clause when resolving any confusion, the court must give effect to the clause when resolving conflicts and cannot apply its own principles of interpreting conflicting terms of a contract; for any such attempt would amount to rewriting the parties’ agreement. Therefore, even the second ground lacks a realistic prospective of succeeding before the court of appeals. Since both the grounds for appeal lacked a realistic prospective of succeeding, the application for leave to appeal was refused.

 

Key Takeaways and Implications

The said ruling in underscores the Court’s role in upholding contractual intention of parties when resolving conflicts between competing dispute resolution clauses. By affirming the primacy of the Market Reform Contract through the Confusion Clause, the court reinforced the principle that hierarchy clauses serve as decisive mechanisms in contractual interpretation. Furthermore, the court’s refusal to grant leave to appeal solidifies the precedent that courts will not rewrite contracts but will instead give effect to unambiguous terms agreed upon by parties. This case sets as an important judicial precedent for interpreting confusion clauses and strengthens the predictability of contractual enforcement in commercial agreements. As a takeaway, when drafting multiple contracts for the same transaction, it is worth considering the harmonious impact of differing clauses in the various agreements. Parties, must discuss their commercial objectives and have a clearer communication of their intended outcomes before agreeing to multiple dispute resolution clauses that cover the same transaction.

 

[1] Times Trading Corp v National Bank of Fujairah (Dubai Branch) [2020] EWHC 1078 (Comm)

[2] Girish Deepak, ‘ANALYSIS: UK HIGH COURT ISSUES ANTI-SUIT INJUNCTION AGAINST NEW YORK-BASED COURT ANDARBITRATION PROCEEDINGS IN DISPUTE INVOLVING INDIAN STATE-OWNED INSURANCE COMPANY’ (IA Reporter, 27 February 2025) <https://www.iareporter.com/articles/analysis-uk-high-court-issues-anti-suit-injunction-against-new-york-based-court-and-arbitration-proceedings-in-dispute-involving-indian-state-owned-insurance-company/> accessed 11 March 2025

[3] Surrey County Council v Suez Recycling and Recovery Surrey Limited [2021] EWHC 2015 (TCC)

[4] Scott v Avery (1856) 5 HL Cas 811

[5] Keren Tweeddale, Andrew Tweeddale, ‘Scott v Avery Clauses: O’er Judges’ Fingers, Who Straight Dream on Fees’ [2011] 77(4) Arbitration: The International Journal of Arbitration, Mediation and Dispute Management, pp. 423 – 427

[6]Sulamerica CIA Nacional de Seguros SA & Ors v Enesa Engenharia SA & Ors [2012] EWHC 42 (Comm), Surrey County Council v Suez Recycling and Recovery Surrey Limited. [2021] EWHC 2015 (TCC)

The multiple-award-winning book by Augustin Gridel (Université de Lorraine), Marchés et instruments financiers en droit international privé (Bruylant 2023), has just been published in English under the title Financial Markets and Instruments in Private International Law. A European and French Perspective. It features a preface by Louis D’Avout and a foreword by Christine Lagarde.

The blurb reads as follows:

The aim of this book is to describe, from a European and French perspective, the relationship between the law of financial markets and instruments and private international law. Where there is a foreign element, the rules of financial law are most often presented as overriding mandatory rules or administrative rules. The establishment of a national supervisory authority with administrative, normative and repressive powers is likely to amplify this perception, as is the appearance of financial law rules in litigation where they seem to derogate from the normally applicable solution rather than coherently form a new category. However, this presentation by means of the lois de police methodology does not provide an overall view of the body of legislation put in place by financial law, nor does it provide a key to the application of these rules.

In addition to taking place in a renewed legislative and institutional environment, this research does not limit its scope to one or other aspect of the internationalisation of the law of financial markets and instruments. The book covers both institutional aspects (organisation and administrative supervision of market managers and infrastructures, investment firms, including aspects relating to insolvency) and operational aspects (issuance of financial securities, marketing, liability for inaccurate prospectuses, crossing thresholds, takeover bids, market abuse), as well as the study of financial instruments themselves (ownership of financial securities and securities transactions; formation and execution of financial contracts). By taking a systemic look at the rules studied, this book aims to renew the presentation of financial law rules by placing them within rules of conflict whose unity derives not only from the links between the rules, but also from the common objective they pursue. The connecting factors proposed are based, where appropriate, on those of the market infrastructures themselves. The book concludes with a list of forward-looking proposals to ensure more consistent international application of financial law.

Lawyers, in-house counsel, regulators, students and academics interested in international financial law issues will find in this book a systematic account of the substantive rules applicable and their positive or desirable international scope.

The book can be ordered from the publisher Intersentia here.

by Shantanu Kanade, Assistant Professor, Dispute Resolution, Jindal Global Law School, India 

The Federal Court of Australia (“Federal Court”), in its recent judgement in the Republic of India v. CCDM Holdings, LLC[1] (“Judgement”), held that the Republic of India (“India”) was entitled to jurisdictional immunity from Australian Courts in proceedings seeking recognition and enforcement of foreign arbitral awards dealing with disputes arising from ‘non-commercial’ legal relationships. The Court’s judgment was rendered with respect to an appeal filed by India against an interlocutory judgement of a primary judge of the same court, rejecting India’s sovereign immunity claim.

Background of the Dispute

Three Mauritian entities of the Devas group (“Original Applicants”) had commenced arbitration proceedings in 2012 under the 1998 India-Mauritius BIT, impugning India’s actions with respect to an agreement for leasing of space spectrum capacity entered between Devas Multimedia Private Limited (an Indian company in which the Original Applicants held shares) and Antrix Corporation Limited (an Indian state-owned entity). In 2011, India’s Cabinet Committee on Security decided to annul the said agreement, citing an increased demand for allocation of spectrum towards meeting various military and public utility needs (“Annulment”). The arbitration proceedings that followed culminated in a jurisdiction and merits award in 2016[2] and a quantum award in 2020 (“Quantum Award”)[3]. The Original Applicants have since sought to enforce the Quantum Award against India in different jurisdictions, discussed here.[4]

 

Proceedings Before the Primary Judge

The Original Applicants commenced proceedings before a primary judge of the Federal Court (“Primary Judge”) in April 2021 for recognition and enforcement of the Quantum Award. In May 2023, the Original Applicants were substituted with three US entities of the Devas Group which were respectively assignees of each of the Original Applicants (collectively the “Applicants”).

India asserted that it was immune to the jurisdiction of the Federal Court under section 9 of the Foreign State Immunity Act, 1985 (“Act”), which states: “Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.” An exception to this general rule of immunity is provided in section 10(1), which states: “A foreign State is not immune in a proceeding in which it has submitted to the jurisdiction in accordance with this section.” Section 10(2) further provides that a State may submit to jurisdiction “by agreement or otherwise”. The Applicants argued that by ratifying the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (“Convention”), India has submitted to the jurisdiction of Australian courts by agreement within the meaning of Section 10(1) and (2) of the Act in relation to proceedings for recognition and enforcement of foreign arbitral awards.

In deciding whether India has waived its immunity, the Primary judge invoked the judgement of the High Court of Australia (“High Court) in Kingdom of Spain v Infrastructure Services (“Spain v. Infrastructure Services”)[5], which dealt with a similar claim of jurisdictional immunity by Spain with respect to enforcement of an ICSID Convention award. Observing that that the “standard of conduct for submission by agreement under Section 10(2) requires either express words or an implication arising clearly and unmistakably by necessity from the express words used”, the Primary Judge held that ratification of the Convention by India amounts to a “clear and unmistakable necessary implication” that it has agreed to submit to the jurisdiction of Australian courts as per Section 10(2).[6] The Primary Judge opined that permitting India to take a sovereign immunity defence would be inconsistent with Article III of the Convention, which requires all Contracting States to “recognize arbitral awards as binding and enforce them”.[7]

The Primary Judge noted that India had made a commercial reservation to the Convention, per which it would “apply the Convention only to differences arising out of legal relationships [. . . ] which are considered as commercial under the Law of India.” (“Commercial Reservation”). However, he did not consider this to be relevant to the instant case as enforcement of the Quantum Award was sought in Australia, which had made no such reservation.[8]

The Primary Judge thus rejected India’s claim to jurisdictional immunity, while granting leave to appeal to the Full Court of the Federal Court (“Full Court”).

 

The Full Court Judgement

 India appealed the judgement of the Primary Judge to the Full Court, contending that he erred in rejecting India’s plea on jurisdictional immunity. The Full Court framed two issues for consideration: (1) by ratifying the Convention, did India waive foreign state immunity in respect of enforcement of an award that is generally within the scope of the Convention but excluded by its Commercial Reservation (“Issue 1”), and (2) is the Quantum Award outside the scope of India’s Commercial Reservation? (“Issue 2”).[9]

On Issue 1, India asserted that it had not submitted to the jurisdiction of Australian courts with respect to proceedings for recognition and enforcement of awards that fell outside the scope of its Commercial Reservation. The Applicants submitted that the Commercial Reservation is a unilateral reservation that does not oblige other contracting States to the Convention (“Contracting States”) to limit recognition and enforcement of such awards in the same manner.

In considering these submissions, the Full Court undertook a detailed analysis of the rules set out in the Vienna Convention on the Law of Treaties (“VCLT”) that deal with the legal effects of reservations made by a State while expressing its consent to bound by a treaty. The Court observed that as the Commercial Reservation is a reservation “expressly authorised” by Article I (3) of the Convention, it falls within the terms of Article 20(1) of the VCLT and does not require any subsequent acceptance by other Contracting States. To determine the legal effects of the Commercial Reservation, the Court turned to Article 21 of the VCLT, read with the Guide to Practice on Reservations to Treaties published by the International Law Commission. Based on the foregoing analysis, the Court concluded that “the effect of a reservation is that between the reserving and accepting state (which in the case of the New York Convention is all other states), the reservation modifies the provision of the treaty to the extent of the reservation for each party reciprocally (. . .).”[10] Applying the said understanding, the Full Court opined that obligations under the Convention undertaken towards or by a Contracting State that has made a commercial reservation are limited by such reservation. Both India and Australia thus had no obligation towards each other to enforce awards that do no not pertain to “commercial” relationships under Indian law.[11]

The Full Court then considered whether India’s ratification of the Convention, qualified by its Commercial Reservation, entails a “clear and unmistakable necessary implication” that it has waived its immunity from Australian courts (as per the standard articulated in Spain v. Infrastructure Services). The Court found that no such implication arises as India’s ratification of the Convention subject to the Commercial Reservation is “a sufficiently (un)equivocal expression of India’s intention not to waive foreign State immunity in proceedings enforcing the Convention in respect of non-commercial disputes (. . . ).” [12]

Despite the parties not contesting Issue 2, the Full Court determined the issue for the sake of completeness of legal analysis. Interestingly, given the absence of evidence on what constitutes “commercial” relationships under Indian law, the Full Court approached the question of whether the Quantum Award fell within the scope of the Commercial Reservation from the perspective of Australian law (following case law from the High Court[13]). In doing so, the Court considered Section 11 of the Act, which provides for a “commercial transaction” exception to foreign State immunity. While acknowledging that considerations under Section 11 and those concerning India’s Commercial Reservation are different, the Full Court opined that there is a significant overlap between the two and proceeded to analyse the Quantum Award under Section 11. The Applicants had invoked the exception under Section 11 as a separate ground before the Primary Judge, which he rejected on the ground that the Annulment “was made by the body vested with the highest form of executive policy-making in India, and was stated to be for reasons of public policy” and was not thus not a “commercial transaction”. Reiterating the Primary Judge’s reasoning, the Full Court concluded that the Quantum Award is not an award dealing with differences arising from a “commercial” relationship.[14]

It is interesting to consider if the court’s approach would have been any different if it were answering this question from an Indian law perspective. The position under Indian law on whether awards rendered in investor-State arbitrations (“Investment Awards”) can be considered as pertaining to “commercial” relationships is ambiguous. Of particular relevance are two Delhi High Court judgements, in which the court opined that Investment Awards cannot be considered “commercial”  for the purposes of enforcement under Part II of the Arbitration and Conciliation Act (which implements the Convention in India).[15] Critics of these judgements, on the other hand, have emphasised that there is enough basis in Indian law and policy to suggest that Investment Awards are commercial in nature. Perhaps the strongest argument in this regard is that India’s 2016 Model BIT expressly states that Investment Awards “shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention.”[16]

 

Reflections on the Judgement

The Applicants have filed a special leave to appeal the Full Court judgement (“Judgement”) to the High Court. The reflections shared below are thus subject to a potential reconsideration of the Judgement by the High Court.

Firstly, prevailing uncertainty regarding enforceability of Investment Awards in India (as discussed above) is what has prompted investors such as Devas to seek enforcement of such awards in other jurisdictions. In this regard, the Judgement could render Australia an unfavourable enforcement jurisdiction for Investment awards to which India is a party. This is because India could invoke jurisdictional immunity in all future enforcement proceedings until the ambiguity concerning the commercial nature of Investment Awards under Indian law is resolved (either through legislative action or a Supreme Court ruling).

Secondly, this Judgement may have significant implications for enforcement in Australia of all Investment Awards not rendered under the ICSID Convention and thus subject to enforcement under the Convention (“Convention Awards”). Spain v. Infrastructure Services has settled the position that jurisdictional immunity is not available to a foreign State under Australian law with respect to enforcement of ICSID Convention awards. This Judgement, however, casts a shadow of doubt on the enforceability of Convention Awards in Australia by leaving the door open for other Contracting States that have made a commercial reservation to the Convention to invoke jurisdictional immunity in enforcement proceedings for such awards.

Given its likely implications, it is no surprise that the Judgement has come in for criticism by some commentators[17] who have highlighted the following issues: (1) the Full Court’s approach to commerciality of Investment Awards is inconsistent with that of courts in comparable jurisdictions such as the US and Canada, which have enforced Convention Awards despite these States having made a commercial reservation to the Convention, and (2) the characterisation of the Quantum Award as ‘non-commercial’  is contrary to the wide interpretation of term “commercial” envisaged in the UNCITRAL Model Law[18], which has the force of law in Australia.[19]

All stakeholders will now have to wait and watch how the High Court, if and when it takes up the appeal, deals with the Full Court’s findings.

 

[1] Republic of India v CCDM Holdings, LLC [2025] FCAFC 2 (“Judgement”).

[2] CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited, and Telcom Devas Mauritius Limited v. the Republic of India, PCA Case No. 2013-09, UNCITRAL (“CC/Devas Arbitration”), Award on Jurisdiction and Merits (25 July 2016).

[3] CC/Devas Arbitration, Award on Quantum (13 October 2020).

[4] Jeanne Huang, The Indian Satellite Saga and Retaliation: Recognizing the Supreme Court of India’s Judgment Abroad?, Coonflictoflaws.net, https://conflictoflaws.net/2024/the-indian-satellite-saga-and-retaliation-recognizing-the-supreme-court-of-indias-judgment-abroad/#_edn1.

[5] Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11.

[6] CCDM Holdings, LLC v Republic of India (No 3) [2023] FCA 1266, ¶ 51 (“Primary Judgement”).

[7] Primary Judgement, ¶43.

[8] Primary Judgement, ¶58.

[9]  Judgement, ¶54.

[10] Judgement, ¶67.

[11] Judgement, ¶68.

[12] Judgement, ¶72.

[13] Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54.

[14] Judgement,¶82.

[15] Union of India v. Vodafone Group, 2018 SCC OnLine Del 8842, ¶¶ 90-91; Union of India v. Khaitan Holdings (Mauritius) Limited & Ors, SCC OnLine Del 6755, ¶¶ 29-30.

[16]Model Text for the Indian Bilateral Investment Treaty (2016), Article 27.5, https://dea.gov.in/sites/default/files/ModelBIT_Annex_0.pdf.

[17] Micheal Lee, Check for NYC Reservations: Federal Court of Australia Affirms India’s Sovereign Immunity Against Recognition and Enforcement of Non-ICSID Arbitral Award, Steptoe Clients Alerts (26 March 2025), https://www.steptoe.com/en/news-publications/check-for-nyc-reservations-federal-court-of-australia-affirms-indias-sovereign-immunity-against-recognition-and-enforcement-of-non-icsid-arbitral-award.html?tab=overview.

[18] UNCITRAL Model Law on International Commercial Arbitration (1985),  Article I(1), footnote 2 states as follows: “The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. [. . . ].”

[19] International Arbitration Act 1974, Section 16(1).

The author of this report is Meltem Ece Oba (Koç University, Istanbul). The post is being published simultaneously on Conflictoflaws.net and on the EAPIL blog.

 

 On 20-21 March 2025, a conference on “Characterisation in the Conflict of Laws” was convened at St Hilda’s College, Oxford. Under the auspices of the Institute of European and Comparative Law in the Law Faculty of the University of Oxford, the conference was jointly organised by Dr Johannes Ungerer (University of Oxford and Notre Dame University in England), Dr Caterina Benini (Catholic University of Sacred Heart, Milan) and PD Dr Felix Berner (University of Tübingen). The conference brought together scholars and practitioners from several jurisdictions around the world.

 

The conference’s topic, characterisation, is the process for identifying the nature or category of a particular cause of action (for instance contractual, tortious, proprietary, corporate, matrimonial), so that the correct connecting factor can be employed which then points to the applicable law or to the competent court. Characterisation poses difficulties where the action is domestically unknown or falls in-between two categories and could thus be potentially litigated in different fora or under different laws, leading to different outcomes. Different methods proposed for characterisation make this process even more complex. In this conference, participants explored characterisation from historical, methodological, critical, practical, and further perspectives with the aim to shed light on some of the most pressing and controversial issues of what arguably is the most crucial step for a court when determining its international jurisdiction and the applicable law.

 

Following the opening remarks by the three organisers, the first presentation addressed the history of characterisation. Professor Martin Gebauer (University of Tübingen) explored three main themes: striking parallels in time and content, strong contrasts, and finally the tensions in characterisation. Gebauer initially touched upon the ‘discovery’ of characterisation as ‘a child of the nineties of the 19th century’ in the works of Franz Kahn and Etienne Bartin. This was followed by the examination of the internationalist approaches. This led him to discuss autonomous characterisation and functional comparative law approaches as the ‘third direction’ through the work of Scipione Gemma and the changed views of Franz Kahn. Gebauer highlighted that the doctrinal views in this decade reflected the ideological battles over the foundations of private international law. He further discussed the developments in characterisation in the 20th century, such as the developments in comparative law and Rabel’s approach to characterisation. Finally, Gebauer considered characterisation in transnational and European law and its contribution to the homogenous understanding of conflict-of-laws rules within the EU. In the discussion following his presentation, the challenges of comparative law methodology and the need to consider a range of perspectives on characterisation (instead of a single one) were debated amongst other aspects.

 

The following presentations were dedicated to the process and particular problems of characterisation. The paper given by Professor Andrew Dickinson (University of Oxford) raised the question of “Is there any magic in characterisation?” with a focus on the courts of England and Wales. He provided seven steps of dealing with how the courts must engage with characterisation. Using a metaphor, he compared the attempts of describing the characterisation process to an attempt of describing the elephant in the Indian parable of ‘blind men and an elephant’. In this regard, Dickinson underlined that one can only provide an informative tool kit and cannot describe a full process of characterisation. He emphasised that all parts of a given rule and most importantly its purpose must be taken into account when characterising it. In this regard, he explained that ‘substance’ should be valued higher than ‘form’ and that ‘labels’ should not play a major role. Dickinson considered characterisation as being more of a practical issue from the common law perspective, and a process of interpreting a rule or a particular subset of settings; he thus concluded that there is no ‘magic’ in characterisation. Participants used the subsequent discussion for instance to contrast the Common law position with the Civilian approaches and to question the role of the judge and the parties when characterising a claim.

 

The next presentation was delivered jointly by Associate Professors Brooke Marshall and Roxanna Banu (both University of Oxford) on characterisation’s role in the jurisdictional inquiry in English courts. They began with an overview of the instances where the choice of law questions are raised at the jurisdictional stage in the context of granting permission for service out of the jurisdiction, exploring the relevant gateways in the Practice Direction 6B of the Civil Procedure Rules. Marshall critically examined the UK Supreme Court decision in UniCredit Bank v RusChemAlliance, demonstrating how the choice of law matters affect the international jurisdiction of English courts. Banu, from a more theoretical point of view, then discussed the a priori application of the lex fori to jurisdictional matters and the importance of theorising characterisation to understand the reasons why jurisdiction and substance are to be distinguished. The presentation was followed by a fruitful discussion which, among other issues, highlighted the problematic circular reasoning employed at the intersection of choice of law and jurisdictional characterisation.

 

The last paper of this session was presented by Professor Pietro Franzina (Catholic University of Sacred Heart, Milan) on ‘renvoi de characterisation’, that is, characterisation for the purposes of renvoi. At the beginning, he set the scene with regard to the meaning of renvoi and characterisation as well as the distinction between primary and secondary characterisation. Franzina explained that where the private international law of the forum contemplates the possibility of renvoi, the conflict of laws conceptions of a foreign applicable law should also be appreciated. In that regard, Franzina demonstrated through examples how the ‘second characterisation’ should reflect the taxonomy of the designated legal system (and, in some instances, the taxonomy of the different system specified under the conflict-of-laws rules of the latter system). He explained that characterisation for the purposes of renvoi is not given as much attention today as it used to receive, especially due to the greater weight that substantive policy considerations have progressively gained in private international law. The subsequent discussion addressed concerns over consistency in the interpretation of connecting factors in jurisdictional and applicable law matters.

 

The next session of the conference consisted of four presentations on challenges of characterisation in specific areas. The first speaker, Assistant Professor Joanna Langille (University of Western Ontario), focused on the distinction between substance and procedure. In this regard, Langille critically examined the use of the traditional common law distinction of rights and remedies for characterisation purposes. She took a Kantian rights-based approach to explain that the idea of right and remedy essentially merged or ‘shaded into’ one another. Langille argued for an alternative distinction between substance and procedure based on the nature of private rights. The adjudication process through which that determination is made should be subjected to the lex fori as the law of the community. In that sense, she viewed procedural law as being about publicity or the capacity of the courts to make law for the community as a whole and hence operating on a vertical plane. On the other hand, where the court is faced with a question that relates only to the horizontal relationship and, thereby, the reciprocal rights and duties between the two parties, foreign substantive private law should apply. Accordingly, the ‘provisions that are determinative of the rights of both parties’ were considered as substantive, whilst ‘the machinery of the forum court’ as procedural. She exemplified her views by reference to statutes of limitation. Among the issues raised during the subsequent discussion were the role of procedural law and of the lex fori in light of state sovereignty as well as the transcending boundaries of substance and procedure in instances like limitation statutes.

 

The next paper was delivered by Professor Yip Man (Singapore Management University) on the characterisation of equitable doctrines. While characterisation might have to start from a domestic law understanding, she embraced a functional approach in characterisation and argued for the pursuit of uniformity with an internationalist spirit and therefore against being constrained by domestic law notions. In that regard, she emphasised the importance of understanding the function of equity in arriving at the appropriate category. The conceptual diversity and complexity of equitable doctrines in Common law systems both in conflict of laws and domestic laws were discussed. Yip Man highlighted the objective of identifying the predominant characteristic of a legal institution, which she illustrated by reference to both remedial and institutional features. The relationship between the parties underlying the equitable obligations and remedies were also discussed as possibly being the predominant features to be taken into account. Finally, Yip Man analysed two recent decisions, Xiamen Xinjingdi Group Co v Eton Properties of the Hong Kong Court of Final Appeal and Perry v Esculier of the Singapore Court of Appeal. The discussion addressed the challenge of characterising equitable doctrines in Civilian courts, possible advantages when differentiating between substance and procedure when characterising equitable concepts, and the ‘fusion’ approach.

 

Moving on to the insightful presentations by two academically distinguished practitioners, Dr Alex Critchley (Westwater Advocates, Edinburgh) spoke about the characterisation of contractual arrangements in the context of family law where some of the most challenging questions arise. Critchley focused on two main issues, namely the way family law agreements differ from other contracts (or as to whether they can be characterised as contracts at all) and the extent to which they relate to other fields of law such as company law. In this context, he explained the international framework for contracts in international family law by exploring the EU and HCCH rules. He then exemplified family law agreements and their different forms such as nuptial agreements, care arrangements for children or agreements addressing corporate or property relationships between family members. This led to a discussion among all participants about choice of law rules for nuptial agreements, the characterisation of maintenance agreements, the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations, and case law referenced by Critchley, such as F v M 2021 SLT 1121.

 

Looking at a very different area of law, Dr Thomas Klink (Higher Regional Court of Stuttgart) addressed characterisation in international M&A disputes, where issues arise in judicial practice especially when the purchase agreement did not contain a relevant and valid choice of law clause. In his presentation Klink initially examined the characterisation of purchase agreements both in the form of a ‘share deal’ or – less common – an ‘asset deal’. He hinted at the tricky ramifications if the selling shareholder is a natural person and could be considered to be a consumer for the purposes of Article 6 of the Rome I Regulation. He then moved on to characterisation challenges encountered in the preparation of the transaction and in respect of non-disclosure agreements/letters of intent, access to information, exclusivity, and the issues arising from the termination of negotiations such as break-up fees. Klink also touched upon company law issues such as the transfer of shares. Post-M&A disputes such as fraud cases were also addressed. Looking ahead, he expressed his expectation that the number of M&A disputes in the newly established International Commercial Courts will increase, which was then also discussed further by the conference participants. Other issues in the discussion included the consumer status of investors, the parallels between choice of law and jurisdictional characterisation in M&A disputes, and the latest case-law developments on concurrent claims. This concluded a day full of fruitful debates.

 

The second day of the conference began with a session on what the organisers had termed rethinking characterisation, exploring novel and more critical approaches to characterisation.

 

The first speaker in this session was Professor Jeremy Heymann (University of Lyon III Jean Moulin). Heymann’s presentation was entitled ‘characterisation from a unilateralist perspective’. He outlined the approach of unilateralism in contrast to multilateralism. Heymann argued that, from a methodological point of view, it is necessary to first identify a ‘legal order of reference’ and then to determine if the legal issue at hand and the facts of the case fall under the scope of this ‘legal order of reference’. Whilst indicating that the ‘legal order of reference’ of the judge should be the lex fori in most instances, he also highlighted that the law to be taken into account should correspond to the expectation of the parties. Through this conception of unilateralism Heymann argued that the law applicable to characterisation should be ‘much more the lex causae than lex fori’. In the subsequent discussion, the designation of the ‘legal order of reference’ was debated in addition to the challenges of taking into account the expectations of the parties. Heymann further commented on how some EU Regulations might provide for unilateral rules on certain private international law matters, such as the GDPR and the Air Passenger Regulation.

 

The second presentation in this session was delivered jointly by Philomena Hindermann and Professor Ralf Michaels (both Max Planck Institute for Comparative and International Private Law, Hamburg) with the provocative title ‘Against Characterisation?’. Michaels began the paper with a critique of the current approach to characterisation with reference to the English decision in Macmillan v Bishopsgate Investment Trust. He explained how such a methodology in fact conceals the real essence of legal reasoning behind characterisation. He then touched upon the attempts of the American Conflicts Revolution to overcome characterisation through interest analysis. Whilst acknowledging that overcoming characterisation is not possible, he argued for taking account of the policies behind legal rules in the process of characterisation. In this regard, Michaels criticised a process of characterisation through preliminary categories and argued instead that characterisation should be an ‘end result’. Building on this finding, Hindermann continued with the question as to whether there could be such a thing as ‘post-categorical characterisation’. She also criticised characterisation as reflecting certain presumptions and as omitting the policies and various functions of legal rules. Considering characterisation as an epistemological process she then questioned the need for categories and advocated for embracing a non-exhaustive / post-categorical functional approach. Therefore, instead of reducing characterisation to a pre-determined taxonomy, she argued that categories should be built based on each case by way of looking at the functions of the legal institution at hand. Participants to the discussion engaged with the reasons why the American realist thinking approach might or might not be compelling and also deepened the discussion from an EU perspective. The idea of categories under national laws having an open-ended nature as opposed to close-ended categories was further discussed on the one hand, as well as the concerns of legal uncertainty on the other hand.

 

The last speaker of this session was Professor Veronica Ruiz Abou-Nigm (University of Edinburgh). Her presentation covered characterisation as a tool to manage diversity and hence she focused on an epistemic change of perspectives in characterisation. Her paper started off with an explanation of the creation of a new delict under Scottish substantive law in relation to domestic violence. Furthermore, Ruiz Abou-Nigm considered a possible interplay with the 1980 Child Abduction Convention where under Article 13(1)(b) domestic abuse might constitute a reason to refuse the return of a child. Recognition and enforcement of civil protection orders were also discussed through this lens. As a conclusion Ruiz Abou-Nigm called for an internationalist approach to characterisation that takes into account feminist perspectives as well as the interplay of cultures. Ruiz Abou-Nigm argued that instead of taking the lex fori as a starting point, one should embrace an epistemological and pluralistic approach. In her view, the ‘order of reference’ of the judge in characterising a matter should be much more complex and international than the categories under the lex fori. Participants asked her how this inter-cultural approach should affect the application of the new Scottish law in a cross-border setting and raised the problem that embracing an inter-cultural approach might not appear to be supportive of a feminist normative approach. Participants also suggested ways that might foster pluralistic thinking with a feminist approach and commented on how the Istanbul Convention on Preventing and Combating Violence Against Women and Domestic Violence could be used for characterisation or interpretation.

 

The last session of the conference focused on the interplay of private and public international law. Professor Alex Mills (University College London) spoke about private international law treaty interpretation and characterisation. He started by examining the English common law approach to characterisation in order to draw comparisons between the methodology in the common law regarding the characterisation and the interpretation of international treaties. He explained that, since treaties are implemented through national laws in dualist systems, statutory interpretation is needed in their application whilst principles of international treaty interpretation are also taken into account. Mills argued that international treaty interpretation has commonalities with the common law approaches to characterisation, but that the judge should acknowledge where choice of law rules belong to an international body of law. He used the 2019 Hague Judgments Convention as an example and pointed to its explanatory report which indicates the ‘international spirit’, echoing the English common law approach. In the subsequent discussion, the internationalist interpretation was generally welcomed but its practical implications were questioned. The idea that international treaty interpretation was reflecting the common law approach was challenged by Civilian representatives, though Continental European approaches could also be understood as being too ‘rigid’ from the point of view of the English common law doctrine. Participants also pointed to the process in which the 2005 and 2019 Hague Conventions were drafted and how the consistency in the internationalist approach in both Conventions reflected a common understanding of the drafters.

 

The final paper of the conference was delivered by Professor Marta Pertegás Sender (Maastricht University and the University of Antwerp) discussed how characterisation questions were addressed at the Hague Conference for the purposes of drafting Conventions. Three main examples were given: first, Pertegás Sender explained that drafters increasingly employ provisions that regulate the scope of a Convention. As a second example of instances where the HCCH takes into account characterisation matters, she demonstrated how rather broad terms are preferred in the drafting of Conventions’ provisions that would establish a common ground for contracting states. Finally, she pointed out the fact that there does not exist a lex fori for the drafters of such international Conventions. Sender also highlighted that especially in the last two decades all of the Conventions emphasise the autonomous interpretation and the promotion of uniformity in their application. The preference for broad terms was challenged in the subsequent discussion as being too vague, especially in the absence of a special court system for the interpretation of HCCH Conventions. Interestingly, the consequences of ‘negative characterisation’ were discussed in relation to the aspects which are kept outside of the scope of the HCCH Conventions, in contrast to a true or ‘positive characterisation’ of what is within the scope of a particular Convention.

 

Concluding the conference proceedings, the three organisers expressed their gratitude to all speakers for their papers and to all attendees for their fruitful contributions to the discussion.

The news about the Supreme People’s Court of the People’s Republic of China issuing the Notice on Procedural Matters Related to Civil Cases Involving Foreign State Immunity has been previously reported on this blog.

Following this significant development, Professor Susan Finder, a distinguished Scholar in Residence at Peking University School of Transnational Law, has kindly shared her insights on the matter. Her post was originally published on the Supreme People’s Court Monitor. Given its valuable contribution, we decided to repost it here.

Our sincerest thanks to Professor Susan Finder for her thoughtful analysis and generosity in sharing her thoughts.

 

At the end of March, the Supreme People’s Court (SPC) issued procedures to implement China’s Foreign State Immunity Law (the Law) in the form of a  “Notice on Procedural Matters in Civil Cases Involving Foreign State Immunity” (– Guanyu she waiguo guojia huomian minshi anjian xiangguan chengxu shixiang de tongzhi) (Notice). That law has been in force since the beginning of 2024.  Consistent with its practice, the SPC published a press release along with the text of the notice.  The press release, in the form of the head of the SPC’s #4 Civil Division’s answers to reporters’ questions, provides useful background. I surmise that the press release is an edited version of materials submitted to SPC leadership for approval (as described in my 2024 article). I had anticipated that the SPC would do so, after additional research and soliciting comments from both inside and outside the court system but had guessed that a notice would be issued in 2024.  Although the notice does not so state, I surmise that foreign state immunity cases will be considered “important and difficult” and therefore subject to special internal procedures.  See Professor William Dodge’s article for comparisons to US law and comments on the Law.  Professor Huo Zhengxin provides another perspective. This post summarizes the major points of the notice, with my comments.

1.  The general rule is that foreign governments and their property have immunity, with exceptions as set out in the Foreign State Immunity Law.  The press release usefully makes clear that Article 1 of the Notice requires that a plaintiff filing a civil lawsuits against a foreign state as a defendant or third party, must list in the complaint the specific provisions of the Law the lawsuit is based on, and explain which exception it falls into for the court to review. The court also has the responsibility to clarify (– Shiming) the complaint in the process of receiving the complaint. “Clarify/clarification” here is a term in Chinese Civil Procedure Law, analogous to a judge’s right in other civil legal systems–the “right to ask, suggest to or require the parties to clarify or supplement their ambiguous, insufficient or improper claims, submissions or evidence.” If the plaintiff still fails to set out the legal basis after the court’s clarifications,  the plaintiff should be deemed to not have met the court’s requirements, and the court should reject the case.
2. For those first instance civil cases that fall into the exceptions to the Foreign State Immunity Law, certain intermediate courts in provincial capitals (or their equivalent in directly administered cities, etc) have jurisdiction, as well as financial and intellectual property courts.  The notice limits the number of courts that can hear foreign state immunity cases (as I had surmised), through centralizing jurisdiction ( – Jizhong guanxia), but permits financial courts and intellectual courts to hear them and requires other courts to transfer cases that they have accepted to ones with jurisdiction.
3. Article 3 concerns service of process, which must be according to relevant treaties or conventions, or other means not prohibited by the law of the foreign country, or alternatively by diplomatic note (via the Ministry of Foreign Affairs) (Article 17 of the Law).  Service by announcement is prohibited.
4. The court must serve the complaint and other documents with a translation accompanying the original Chinese.  The foreign government has three months to file a defense. The court has the discretion to permit an extension of time.
5.  If the foreign state objects to the jurisdiction of the Chinese court, the court shall engage in a comprehensive review ex officio and may hear the views of the parties.  Participation in an objection procedure is not deemed acceptance of Chinese jurisdiction (also Article 6 of the Law).  If the foreign state does not respond or participate in the Chinese proceedings, the Chinese court must proactively review whether the foreign state has immunity and can hear the views of the parties.  (Article 18 of the Law). The press release provides guidance to lower courts on the review:  first, the people’s court should examine whether the reasons put forward by the foreign country for enjoying jurisdictional immunity are valid; second, if the reasons put forward by the foreign country are not valid, the people’s court should also conduct a comprehensive review on its own initiative, that is, in addition to the reasons, examine whether the foreign country really enjoys jurisdictional immunity and does not fall into the exception to jurisdictional immunity.
6.  If a court requires a certificate  on factual issues of state behavior from the Ministry of Foreign Affairs (further to Article 19 of the Law), it shall report to the Supreme People’s Court level by level (– Zhuji bao)  to consult and request ( – Shangqing) the Ministry of Foreign Affairs to issue a certificate.  This one sentence conveys the bureaucratic operation of the Chinese court system and the nuances of inter-bureaucracy relations.

An attachment to the notice lists the authorized courts. The SPC has approved some of these courts to establish international commercial tribunals (courts).  It is likely that those tribunals will hear sovereign immunity cases:

1. Beijing Fourth Intermediate People’s Court (with an international commercial tribunal)
2. Tianjin No.3 Intermediate People’s Court
3. Shijiazhuang Intermediate People’s Court of Hebei Province
4. Taiyuan Intermediate People’s Court of Shanxi Province
5. Hohhot Intermediate People’s Court of Inner Mongolia Autonomous Region
6. Shenyang Intermediate People’s Court, Liaoning Province
7. Changchun Intermediate People’s Court of Jilin Province
8. Harbin Intermediate People’s Court of Heilongjiang Province
9. Shanghai No.1 Intermediate People’s Court (with an international commercial tribunal)
10. Nanjing Intermediate People’s Court of Jiangsu Province (with an international commercial tribunal)
11. Hangzhou Intermediate People’s Court, Zhejiang Province (with an international commercial tribunal)
12. Hefei Intermediate People’s Court, Anhui Province
13. Fuzhou Intermediate People’s Court of Fujian Province
14. Nanchang Intermediate People’s Court of Jiangxi Province
15. Jinan Intermediate People’s Court, Shandong Province
16. Zhengzhou Intermediate People’s Court of Henan Province
17. Wuhan Intermediate People’s Court, Hubei Province
18. Changsha Intermediate People’s Court of Hunan Province
19. Guangzhou Intermediate People’s Court, Guangdong Province
20. Guangxi Zhuang Autonomous Region Nanning Intermediate People’s Court
21. Hainan Provincial First Intermediate People’s Court
22. Chongqing First Intermediate People’s Court
23. Chengdu Intermediate People’s Court of Sichuan Province
24. Guiyang Intermediate People’s Court, Guizhou Province
25. Kunming Intermediate People’s Court, Yunnan Province
26. Lhasa Intermediate People’s Court of Tibet Autonomous Region
27. Xi’an Intermediate People’s Court of Shaanxi Province
28. Lanzhou Intermediate People’s Court of Gansu Province
29. Xining Intermediate People’s Court of Qinghai Province
30. Yinchuan Intermediate People’s Court of Ningxia Hui Autonomous Region
31. Urumqi Intermediate People’s Court, Xinjiang Uygur Autonomous Region

 

Registration is now open for the Summer School ‘Consumer and Market Law in the European Circular Economy’ which will be held from 9 to 18 July 2025: 9-11 July online and 14-18 July in presence at the University of Udine, Italy.

The Summer School is organised by the University of Udine, in cooperation with a consortium of European universities, including University of Essex, De Montfort University of Leicester, University of West Timisoara, East Anglia University, University of Rijeka, University of Belgrade and University of Szeged, within the framework of the Jean Monnet Module CoME CircLE.

The 2025 Summer School will consist of 40 hours of lectures, a workshop and a moot court. Attendees will be offered a comprehensive training on the legal discipline of consumer protection and market regulation in the EU Law, with a particular reference to circular economy, taking into account the following relevant topics: Consumer protection and empowerment issues; Private international law issues; Dispute resolution and redress issues; and Market regulation.

Eligible are undergraduate students, graduatestudents and PhD students, studing Law, Economics, Political Science or International Relations. Application deadline is 31 May 2025, 12.00 pm GMT. Those who are interested in applying, need to fill in the application form and submit it to ip.europeanlaw.uniud@gmail.com.

For details see the programme and the call for application.

HCCH Monthly Update: March 2025

 

Membership

On 5 March 2025, Rwanda deposited its instrument of acceptance of the Statute, becoming the 92nd Member of the HCCH. On the same day, Guatemala applied to become a Member of the HCCH. More information is available here.

 

Conventions & Instruments

On 1 March 2025, the 2005 Choice of Court Convention entered into force for North Macedonia. At present, 37 States and the European Union are bound by the Convention. More information is available here.

On 5 March 2025, Costa Rica signed the 2005 Choice of Court Convention. The Convention will enter into force for Costa Rica?only after it deposits an instrument of ratification pursuant to Art. 31(2) of the Convention. On the same day, Colombia signed and ratified the 2007 Child Support Convention, which will enter into force for Colombia on 1 July 2025. More information is available here.

On 11 March 2025, the Republic of Moldova acceded to the 1996 Child Protection Convention. With this accession, the Convention now has 57 Contracting Parties. It will enter into force for the Republic of Moldova on 1 January 2026. More information is available here.

On 13 March 2025, Bahrain acceded to the 1970 Evidence and 2005 Choice of Court Conventions. The 1970 Evidence Convention, which currently has 67 Contracting Parties, will enter into force for Bahrain on 12 May 2025. As for the 2005 Choice of Court Convention, it currently binds 37 States and the European Union and will enter into force for Bahrain on 1 July 2025. More information is available here.

On 23 March 2025, the 2007 Child Support Convention entered into force for the Dominican Republic. At present, 53 States and the European Union are bound by the 2007 Child Support Convention. More information is available here.

 

Meetings & Events

From 4  to 7  March 2025, the Council on General Affairs and Policy (CGAP) of the HCCH met in The Hague, with over 490 participants joining both in person and online. CGAP mandated the establishment of several new Experts’ Groups (EGs) and Working Groups (WGs) and mandated the continuation of the work of several ongoing EGs and WGs. It also approved the establishment of a Regional Office for Africa, to be hosted by Morocco in Rabat. More information is available here.

From 11 to 13 March 2025, the Regional Workshop on Intercountry Adoption: Sharing Experiences on the Effective Implementation of the 1993 Adoption Convention in Asia was held in Manila (Philippines). More information is available here.

On 19 March 2025, the sixth meeting of the Working Group established to complete the Country Profile and work on the draft Cooperation Request Recommended Model Form for the 1996 Child Protection Convention was held online, hosted by the Permanent Bureau in The Hague. More information is available here.

From 24 to 26 March 2025, the Experts’ Group (EG) on Central Bank Digital Currencies (CBDCs) held its third working meeting. Pursuant to its mandate, the EG made further progress on the study of the applicable law and jurisdiction issues raised by the cross-border use and transfers of CBDCs. More information is available here.

 

Publications

On 4 March 2025, the Permanent Bureau announced the publication of the HCCH 2024 Annual Report. More information is available here.

 

Vacancies

Applications are now open for three- to six-month legal internships for the period from July to December 2025. The deadline for the submission of applications is 25 April 2025. More information is available here.

Applications are now open for a part-time, remote Communications and Outreach Internship, preferably starting in July 2025. The deadline for the submission of applications is 27 April 2025. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

(This is written by Xiaoxuan Gu, a PhD student in School of Law, University of Macau)

The Foreign State Immunity Law of the People’s Republic of China (CFSIL) took effect on January 1, 2024.[i] To ensure its proper implementation and guide courts nationwide in lawfully and efficiently adjudicating civil cases involving foreign state immunity, the Supreme People’s Court (SPC) formulated supporting procedural rules. On March 26, 2025, the SPC issued the Notice on Procedural Matters Related to Civil Cases Involving Foreign State Immunity (hereinafter the “Notice”), which provides definitive guidance to courts at all levels in handling such novel foreign-related cases.

The Notice stipulates provisions on key procedural matters, including case acceptance criteria, centralized jurisdiction mechanisms, service of process rules, jurisdictional immunity review procedures, and protocols for obtaining evidentiary certifications from the Ministry of Foreign Affairs.

Article 3 of the FSIL explicitly stipulates that foreign states and their property enjoy jurisdictional immunity in Chinese courts unless otherwise provided by the Law.[ii] Therefore, Article 1 of the Notice stipulates that when a plaintiff initiates a civil lawsuit naming a foreign state as a defendant or third party, the plaintiff shall explicitly cite specific provisions of the CFSIL and precisely articulate applicable exceptions to immunity in the petition for judicial review. Petitions that fail to specify the legal basis and remain unclear after judicial clarification by the court shall not be accepted.

At the jurisdictional level, given that civil cases involving foreign state immunity constitute significant new-type foreign-related cases, it is necessary to implement a centralized jurisdiction mechanism to enhance the professional adjudication of such cases. Therefore, Article 2 of the Notice establishes a dual-track system combining centralized jurisdiction and specialized adjudication, which is that the first-instance civil cases involving foreign states as defendants or third parties shall fall under the jurisdiction of intermediate people’s courts with foreign-related civil and commercial jurisdiction at the seats of provincial-level governments (autonomous regions, municipalities directly under the central government) while cases statutorily assigned to specialized courts (maritime, financial, or intellectual property courts) shall remain with such courts due to their domain-specific expertise, notwithstanding foreign state involvement. Where multiple intermediate courts exist in municipalities such as Beijing and Shanghai, the Annex to the Notice explicitly enumerates intermediate courts with centralized jurisdiction. Any other court that has accepted such cases shall issue rulings to transfer them to designated centralized jurisdiction courts in accordance with the Notice.

Articles 3 and 4 of the Notice establish special rules for the service of judicial documents in foreign state immunity cases. Courts shall not employ service by public notice when serving summons or other litigation documents to foreign states, but shall use methods prescribed by international treaties concluded or jointly acceded to by China and the relevant state, or other methods accepted by that state and not prohibited under Chinese law (with no prescribed order of application). Where such methods prove ineffective, courts may effectuate service through diplomatic channels via the Ministry of Foreign Affairs upon approval by the SPC through reporting. Documents requiring service shall include copies of translation in languages specified by applicable international treaties between China and the relevant state; in the absence of such treaties, translations shall be provided in the official language of the foreign state. When serving copies of petitions to foreign states, courts shall concurrently deliver notices of response and notices of evidence submission, informing the recipient to file a statement of defense within three months from the date of receipt. If a foreign country applies for an extension, it shall be examined by the court accepting the case.

Articles 5 and 6 of the Notice prescribe the procedures for courts to review whether foreign states are entitled to jurisdictional immunity. Where a foreign state raises a jurisdictional objection asserting immunity during the jurisdictional period, the court shall conduct a comprehensive review of the immunity claim in accordance with the CFSIL. Even if a foreign state fails to raise such objection or appear in proceedings during the defense period, the court shall conduct active review sua sponte under the aforesaid provisions. The Notice further clarifies that a foreign state’s participation in jurisdictional objection proceedings and presentation of arguments shall not constitute acceptance of jurisdiction. This provision aligns with the legislative intent of CFSIL Article 6(1), which stipulates that a foreign state’s response “solely to assert immunity” shall not be deemed jurisdictional acceptance, while establishing institutional safeguards for foreign states to actively participate in inquiries and evidentiary submissions during objection proceedings, thereby ensuring their procedural rights.[iii]

Article 7 of the Notice stipulates that where a people’s court requires the Ministry of Foreign Affairs to issue evidentiary certifications concerning factual matters related to acts of state in the course of adjudicating civil cases involving foreign state immunity, the court shall, pursuant to Article 19 of the CFSIL submit a request through hierarchical reporting system to the Supreme People’s Court for coordination with the Ministry to obtain such certifications.[iv]

Article 8 of the Notice, as the final provision, specifies that foreign states becoming defendants or third parties through procedural amendments such as party joinder or counterclaims shall be subject to this Notice, while specifically establishing a supplementary mechanism that requires courts at all levels to promptly report issues identified during implementation to the SPC.

[i] See the Law of the People’s Republic of China on Foreign State Immunity at http://en.moj.gov.cn/2023-12/15/c_948359.htm (last visit on March 29, 2025) [hereinafter CFSIL].

[ii] CFSIL Art.3, “Unless otherwise provided by this Law, a foreign State and its property enjoy immunity from the jurisdiction of the courts of the People’s Republic of China.”

[iii] CFSIL Art.6(1),” A foreign State shall not be considered as having submitted to the jurisdiction of the courts of the People’s Republic of China if: 1. it makes a defense for the sole purpose of claiming immunity…”

[iv] CFSIL Art.19, “The courts of the People’s Republic of China shall accept the certifying documents issued by the Ministry of Foreign Affairs of the People’s Republic of China on the following questions of fact concerning acts of State: 1. whether the State involved in a case constitutes a foreign sovereign State as defined in sub-paragraph 1of Article 2 of this Law; 2. whether and when the service of the diplomatic note specified in Article 17 of this Law is effected: and 3. other questions of fact concerning acts of State.

The Ministry of Foreign Affairs of the People’s Republic of China may provide an opinion to the courts of the People’s Republic of China on issues concerning major national interests such as foreign affairs other than those mentioned in the preceding paragraph.”

Annual conference

The Annual Conference of the American Association of Private International Law (ASADIP) will take place on 7-9 August 2025 in Rio de Janeiro (Brazil). More information will be available soon.

Moot

ASADIP has its own moot! ASADIP’s moot is free of charge and will be held in Spanish and Portuguese. There is a written and an oral part. Only the 4 highest-scoring teams will participate in the oral rounds, which will take place on 6 August 2025. A few deadlines to bear in mind are:

• Requests for clarification regarding the case must be sent before 23:59 horas (Río de Janeiro time) on 14 April 2025
• Information regarding clarifications will be published on 18 April 2025
• Deadline for team registration is 2 May 2025
• Memorials must be submitted before 23:59 (Río de Janeiro time) on 23 May 2025

The rules of the Moot are available here (including a declaration on the use of AI). The case “Mejía vs. Larrea” is contained in Annex 4.

New Board

A new ASADIP Board was appointed for the period 2024-2027 and is composed of the following officials:

• President: Verónica Ruiz Abou-Nigm (Uruguay).
• Vice-president international relations: Marcos Dotta Salgueiro (Uruguay)
• Vice-president academic matters: Jorge Oviedo Albán (Colombia)
• Vice-president communications and publications: Juan Ignacio Stampalija (Argentina)
• Vice-president financial matters: Felicita Argaña (Paraguay)

Other officials who have been appointed are:

Deputy Vice-presidents, Secretary General (María Mercedes Albornoz (México)) and its Deputy, and vocals. The full names are available here. Many congratulations to all.