ZVglRWiss – Zeitschrift für Vergleichende Rechtswissenschaft 3/2025
A new issue of ZVglRWiss – Zeitschrift für Vergleichende Rechtswissenschaft is now available and includes contributions on EU private law, comparative law, private international law, and individual European private law regimes.
The full table of content can be accessed here.
The new issue 3/2025 includes:
Jürgen Basedow’s Contribution to Comparative Law Methodology and Its Future Role
Katharina Boele-Woelki reflects Basedow’s contributions to comparative law and its future role, with a focus on his views on the methodological principles of comparative legal research. In the wider ongoing debate on methodology in comparative law, Basedow provides practical, concrete arguments. Key discussions include functional versus cultural approaches, and micro- versus macro-comparative research.
Der kollektive Prozessvergleich aus rechtsvergleichender Perspektive
Karl Wörle discusses the relevance of elaborate procedural mechanisms to protect the interests of represented consumers. The US class action with its strong tradition of private dispute resolution would offer valuable impulses, which have been strongly adopted in the Netherlands. The prolific international experience should be capitalized on for Germany and Austria – considering the peculiarities of collective redress procedures and national legal cultures – to derive impulses for future legislative policy.
Lawsuits as Weapons? The EU’s Anti-Slapp Directive Strikes Back
Madeleine Petersen Weiner investigates and discusses the EU’s Anti-Slapp provisions and compares the European Directive with the U.S. Anti-Slapp Legislation. Having originated in the U.S., SLAPPs (Strategic Lawsuits Against Public Participation) now increasingly also occur in the EU. SLAPPs are considered abusive lawsuits as plaintiffs use the civil court system to silence opponents. Due to their threat to public participation – and ultimately to protect and foster democratic debate – the EU has enacted the so-called Anti-SLAPP Directive.
Unechte Inlandsfälle unter der Brüssel Ia-VO
Salih Okur investigates the CJEU’s decision in Inkreal and in FTI. In Inkreal, the CJEU recently held that an international element in the sense of the Brussels Ia Regulation can be established by a jurisdiction agreement between parties domiciled in the same Member State in favour of another Member State. Not a year later, in FTI, the CJEU held that the international element could also be established by the foreign destination of a package travel arrangement between parties domiciled in the same Member State. This paper proposes to understand the “international element” as an “international conflict of jurisdiction”. Against this standard, the CJEU’s decision in Inkreal is convincing while the opinion on FTI is not.
As has become tradition, the European Association of Private International Law (EAPIL) will be hosting a Winter School in Como, from 2 to 6 February 2026. The general topic of the upcoming edition is Values in Private International Law.
The teaching staff will consist of Laura Carpaneto (University of Genoa), Javier Carrascosa González (University of Murcia), Maria Asunción Cebrian Salvat (University of Murcia), Gilles Cuniberti (EAPIL President, University of Luxembourg), Sara De Vido (Ca’ Foscari University of Venice), Stefano Dominelli (University of Genova), Cristina González Beilfuss (University of Barcelona), Thomas Kadner Graziano (University of Geneva), Eva Maria Kieninger (University of Würzburg), Silvia Marino (University of Insubria and coordinator of the Winter School), Johan Meeusen (University of Antwerp), Nadia Rusinova (The Hague University, Attorney at law), Veronica Ruiz Abou-Nigm (University of Edinburgh), Erik Sinander (Stockholm University), Sara Tonolo (University of Padua), Geert van Calster (KU Leuven), Hans van Loon (HCCH Former Secretary General), and Anna Wysocka-Bar (Jagiellonian University in Kraków).
The University of Insubria will host the 2026 edition, as it did in 2024 and 2025 (see here and here), in cooperation with University of Murcia and the Jagiellonian University in Kraków.
Those interested in attending the Winter School must apply by 20 January 2026 by completing the online form available here.
More information is available here.
The Japan Commercial Arbitration Association (JCAA), one of the oldest international arbitration institutions in the world founded in 1950, has published the 6th Volume of its annual journal on commercial arbitration: Japan Commercial Arbitration Journal.
The journal features articles on international commercial arbitration, mediation, and litigation related to Japan. These articles are authored by prominent scholars and experienced practitioners who are well-versed in the resolution and prevention of international commercial disputes.
The Japan Commercial Arbitration Journal is particularly valuable for non-Japanese readers, including foreign researchers and practitioners, as it provides insights into Japan’s approach to international dispute resolution. By offering comprehensive analysis and updates on arbitration, mediation and litigation practices in Japan, the journal helps bridge the knowledge gap for those working in international commercial law. Access to this information is essential for professionals seeking to understand the nuances of Japanese legal procedures and effectively engage with Japan in cross-border commercial matters.
The new volume features the following articles:
Shinji Ogawa
JCAA in Action: Recent Developments and Its Global Engagement
Kenya Suzuki
Management of Arbitration-Related Cases in the Tokyo District Court (Business Court)
Fumiyasu Miyazaki, Chloé Terraube, Lederer Nadine, Itai Apter, Jinah Park, Carlos Esplugues
Evolving Landscape Surrounding International Arbitration and Mediation ? Comparative Approach ?
Luke Nottage
The Prospects and Challenges for International Commercial Arbitration
Hiroyuki Tezuka
Impact of the Amendments to the Arbitration Act in 2023 and the Enactment of the Act to Implement the Singapore Convention on Mediation on Practice
Kazuhiro Kobayashi
Case Study: Petition for a Ruling on Arbitral Tribunal Jurisdiction under Article 23, Paragraph 5 of the Arbitration Act of Japan
Miriam Rose Ivan L. Pereira, Mami Kadono
Unlocking the Potential of Third-Party Funding in Arbitration in Japan ?Legal Landscape, Practical Considerations, and Arbitral Rules?
Colin Trehearne, Daniel Allen
“Reasonable” Costs in Japan-Seated Arbitrations in the light of Macroeconomic Trends
Takayuki Matsuo, Yui Takahashi
Generative AI and International Arbitration
Shunsuke Domon, Ryan Leon, Riko Ishimaru
Recent Discussions on the Scope of the Parties to Arbitration Agreements
Approaches toward the “Group of Companies” Doctrine in Various Jurisdictions
Shinichiro Abe
When Arbitration and Insolvency Intersect: Developments from Common Law Jurisdictions and Key Takeaways for Japan
Peter Harris, Owain Cooke
Filling the Void – Issues That Arise When an Arbitrator Dies
Yoshie Midorikawa
The Transformation of Dispute Resolution in Japan: Group Claims by Japanese Investors in Investment Treaty Arbitration
Naoki Idei
The Japan International Dispute Resolution Center – Its Achievements and Challenges – Its Achievements and Challenges –
Masafumi Kodama, Aoi Inoue
Know-how regarding the logistics of international arbitration hearings
Satoshi Kawai
ODR Demonstration Project conducted by Japan Federation of Bar Associations (“JFBA”)
Haruo Okada
Japan’s Potential in International Mediation and Japan’s Role in Global Dissemination and Promotion thereof
All volumes can also be freely consulted and downloaded here.
Guest post by Gustavo Ferraz de Campos Monaco, Full Professor of Private Internacional Law – University of São Paulo
In Brazilian law, the regulation of conflicts of laws is still based on a legislation from 1942, during a dictatorial regime, which explains its inspiration from the Italian fascist regime. The values prevailing in Brazilian society back then were quite different from those we hold today, especially in matters concerning family relationships. At that time, the family unit was viewed as having a single domicile, and questions related to the definition of parenthood were unthinkable outside traditional presumptions.
On at least two occasions over the past 83 years, attempts to draft new regulations were undertaken by leading figures in the field – Haroldo Valladão, Jacob Dolinger, and João Grandino Rodas – but both initiatives failed during the process, without the Plenary of the Legislative Houses having expressed an opinion on the merits of the projects.
In a context like this, embarking on a new attempt could easily seem discouraging from the start. However, the Secretariat for Institutional Relations, through the Council for Sustainable Economic and Social Development, linked to the Presidency of the Republic, decided in December 2024 to appoint a large commission composed of representatives from the Executive, the Judiciary, the Public Prosecutor’s Office, public and private legal professions, and the Academy. Through its Drafting Committee, this commission was entrusted with the task of preparing a new proposal.
After two public hearings, and the collection of around one hundred suggestions for improving the proposed articles, the Preliminary Draft, prepared by the appointed general rapporteurs, is now ready for analysis by the Executive Branch, which is responsible for transforming it into a Project to be submitted to the Legislative.
The proposal aims to address Private International Law in its essence, covering procedural and conflicts of laws issues. Regarding procedural matters, the Committee chose to make only minimal changes, since these provisions are already contained in the Code of Civil Procedure, enacted by Congress in 2015 and in force since 2016, less than a decade ago. In this regard, much of the proposed legislation refers back to the 2015 Code.
It is, therefore, in the field of conflicts of laws that the proposed amendments are truly innovative. With a focus on legal certainty, the text clarifies the function and scope of the main institutions of Private International Law, while updating the selected choice-of-law elements and connecting factors. It also strengthens the principle of party autonomy, giving individuals and entities greater freedom to determine the applicable law in contractual, family, and inheritance matters.
As the saying goes” self-praise is no recommendation”. Thus, the reader may wish to take any enthusiasm in this assessment with a grain of salt, as I had the honor of serving on the Drafting Committee and sharing the role of General Rapporteur with Professor Carmen Tiburcio. Still, I am convinced that one of the project’s greatest merits, should it become law, will be to bring Brazil, long anchored in 19th-century values, decisively into the 21st century. It will ensure the inclusion of Brazil’s many private actors, both in the global economic arena and within the complex web of transnational relationships, on equal terms and with wide autonomy.
As to the contents of the draft general law, there are three main chapters (after introductory and final provisions), dealing with jurisdiction and evidence, applicable law, and international cooperation in civil and commercial matters.
The longer Chapter (III) deals with conflict of laws. It starts by addressing general questions such as characterization or public policy, also adding a rule invested rights and a general escape clause. Then, special conflicts rules are to be found namely on personal and family law, including maintenance and successions, as well as rights in rem, intellectual property, and companies. Contracts are dealt with in several rules, where – unlike in the previous law, currently in force – it is made clear that choice of law by the parties is accepted, “except in cases of abuse”. Special contracts, such as the ones concluded with consumers and workers, benefit from rules favorable to the weaker party.
Readers may find below the full content of the draft (in Portuguese).
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PROJETO DE LEI
Dispõe sobre as relações e as situações jurídicas com elementos estrangeiros.
O CONGRESSO NACIONAL decreta:
CAPÍTULO I
DO ÂMBITO DE INCIDÊNCIA
Objeto e âmbito de aplicação
Art. 1º Esta Lei dispõe sobre as relações e as situações jurídicas com elementos estrangeiros.
Prevalência dos tratados
Art. 2º As relações e as situações jurídicas que apresentem vínculos com mais de um ordenamento jurídico serão regidas pelo disposto nesta Lei e pelas demais normas de direito internacional privado de fonte nacional, observada a prevalência das disposições contidas em tratados de que a República Federativa do Brasil seja parte.
Parágrafo único. Para fins do disposto no caput, as autoridades brasileiras competentes poderão considerar, como meio de sua interpretação e integração, instrumentos normativos não vinculantes, como princípios compilados ou guias de boas práticas, elaborados por organismos internacionais.
CAPÍTULO II
DA JURISDIÇÃO E DA PROVA EM MATÉRIA INTERNACIONAL
Limites da jurisdição
Art. 3º A autoridade judiciária brasileira terá jurisdição nas hipóteses previstas na lei processual e nos tratados de que a República Federativa do Brasil seja parte.
I – a situação tenha conexão suficiente com a jurisdição brasileira; e
II – a propositura ou a condução da demanda perante autoridade estrangeira com a qual possua vínculos estreitos revele-se impossível.
Escolha de jurisdição
Art. 4º A escolha inequívoca de jurisdição nacional ou estrangeira em contratos internacionais não dependerá de vinculação prévia com a jurisdição eleita, nem exigirá a indicação das razões que a justifiquem.
Produção de provas
Art. 5º A forma de produção de provas, judiciais ou extrajudiciais, observará o direito do foro responsável por sua colheita.
I – o documento for produzido por pessoa beneficiária de assistência judiciária gratuita; e
II – a demora na apresentação da versão juramentada comprometer a efetividade da prestação jurisdicional.
CAPÍTULO III
DA DETERMINAÇÃO DO DIREITO APLICÁVEL
Seção I
Dos princípios e da aplicação do direito estrangeiro
Qualificação
Art. 6º A qualificação destinada à determinação do direito aplicável será feita de acordo com o ordenamento jurídico brasileiro.
Parágrafo único. Estabelecido o direito aplicável, este determinará a natureza jurídica da relação ou situação jurídica para fins de aplicação das normas aos fatos.
Questões prévias e questões incidentais
Art. 7º As questões prévias e as questões incidentais serão reguladas pelo direito aplicável a cada uma delas, observadas as normas de direito internacional privado brasileiro.
Reenvio
Art. 8º Quando o direito internacional privado brasileiro determinar a aplicação do direito estrangeiro, será considerado apenas o direito material estrangeiro, exceto se as partes determinarem em sentido contrário, expressamente, por escrito.
Fraude à lei
Art. 9º Para fins de aplicação das regras de conflito, são ineficazes as situações de fato ou de direito simuladas com o intuito de evitar a aplicação do direito que seria aplicável caso não tivesse havido a simulação.
Instituição desconhecida
Art. 10. Caso o direito estrangeiro indicado pelas regras de direito internacional privado brasileiro contiver instituição que não encontre correspondência direta no direito brasileiro, a autoridade judiciária, ainda assim, aplicará o direito estrangeiro, desde que sua incidência não contrarie a ordem pública internacional brasileira.
Ordem pública
Art. 11. As leis, os atos públicos e os privados, e as decisões judiciais ou extrajudiciais de outro Estado não terão eficácia na República Federativa do Brasil quando sua incidência produzir resultados potencialmente contrários à ordem pública internacional brasileira.
Parágrafo único. Será considerada contrária à ordem pública internacional brasileira, sem prejuízo de outras situações assemelhadas, a norma estrangeira que importe violação grave a princípios fundamentais consagrados pela Constituição ou por tratados internacionais de direitos humanos ratificados pela República Federativa do Brasil, especialmente em situações de discriminação baseada em raça, gênero, etnia, orientação sexual, nacionalidade, deficiência ou pertencimento a povos e comunidades tradicionais.
Direitos adquiridos em outras ordens jurídicas
Art. 12. Os direitos adquiridos no exterior em conformidade com direito estrangeiro terão eficácia na República Federativa do Brasil, exceto se produzirem resultado gravemente contrário à ordem pública internacional brasileira.
Aplicação do direito estrangeiro
Art. 13. O direito estrangeiro indicado pelo direito internacional privado brasileiro será aplicado de ofício pelas autoridades judiciais ou extrajudiciais brasileiras.
Meio de prova do direito estrangeiro
Art. 14. A prova ou a contraprova do teor, da vigência e do sentido do direito estrangeiro será feita por qualquer meio idôneo, preferencialmente por mecanismos públicos oficiais disponibilizados pelo Estado de cujo direito se trata.
Parágrafo único. Se o Estado estrangeiro não dispuser de mecanismos públicos oficiais para a comprovação do teor, da vigência e do sentido da norma a ser aplicada, a prova poderá ser feita pela juntada de opinião legal firmada por advogado habilitado naquele Estado.
Ordenamento jurídico plurilegislativo
Art. 15. Caso o direito internacional privado brasileiro determine a incidência de ordenamento jurídico plurilegislativo, serão observadas as disposições estabelecidas pelo direito desse Estado quanto à definição da legislação aplicável.
Parágrafo único. Se não houver, no ordenamento jurídico do Estado a que se refere o caput, disposição quanto à definição da legislação aplicável, o juiz brasileiro deverá aplicar aquela que possuir conexão mais estreita com o caso concreto.
Cláusula de exceção
Art. 16. Em situações excepcionais, o direito indicado por esta Lei não será aplicável se, considerado o conjunto das circunstâncias, for evidente que o caso concreto possui conexão frágil com esse direito e manifestamente mais estreita com o direito de outro Estado.
Parágrafo único. O disposto no caput não se aplica na hipótese de o direito a ser aplicado ter sido indicado pelas partes.
Seção II
Das regras de conflito
Estatuto pessoal
Art. 17. A capacidade e os direitos da personalidade serão regidos pelo direito do domicílio da pessoa física.
Relações familiares
Art. 18. As relações familiares serão regidas pelo direito do domicílio comum dos membros da família.
Casamento
Art. 19. A forma, a existência e a validade do casamento serão regidas pelo direito do local em que for celebrado.
Regime matrimonial de bens
Art. 20. O regime de bens entre os cônjuges será determinado pelo regime indicado no registro de casamento, cuja certidão será emitida pela autoridade competente do local em que for celebrado.
Uniões estáveis ou entidades equivalentes de direito estrangeiro
Art. 21. O disposto nos art. 18 a 20 aplica-se às uniões estáveis ou às entidades equivalentes de direito estrangeiro, com as devidas adaptações à natureza das convivências.
Filiação
Art. 22. Nas ações referentes à constituição ou desconstituição de relações de filiação, o juiz aplicará, dentre os direitos dos domicílios das partes, aquele que se mostrar mais favorável à parte vulnerável.
Obrigações alimentares
Art. 23. As obrigações alimentares, a qualidade de credor e a qualidade de devedor de alimentos serão reguladas pelo direito mais favorável ao credor, dentre os direitos da nacionalidade, do domicílio ou da residência habitual de quaisquer dos envolvidos.
Sucessões
Art. 24. A sucessão por morte ou ausência será regida pelo direito do Estado do domicílio do falecido à data do óbito ou do ausente à data da ausência, independentemente da natureza e da situação dos bens.
Bens e direitos reais
Art. 25. Os bens imóveis, os bens móveis corpóreos, os direitos reais a eles relativos e a posse serão regidos pelo direito do local em que estiverem situados.
Parágrafo único. Os bens móveis que o proprietário trouxer consigo e os direitos reais a eles relativos serão regidos pelo direito do domicílio de seu proprietário.
Embarcações, aeronaves e carregamentos
Art. 26. As embarcações e as aeronaves que estejam em águas ou espaços não jurisdicionais reputam-se situadas no local de matrícula, enquanto o carregamento que nelas se encontre reputa-se situado no local de destino efetivo das mercadorias, exceto se as partes escolherem de forma diversa.
Direitos de propriedade intelectual
Art. 27. Os direitos patrimoniais de autor serão determinados pelo direito do local de sua publicação ou veiculação.
Forma de atos e negócios jurídicos
Art. 28. Os atos e os negócios jurídicos respeitarão as formalidades previstas no direito do local de sua celebração, ou do domicílio de quaisquer das partes ou do local de sua execução, ou, ainda, do direito aplicável ao mérito da situação ou da relação jurídica.
Parágrafo único. Os atos e os negócios jurídicos entre ausentes poderão ser firmados isoladamente, hipótese em que poderão ser utilizados meios eletrônicos para sua comprovação.
Obrigações contratuais
Art. 29. Exceto se houver abuso, as obrigações decorrentes de contratos internacionais serão regidas pelo direito escolhido pelas partes.
I – expressa ou tácita, desde que inequívoca; e
II – alterada a qualquer tempo, respeitados os direitos de terceiros.
Contratos de trabalho
Art. 30. Exceto se houver abuso, os contratos individuais de trabalho serão regidos pelo direito escolhido pelas partes.
I – local de prestação de sua atividade laboral;
II – domicílio do trabalhador;
III – domicílio ou do estabelecimento do empregador, conforme o caso; ou
IV – local de celebração do pré-contrato, quando houver.
Contratos de consumo
Art. 31. Os contratos internacionais de consumo, entendidos como aqueles realizados entre consumidor, pessoa física, com fornecedor de produtos e serviços, cujo domicílio ou estabelecimento envolvido na contratação esteja situado em Estado distinto do domicílio do consumidor, serão regidos pelo direito do domicílio do consumidor ou do local em que forem celebrados, desde que mais favorável ao consumidor.
Obrigações por atos ilícitos
Art. 32. As obrigações resultantes de atos ilícitos serão regidas pelo direito do local em que o dano for verificado.
Parágrafo único. Na hipótese de o dano ocorrer em múltiplos locais, o juiz brasileiro poderá, no exercício de sua jurisdição, aferir os danos verificados em outros Estados e determinar a sua reparação integral, hipótese em que se aplicam os direitos de cada Estado para quantificar o montante devido.
Pessoas jurídicas
Art. 33. As pessoas jurídicas serão regidas pelo direito do Estado em que tiverem sido constituídas.
Ações e valores mobiliários
Art. 34. As ações e os valores mobiliários serão regidos pelo direito do local de constituição da pessoa jurídica que os tiver emitido.
Parágrafo único. As obrigações pecuniárias constantes de debêntures ou outros valores mobiliários representativos de dívida emitidos no exterior, caso tenha havido escolha pelas partes, poderão ser regidas pelo direito do local da emissão, respeitados os requisitos de registro previstos no local de constituição da pessoa jurídica que os tiver emitido.
Prescrição e decadência
Art. 35. A prescrição e a decadência serão regidas pelo direito aplicável ao mérito do litígio.
Aquisição de imóveis por pessoas jurídicas de direito público externo
Art. 36. As pessoas jurídicas de direito público externo e as entidades de qualquer natureza por elas constituídas ou dirigidas não poderão adquirir no País bens suscetíveis de desapropriação ou direitos reais a eles relativos.
CAPÍTULO IV
DA COOPERAÇÃO JURÍDICA INTERNACIONAL EM MATÉRIA CIVIL E COMERCIAL
Cooperação jurídica internacional
Art. 37. A cooperação jurídica internacional em matéria civil e comercial deverá ser prestigiada e poderá se valer de qualquer meio em direito admitido, nos termos dos tratados em vigor na República Federativa do Brasil e dos direitos dos Estados envolvidos, inclusive quanto ao uso de mecanismos tecnológicos e comunicação direta entre as autoridades, desde que não ofendam a ordem pública internacional brasileira.
Homologação de decisão estrangeira
Art. 38. As decisões oriundas de Estado estrangeiro que, no País, demandem a intervenção indispensável do Poder Judiciário, observarão, para sua homologação, o disposto na legislação brasileira, nos tratados em vigor na República Federativa do Brasil e, quando aplicáveis, no regimento interno do Superior Tribunal de Justiça.
Medidas de urgência em homologação
Art. 39. A autoridade judiciária brasileira poderá deferir pedidos de urgência e realizar atos de execução provisória no processo de homologação de decisão estrangeira, observadas as disposições da legislação brasileira, dos tratados em vigor na República Federativa do Brasil e, quando aplicáveis, do regimento interno do Superior Tribunal de Justiça.
Demais atos de cooperação
Art. 40. Os demais atos de cooperação jurídica internacional, tais como as cartas rogatórias e os pedidos de auxílio direto, obedecerão às disposições da legislação brasileira, dos tratados em vigor na República Federativa do Brasil e, quando aplicáveis, do regimento interno do Superior Tribunal de Justiça.
CAPÍTULO V
DISPOSIÇÕES FINAIS
Revogação
Art. 41. Ficam revogados os art. 7º a art. 19 do Decreto-Lei nº 4.657, de 4 de setembro de 1942.
Vigência
Art. 42. Esta Lei entra em vigor cento e oitenta dias após a data de sua publicação.
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Applications are now open for three- to six-month legal internships at the headquarters of the Permanent Bureau of the Hague Conference on Private International Law (HCCH) in The Hague, for the period from January to June 2026!
Interns work with our legal teams in the Family and Child Protection Law Division, the Transnational Litigation and Apostille Division, and the Commercial, Digital and Financial Law Division. Duties may include carrying out research on particular points of private international law and/or comparative law, taking part in the preparation of HCCH meetings, and contributing to the promotion of the HCCH and its work.
Applications should be submitted by Friday, 31 October 2025 at 18.00 (CET). For more information, please visit the Internships Section of the HCCH website.
This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).
Guest post by Janaína Albuquerque, International Family Lawyer; Research Associate at the NOVA Centre for the Study of Gender, Family and the Law; Legal Coordinator at Revibra Europa. Janaína represented Revibra, Instituto Maria da Penha and Instituto Superação da Violência Doméstica as amici curiae in the cases discussed below.
The Brazilian Supreme Court has recently delivered a landmark judgment in two Direct Actions of Unconstitutionality (Ações Diretas de Inconstitucionalidade, or ADIs), namely ADI 4245 and ADI 7686, concerning the application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction(1980HC). Despite their denomination, these actions did not aim to invalidate the Convention, but rather to harmonize its interpretation with the principles enshrined in the Brazilian Federal Constitution.[1]
The full written judgment has not yet been published. What follows is the official summary, which consolidates the main points reached by the Justices:[2]
“The Court unanimously ruled partially in favor of the requests made in ADI 4.245 and, by majority vote, ruled partially in favor of the requests made in ADI 7.686, on the following grounds:
Finally, the following judgment thesis[3] was established:
All in accordance with the vote of Justice Luís Roberto Barroso (President and Rapporteur). Justice Dias Toffoli was partially defeated in ADI 7.686, as he considered the action to be entirely well founded. Plenary session, August 27, 2025.”
The judgment introduced three important innovations that will standardize and shape the interpretation of the Convention going forward. First, by recognizing domestic violence as an arguable exception under Art. 13(1)(b), the Court established that this ground can no longer be dismissed on the basis that it is not expressly mentioned in the Convention. Second, the clarification that children need not be the primary victims ensures that courts cannot disregard evidence showing that they merely witnessed the violence, since such exposure also constitutes harm. Third, the instruction to evaluate abduction cases through a gender-based lens acknowledges the multiple and intersecting vulnerabilities faced by migrant women and requires a contextual assessment of each situation.
Nevertheless, the central unresolved issue concerns the evidentiary threshold. While the Court established that proof is required, it also indicated that the standard should be lower, without clarifying what qualifies as objective and concrete indications of violence sufficient to configure grave risk. Given the repeated acknowledgment of the obstacles faced by migrant mothers, it seems evident that demanding criminal convictions would set the bar far too high. What remains uncertain is whether police complaints, medical records, social service evaluations, psychological reports, or even documented but unsuccessful attempts to obtain assistance in the State of origin will suffice. This definition can only be built with time and through the practical application by domestic federal courts.
The timing of the judgment coincides with the organization of the Second Forum on Domestic Violence and the 1980 Child Abduction Convention, scheduled for October 2025 in Fortaleza, Brazil. Building on the discussions initiated at the first meeting in Sandton, South Africa, in 2024, the Forum will once again convene experts from around the world to reflect on the persistent challenges posed by cases involving allegations of domestic and family violence. In this setting, the recent decision of the Brazilian Supreme Court will likely serve as a point of reference for its methodological contribution to advancing a gender-sensitive and human rights-based approach.
Background of the Actions
ADIs are a special kind of proceedings that may only be introduced by the President of the Republic; the President of the Senate, the Chamber of Deputies, or state legislative assemblies; the Brazilian Bar Association; the Attorney General; political parties; or national unions. Unlike ordinary judicial proceedings, whose effects only extend to the parties, ADI rulings have erga omnes effect and are endowed with binding force, compelling compliance by the Judiciary, the Legislature, and the Executive at all levels.
The first ADI (4245) was filed in 2009 by the now-dissolved Democratas party (DEM), less than a decade after Brazil’s ratification of the Convention and against the backdrop of the Sean Goldman case.[4] The dispute concerned the wrongful retention in Brazil of a 4 year-old child habitually resident in the United States, leading to lengthy proceedings under the 1980HC. Although lower courts initially concluded that Sean had become settled in the new environment, the Supreme Court ultimately ordered his return 5 years later following the death of the taking parent. The litigation attracted intense media scrutiny and sustained significant political and diplomatic pressure. Its repercussions also contributed to the enactment of the Sean and David Goldman International Child Abduction Prevention and Return Act of 2014[5] in the United States, a statute designed to strengthen governmental responses to abduction cases and to oversee compliance by other Contracting States.
Prompted by these circumstances, the DEM party brought the matter before the Supreme Court to assess whether the manner in which the Convention was being applied was compatible with the constitutional framework. Their concern was that, following the damaging repercussions of the Goldman case, domestic authorities had adopted an automatic-return approach without sufficient consideration of the specific circumstances of each case, thereby infringing fundamental principles such as human dignity and the best interests of the child.
The initiating application requested that return orders and urgent measures be issued only after due process and a case-specific assessment; that the one-year time limit not prevail over the best interests of the child; and that the grave risk exception be interpreted broadly. It further sought to limit the Attorney General’s Office’s legitimacy to initiate return proceedings, to condition the effectiveness of foreign custody decisions on recognition by the Superior Court of Justice, and to preserve the validity of domestic custody rulings. The main legal basis invoked was Art. 227 of the Constitution, which enshrines the principle of ‘integral protection’ and imposes on the family, society, and the State the duty to ensure, as an absolute priority, children’s rights to life, health, education, dignity, and protection against neglect, exploitation, and violence.
ADI 4245 remained without significant developments for 15 years, until a hearing was scheduled for the presentation of oral arguments in May 2024. The judgment was set to take place in August 2024, yet, the Socialism and Liberty party (PSOL) filed another ADI (7686) in July of the same year, which led to the suspension of the first so that both could eventually be judged together.
The circumstances surrounding the second ADI differed, despite being similarly propelled by not one, but numerous widely covered cases, which were further amplified through social media. Most involved mothers who had fled to Brazil after experiencing discrimination and domestic violence abroad, yet, whose children were nevertheless ordered to return. Public pressure and social mobilization were decisive in bringing these issues to the forefront and making them the central focus of the proceedings.
As regards the merits, ADI 7686 contained only one request: that suspicion or indications of domestic violence in the foreign country be taken into account when assessing the grave risk standard and the applicability of the exception under Art. 13(1)(b) of the 1980HC, so that children would not have to be returned The legal basis rested primarily on Art. 226 (8) of the Constitution, which explicitly establishes the State’s positive obligation to ‘ensure assistance to the family in the person of each of its members, creating mechanisms to suppress violence within the family’.
Oral arguments in ADI 7686 were presented in February 2025, but the rendering of the Justices’ votes only began in August. The case was considered by the Plenary of the Supreme Federal Court, composed of eleven Justices, of whom a single member is a woman. Three sessions were needed to conclude, and a decision was finally reached on 27 August 2025. Although the written judgment has not yet been released, the hearings were televised, and each Justice presented at least a summary of their vote. For clarity, the following account is organized thematically rather than chronologically, highlighting the main strands of reasoning that emerged.
(i) Gender, domestic violence and the reframing of the best interests principle
The deliberations revealed a broad consensus that gender inequalities are central to the evaluation of return requests under the Convention, particularly where domestic violence is raised. Justice Barroso, rapporteur of the case, underscored that most taking parents are mothers fleeing from abandonment or abuse, cautioning that automatic returns in such circumstances risk perpetuating cycles of violence. Justices Mendonça and Cármen Lúcia echoed this concern, stressing that intimate-partner violence destabilizes the family environment and thereby places the child in danger.
Justice Moraes added that the prevalence of taking mothers reflects structural patriarchy, requiring an interpretation of the Convention consistent not only with the standards inscribed in domestic law but also with international human rights instruments such as the UNCRC and the Convention of Belém do Pará. Justice Dias Toffoli supported this approach by grounding it in the Convention’s own architecture, highlighting a combined interpretation of Arts. 13(1)(b) and 20, insofar as the latter provides that courts may refuse the return when such an order would conflict with the fundamental principles and freedoms of the requested State.
Taken together, these positions signalled a jurisprudential shift: the Convention’s effectiveness in Brazil will henceforth be measured not solely by the speed of returns but by its capacity to reconcile international cooperation with the substantive protection of women and children.
(ii) Procedural and evidentiary standards
A central aspect of the debate revolved around the difficulties faced by migrant women and their intersecting vulnerabilities. Justice Barroso argued that imposing a standard of irrefutable proof in cases involving domestic violence is both inconsistent with the Convention’s requirement of urgency and detrimental to the best interests of the child. He stressed that migrant mothers are frequently cut off from institutional resources and isolated from their support networks, which, compounded by linguistic and cultural obstacles, place them at a significant disadvantage in producing evidence. Justice Toffoli further developed this argument, insisting that courts must apply a gender-based perspective and give decisive weight to victims’ testimonies, precisely because these structural barriers cannot be overcome through procedural formalities.
Alongside evidentiary issues, the Justices devoted close attention to procedural safeguards. Justice Flávio Dino criticised the privileged role of the Attorney General’s Office, noting that its authority to initiate proceedings produces inequality of arms. While the interests of left-behind parents are defended, even if representation is for the State, taking parents are not ensured access to legal aid. Building on this concern, Justice Cristiano Zanin drew attention to the absence of a specific law governing Hague cases in Brazil. In his view, this vacuum not only generates procedural uncertainty but also creates room for jurisdictional conflicts, especially when custody proceedings are initiated domestically in parallel with return requests.
Other votes highlighted the persistent tension between efficiency and fairness. Justice Nunes Marques stressed that the Convention’s effectiveness depends on swift decisions and suggested technology and mediation as tools to accelerate outcomes. Justice Barroso, however, set this pursuit for speed against the structural reality of Brazil’s civil procedure, which, though intended to protect due process, is overly complex and has become a recurrent source of delay. Justice Dino noted that, as a result, courts frequently resort to urgent measures, granting return orders without analysing the case in depth and even without hearing the taking parents, a practice he considered incompatible with constitutional guarantees. Justice Luiz Fux disagreed with Dino on this point, resisting the view that judicial discretion should be in any way limited.
(iii) Measures to strengthen the application of the Convention
Apart from the interpretative parameters and procedural elucidations, a series of proposals were advanced to reinforce the Convention’s operation through systemic measures and reforms. Consensus emerged around the need for standardized protocols in embassies and consulates to ensure consistent assistance and reliable mechanisms for processing reports of abuse. In addition, the Justices addressed the domestic judicial structure, calling for stronger coordination between federal and family courts and for the use of liaison judges to improve communication with foreign authorities. The Court also encouraged studies to support legislative initiatives, including the prospect of Brazil’s accession to the 1996 HCCH Child Protection Convention as part of a broader effort to align institutional practice with international standards.
A final strand of discussion was dedicated to the participation of children. Justice Cármen Lúcia stressed that they must be recognised as rights-bearing subjects and that procedural mechanisms should be developed to secure their direct involvement in return proceedings. At present, the law provides only for the hearing of children from the age of 12 and contains no guidance on the manner in which their statements are to be obtained. Ensuring that children’s perspectives are effectively taken into account was thus deemed essential to aligning the Convention’s operation with the principle of integral protection enshrined in the Constitution.
[1] Available in English at: <https://www.oas.org/es/sla/ddi/docs/acceso_informacion_base_dc_leyes_pais_b_1_en.pdf>.
[2] Available, only in Portuguese, at: <https://portal.stf.jus.br/processos/detalhe.asp?incidente=2679600>.
[3] In the context of Direct Actions for the Declaration of Unconstitutionality (ADIs) before the Brazilian Supreme Federal Court, the term ‘thesis’ refers to the authoritative interpretative statement of the Constitution that distills the complex reasoning into a concise and binding formula. Arising from the abstract constitutional review of statutes, such theses clarify the constitutional meaning of contested provisions and ensure that the decision extends beyond the specific case at hand. By consolidating the practice of formulating theses at the end of landmark rulings, the Court provides clarity, consistency, and general applicability, thereby guiding judges, public administration, and society as a whole while establishing constitutional standards for future cases.
[4] Brazilian Supreme Federal Court, 2009 Activities Report. Available in Portuguese at: <https://www.stf.jus.br/arquivo/cms/principaldestaque/anexo/relatorio_stf_2009__18032010__qualidade_web__orcamento.pdf>.
[5] Available at: <https://www.congress.gov/bill/113th-congress/house-bill/3212>.
IE Law School in Madrid, Spain, is again advertising four tenure-track assistant professorships, preferably in private law, commercial & corporate law, and IP law among others. Scholars of private international law are also invited to apply.
The deadline is 31 October 2025.
More information can be found here.
By Alexia Kaztaridou (Linklaters)
On 25 September 2025, the Internal Market and Consumer Protection Committee (IMCO) of the European Parliament approved the text of the political agreement on the Alternative Disputes Resolution for Consumer Disputes Directive. This Directive establishes a framework for resolving through ADR procedures contractual domestic and cross-border consumer disputes arising from the sale of goods or provision of services between consumers and traders within an EU context. The amendments to the prior Directive aim to modernise the existing framework in light of new consumer trends, such as the growth of e-commerce, and bring significant changes across several areas, enhancing the protection for consumers and clarifying obligations for traders and ADR entities. The Directive maintains its minimum harmonisation approach, allowing Member States to provide for stronger consumer protection.
Key changes introducedEnhanced obligations for traders
Expanded material scope
New requirements for ADR entities
Promoting participation to the procedures
In principle, the Directive provides that the ADR procedures should be free of charge for consumers. In the event that costs are applied, those costs should not exceed a nominal fee. Member States should encourage ADR entities to reimburse consumers the nominal fee paid where and to the extent that their complaint is justified.
In that context, the Directive requires Member States to implement measures that promote participation in ADR procedures from both traders and consumers. These measures can be either financial or non-financial in nature.
A new role for ADR contact points
Following the discontinuation of the Online Dispute Resolution (ODR) platform, the tasks previously handled by ODR contact points will be taken over by newly established ADR contact points. These contact points will be, inter alia, responsible for:
The ADR contact point is to be determined by the consumer’s place of residence. Member States can choose to extend the mandate of these contact points to cover domestic disputes as well.
Consumer assistance and new digital tools
Consumers will have the right to be assisted by third parties, such as consumer organisations or businesses that specialise in claims management, though transparency must be ensured.
In addition, the Commission is mandated to develop a digital interactive tool to guide consumers to the correct ADR entity.
Next steps and national transpositionThe next step is the formal adoption of the text by the European Parliament’s plenary, which is expected to take place between 15 and 18 December. Following this, the text must also be formally adopted by the Council. Once the Council has formally adopted the text, it will be published in the Official Journal of the European Union. The Directive will then enter into force 20 days after its publication.
The timeline for the Directive’s implementation is set out in Article 5. Specifically, Member States are required to adopt and publish the national laws necessary to comply with the Directive by 26 months after its entry into force. These new national measures must then be applied starting from 32 months after the Directive’s entry into force.
Given this is a minimum harmonisation Directive, Member States retain discretion to introduce measures that empower consumers even further. For example, they may make ADR mandatory for certain disputes or further extend the material scope. It will therefore be crucial to monitor the national transposition of the Directive to understand how the legal framework will evolve in each Member State.
As part of the International Law Association (British Branch) Lecture Series, a special lecture on Cross-Border Disputes and Conflict of Laws in India: The Case for Asian-Inspired Reform will be delivered by Prof. (Dr) Saloni Khanderia, Professor at Jindal Global Law School (India) and Professor at the Center for Transnational Legal Studies (London), on Wednesday, 15 October 2025, at 6:00 PM (London BST ??) | 10:30 PM (India IST ??). The event takes place at the UCL Faculty of Laws and will also be available online. The session will be chaired by Professor Alex Mills (UCL Laws).
India’s transformation since its 1991 economic liberalisation has positioned it as a key player in global commerce. Indian judges have contributed significantly to international law, both domestically and in global forums such as the International Court of Justice and commercial courts abroad. Yet, despite judicial progress, structural gaps in India’s private international law persist.
This lecture examines how India can strengthen its framework for cross-border dispute resolution, drawing lessons from leading Asian jurisdictions—Singapore, China, Japan, and South Korea—to ensure coherence, predictability, and competitiveness in transnational litigation.
Who should attend:
Practitioners, scholars, students, policymakers, and anyone interested in India’s evolving role in global dispute resolution.
For more details about the lecture and the registration process, visit https://www.ucl.ac.uk/laws/events/2025/oct/hybrid-cross-border-disputes-and-conflict-laws-india-case-asian-inspired-reform?mc_cid=f1dfe473a9&mc_eid=UNIQID
On Wednesday, October 8, 2025, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST). Professor Nadia de Araujo (Pontifícia Catholic University of Rio de Janeiro) will speak, in English, about the topic
“Highlights on the project for a Brazilian Law on Private International Law”
After more than eighty years Brazil finally has a project for a new Law on Private International Law. The current 1942 law devotes only seven articles to the whole subject. In light of the developments in PIL, the complexities of modern life and the adoption of a series of Hague Conventions and Inter-American Conventions, the project addresses PIL in its entirety. The new law introduces several significant changes: it expressly allows for party autonomy in international contracts, a concept that was not clearly defined in previous legislation, while safeguarding consumer and labour contracts. Additionally, it introduces new rules for proof of foreign law and a more comprehensive set of family law. It also retains domicile as the main rule for capacity and other family rights.
The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
The University of Genoa (Italy), together with the partnership of the EU co-funded project UniPAR, is organizing a conference on parenthood in the light of Human Rights Law and Private International Law.
In the Conference, the UniPAR research team will present the results of the research and various topics related with EU private international law and children’s rights in the context of parenthood will be addressed. Dr. Raffaele Sabato, judge of the European Court of Human Rights, will deliver the introductory speech.
The Conference will take place on Friday 24 October, 10.00-13.00 CET and 14.00-17.00 CET.
See the programme. Online attendance is possible after prior registration.
The program of the XLVIII Seminar of the Mexican Academy of Private International and Comparative Law (AMEDIP) has been published, click here.
To register, click here. Registration is free of charge (except if a certificate of attendance is requested). Only in-person participation is possible this year (with the exception of speakers, who may present online).
20th Regional Private International Law Conference will be held in Istanbul on 6-8 November 2025 in collaboration with Erdem&Erdem Law Office and Istanbul Arbitration Center (ISTAC). This year’s conference topics are focusing on choice of court/arbitration agreements and the enforcement of decisions rendered by chosen courts or arbitral tribunals. The conference programme can be viewed in here.
Participation is available via Zoom, through the link provided: https://us06web.zoom.us/j/84302415223?pwd=JdVlMzX7dzabawYUF6TnjKnjp8xKhf.1 (Meeting ID: 843 0241 5223 Password: 786753)
For further questions you may contact the organizers Prof. Dr. Zeynep Derya Tarman (Koç University Faculty of Law, Dean) and Prof. Dr. Ceyda Süral Efeçinar (Piri Reis University Faculty of Law, Dean) at meoba@ku.edu.tr (M. Ece Oba, Research Assistant at Koç University Faculty of Law).
The Permanent Bureau of the HCCH welcomes applications for the position of Legal Officer, based at its headquarters in The Hague, Netherlands.
The successful candidate will work in the field of international commercial, digital and financial law, under the responsibility of the Deputy Secretary General. In addition to work in relation to the operation of the 1985 Trusts Convention, the 2006 Securities Convention, and the 2015 Choice of Law Principles, duties will include general assistance in relation to the projects on Central Bank Digital Currencies (CBDCs), Carbon Markets, Digital Tokens, and the Digital Economy. Depending on the work programme established by CGAP, the successful candidate may be called upon to carry out work in other areas, and will respond to requests for information, assist with comparative law research, the preparation of research papers and other documentation, the organisation and preparation of materials for publication, the preparation of, and participation in, conferences, seminars and training programmes.
The successful candidate will also support the work of the office of the Deputy Secretary General, and may be called to take on such other work as may be required by the Secretary General from time to time.
Applications should be submitted by 1 November 2025 (5.00 p.m. CET). For more information, please visit the Recruitment section of the HCCH website.
This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).
After Indonesia, China, Japan, India and recently Hong Kong, the prestigious Hart series “Studies in Private International Law – Asia” has released a new volume on Cambodian Private International Law, authored by Nobumichi Teramura (Associate Professor, Keio University Law School; Affiliate, Centre for Asian and Pacific Law in the University of Sydney).
This book is the 14th volume in this outstanding series, which, in only six years of existence, has successfully manages to transform the “little attention” once paid to developments in private international law in Asia into an explosion of Asian scholarship and a growing and dynamic field of study.
This new volume, however, is somewhat different from the other abovementioned volumes that comprehensively cover private international law in a specific jurisdiction. As rightfully stated in the Series Editors’ Preface, “[o]f those six volumes, this is possibly the most challenging.” This is because, as the author points out, Cambodia “still does not have a comprehensive legal framework that addresses conflict of laws issues, and research on Cambodian private international law is still in its infancy.” Cambodian law “does not yet contain rules on international jurisdiction,” nor does it have “any special statutory body of law dealing specifically with the conflict of laws.” Moreover, Cambodian courts “have never recognised and enforced judgments issued abroad.”
In this regard, the Series Editors posed in their preface the question of whether, under such circumstances, “it is too early to speak of, much less write about, a coherent body of Cambodian private international law.” But this is precisely what makes this volume particularly interesting and unique. It proposes a striking approach: the development of principles of Cambodian private international law by reference to Japanese legal principles and experiences. This is explained by the long-standing involvement of Japanese scholars and agencies in Cambodia’s legal development through technical assistance, and by the fact that Cambodian law “borrow[s] heavily from Japanese law.”
In pursuing this undertaking, the author has relied “mostly…on English and Japanese literature on Cambodian law and society,” given the “significant volume” of materials available in those languages, particularly in Japanese, on Cambodian law. The author himself acknowledges that his “research approach to Cambodian private international law is experimental and will inevitably attract criticism.” Nevertheless, while engaging in this Sisyphus-like endeavor, he humbly “hopes that the discussion in this book can serve as a starting point for a dialogue among legal experts in Cambodian law for considering the next reform of Cambodian private international law, regardless of whether the experts agree or disagree with the suggestions made” therein.
One thing is certain: as the first (and so far the only) comprehensive contribution on Cambodian private international law in English, and probably in any language, it provides valuable access to the first sustained and systematic reflection on this subject. By doing so, the book fills a significant gap in the literature, opens new avenues for scholarly debate, and lays a foundation not only for discussion and critical reflection but also for future reforms in this field. From this perspective, the book’s objective can be said to have been fully achieved.
The description of the book reads as follows:
This book is the leading reference on Cambodian private international law in English.
The chapters systematically cover the whole of Cambodian private international law, including commercial matters, family law, succession, intellectual property, competition (antitrust), and environmental disputes.
The chapters do not merely cover the traditional conflict of law areas of jurisdiction, applicable law (choice of law) and enforcement. They also look into conflict of law questions arising in arbitration and assess Cambodia’s involvement in the harmonisation of private international law globally and regionally within the Association of Southeast Asian Nations (ASEAN).
Similarly to the other volumes in the Studies in Private International Law – Asia series, this book presents the Cambodian conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of the subject.
Table of Contents includes the following:
1. Introduction
Part I: Foundations of Cambodian Private International Law
2. Status of Private International Law in Cambodia and Preliminary Matters
3. Treatment of Foreign Law
Part II: Jurisdiction
4. Direct Jurisdiction
Part III: Choice of Law
5. Choice of Law for Contractual Obligations
6. Choice of Law for Non-Contractual Obligations
7. Choice of Law for Property Issues
8. Family Law
9. Law of Corporations, Insolvency, Antitrust and Unfair Competition
Part IV: Recognition and Enforcement
10. Recognition and Enforcement of Foreign Judgments
Part V: Arbitration
11. International Arbitration
12. The Harmonisation of Private International Law
Written by Mayela Celis, Maastricht University
In June 2025, the US Supreme Court delivered its opinion in Smith & Wesson Brands, Inc. et al. v. Estados Unidos Mexicanos (Mexico) 605 U.S. 280 (2025). The Opinion is available here. We have previously reported on this case here, here and here (on the hearing).
As previously indicated, this is a much-politicized case brought by Mexico against US gun manufacturers, alleging inter alia negligence, public nuisance and defective condition. The basic theory laid out was that defendants failed to exercise reasonable care to prevent the trafficking of guns to Mexico causing harm and grievances to this country. In this regard, the complaint focuses on aiding and abetting of gun manufacturers (rather than of independent commission).
In a brilliant judgment, Justice Kagan ruled that PLCAA bars the lawsuit filed by Mexico. Accordingly, PLCAAS’s predicate exception did not apply to this case.
This case has attracted wide media attention and a great number of amici curiae briefs was filed urging both reversal and affirmance or being neutral. Those urging reversal far outnumbered the other two categories, some of which were filed by Attorney Generals of numerous US states, American Constitutional Rights Union, American Free Enterprise Chamber of Commerce, Chamber of Commerce of the United States of America, Firearms Regulatory Accountability Coalition, Inc., National Association for Gun Rights, Inc., National Rifle Association of America, Product Liability Advisory Council, Second Amendment Foundation, Sen. Ted Cruz and others, Gun Owners of America, Inc., etc.
Primary holding
Held: Because Mexico’s complaint does not plausibly allege that the defendant gun manufacturers aided and abetted gun dealers’ unlawful sales of firearms to Mexican traffickers, PLCAA bars the lawsuit.
Main federal statutes applicable and case law cited
The Protection of Lawful Commerce in Arms Act (PLCAA), 119 Stat. 2095, 15 U. S. C. §§ 7901–7903
18 U. S. C. § 2(a) – Principals
Direct Sales Co. v. United States, 319 U. S. 703 (1943)
Twitter, Inc. v. Taamneh, 598 U. S. 471 (2023)
Rosemond v. United States, 572 U.S. 65 (2014)
United States v. Peoni, 100 F. 2d 401, 402 (CA2 1938)
For further information (incl. PLCAA’s predicate exception), please refer to the previous post on the hearing, here.
A few takeaways from the judgment are the following:
Plausibility
The Court clarified that plausibly “does not mean ‘probably,’ but ‘it asks for more than a sheer possibility that a defendant has acted unlawfully.’” And Mexico did not meet that threshold (p. 291). Indeed, the Court goes even further and speaks of mere speculation as regards some of Mexico’s allegations (p. 296).
Aiding and Abetting
The Court stated the requirements of aiding and abetting derived from criminal law (as coined by Learned Hand): “an aider and abettor must ‘participate in’ a crime ‘as in something that he wishes to bring about’ and ‘seek by his action to make it succeed.’” The Court said that Mexico failed to properly plead this to the level required (p. 294).
Considering that Mexico based its claims on aiding and abetting liability, the Supreme Court begins by setting forth the three ancillary principles: 1) Citing Twitter, the Court notes that aiding and abetting is a rule of secondary liability for specific wrongful acts. In the case of a broad category of misconduct, the participation must be pervasive, systematic and culpable; 2) Aiding and abetting usually requires misfeasance rather than nonfeasance (such as failure to act or an omission when there is no independent duty to act); 3) Incidental activity is unlikely to count as aiding and abetting (p. 292).
In this regard, the Supreme Court ruled that Mexico’s allegations only refer to nonfeasance (or indifference) (p. 297). The Court also noted that contrary to normal practice in this type of cases, Mexico does not pinpoint any specific criminal transactions that the defendants allegedly assisted. And at the same time, Mexico sets the bar very high by alleging that all manufacturers assist a number of identified rogue dealers in their illegal pursuits (p. 294).
Importantly, the Court notes that “Mexico never confronts that the manufacturers do not directly supply any dealers, bad-apple or otherwise.” (p. 295) Indeed, they supply to middleman distributors that are independent. It is the conduct of rogue dealers, two levels down, that causes Mexico’s grievance and Mexico does not name them (there is only a reference to a Washington Post article, see our previous post).
A note to the reader: Mexico did identify a distributor in its complaint (Witmer Public Safety Group, Inc., which does business as Interstate Arms), however its complaint barely mentioned it, that is why the Court decided for simplicity’s sake to focus only on manufacturers (see footnotes 1 and 4 of the judgment).
The Supreme Court also dismissed Mexico’s allegations that the industry had failed to impose constraints on their distribution chains to reduce unlawful actions (e.g. bulk sales or sales from homes), which the court considers as “passive nonfeasance” in the light of Twitter. Nor were the allegations regarding the design and marketing decisions of guns accepted as these products may also appeal to law-abiding citizens.
History of PLCAA
The Court ends with some analysis of PLCAA’s purpose and the kind of suits it intended to prevent. The Court concludes that Mexico’s suit closely resembles those suits and if it were to fall in the predicate exception, it would swallow the entire rule.
Comments
At the outset, please note that the comments already made regarding the hearing of this case apply to a large extent to the final judgment.
The Supreme Court rendered a judgment that is clear, logical and addresses key matters of the litigation, without testing the troubled waters of proximate cause. In particular, it avoids departing from previous precedents such as Direct Sales and Twitter, which in my view set clear standards with regard to aiding and abetting liability. It also helpfully stated the requirements of aiding and abetting derived from criminal law (as coined by Learned Hand) and applicable to the case at hand.
During the hearing of this case, there was much uncertainty regarding the different federal statutes applicable, as well as the relationship between the different actors in the distribution chain of weapons. None of that confusion is seen in this judgment, which is extremely clear and well-thought through.
As regards, the liability of merchants and their products (as referred to in my previous post, such as baseball bats and knives), the Supreme Court helpfully clarified that: “So, for example, an “ordinary merchant[ ]” does not “become liable” for all criminal “misuse[s] of [his] goods,” even if he knows that in some fraction of cases misuse will occur. Twitter, 598 U. S., at 489; see id., at 499. The merchant becomes liable only if, beyond providing the good on the open market, he takes steps to “promote” the resulting crime and “make it his own.” United States v. Falcone, 109 F. 2d 579, 581 (CA2) (L. Hand, J.), aff’d, 311 U. S. 205 (1940).” (p. 292)
Justices Thomas and Jackson (coincidentally the two black justices of the Court, a conservative and a liberal justice, respectively) filed Concurrent Opinions, which blurs the line between the two camps. In my view, these Opinions are more restrictive than the unanimous decision and make it more difficult to file a suit, requiring an earlier finding of guilt or liability in an adjudication regarding the violation (Thomas) or making non-conclusory allegations about a particular statutory violation under PLCAA (Jackson). In my view, the majority decision does not require either.
In sum, the majority Opinion greatly clarifies this area of law. A positive development, amid the tumultuous docket of the Court in this era of great uncertainty.
Photo by Thinkstock on Freeimages.com
HCCH Monthly Update: September 2025
Conventions & Instruments
On 18 September 2025, Argentina deposited its instrument of ratification of the 1996 Child Protection Convention. With the ratification of Argentina, the Convention now has 58 Contracting Parties. It will enter into force for Argentina on 1 January 2026.More information is available here.
Meetings & Events
On 11 and 12 September 2025, the Permanent Bureau of the HCCH hosted a Roundtable and Training on the application of the 1980 Child Abduction and 1996 Child Protection Conventions, in particular concerning the children of Ukraine. More information is available here.
From 17 to 19 September 2025, the Experts’ Group (EG) on Central Bank Digital Currencies (CBDCs) held its fourth 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.
On 25 and 26 September, the Permanent Bureau of the HCCH hosted training on the HCCH’s core family law Conventions and projects for a group of judges and court officials from 16 States. The training was organised in cooperation with the European Judicial Training Network. More information is available here.
On 26 September 2025, the second meeting of the Working Group (WG) established to finalise the Model Forms pertaining to Chapter II of the 1970 Evidence Convention was held online.
Upcoming Events
Registration is now open to the public for online participation in the “HCCH-IDLO Dialogue on Digitalisation of Public Services and Justice”. The event will be held on Friday 10 October 2025, from 10.00 to 11.30 a.m. (CEST). Interested persons should register no later than Tuesday 7?October 2025 via this registration form. More information is available here.
Vacancies
Applications are now open for the position of Legal Officer. The deadline for the submission of applications is 1 November 2025. More information is available here.
Applications are now open for the position of Finance / Human Resources Assistant. The deadline for the submission of applications is 11 October 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.
The University of Hamburg has announced its second Call for Applications for the Lindemann Fellowship for Private International Law. Eligible are researchers based in Europe who recently completed or are close to completing their PhD studies, with a main research focus on conflict of laws and/or international civil procedure.
Becoming a Lindemann Fellow means having a 3-year grant within a vibrant European network, fully funded annual meetings to present and discuss your research, and publication in an open-access collected volume.
More information about the Fellowship is available at the webpage: https://www.jura.uni-hamburg.de/duden/60-fellowship-lindemann.html
Applications (combined into a single PDF) must be submitted by 1 November 2025 to lindemann-fellowship@uni-hamburg.de.
by Jean-Charles Jais, Guillaume Croisant, Canelle Etchegorry, and Alexia Kaztaridou (all Linklaters)
On 17 September 2025, the French Cour de cassation handed down its decision on the Lastre case. This followed a landmark preliminary ruling of February 2025 from the CJEU, which laid out the conditions for a valid asymmetric jurisdiction clause under article 25 of the Brussels I recast regulation.
Asymmetric jurisdiction clauses allow one party to initiate proceedings in multiple courts or any competent court, while the other party has fewer options or is restricted to a specific jurisdiction. Such clauses are common in financial agreements (read more in our previous blog post here).
In the latest development of the Lastre case in France, the French Supreme Court opted for a pro-contractual autonomy stance, favouring the validity of asymmetric jurisdiction clauses.
Background to the decision
A French company had entered into a contract for the supply of cladding panels for a construction project with an Italian supplier. The supplier’s general terms and conditions provided for the jurisdiction of the Italian court of Brescia but reserved its right to proceed against the buyer before “another competent court in Italy or abroad”.
Following defects in the works in late 2019, proceedings were initiated before French courts against all contractors, including the Italian supplier. The latter challenged the jurisdiction of the French courts, relying on the above-mentioned jurisdiction clause.
Consistent with previous precedents, the French First Instance Court and Court of Appeals dismissed the objection. These courts found that the clause granted the Italian supplier discretionary authority to select jurisdiction, rendering it invalid due to its failure to satisfy the foreseeability criterion outlined in article 25 of the Brussels I recast regulation.
The case was further appealed before the French Supreme Court, which referred preliminary questions to the CJEU. In its preliminary ruling, the CJEU clarified that the validity of asymmetric clauses was to be assessed using autonomous criteria derived from article 25 of the Regulation and set out the conditions for such clauses to be valid.
A pragmatic application of the CJEU’s three-fold approach to “any other competent court” clauses
In last week’s ruling, the French Supreme Court sought to follow the CJEU’s three-fold approach in examining the validity of asymmetric clauses and recalled that such clause must (i) designate courts competent under the Brussels I recast regulation and/or the Lugano Convention; (ii) identify sufficiently precise objective criteria to allow the court seized to determine its competence; and (iii) not conflict with special or exclusive jurisdiction rules set out in the Brussels I recast regulation or the Lugano Convention.
The French Supreme Court then held that the CJEU leaves it to national courts to interpret asymmetric clauses which allow one party to initiate proceedings before “any other competent court”, in accordance with the principles of party autonomy and practical effectiveness (effet utile).
On this basis, the French Supreme Court concluded that, in a case where the contractual relationship has no objective connecting factor with non-EU and non-Lugano States (i.e., third-party states), the jurisdiction clause designating “any other competent court” must be interpreted as referring to competent courts under the general rules of jurisdiction laid out in the Brussels I recast Regulation and the Lugano Convention. The clause thus complied with the first condition set by the CJEU, even if it did not expressly refer to these two instruments.
Accordingly, the French Supreme Court overturned the Court of Appeals’ decision and upheld the validity of the asymmetric jurisdiction clause.
Practical implications for asymmetric jurisdiction clauses
What does this ruling imply for parties wishing to rely or already relying on asymmetric jurisdiction clauses, particularly in cross-border contracts within the EU?
A more favourable treatment of asymmetric clauses
The French Supreme Court’s Lastre decision illustrates the Court’s pro-contractual autonomy approach to jurisdiction clauses. This will reassure parties seeking flexibility in drafting these clauses, particularly in light of certain earlier decisions which adopted a more cautious approach towards one-sided jurisdiction clauses.
The French Supreme Court’s contractual autonomy stance also appears in three decisions issued on the same day.
In one case, the Court followed its Lastre reasoning and upheld a bank’s clause granting exclusive jurisdiction to Luxembourg courts, while allowing the bank to bring proceedings at the client’s domicile or “other competent courts”.
In two other cases, the Court found that the clauses which designated a specific EU court and provided an objective criterion for determining the alternative jurisdiction available to one of the parties were sufficiently precise. These criteria were the location of the guarantor’s assets (case no. 23-18.785) and one of the parties’ registered office or that of its branch (case no. 23-16.150). This is in line with previous decisions validating asymmetric clauses, such as, for instance, the eBizcuss decision, which rely on objective criteria and generally supports the enforceability of asymmetric clauses.
Limitations for clauses with links to third-party states
While the French Supreme Court’s decision is a positive development for legal certainty and party autonomy, limitations and uncertainties remain.
First, the clause reviewed in the Lastre case conferred jurisdiction to the courts of a Member State (Brescia, in Italy), while reserving the possibility for one party to start proceedings before “any other competent courts”. As a result, the French Supreme Court did not address the validity of clauses that would also include the possibility for one party or both of them to start proceedings before one or several third-party state court(s), such as London or New York, a common feature in finance and banking contracts. The position on this remains uncertain.
Second, the ruling reinforces the material risk, stemming from the CJEU’s Lastre decision, that a clause designating “any competent court” could be deemed invalid where the contract has significant objective connecting factors with third-party states.
Third, the French Supreme Court’s interpretation is not binding on the courts of third-party states. However, in the scenario considered by the court (where there are no objective connecting factors to a third-party state), it is unlikely that a court in, for example, London or New York would accept jurisdiction. It would probably decline to hear the case under its own private international law rules.
Finally, this judgement does not guarantee a harmonised EU approach. It remains to be seen whether other Member State courts will adopt the same interpretation.
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