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Applications should be submitted by Friday, 25 April 2025 at 18.00 (CEST). 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).

 

I would like to express my sincere gratitude to MD Sanwar HOSSAIN, LLB (Hons) Wolverhampton University, MSS (Dhaka University), PgDiP (Northumbria University), Barrister at law (Hon’ble Society of Lincoln’s Inn), Advocate (Appellate Division) Supreme Court of Bangladesh and Managing Partner, S Hossain & Associates law office, for bringing the Bangladesh courts’ decisions to my attention.

 

I. Introduction

The breakdown of an international marriage often leads to complex cross-border disputes, especially when children are involved. Tensions can intensify if one parent decides to take the children to their home country, often without the consent of the other parent.

In such cases, when the countries involved are signatories to the HCCH 1980 Child Abduction Convention, the Convention’s mechanisms are designed to facilitate the prompt return of children to their country of habitual residence. This framework aims to prevent unilateral relocations that could have lasting impacts on the child’s stability. However, when one or both countries are not parties to the Convention, resolving such cases becomes significantly more challenging. In such cases, national courts are compelled to address competing custody claims, assess allegations of wrongful removal, and determine whether they have jurisdiction to hear the case, all while balancing, often quite differently, the best interests of the children involved.

The case presented here is just one of many unreported cases where a romance relationship turns sour, leading to lengthy and contentious legal battles across jurisdictions. This note will focus on the Bangladeshi court’s treatment of the case, as it offers useful insights into the court’s approach to handling such complex cross-border disputes.

 

II. The Case

1. Underlying Facts

X, a Bangladeshi citizen who also appears to have also a US citizenship, and Y, a Japanese citizen, met each other in Japan where they got married in 2008 according to the forms prescribed under Japanese law. Their marriage resulted in the birth of three daughters. From 2020, tensions between X and Y began to intensify, mainly due to financial disagreements. By late December 2020, a family dispute arose, after which (on 18 January 2021) Y informed X of her intention to divorce and ask him to leave their home.

On 21 January 2021, while the two elder daughters were on their way home from school, X intercepted them and took them to live with him at a separate residence. On 18 February 2021, while Japanese courts were addressing a custody claim brought by Y, X left Japan with the two children, after obtaining new passports for them. Since then, the daughters have been living and studying in Bangladesh.

 

2. Legal Battle

a) In Japan

On 28 January 2021, Y initiated legal proceedings against X in the Tokyo Family Court, seeking custody of the children and an order to hand over the two daughters. On 31 May 2021, the Tokyo Family Court issued a decree in favor of Y (Hanrei Taimuzu, No. 1496 (2022) p. 247, Hanrei Jiho No. 2519 (2022) p.60). The court reached its conclusion after assuming international jurisdiction on the grounds that the children’s domicile was in Japan (Article 3-15, Article 3-8 of the Domestic Relations Case Procedure Act), and designating Japanese law as the applicable law to the case under the relevant choice of law rules (Article 32 of the Act on General Rules for Application of Laws). The court also refused to take into account an interim custody order issued by Bangladeshi courts, given its non-final and conclusive nature.

 

b) In Bangladesh

i) Custody dispute before the Family Court

On 28 February 2021, shortly after arrived in Bangladesh, X filed a lawsuit seeking sole custody before the competent family court in Bangladesh. On the same day, X obtained from that an interim order on custody and restrained the taking of the children out of Bangladesh (see previous paragraph).

 

ii) Habeas Corpus Petition

In July 2021, Y travelled to Bangladesh, leaving her youngest daughter with the custody of her family members. Encountering difficulties in accessing her daughters, Y filed a habeas corpus petition, seeking a determination on whether the children were being unlawfully held in custody. Y argued, inter alia, that Japanese courts have proper jurisdiction over the custody claim and that their decision should be given effect.

The High Court Division of the Supreme Court of Bangladesh (hereafter, ‘the High Court’) considered that, the children welfare and well-being should be paramount and must be assessed independently by Bangladeshi courts, regardless of any foreign judgment. After reviewing the overall circumstances of the case, and hearing the children, the High Court ruled that daughters remain in X’s custody, while granting Y visitation rights (Writ Petition No. 6592 of 2021 of 21 November 2021. A summary of the decision is provided by S Khair and M Ekramul Haque, “State Practice of Asian Countries in International Law – Bangladesh” (2021) 27 Asian Yearbook of International Law 146).

Dissatisfied with the order, Y appealed to the Appellate Division of the Supreme Court of Bangladesh (hereafter ‘The Appellate Division’). After examining relevant international and domestic laws and precedents, The Appellate Division reiterated that the children’s best interest should be given primary consideration. It concluded that the appropriate forum to resolve the custody dispute is the Family Court, where proceedings were already pending. The Appellate Division ultimately decided to overturn the High Court’s decision, placing the children in Y’s custody, while granting X visitation rights until the Family Court issued its final verdict (Civil Petition for Leave to Appeal No. 233 of 2022 of 13 February 2022. A summary of the case is provided by S Khair and M Ekramul Haque, “State Practice of Asian Countries in International Law – Bangladesh” (2022) 28 Asian Yearbook of International Law 195).

 

iii) Continuation of the Proceedings before the Family Court

The proceedings resumed before the Family Court. On 29 January 2023, the first-instance court dismissed X’s claim on the ground that the Bangladeshi courts lacked jurisdiction since the custody issue had already been decided in Japan, country of the family’s last residence. The court also emphasized that children’s welfare would be better ensured with the mother (Dhaka in Family Suit No. 247 of 2021 dated 29 January 2023). The decision was confirmed in appeal on similar terms (Family Appeal No. 22 of 2023 dated 12 July 2023). Dissatisfied, X appealed to the High Court.

 

iv) Ruling of the High Court

Before the High Court, X challenged the lower courts’ conclusions. X’s key arguments included the following:

(i) The parties had been litigating in Bangladesh for a long time, thus justifying the jurisdiction of the Bangladeshi courts over the dispute

(ii) The lower courts actively engaged in discussing the merits of the case, including the welfare of the children, and parental suitability, therefore, dismissing the claim on jurisdictional ground was illogical,

(iii) The decision rendered in Japan was not binding on the Bangladeshi courts

(iv) The Japanese decree cannot be given effect as it did not grant X any visitation right

 

In her response, Y argued that the lower courts correctly dismissed the case. Y’s arguments include – among others – the following point:

(i) The cause of action in casu arose in Japan, where the children were born and raised. In addition, they had never visited Bangladesh before

(ii) All the parties resided in Japan before the dispute arose

(iii) Since Japanese court had already decided the custody issue, Bangladeshi courts lacked jurisdiction.

(iv) The lower courts thoroughly examined the case, placing emphasis on the children’s welfare and well-being. In addition, all questions of welfare and custody should be addressed at the child’s habitual residence

 

In its decision (Civil Revision No. 3298 of 2023 dated 13 February 2024), the High Court ruled that Bangladeshi courts have jurisdiction over the matter on the ground that:

(i) Although the children were born and primarily raised in Japan, the custody dispute partially arose in Bangladesh where X and the children were residing, at the time when the suit was filed, and continue to reside since then.

(ii) the jurisdiction of the Bangladeshi courts could not be ousted by the decision of Japanese court, given that – as an independent country – the courts are empowered to exercise jurisdiction under domestic law. Such an issue should have been seriously considered with due regard to Bangladesh’s sovereignty, rule of law and the legal aspects of the country.

Regarding the custody determination, the High Court emphasized the importance of carefully considering and balancing various aspects of the case, with a particular focus on the welfare and well-being of the children as the paramount principle. The Court considered that, as a matter of law in Bangladesh, custody should always be granted to the mother, as this is in line with the welfare of the children. The Court also stressed the importance of placing particular emphasis on the opinion of the children and giving precedence to their mental state and intention. Based on such considerations, the Court decided to divide the custody between the parents: custody of the child who wished to stay with the father was granted to X, while custody of the child who wished to return to Japan was granted to Y. The Court also urged the parties to ensure full visitation rights through amicable arrangement based on the principle of reciprocity.

 

III. Comments

The case, along with the manner in which it was handled by Japanese and Bangladeshi courts raise several important legal and practical questions. Among these, the following can be highlighted.

 

1. Relevance of the 1980 HCCH Convention

First, the case highlights the significance of the 1980 HCCH Convention in addressing cross-border unlawful relocation of children. Had Bangladesh been a contracting state, the resolution of the case would have been more straightforward, potentially avoiding the prolonged and conflicting litigation that ensued in both jurisdictions. In this respect, one particularly noteworthy aspect deserves to be mentioned. When submitting the writ petition before the High Court, Y argued that, despite the fact Bangladesh not being not a contracting state, the 1980 HCCH Convention could still be applicable. In support of her argument, Y relied on an earlier High Court decision, in which the 1980 HCCH Convention was recognized as being “part of international customary law” (RMMRU v Bangladesh and others (2020) 72 DLR 420). The High Court, however, did not address this issue.

 

2. Treatment of the Case in Japan and Bangladesh

Second, the contrasting approaches taken by the Japanese courts and the Bangladeshi courts in addressing the custody dispute are striking. In Japan, the courts followed a more classical, structured approach, beginning first by determining whether Japanese courts had international jurisdiction, then determining the applicable law before proceeding to assess the merits of the case. This methodical manner to approach the case was facilitated by the fact that Japan has comprehensively codified its private international law. The existence of a clear applicable legal framework with renders the resolution of such cases a matter of straightforward interpretation and application of the relevant legal provisions (for a brief overview, see my previous post here).

The situation in Bangladesh presents notable differences, as rules of private international law in the country remains fragmented and only partially codified (for an overview, see Mohammed Abdur Razzak, ‘Conflict of Laws – State Practice of Bangladesh’ in S. R. Garimella and S. Jolly (eds.), Private International Law – South Asian States’s Practice (Springer, 2017) 265). An appropriate approach would have been for the High Court to consider whether the Japanese decree could be recognized and enforced in Bangladesh in accordance with the relevant legal provisions (for an overview, see Sanwar Hossain, ‘Cross-Border Divorce Regime in Bangladesh’ in Garimella and Jolly op cit. 102, Abdur Razzak, op. cit., 281). The Court’s approach in the first and second decision appears to conflate the principle of “comity of nations” with the children’s welfare as a paramount consideration that need to be independently assessed by Bangladeshi courts, and the issue of recognition with that of jurisdiction

 

3. Absence of Islamic law influence 

Finally, one of the remarkable aspects of the Bangladeshi court’s decisions is the absence of any discernable influence of Islamic law on the assessment of custody, despite the repeated references in the decisions to the religion of the parties. X, for instance, is described as a ‘religious’ person and ‘a pious Muslim’. The decisions also mention that X and Y’s marriage was celebrated according to Islamic tradition at a local mosque in Japan, following an earlier ceremony at a Shinto Shrine, and only after Y converted to Islam took a Muslim name.

In the High Court 2024 decision, Y is portrayed as an atheist who left Islam and who allegedly threatened X to raise the children in a ‘Japanese culture where drinking alcohol, live together (sic), eating pork are common’. Before Bangladeshi Court, X did raise several Islamic principles related to child custody (notably the fact that, under Islamic law, custody should transfer to the father once the children reach a certain age), and emphasizing on his disagreement with Y who, according to him, ‘refused to follow and respect the Islami life style (sic)’.

Given the significant role of the Islamic principles play in the Bangladeshi legal system, especially in family law matters (for a general overview, see Ahmad Nasir Mohad Yusoff and AHM Shafiqul Islam, ‘The Legal System of Bangladesh: The Duality of Secular and Islamic Laws’ (2024) International Journal of Academic Research in Business & Social Sciences 14(11) 1965), one might expect that the considerations mentioned above would influence the courts’ decisions. For example, as a matter of general principle, the custody of children should not granted to someone who left Islam, particularly, when that person lives in a non-Muslim country (see e.g. the decision of the UAE Federal Supreme court of 10 April 2004 cited in Béligh Elbalti, ‘The Recognition and Enforcement of Foreign Filiation Judgments in Arab Countries’ in N. Yassari et al. (eds.), Filiation and the Protection of Parentless Children (T.M.C. Asser Press, 2019) 397).

Nonetheless, it is remarkable that none of these considerations were raised or taken into account by the judges, who addressed the case in an entirely objective manner. Even more striking, the High Court not only affirmed Y’s suitability as a custodian, but also reiterated its longstanding principle that child custody should generally be granted to mothers. This principle was applied in the present case without any apparent consideration of Y’s and applied this principle to the case without giving any credits to the significance of Y’s religious background or the fact that she declares herself as a non-Muslim who left Islam.

Published on behalf of the IJI, Den Haag

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By Adeline Chong, Singapore Management University

1. Introduction

In two decisions decided within a fortnight of each other, the Singapore Court of Appeal considered anti-suit injunctions pursued to restrain proceedings allegedly brought in breach of arbitration agreements. The first case, Asiana Airlines, Inc v Gate Gourmet Korea Co, Ltd (‘Asiana Airlines’)[1] dealt with whether A could rely on an arbitration agreement between A and B to restrain B’s proceedings against C, a third party. The second case, COSCO Shipping Specialized Carriers Co, Ltd v PT OKI Pulp & Paper Mills (‘COSCO Shipping’)[2] considered whether an arbitration agreement covered a tortious claim. To put it in another way, Asiana Airlines mainly concerned the ‘party scope’ of an arbitration agreement while COSCO Shipping concerned the ‘subject matter’ scope of an arbitration agreement.[3] Where the anti-suit application is to restrain foreign proceedings brought in breach of an arbitration or choice of court agreement, ordinarily it would be granted unless ‘strong cause’ is shown by the respondent.[4] This provides an easier path for the anti-suit claimant compared to the alternative requirement of establishing that the foreign proceedings are vexatious or oppressive in nature.

In both judgments, the Court emphasised that forum fragmentation was sometimes inevitable and that the crux was to ascertain parties’ intentions as to the ambit of the arbitration agreement. While both decisions canvassed other private international law issues, the primary focus of this comment is the Court’s approach to construing the scope of dispute resolution clauses. Although both decisions involved arbitration agreements, the same reasoning applies to choice of court agreements.[5] Further, the principles apply equally whether the application concerns a stay of proceedings or an anti-suit injunction.[6]

2. Asiana Airlines

Asiana Airlines (a Korean company) entered into a joint venture agreement with Gate Gourmet Switzerland GmbH (GGS). This joint venture resulted in the establishment of Gate Gourmet Korea (GGK). Asiana entered into a catering agreement with GGK. Both the joint venture and catering agreements contained arbitration agreements. It transpired that the chairman of Asiana had arranged for the two agreements to benefit his own personal interests, in breach of his obligations to Asiana. The chairman was later convicted in Korean proceedings.

Asiana commenced proceedings in Korea against GGK for a declaration that the catering agreement was null and void under Korean law due to its chairman’s breach of trust, and consequently, the arbitration agreement was similarly null and void. It also advanced an argument that the dispute was non-arbitrable due to Korean public policy; all relevant stakeholders were members of the Korean public and the outcome of the proceedings would have an impact in Korea. Subsequently, Asiana also pursued actions against GGS and the directors of the Gate Gourmet Group. It alleged that the directors were actively involved in the chairman’s unlawful conduct and therefore liable in tort under Korean law, and GGS was vicariously liable for their actions. The same points on nullity and public policy were raised.

Gate Gourmet applied for anti-suit injunctions in Singapore to restrain the Korean proceedings. Central to the anti-suit applications was the arbitration agreements in the joint venture and catering agreements. The Court of Appeal, hearing the appeal from a decision of the Singapore International Commercial Court (SICC), held that it was an abuse of process for Asiana to argue that the arbitration agreements were null and void given that it had not pursued previous opportunities to raise this point. Not surprisingly, Asiana’s public policy argument received short shrift; it was too broadly framed as it was inevitable that proceedings involving big companies would have an impact on their home countries. Thus, the Court held that the Korean proceedings against GGK was in breach of the arbitration agreement in the catering agreement and the anti-suit injunction restraining the Korean proceedings against GGK was upheld.

More interesting was the anti-suit injunction restraining the Korean proceedings against the directors. Asiana argued that the directors were non-parties to the joint venture agreement and the arbitration agreement contained therein and as GGS were sued on the basis of vicarious liability, the proceedings were not related to the agreement. The Court applied Korean law, the proper law of the agreement, to construe the arbitration agreement. It observed that under Korean law, arbitration agreements could cover non-contractual claims and that the tortious claims pursued were closely connected with the joint venture agreement. The anti-suit injunction restraining the Korean proceedings against GGS was affirmed. The question which then arose was whether the anti-suit injunction restraining the proceedings against the directors could be maintained on the same basis of breach of the arbitration agreement or could only be maintained if the Korean proceedings against the directors were shown to be vexatious or oppressive in nature. As the Court observed, an anti-suit injunction based on the first ground meant that ‘GGS as the anti-suit claimant would have to show that if Asiana pursued the claim against the [directors], it would breach GGS’s rights under the JVA Arbitration Agreement.’[7]

This question involved the situation where A and B are parties to the dispute resolution clause and B commences proceedings against C in a different forum from that named in the clause. Can A pursue an anti-suit injunction restraining B’s action against C on the ground that that action is in breach of the clause?[8] Another variant of this situation is where C applies for an anti-suit injunction restraining B’s action against C as being in breach of the jurisdiction clause. In a prior decision VKC v VJZ,[9] the Court of Appeal held that section 2(1)(b) of the Contracts (Rights of Third Parties) Act 2001 did not cover exclusive jurisdiction clauses.[10]  In contrast, the New South Wales Court of Appeal in Global Partners Fund v Babcock & Brown[11] took the view that C could rely on the benefit of the jurisdiction clause under the common law provided C was a ‘non-party’ who was intimately involved in the transaction between A and B.[12]

The UK House of Lords in Donohue v Armco Inc[13] held that where an exclusive English choice of court agreement bound some, but not all, of the parties in the foreign proceedings, the avoidance of forum fragmentation amounted to strong reasons not to uphold the choice of court agreement. The requested anti-suit injunction in Donohue, however, involved those who were parties to it: A sought an anti-suit injunction restraining B’s action against A. Nevertheless, Lord Scott of Foscote had commented in obiter that A could in certain circumstances obtain an anti-suit injunction restraining not only proceedings against itself but also proceedings against C if there was a possibility that A and C would be jointly and severally liable. This is provided the wording of the clause was sufficiently wide to cover the proceedings against C and A had a sufficient interest in obtaining the anti-suit injunction, namely, to avoid incurring liability as a joint tortfeasor. The Singapore Court of Appeal rejected Lord Scott’s comments, as it thought that it would be overinclusive and  prohibit legitimate claims against third parties.[14] Instead it cited with approval the decision in Team Y&R Holdings Hong Kong v Ghoussoub; Cavendish Square Holding BV v Ghossoub[15] to the effect that the Fiona Trust[16] principle that the intentions of rational businessmen would be to have a ‘one-stop shop’ for litigation cannot apply with the same force when considering claims involving third parties. Clear language is required before an exclusive jurisdiction clause covers claims brought by or against third parties.[17] The risk of forum fragmentation, which underscored Lord Scott’s suggestion in Donohue, should not be ‘overstated’.[18]

This more narrow construction of the party scope of dispute resolution clauses raises the risk of B manipulating the situation and evading the dispute resolution clause by pursuing claims against C. However, as the Court pointed out, it would be open for A to apply for an anti-suit injunction on the basis that B’s proceedings against C rendered the proceedings between A and B vexatious or oppressive. Additionally, C could also independently seek an anti-suit injunction restraining the proceedings against it on the vexation or oppression ground.[19]

On the facts, the Court held that while the directors had signed the joint venture agreement, they had done so in their capacity as representatives of GGS. There was nothing in the wording of the arbitration agreement to indicate that Asiana and GGS intended the clause to apply to claims against the directors. The anti-suit injunction restraining the action against the directors could not succeed on the basis of breach of the arbitration agreement; it could only succeed on the vexation or oppression ground. However, Gate Gourmet failed to show any bad faith on Asiana’s part in suing the directors. Therefore, the anti-suit injunction was upheld in relation to the action against GGS as being in breach of the arbitration agreement while the anti-suit injunction restraining the action against the directors was discharged.

3. COSCO Shipping

PT OKI (an Indonesian company) had sub-chartered a vessel which belonged to COSCO Shipping (a Chinese company). The head charter and sub-charter contracts each contained a law and arbitration clause for English law and arbitration in Singapore. Further to that, contracts of carriage were entered into between the two companies. These contracts, which were evidenced by or contained in bills of lading, incorporated the law and arbitration clause in the charter contracts. While loading PT OKI’s cargo at the port of Palembang, Indonesia, COSCO Shipping’s vessel allided with the trestle bridge of the jetty, causing damage which allegedly amounted to US$269m. The bridge and port were owned and operated by PT OKI. Various proceedings were pursued by both parties, the most relevant of which were: PT OKI commenced proceedings against COSCO in Indonesia in tort for the damage to the trestle bridge; COSCO applied for an anti-suit injunction in Singapore to restrain PT OKI from continuing with the Indonesian action; and COSCO commenced arbitration against PT OKI before the Singapore International Arbitration Centre (SIAC) in Singapore seeking declarations of non-liability and various reliefs arising out of the allision. COSCO alleged that PT OKI had breached the safe port warranty under the head charter agreement as incorporated into the bills of lading and raised contractual defences also found in the head charter agreement and incorporated into the bills of lading.

The anti-suit application was based on PT OKI’s alleged breach of the arbitration agreement. The Court of Appeal considered the meaning of the phrase ‘arising out of or in connection with this contract’, used in the arbitration agreement and which is standard language in dispute resolution clauses. At first instance, the judge had referred to various tests-such as the ‘parallel claims test’,[20] ‘causative connection test’ and the ‘closely knitted test’[21] to ascertain if the tort claim fell within the scope of the arbitration agreement. The Court of Appeal emphasised that the various tests were ‘simply labels and tools developed to assist the courts’[22] and pushed back against any presumption that parties must always have intended for all their claims to be decided in the same forum. The crux was the parties’ intentions as encapsulated by the wording of the agreement; thus ‘[i]f upon examining the text of the agreement and the nature of the competing claims, a claim is not within its ambit, then forum fragmentation is inevitable and the courts should not steer away from that outcome …’[23]

The Court adopted a two-stage test when ascertaining the scope of an agreement: first, the court should identify the matter or dispute which parties have raised or foreseeably will raise in the foreign proceedings; and secondly, the court must then ascertain whether such matter or dispute falls within the scope and ambit of the agreement. At the first stage, the court is trying to identify the substance of the dispute between the parties. It should not consider only the claimant’s pleaded cause of action but should also take into account defences or reasonably foreseeable defences and cross-claims that may arise. The Court held that it was not necessary for the claims or defences to be connected to the contractual relationship. This is significant because the tort action in Indonesia was not based on the contract between the parties.[24] It concluded that the tort action fell within the scope of the arbitration agreement. The parties must have contemplated that a pure tort claim for damage to the trestle bridge caused during the performance of the contracts of carriage between the parties and where it was foreseeable that defences based on the contract would be raised would fall within the scope of the arbitration agreement. Thus, the anti-suit injunction could properly be founded on breach of the arbitration agreement. There was no consideration if ‘strong cause’ was shown by PT OKI to justify the breach of the arbitration agreement; it did not appear that arguments had been made on this point.

4. Conclusion

The decisions in Asiana Airlines and COSCO Shipping should not be read as the Singapore courts resiling from the Fiona Trust principle, which has been cited and applied in a number of other decisions.[25] The core idea that one should adopt a common-sense approach when construing dispute resolution clauses, bearing in mind that the parties are rational businessmen, still underlines the two judgments. The clarification added by the Court of Appeal was the starting point must always be the wording of the dispute resolution clause and the context in which it was entered into.[26] This is in contrast with the prior approach where sometimes the court tended to start with the presumption that parties intended for ‘one-stop shopping’ and to apply the presumption in the absence of any contrary evidence.[27] There is now an important shift in focus. The court should not go to great lengths to achieve a construction which supports ‘one-stop shopping’ where this is not borne out by the wording of the clause and the circumstances of the case. If this means that there would be parallel litigation across a few jurisdictions, the courts should not shy away from that conclusion.[28] In particular, where third parties are concerned, clear language must be used to bring third parties within the scope of a dispute resolution clause. Ultimately, Asiana Airlines and COSCO Shipping underscore the importance of clear and precise drafting of dispute resolution clauses.

 

 

[1] [2024] SGCA(I) 8; [2024] 2 SLR 279.

[2] [2024] SGCA 50; [2024] 2 SLR 516.

[3] The phrases ‘party scope’ and ‘subject-matter scope’ was coined by the New South Wales Court of Appeal in Global Partners Fund Limited v Babcock & Brown Limited (in liq) [2010] NSWCA 196.

[4] Sun Travels v Hilton [2019] 1 SLR 732 (Singapore CA) [68], [78], [81]-[87].

[5] Asiana [80]-[83].

[6] COSCO [73].

[7] Asiana [58].

[8] See Thomas Raphael, The Anti-Suit Injunction (2nd edn, OUP 2019) para 7.31.

[9] [2021] 2 SLR 753.

[10] This provision allows C to enforce a term of the contract if the term purports to confer a benefit on C.

[11]  [2010] NSWCA 196 (noted A Chong, ‘The “Party Scope” of Exclusive Jurisdiction Clauses’ [2011] LMCLQ 470).

[12] Cf Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 [90] (President Bell) (in the context of a stay application).

[13] [2002] 1 All ER 749 (HL).

[14] Asiana [85]-[88].

[15] [2017] All ER(D) 81 (Nov) [82].

[16] Fiona Trust & Holding Corporation v Privalov [2008] 1 Lloyd’s Rep 254 (UKHL).

[17] Asiana [72]-[73].

[18] Asiana [88].

[19] Asiana [84].

[20] Eastern Pacific Chartering Inc v Pola Maritime Ltd [2021] 1 WLR 5475 (“The Pola Devora”) [37].

[21] Aggeliki Charis Compania Maritima SA v Pagnan SpA (The Angelic Grace) [1995] 1 Lloyd’s Rep 87 (English CA) 89. The Court disagreed with the judge that the ‘closely knitted test’ applies only where the non-contractual claim may be recast as a contractual claim: COSCO [78]-[79].

[22] COSCO [3]

[23] COSCO [5].

[24] The court below had been troubled by the fact that the tort claim could not be recast as a contractual claim. It did not grant the anti-suit injunction: [2024] SGHC 92.

[25] Eg, Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] 2 SLR 1271 (Singapore CA), Allianz Capital Partners GmbH, Singapore Branch v Goh Andress [2023] 1 SLR 1618 (Singapore HC(A)).

[26] See also Rals International Pte Ltd v Cassa di Risparmio di Parma e Piacenza SpA [2016] 5 SLR 455 [34].

[27] Eg, Vinmar Overseas [79].

[28] See to similar effect, Australian Health [90].

[29] Eg, Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] 2 SLR 1271 (Singapore CA), Allianz Capital Partners GmbH, Singapore Branch v Goh Andress [2023] 1 SLR 1618 (Singapore HC(A)).

[30] Eg, Vinmar Overseas [79].

[31] See to similar effect, Australian Health [90].

On Tuesday, April 1, 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 Carlos Esplugues (University of Valencia) will speak, in English, about the topic

“Take Domestic Law and Run? The Application of Foreign (Private? State?) Law in Times of Uncertainty”

 

The possible application of foreign law is one of the features of contemporary private international law, a discipline that is particularly sensitive to the social, political and economic environment in which it operates. However, the redefinition of the role of the State in modern societies, technological changes or the growing wave of intolerance and fear towards what comes from abroad in many parts of the world are creating a new environment that affects this question in a pluralistic way. Beyond the classical issue of the nature of the applicable law and its relationship to the process, questions are being raised about the viability of this possible applicability and the conditions under which it can be established.

 

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.

As already mentioned in my previous post, at the end of each year I publish an article (in German) about the Conflict of Laws developments in Germany of the last twelve months, covering more or less the year 2024 and the last months of 2023. This post is the second with an overview over those topics that seem to be most trending.

The two parts focus on the following topics (part 1 contained 1. and 2.):

1. Restitution of Money lost in Illegal Gambling
2. Applicable Law in the Dieselgate litigation
3. The (Non-)Valitidy of Online Marriages
4. New German conflict-of-law rules regarding gender afiliation / identity
5. Reforms in international name law

I will now give attention to the last three topics that focus on the three areas that are not harmonized by EU law (yet) and are mainly questions of family law.

This is not a resumen of the original article as it contains a very detailed analysis of sometimes very specific questions of German PIL. I do not want to bore the readers of this blog with those specificities. Those interested in knowing those details can find the article here (no free access).

I would be really curious to hear whether these or similar cases are also moving courts in other jurisdictions and how courts deal with them. So, please write me via mail or in the comments to the post if you have similar or very different experiences on those cases.

Part 2 – Online Marriages, Gender Afiliation and Name Law

1.  The (Non-)Validity of Online Marriages

   One highly discussed topic of the last few years was the treatment of Online Marriages. Online Marriage refers to a marriage ceremony where the declarations of intent to marry are declared virtually by digital means. In the relevant cases, at least one of the (future) spouses was located in Germany when this intent was declared via Zoom, Whatsapp or similar means, while the rest of the ceremony, esp. the registration or the other acts of a registrar, was located in another State, esp. in Utah or Afghanistan. The case which the BGH (Supreme Court) decided in September 2024 was about two Nigerians that were in Germany while their declaration was registered in Utah, USA.

   In German law, the validity of such a marriage is determined in two steps: The substantial law of marriage follows the law of the nationality of each spouse (Article 13 EGBGB). The formal validity, in general, follows the classical alternative connecting factors of either the law of the main question (lex causae) or the law of the place of the relevant (lex locus), Article 11 EGBGB. Nevertheless, regarding marriages, a special rule applies regarding the formal validity: Article 13 para. 4 EGBGB provides that a marriage concluded in Germany necessarily follows German law regarding the form.

   As the requirements of each nationality’s laws where fulfilled, main question of the case was: Where does the celebration of a marriage actually take place if it is celebrated online?

   Before this question came up, the prevailing opinion and case law referred to the law of the place where the state authority or the religious authority were located (Coester-Waltjen/Coester Liber Amicorum Verschraegen (2023), 1 (6); vgl. auch Gössl NJW 2022, 3751; BGH 19. 12. 1958 – IV ZR 87/58 ), which in my opinion makes sense as these authorities make the crucial difference between a mere contract and a marriage conclusion from the point of view of German law. Nevertheless, the Supreme Court (BGH 25.9.2024 – XII ZB 244/22) and other courts (VG Karlsruhe 28.9.2023 – 1 K 3074/23; VG Düsseldorf 5.7.2024 – 7 K 2728/22) decided that the place of the marriage is located at the place where the spouses declare their intents to marry – with the consequence that Art. 13 para. 4 EGBGB applied in all cases where at least one spouse was located in Germany at the moment of the declaration.

   I am personally not convinced of the case. The Supreme Court distinguishes the decision from so-called proxy marriages where the declaration is made by the proxy and, therefore, not where the spouses are located but where the proxy is communicating. Nevertheless, this comparison is not convincing: German courts characterize the declaration of a proxy as a (merely) formal requirement in cases where the “proxy” has no power to decide but merely communicates the will of the spouse. Thus, in my opinion, the “proxy” is more a messenger than a real proxy and then the location of the declaration again is where the spouses (not the proxies) are in the moment they send the messenger. Furthermore, I am skeptical because the cases decided yet happened in migration contexts and might have been regarded differently with different parties.

   What are your thought? Do you have similar questions in your jurisdictions?

2. New German conflict-of-law rules regarding gender afiliation and “Mirin”

   Since November 2024 the German EGBGB has an explicit conflict of laws rule on gender affiliation / gender identity. It was introduced by the Gender Self-Determination Act. According to Art. 7a para. 1 EGBGB (here you find the provision in German), a person’s nationality’s law must be applied. That was more or less the unwritten rule, courts followed in Germany. The second paragraph introduces a very limited form of party autonomy: According to Art. 7a para. 2 EGBGB , a (foreign) person with habitual residence in Germany can choose German law for the change of gender or a related change of name.

   While this rule opens non-nationals to change their legal gender in Germany, it does not comply with the case law of the CJEU. In the decision Mirin (ECLI:EU:C:2024:845 – Mirin) the CJEU extended her case law regarding the recognition of names to gender changes that took place in another Member State. It establishes the obligation to recognise the change of gender validly made in another Member State.

    If a person changes the gender in another Member State without being a national of that State but (e.g.) living there, in Germany that gender reallocation cannot be accepted by Art. 7a EGBGB. An extension of Art. 7a para. EGBGB, i.e. a choice of law in favour of every habitual residence (not limited to a German one), might help, even though it probably will not include all situations possible where the obligation to recognize a gender afiliation can exist. This development again shows that the classical “recognition via conflict of laws” method is not able to implement the case law of the CJEU.

   What are your thoughts to those developments (Mirin and the new rule)?

3. Reforms in International Name Law

   Finally, there was a general reform of German name law and – in a last minute move my the legislator – in International Name Law as well. The new rules will enter info force in May 2025.

   At the moment, the law of the person follows her nationality (Article 10 para. 1 EGBGB – version until the end of April 2025). Furthermore, there is a very limited possibility of a choice of law for spouses regarding a common name (each spouses nationalities and German law if one has the habitual residence in Germany) and for children and their family names (nationality of each parent or other person with parental responsibility or German law, if one parent has the habitual residence in Germany).

   The new Article 10 para. 1 EGBGB changes the connecting factor: instead of nationality, habitual residence of the person determines her name, renvoi excluded. According to Art. 10 para. 4 EGBGB, instead, the person can choose the law of the nationality. The futher choice of law for spouses and children family names remains, but allows spouses to choose the law of the habitual residence of one of them, no matter whether it is the German one or not. A child’s name now can be chosen by the parents’ and the child’s nationality (new). In all those cases, persons with double nationality can choose both nationalities.

   Finally, Article 48 EGBGB contains a provision that implements the CJEU case law regarding the recognition of names. Until now, it provides that a person can choose to change the name into the name acquired during a habitual residence in another Member State of the European Union and entered in a civil status register there, unless this is manifestly incompatible with fundamental principles of German law.

   The new provision is almost identical, but some subtle but important changes were made: First, a person does not have to have their habitual residence in the Member State in which they acquired the name. Nationality is sufficient. This implements “Freitag“. Second, it no longer depends on whether the name was ‘lawfully’ acquired in another Member State, but only on the (possibly incorrect) entry of the name in a foreign register. This last requirement (in my opinion, see Gössl, IPRax 2018, 376) goes further that the CJEU requires, as the name has to be “validly acquired” in another Member State to create the obligation to “recognize” or accept that name. Nevertheless, the CJEU most probably will not object to a Member State that is more recognition/acceptance-friendly than necessary.

 

I hope you found this overview interesting. Next year, I am planing to provide similar articles, so any feedback is very welcome.

 

 

 

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 27 March 2025 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is ‘Circular Economy and Private International Law’ and will be presented by Prof. Verónica Ruiz Abou-Nigm (in Spanish).

The details of the webinar are:

https://us02web.zoom.us/j/84118243541?pwd=GoZxHgM7OlZNOCaL1GUpaqsvVTYIK6.1

Meeting ID: 841 1824 3541

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

 

Post authored by Lance Huckabee, JD candidate and Global Legal Scholar at the University of Pittsburgh School of Law

When a foreign sovereign breaches a commercial contract with a private entity, what recourse does the wronged party have? In the United States, the Foreign Sovereign Immunities Act (FSIA) governs such disputes, providing an exception for commercial activity that causes a “direct effect” in the U.S. Yet, the definition of “direct effect” has remained elusive, leading to decades of judicial inconsistency and a deepening circuit split.

At the heart of this legal uncertainty is the Supreme Court’s decision in Republic of Argentina v. Weltover (1992), which sought to clarify the issue but instead left room for widely divergent interpretations. Some circuits have adopted a flexible, causation-based approach, analyzing whether a foreign state’s breach had an immediate consequence in the U.S. Others, like the recent D.C. Circuit decision in Wye Oak Tech., Inc. v. Republic of Iraq, have imposed rigid bright-line rules—specifically requiring that the contract contemplate the U.S. as a place of performance. This formalistic approach creates a dangerous loophole, allowing foreign states to structure agreements in a way that insulates them from jurisdiction. As a result, a U.S. business may suffer substantial financial harm from a foreign sovereign’s breach but find itself without legal recourse simply because the contract was silent on where payments were to be made.

This restrictive interpretation undermines the FSIA’s core purpose: to hold foreign sovereigns accountable when their commercial activities impact U.S. businesses. By prioritizing contractual language over economic reality, decisions like Wye Oak erode the ability of American companies to seek redress, making sovereign breaches effectively consequence-free. A proper interpretation of the FSIA should align with Weltover’s focus on causation, ensuring that foreign states cannot exploit technicalities to evade liability. If left uncorrected, the current trend risks turning the FSIA into little more than a paper shield—one that protects sovereigns rather than those they harm.

The Wye Oak decision exacerbates both intra- and inter-circuit inconsistencies, further complicating the FSIA’s application and weakening the commercial activity exception in breach-of-contract cases. By imposing a rigid bright-line rule, it unduly narrows the scope of what qualifies as a “direct effect,” creating uncertainty for U.S. businesses engaged in international commerce. With Wye Oak’s attorneys petitioning for certiorari in January 2025, the case presents a critical opportunity for the Supreme Court to resolve the longstanding circuit split on the FSIA’s direct effects clause.

The Irwin Law “Essentials Series” is a collection of texts about Canadian law aimed at a broad audience: it includes law students and also lawyers, judges and academics.  It has been quite successful over the past twenty years.  In 2024 Irwin Law was acquired by University of Toronto Press.  It has continued the Essentials Series and the use of the Irwin Law imprint.

It has now published the third edition of Conflict of Laws written by Professor Stephen G.A. Pitel of Western University, Canada.  The second edition was published in 2016 and so this edition updates almost a decade of activity, mainly from courts across Canada.  The major change is that the chapter on declining jurisdiction has been reorganized and updated in light of the Supreme Court of Canada’s decisions in Douez v Facebook, Inc (2017) and Haaretz.com v Goldhar (2018).  All chapters have been updated to reflect new decisions, legislative changes and recent scholarship.

More information is available here.  For those outside Canada, the book is a clear and accessible source of comparative conflict of laws analysis.

The 21st century has witnessed a remarkable surge in academic scholarship on private international law in Asia. This is not to say that significant studies on the subject were absent before this period. However, in recent decades, Asian scholars have brought renewed vigour and depth to the field, establishing private international law as a critical area of legal inquiry on the continent.

A testament to this intellectual flourishing is Hart Publishing’s extensive series on private international law in Asia, featuring no fewer than 16 volumes with Professors Anselmo Reyes and Paul Beaumont as Series Editors. These works serve as a rich repository of comparative legal thought, offering valuable insights that extend far beyond Asia’s borders. Scholars and practitioners seeking inspiration from diverse jurisdictions will find these books to be an essential resource. Moreover, other publishers have also contributed to this growing body of literature, further amplifying Asia’s voice in the global discourse on private international law.

Having read and reviewed many of these works on the blog, I am continually struck by the depth of scholarship they offer. Each new book reveals fresh perspectives, reinforcing the notion that private international law is not merely a regional concern but a truly global conversation.

As someone deeply engaged with African private international law, I have found immense value in these Asian publications. The parallels between Asia and Africa—particularly in terms of legal pluralism and cultural diversity—make these studies both relevant and instructive. The cross-pollination of ideas between these regions has the potential to strengthen the development of private international law in both continents.

What is most striking about this surge in Asian scholarship is its outward-looking nature. No longer confined to internal discussions, private international law in Asia is now exporting ideas, influencing legal developments worldwide. This is a phenomenon that deserves both recognition and emulation. The rise of Asian scholarship in private international law is not just an academic trend—it is a pivotal force shaping the future of global legal thought.

This article was written by Prof. William S. Dodge (George Washington University Law School) and first published on Transnational Litigation Blog. The original version can be found at Transnational Litigation Blog. Reposted with permission.

On March 7, 2025, Judge Stephen N. Limbaugh, Jr. (Eastern District of Missouri) entered a default judgment for more than $24 billion against the People’s Republic of China and eight other Chinese defendants for hoarding personal protective equipment (PPE) during the early days of the COVID pandemic in violation of federal and state antitrust laws. The Eighth Circuit had previously held that the Foreign Sovereign Immunities Act (FSIA) barred most of Missouri’s claims but that the hoarding claim fell within the act’s commercial activity exception.

Missouri now has the judgment against China that it wanted. But Missouri may find that judgment hard to enforce. As discussed below, there appear to be significant procedural problems with the judgment that at least some defendants might raise. More broadly, the properties of foreign states and their agencies or instrumentalities are entitled to immunity from execution under the FSIA. Immunity from execution is broader than immunity from suit, and it is not clear that any of the defendants have property in the United States that can be used to satisfy the judgment.

The Defendants and the Claims

On April 21, 2020, Missouri brought four COVID-related claims against nine Chinese defendants: the People’s Republic of China, the Chinese Communist Party, the National Health Commission, the Ministry of Emergency Management, the Ministry of Civil Affairs, the People’s Government of Hubei Province, the People’s Government of Wuhan City, the Wuhan Institute of Virology, and the Chinese Academy of Sciences. The original complaint asserted four claims under Missouri tort law: (1) public nuisance, (2) abnormally dangerous activity, (3) breach of duty by allowing the transmission of COVID, and (4) breach of duty by hoarding PPE. The district court initially held that all the claims were barred by the FSIA, but the Eighth Circuit reversed on the hoarding claim.

The FSIA governs the immunity of foreign states and their agencies and instrumentalities from suit in federal and state courts, as well as the immunity of their properties from execution to satisfy judgments. Some of the FSIA’s provisions distinguish between foreign states and their political subdivisions on the one hand and their “agencies or instrumentalities” (including “organs” and majority state-owned companies) on the other. Other provisions extend the same immunities to both categories.

Of the nine defendants, the Eighth Circuit held that seven of them were part of the Chinese state. China itself is clearly a foreign state, and its National Health Commission, Ministry of Emergency Management, and Ministry of Civil Affairs are part of the state. The People’s Government of Hubei Province and the People’s Government of Wuhan City fall into the same category because they are political subdivisions. “The Chinese Communist Party may look like a nongovernmental body at first glance,” the court of appeals wrote, but it is “in substance” the same body that governs China and therefore properly considered part of the state. The remaining two defendants, the Wuhan Institute of Virology and the Chinese Academy of Sciences, are legally separate from the Chinese government “but still closely enough connected” to qualify as “organs” and thus as “agencies or instrumentalities” of a foreign state covered by the FSIA.

Under the FSIA, all nine defendants are immune from suit in the United States unless an exception to immunity applies. The Eighth Circuit found that only one exception applies—the commercial activity exception in 28 U.S.C. § 1605(a)(2)—and that it applies only to Missouri’s claim for hoarding PPE. The court reasoned that hoarding was the kind of activity that private parties can engage in and that the complaint sufficiently alleged that the hoarding had a direct effect in the United States.

After the Eighth Circuit’s decision, I pointed out some of the difficulties that Missouri would face on remand trying to prove its tort claims, including whether Missouri law applied under Missouri choice-of-law rules, whether Missouri law established a duty of care for these defendants, whether the defendants breached any such duty of care, and whether any such breach was the actual and proximate cause of Missouri’s damages. I don’t know whether Missouri’s attorney general reads TLB, but on the eve of trial Missouri changed the legal basis for its hoarding claim from common-law tort to federal and state antitrust law. Antitrust claims are not subject to state choice-of-law rules.

The District Court’s Judgment

The Chinese defendants decided not to appear and defend against Missouri’s claims. Section 1608(e) of the FSIA provides: “No judgment by default shall be entered by a court of the United States or of a State against a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” This provision is supposed to ensure that the U.S. court does not simply accept the plaintiff’s allegations and instead tests the evidence to make sure that judgment is warranted. Some courts have held, however, that they may accept as true a plaintiff’s “uncontroverted evidence.” That is what Judge Limbaugh did here.

Relying on the plaintiff’s evidence, the district court concluded that “China engaged in a deliberate campaign to suppress information about the COVID-19 pandemic in order to support its campaign to hoard PPE from Missouri and an unsuspecting world.” The court noted that local officials closed schools and quarantined doctors and patients in December 2019, while at the same time other officials were denying that COVID could be spread between human beings. The district court further concluded that “Defendants engaged in monopolistic actions to hoard PPE through both the nationalization of U.S. factories [in China] and the direct hoarding of PPE manufactured or for sale in the United States.” The court pointed to evidence that China stopped exporting PPE and started importing a lot of it.

The court found the evidence sufficient to establish liability for monopolization under federal antitrust law. Pursuant to 15 U.S.C. § 15c, Missouri’s attorney general was also permitted to bring a federal antitrust claim parens patriae on behalf of the citizens of Missouri. The court also found the evidence sufficient to establish liability for monopolization under Missouri antitrust law, which the court noted is to be construed “in harmony with” federal antitrust law.

Relying on an expert report on damages submitted by Missouri, the court found that between 2020 and 2051 Missouri either had lost or would lose $8.04 billion in tax revenue because of the impact of China’s hoarding of PPE on economic activity. The court further found that hoarding caused Missouri to spend an additional $122,941,819 on PPE during the pandemic. The court added these amounts and multiplied by three—because federal and state antitrust laws permitted treble damages—for a total damages award of $24,488,825,457.

Problems with the District Court’s Analysis

I see a number of problems with the district court’s analysis. First, the court treated the defendants as an undifferentiated group, seemingly following Missouri’s supplemental brief, which refers simply to the nine defendants collectively as “China.” But the individual defendants in this case knew different things and did different things (and Missouri does not appear to have argued that there was a conspiracy allowing the acts of one defendant to be attributed to the others). The fact that local officials seem to have been aware that COVID could be transmitted from human to human, for example, does not establish that the central government knew this. Indeed, a U.S. intelligence report in 2020 found that local officials hid information about the virus from Beijing. Similarly, the fact that the central government was nationalizing PPE factories, limiting exports, and buying PPE abroad does not show that the Wuhan Institute of Virology or the Chinese Academy of Sciences was doing so.

Second, the damages calculations seem fanciful. The opinion contains no discussion of causation. How can one disentangle the impact of China’s hoarding PPE on Missouri from other factors that contributed to the spread of the pandemic there, for example the fact that Missouri was among the last states to adopt a stay-at-home order? Establishing hoarding’s impact on Missouri’s economy and derivatively its impact on Missouri’s tax revenues is fraught with complications, especially when estimates are projected to the year 2051.

Third, the court failed to consider whether trebling damages is allowed under the FSIA. Section 1606 provides that “a foreign state except for an agency or instrumentality thereof shall not be liable for punitive damages.” In other words, while the FSIA allows the trebling of damages against the Wuhan Institute of Virology and the Chinese Academy of Sciences, it may not allow the same against China itself or the other governmental defendants.

But China did not make any of these points, or others that it would undoubtedly have thought of, because it decided not to appear. The China Society of Private International Law did file two amicus briefs, but the district court did not mention them. I can understand China’s reluctance to submit to the authority of a U.S. court (including to the discovery of evidence) in a case that it no doubt feels is politically motivated. But the decision not to appear gave Missouri an enormous advantage.

What Happens Now?

So, what happens now? There are probably many possibilities, but I will discuss just three: (1) the possibility that some of the defendants might seek to set the judgment aside for improper service; (2) the possibility of enforcing the judgments against the defendants’ property in the United States; and (3) the possibility of similar suits in other states.

A Rule 60(b) Motion Addressing Service of Process?

China could move to set aside the judgment under Rule 60(b)(4) on the ground that the judgment is void for lack of subject matter jurisdiction. The factors that made China decide not to appear in the first place would likely dissuade it from raising all the issues that it could raise in a 60(b) motion. But it might make sense for some of the defendants to raise service of process in such a motion, particularly the Wuhan Institute of Virology and the Chinese Academy of Sciences, which, as explained below, are likely to be the most vulnerable to enforcement of the judgment.

The FSIA has rules for serving foreign states and their agencies or instrumentalities. For foreign state and their subdivisions, Section 1608(a) lists four means of service that must be tried in order. In this case, the first three were not available. (China refused to execute a request for service under the Hague Service Convention on the ground that doing so would infringe its sovereignty, as Article 13 of the Convention allows it to do.) So, the district court ordered service through diplomatic channels, which was then made on all the defendants except the Chinese Communist Party, the Wuhan Institute of Virology, and the Chinese Academy of Sciences. I see no defects in service here.

With respect to the remaining three defendants, the district court authorized service by email pursuant to Rule 4(f)(3). There are three problems with this. First, the district court treated the Chinese Communist Party as a non-governmental defendant for purposes of service, but the Eighth Circuit later held that it is instead a foreign state for purposes of the FSIA. After the Eighth Circuit’s decision, Missouri argued that its service on China through diplomatic channels should count as service on the Chinese Communist Party as China’s alter ego. Judge Limbaugh seems to have accepted this assertion without discussion, but the Communist Party could certainly raise the issue in a Rule 60(b) motion.

The second problem is that Rule 4(f)(3) allows a district court to order alternative means of service only if those means are “not prohibited by international agreement.” As Maggie Gardner and I have explained repeatedly, the Hague Service Convention prohibits service by email, at least when the receiving state has objected to service through “postal channels” as China has done. District courts are divided on this, however, and Judge Limbaugh cited a number of district court cases holding (wrongly) that email service is permitted. A Rule 60(b) motion raising this point would be unlikely to convince him, but it might succeed on appeal to the Eighth Circuit.

The third problem is that service by email in this case is inconsistent with the FSIA. For agencies and instrumentalities, like the Wuhan Institute of Virology and the Chinese Academy of Sciences, Section 1608(b)sets forth the permitted means of service. It appears that the first two were not available and that the district court relied on Section 1608(b)(3)(C), which allows service “as directed by order of the court consistent with the law of the place where service is to be made” (emphasis added). But Chinese law does not permit private parties to serve process by email.

When this issue arose after the Eighth Circuit’s decision, Missouri argued that the language of Section 1608(b)(3)(C) “is nearly identical to Federal Rule of Civil Procedure 4(f)(3), which Missouri previously invoked in its request to serve WIV and CAS by email.” This was misleading. Rule 4(f)(3) refers to means of service that are “not prohibited by international agreement,” whereas Section 1608(b)(3)(C) refers to means of service that are “consistent with the law of the place where service is to be made,” that is Chinese law. Even if service by email were permitted by the Hague Convention—which, as discussed above, it is not—that would not establish that service by email is consistent with Chinese law. Judge Limbaugh did not address this issue in his judgment and might be open to persuasion on a Rule 60(b) motion.

A Rule 60(b) motion limited to service of process issues might have some appeal for China. Although it would require becoming involved in the U.S. litigation, it would not involve arguing the merits of China’s actions during the pandemic or submitting to U.S. discovery. China would be able to make purely legal arguments that the Chinese Community Party was not properly served under Section 1608(a) and that the Wuhan Institute of Virology and the Chinese Academy of Sciences were not properly served under Section 1608(b) because email service is prohibited by both the Hague Service Convention and by Chinese law.

Alternatively, defendants could raise the service of process issues, and perhaps other procedural defects, at the enforcement stage if and when Missouri attempts to execute the judgment against any of their properties in the United States. One advantage of waiting for enforcement is that the arguments would be heard by a different judge with no psychological commitment to past decisions. Also, if defendants were to file a Rule 60(b) motion before Judge Limbaugh and lose, they might be precluded from raising the same issues again at the enforcement stage. On the other hand, a successful Rule 60(b) motion could void the judgment once and for all for some of the defendants, whereas saving these arguments for the enforcement stage could require the defendants to raise them anew in multiple enforcement proceedings.

Immunity from Execution

Defendants also have the option of asserting that any property Missouri attempts to seize is immune from execution. As a general matter, federal court judgments are enforceable against a judgment debtor’s assets anywhere in the United States. But judgments against foreign states and their agencies or instrumentalities are subject to the FSIA’s rules on immunity from execution.

Specifically, Section 1610(a)(2) provides that “[t]he property in the United States of a foreign state … used for a commercial activity in the United States, shall not be immune … from execution, upon a judgment entered by a court of the United States or of a State … if … (2) the property is or was used for the commercial activity upon which the claim is based.” This means that the properties in the United States of China, its ministries and subdivisions, and the Chinese Communist Party are immune from execution unless those properties were used to hoard PPE. I find it hard to imagine a situation in which that would be true.

The immunity for properties owned by agencies or instrumentalities is not as broad. Section 1610(b)(2) permits execution against “any property in the United States of an agency or instrumentality of a foreign state engaged in commercial activity in the United States” if the judgment was rendered under the FSIA’s commercial activities exception (as this judgment was) “regardless of whether the property is or was involved in the act upon which the claim is based.” This means that the properties in the United States of the Wuhan Institute of Virology and the Chinese Academy of Sciences would be subject to execution if those defendants are engaged in commercial activities in the United States even if the properties themselves were not used to hoard PPE. Thus, these two defendants, unless they can get the judgment set aside for improper service as discussed above, are potentially more exposed to execution than the others.

It is worth emphasizing the district court’s judgment against these nine defendants is enforceable only against properties owned by these nine defendants. Missouri cannot execute its judgment against property in the United States simply because the property is Chinese owned. This is clear from the Second Circuit’s decision in Walters v. Industrial & Commercial Bank of China (2011), another case involving a default judgment against China under the FSIA, in which the court of appeals held that plaintiffs could not use assets belonging to agencies or instrumentalities of China to satisfy a judgment against China itself.

Walters relied on the Supreme Court’s decision in First National City Bank v. Banco Para El Comercio Exterior de Cuba (Bancec) (1983). As Ingrid Brunk has explained, Bancec stands for the proposition that U.S. courts must generally respect the corporate separateness of foreign states and their agencies or instrumentalities. Indeed, the Supreme Court in Bancec quoted the FSIA’s legislative history, which says specifically that the FSIA “will not permit execution against the property of one agency or instrumentality to satisfy a judgment against another, unrelated agency or instrumentality.”

If a judgment against an agency or instrumentality of a foreign state cannot be executed against the property of another agency or instrumentality of that foreign state, it necessarily follows that the judgment cannot be executed against property not belonging to any agency or instrumentality of that foreign state. For example, Smithfield Foods is a major pork producer operating in Missouri. Its property cannot be seized to satisfy this judgment. Smithfield Foods is owned by a private Chinese conglomerate, but Smithfield Foods was not a defendant in this action, and so its property is not subject to execution.

Copycat Cases

In addition to Missouri’s efforts to enforce this judgment, it is likely that the defendants will face copycat cases in other states. Mississippi filed a similar complaint against the same defendants in May 2020. Again, the defendants chose not to appear. On February 10, 2025, Judge Taylor B. McNeel (Southern District of Mississippi) held an evidentiary hearing. It remains to be seen whether Judge McNeel will scrutinize Mississippi’s arguments more carefully than Judge Limbaugh did.

Conclusion

$24 billion is a big number. But it seems highly unlikely that Missouri will ever see a penny of it, given the FSIA’s rules on immunity from execution. Missouri may, nevertheless, be able to harass these defendants—and potentially other Chinese parties holding property in the United States—by filing actions to execute the judgment even if those actions ultimately prove unsuccessful.

Last week, friend-of-TLB Ted Folkman had this to say about the Missouri judgment over at Letters Blogatory:

When we think about these cases, we have to think about what it would be like if the shoe were on the other foot. In 2021, the US and other western countries were accused of hoarding the COVID vaccine. Should the United States have been amenable to suit in China or elsewhere because it prioritized the public health needs of its own people? The technical term for taking seriously the question, “what if the shoe were on the other foot?” is comity. We need more of it.

Ugljesa Grusic (UCL) has kindly shared the following invitation with us.

On 24 March 2025, at 6pm UK time, Marta Pertegás (Maastricht University; University of Antwerp; a fulltime member of the Permanent Bureau of the Hague Conference on Private International Law between 2008 and 2017) and Alex Mills (UCL; a Specialist Editor of Dicey, Morris and Collins on the Conflict of Laws, with particular responsibility for, inter alia, the rules on the recognition and enforcement of foreign judgments) will give a seminar on The 2019 Hague Judgments Convention – English and EU Perspectives at the Faculty of Laws, University College London. The event will be delivered in a hybrid format and the readers of the blog are welcome to join either in person or on line.

The seminar is part of the International Law Association (British Branch) Lecture Series and will be chaired by Ugljesa Grusic.

On 1 July 2025, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters will enter into force in England and Wales. This historic regime establishes a general treaty basis for the recognition and enforcement of civil judgments between Convention States, supplementing the existing national rules and the Hague Choice of Court Convention 2005. Perhaps most significantly, it will provide common rules for the recognition and enforcement of judgments from England and Wales in EU Member States, and conversely, for EU Member State judgments to be recognised and enforced in England and Wales, to some extent filling a ‘gap’ created by Brexit.

This seminar will address the significance of this development from both an English and EU perspective, examining the main features of the 2019 Convention and considering the opportunities and challenges it presents.

To register, please follow this link.

The following post was kindly provided by Hannah Buxbaum, Vice President for International Affairs, Professor of Law and John E. Schiller Chair, Indiana University, and is cross-posted on tlblog.org

As was widely reported yesterday, the Trump administration permitted two planes carrying Venezuelan deportees to continue on their way to El Salvador after receiving a judicial order to turn the flights back to the United States. A story in Axios quotes an administration official who explains that they were not in fact “actively defying” the judge—the order just came too late, since the planes were already out of U.S. airspace. This seems to be an extraterritoriality argument, suggesting that the judge lacks authority to order an action to take place outside U.S. borders.

The administration has this completely wrong. The judge is ordering the administration to take action inside the United States—that is, to instruct the planes to turn around. That instruction will in turn cause something to happen elsewhere (the pilots will change course), but that doesn’t make the order impermissibly extraterritorial. This is exactly the same the basis on which courts in garden-variety civil disputes order parties subject to their jurisdiction to procure evidence or turn over assets that are located abroad. Moreover, since the planes were reportedly over international waters at the time the order was entered, compliance would not have required any actions by a foreign actor or within the territory of another state—in other words, it wouldn’t have created a conflict of laws.

Now that the deportees are already in El Salvador, that picture is more complicated, since local authorities there might refuse to take action. Even the existence of such a conflict, though, doesn’t mean that Judge Boasberg’s order exceeds his authority. It remains to be seen whether any of the other justifications the White House offered up for ignoring that order are any more compelling, but the argument that it didn’t apply once the planes had left the United States is certainly not.

For further leading expert input on extraterritoriality see one of our previous posts here.

Benedikt Schmitz (University of Groningen) has kindly shared the following reminder of his Call for Participants with us.

The project concerns the interpretation of Article 6 (2) Rome I Regulation in the EU Member States and is very limited in nature. Time commitments are therefore very limited. Click here for more information.

We are still looking for scholars from Croatia, Czechia, Estonia, Finland, France, Ireland, Italy, Luxemburg, Malta, Romania, and Slovenia. Danish scholars may also participate on the basis of Article 5(2) Rome Convention.

The team currently consists of established scholars from 15 (former) EU Member States:

• Austria: Andreas Schwartze (Leopold-Franzens-Universität Innsbruck)
• Belgium: Cedric Vanleenhove (Universiteit Gent)
• Bulgaria: Ilia Lassin (Sofia University St. Kliment Ohridski)
• Cyprus: Nicholas Mouttotos (Universität Bremen)
• Germany: Benedikt Schmitz (Rijksuniversiteit Groningen)
• Greece: Kostas A. Rokas (Aristotle University of Thessaloniki)
• Hungary: Ferenc Szilágyi (Pázmány Péter Katolikus Egyetem Budapest)
• Lithuania: Katarzyna Bogdziewicz (Mykolo Romerio universitetas Vilnius)
• Netherlands: Benedikt Schmitz (Rijksuniversiteit Groningen)
• Poland: Anna Wysocka-Bar (Uniwersytet Jagiello?ski Kraków)
• Portugal: Anabela Gonçalves (Universidade do Minho)
• Slovakia: Dominika Moravcová (Trnavská univerzita v Trnave)
• Spain: Anna María Ruiz Martín (Universitat Oberta de Catalunya) & Beatriz Añoveros Terradas (Universitat de Barcelona)
• Sweden: Gunnar Bramstång (Lunds Universitet)
• UK: Ross Pey (Western University Ontario)

Interested in participating?

Contact Benedikt Schmitz through email: b.schmitz@rug.nl

At the end of each year I publish an article (in German) about the Conflict of Laws developments in Germany of the last twelve months, covering more or less the year 2024 and the last months of 2023. I thought it would be interesting for the readers of this blog to get an overview over those topics that seem to be most trending.

The article focuses on the following topics:

1. Restitution of Money lost in Illegal Gambling
2. Applicable Law in the Dieselgate litigation
3. The (Non-)Valitidy of Online Marriages
4. New German conflict-of-law rules regarding gender afiliation / identity
5. Reforms in international name law

I will start in this post with the two first areas that are mainly dealing with questions of Rome I and Rome II while in my follow-up post I will focus on the three areas that are not harmonized by EU law (yet) and are mainly questions of family law.

This is not a resumen of the original article as it contains a very detailed analysis of sometimes very specific questions of German PIL. I do not want to bore the readers of this blog with those specificities. Those interested in knowing those details can find the article here (no free access).

I would be really curious to hear whether these or similar cases are also moving courts in other jurisdictions and how courts deal with them. So, please write me via mail or in the comments to the post if you have similar or very different experiences on those cases.

Part 1 – Illegal Gambling and “Volkswagen”

I will start with the two areas that are mainly questions of Rome I and Rome II while in my follow-up post I will focus on the three areas that are not harmonized by EU law (yet) and are mainly questions of family law.

1. Restitution of Money lost in Illegal Gambling

Cases involving the recovery of money lost to illegal online gambling are being heard in courts across Germany and probably across Europe. Usually the cases are as follows: A German consumer visits a website offering online gambling. These websites are in German and offer German support by phone or email with German phone numbers etc. However, the provider is based in Malta or – mainly before Brexit – Gibraltar. After becoming a member, the consumer has to open a bank account with the provider. He transfers money from his (German) account to the account in Malta and uses money from the latter account to buy coins to gamble. In Germany, in order to offer online gambling, you need a licence under German law. The operators in these cases are usually licensed under Maltese law but not under German law.

• In terms of applicable law, Rome I and Rome II are fairly straightforward. Since the question in this case is whether the plaintiff can claim the return of money lost on the basis of an illegal and therefore void contract, Rome I is applicable as it also governs claims arising from contracts that are ineffective or of doubtful validity. It is therefore irrelevant that German law would provide for restitution on the basis of unjust enrichment (Leistungskondiktion), which generally is a non-contractual obligation that falls within the scope of Rome II. As we have a consumer and a professional, Article 6 Rome I has to be applied. As I described the case above, there are also little doubts that the website is (also) directed to Germany and therefore German law as the country of the habitual residence of the consumer applies. To this conclusion came, e.g. the German BGH, but also the Austrian OGH.
• The application of German law leads to the invalidity of the contract pursuant to sec. 134 BGB, which declares a contract null and void if it violates a law that prohibits that contract. In order to determine whether the law prohibits this concrete gaming contract, the question arises as to the geographical scope of the prohibition on offering gambling/casino contracts without a German licence. As this prohibition is based on German public law, it is limited to gambling/casino games that take place on German territory. So far, German courts have applied the German prohibition in cases where the consumer was in Germany when playing. One court (LG Stuttgart, 11.9.2024 – 27 O 137/23, 18.09.2024 – 27 O 176/23) even considered it sufficient if the consumer was in Germany when opening the bank account with the gaming provider from which the money was then transferred to the games. The court ruled that it did not matter whether the consumer played from Germany, whether the provider was located abroad or whether the bank account from which the money was finally transferred to the game was located in another country. It appears that Austrian courts have similar cases to decide, but see this point differently, the Austrian OGH decided that the Austrian rules prohibiting unlicensed gambling are limited to providers based in Austria.
• As you probably know, the Austrian OGH made a request to the CJEU to determine the place of the damage (Article 4 para. 1 Rome II) in a case where the consumer/player transfers the money from the local bank account to the account of the Bank in Malta and then makes payments from this second bank account. So far, German courts were hesitant to take this road. The way over unjust enrichment resulting from a invalid contract has the charming effect that you do not have to apply Rome II’s general tort rule (Article 4 para. 1 Rome II) and dive into the discussion how to determine the place of economic damages. Under German law, however, Rome II may be relevant in cases where the claim is not based on unjust enrichment but on intentional damage inflicted in a manner offending common decency (vorsätzliche sittenwidrige Schädigung), a special offence which is more difficult to prove (sec. 826 BGB). In some few cases, where sec. 826 was in question, courts still did try to avoid the discussion how to locate this economic loss. One simply applied the law of the place of the habitual residence of the consumer/gamer as the play from which the transfer from the first bank account was effected (OLG Karlsruhe 22.12.2023 – 19 U 7/23; 19.12.2023 – 19 U 14/23). Other courts avoided the discussion altogether by applying Article 4 para. 3 Rome II directly – leading to an accessory connection to the law applied to the gambling contract (LG Hagen, 5.10.2023).

One footnote to the whole scenario: There is a case pending at the CJEU that might make the whole discussion superfluous (Case C-440/23). The German practice of distributing gambling licences might be classified as unlawful under EU law at least for some older cases. The question by the CJEU to be decided is whether this results in a ban on reclaiming losses from this gambling.

2. Place of Damage in Volkswagen Cases

The Volkswagen emission scandal cases, in German dubbed “Dieselgate”, are about claims for damages that end customers are asserting against Volkswagen (or other vehicle manufacturers). The damage is that they bought a car with a manipulated defeat device which, under certain conditions of the type-approval test, resulted in lower emissions than in normal operation. As a result, vehicles with higher emissions than permitted were registered and marketed. Volkswagen is currently being sued throughout Europe. Most cases are initiated by consumers who did not buy directly from the manufacturer but through a local dealer, so there is no direct contractual link. As German law is in some respects restrictive in awarding damages to final consumers, it seems to be a strategy of Volkswagen to come to German law.

• Rome I: As far as Volkswagen argued that there is an implicit contract between Volkswagen and the end consumer resulting from a warranty contract in case with a Spanish end buyer, a German court did not follow that argument or at least came to the conclusion that this is a question of Spanish law as such a warranty contract would have to be characterized as a consumer contract in the sense of Article 6 para. 1 Rome I Regulation (LG Ingolstadt 27.10.2023 – 81 O 3625/19)
• In general  German courts apply Article 4 para. 1 Rome II and determine the law of the damage following the CJEU decision in VKI  and MA v FCA Italy SpA: The place of damage is where the damaging contract is concluded or, in case the places are different, where the vehicle in question is handed over. The BGH (and lower instance courts, e.g. OLG Dresden, 07.11.2023 – 4 U 1712/22 – not free available online) followed that reasoning. One court had to consider whether, instead, Article 7 Rome II Regulation (environmental damages) would be applicable, as the increased emissions would also damage the environment. The LG Ingolstadt did not follow that line of argument, as the damage claimed in the concrete case was a pure economic loss, not an environmental damage.

What are your thoughts? How do courts treat these cases in your jurisdictions (I guess there are many cases as well)? Do you have different or similar issues in discussion?

 

Stay tuned for the second part of this article which will move to trending topics in family law…

You are invited to the third meeting of Migration Talks organized by the Jean Monnet Chair in Legal Aspects of Migration Management in the European Union and in Türkiye.

Speaker: Prof. Dr. Laura Carballo Piñeiro, Chair of Private International Law, Dean, Faculty of International Relations, University of Vigo

Title: Migrant Workers and Social Security Rights across Borders: a Right or a Privilege?

Date and Time: Wednesday, March 19, 2024, 10.30 a.m. -11.30 a.m. (CET)

Location: via Zoom (The link shall be provided upon request: migration@bilkent.edu.tr)

Abstract

Access to social security is a human right that only a quarter of the world population enjoy. Such an access is particularly challenging for workers who cross national borders, as they may not get access to a national scheme, get access only in a limited way compared to other national or resident workers in the country, be obliged to contribute to more than one system, or not benefit from a system to which had previously contributed due to relocation to their home country or a third country. State coordination in these matters is thus of the essence, in particular to ensure that contributions are only paid to one system at a time, aggregation and maintenance of acquired rights for those workers that are in the course of acquisition, and portability of benefits. Even in a coordinated scenario, legal divergence across countries might further complicate access to benefits. For example, the funding of a benefit by taxes and not contributions might automatically exclude posted workers from their enjoyment. The EU Social Security Coordination Regulation will be used in the presentation to address these principles, the challenges faced by States and social partners in their enforcement, and tools developed to address them. Outside this privileged area, coordination relies on a complex, but insufficient network of treaties which very much focus on the role of receiving countries. As the movement of workers increases, more attention should be paid to the role of sending States by researching the interplay between social protection and migrant studies.

 

By Yuchen Li, a PhD student at Wuhan University.

A. Introduction

An asymmetric choice of court agreement is commonly used in international commercial transactions, especially in financial agreements, which usually allows one party (option holder) an optional choice about the forum in which proceedings may be brought but the other (non-option holder) an exclusive choice to sue in a designated court.[1] A typical example is as follows:

 ‘(A) The courts of England have exclusive jurisdiction to settle any disputes ….

(B) The Parties agree that the courts of England are the most appropriate and convenient courts … to settle Disputes and accordingly no Party will argue to the contrary.

(C) This Clause is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.’ [2]

In recent years, issues concerning asymmetric choice of court agreements have been controversial in cases within some jurisdictions.[3] Despite the significant amount of research on asymmetric choice of court agreements, little attention has been paid to Chinese stance on this topic. With Chinese private parties actively engaging in international transactions, Chinese attitude towards such clauses is important for commercial parties and academic researchers. This article gives a glimpse of how Chinese courts handle asymmetric choice of court agreements in international and commercial civil litigations.[4]

B. Characterization

Chinese courts have demonstrated mainly four different views in characterizing asymmetric choice of court agreements.

Firstly, some courts classify this kind of agreement as asymmetric jurisdiction agreements.[5] In Hang Seng Bank Ltd. v. Shanghai Tiancheng Storage Co., Ltd. & Lin Jianhua, Shanghai Financial Court reasoned that a jurisdiction clause which allows one party to sue in multiple jurisdictions and requires the other to only bring the dispute to a specific jurisdiction should be characterized as an asymmetric jurisdiction clause.[6]

Second, several courts characterize the agreement as non-exclusive jurisdiction clause.[7] In Hwabao Trust Co., Ltd. v. Xiao Zhiyong, Shanghai High People’s Court observed that, according to the jurisdiction clause in issue, the option holder could either choose to initiate proceedings in the designated court or other competent courts, hence the clause is non-exclusive.[8]

Thirdly, it is notable that in GOOD VANTAGE SHIPPING LIMITED v. Chen Fuxiang et al, Xiamen Maritime Court classified the disputed clause as an ‘asymmetric exclusive jurisdiction clause’. The court held that, under the disputed clause, only when the option holder chooses to take the proceedings in the designated court will that court have exclusive jurisdiction, but this does not exclude the right of the option holder to sue in other competent courts.[9]

Last, a number of cases overlook the particularity of asymmetric choice of courts agreements and broadly classify them as jurisdiction agreements.[10]

C. Choice of Law

Most Chinese courts tend to apply lex fori on the effectiveness of asymmetric choice of court agreements. Relying on Article 270 of Chinese Civil Procedure Law (hereinafter referred to as ‘CPL’) which provides that this Law applies to foreign-related civil actions within PRC,[11] Chinese courts normally take the view that the ascertainment of jurisdiction is a procedural matter and apply lex fori.[12]

D. Effectiveness

a. Validity

By far, the validity of asymmetric choice of court agreements has not been addressed by Chinese legislation. However, in 2022, the Supreme People’s Court of PRC (hereinafter referred to as ‘SPC’) issued Summary of National Symposium on Foreign-Related Commercial and Maritime Trials of Courts (hereinafter referred to as ‘the Summary’). The Summary regulates that unless an asymmetric choice of court agreement involves the rights and interests of consumers and workers or violates CPL’s provisions on exclusive jurisdiction, the people’s court should reject the parties’ claim that the agreement is invalid on the ground of unconscionability. Although the Summary is not an official source of law, it serves as an important reference and guideline for courts in the absence of legislation.

Chinese courts generally support the view that an asymmetric choice of court agreement will not be deemed invalid for its asymmetry. The validity of such an agreement is commonly upheld for three reasons. First, such an agreement itself is not contrary to Chinese law.[13] In Winwin International Strategic Investment Funds Spc v. Chen Fanglin, Fujian High People’s court held that such a clause does not violate CPL and recognized its validity. [14] Second, party autonomy in civil and commercial litigations should be protected.[15] In Sun Jichuan v. Chen Jianbao, Beijing Fourth Intermediate People’s Court pointed out that CPL allows parties to a contract the right to select the court by agreement, which reflects party autonomy in civil procedure law. The aim of protecting this right is to safeguard that both parties are treated equally by the court, but this does not mean they have to choose the exact same court. As a result, a choice of court agreement is valid so long as it does not violate mandatory rules and expresses the true intention of the parties.[16] Third, it is necessary to mention that in a domestic case where the validity of an asymmetric choice of court clause in a loan contract is in dispute, Pudong New Area People’s Court of Shanghai analyzed the positions of both the borrower (non-option holder) and the bank (option holder) and concluded that the borrower’s position under an asymmetric jurisdiction clause is no weaker than under an exclusive one.[17]

In a small number of cases, Chinese courts refuse to recognize the validity of standard asymmetric choice of court agreements for violating specific rules of standard clause under Chinese law.[18] In Picc Xiamen Branch v. A.P. Moller – Maersk A/S, Zhejiang High People’s Court ruled that the disputed standard jurisdiction clause in the Bill of Lading lacks explicit, obvious forms to distinguish from other clauses, and the carrier (option holder) failed to establish that the jurisdiction clause had been negotiated with or given full notice and explanation to the shipper (non-option holder).[19] Therefore, if the drafting party fails to prompt or explain the standard asymmetric choice of court agreement to the other party, Chinese court may consider that this clause fails to represent the true intention of the parties and determine that the clause does not constitute a part of the contract.[20]

b. Effects

An asymmetric choice of court agreement has different effects upon option holder and non-option holder. For the non-option holder, the jurisdiction clause has an exclusive effect, restricting the party to taking the proceedings to the designated court only.[21]

As for the option holder, Chinese courts have two different explanations. On the one hand, an asymmetric choice of court agreement has both exclusive and non-exclusive effects on the option holder. While the designated court has exclusive jurisdiction when the option holder brings the case to the designated court, the option holder could also choose to sue the non-option holder in other competent courts.[22] On the other hand, some courts analyze that, apart from the designated court, the option holder could also sue in other competent courts, hence the clause is non-exclusive for the option holder. [23]

E. Construction

In Bank of Communications Trustee Ltd. v. China Energy Reserve and Chemicals Group Company Ltd., whether the jurisdiction clause in a guarantee agreement is an asymmetric one is in dispute. The clause provides:

The guarantor agrees (i) for the benefit of the trustee and bondholder, the courts of Hong Kong have exclusive jurisdiction to settle any disputes arising out of or relating to this Guarantee Agreement; (ii) the courts of Hong Kong are the most appropriate and convenient courts; and (iii) as a result, the guarantor will not argue that other courts are more appropriate or more convenient to accept service of process on its behalf.[24]

The SPC established that, when determining whether the parties’ agreement constitutes an asymmetric jurisdiction clause, the people’s court should construe the parties’ intention in a strict manner. The wording of the asymmetric choice of court clause should be clear and precise. The court reasoned as follows:

In general, contractual parties share equal rights and obligations, and therefore their rights regarding jurisdiction of litigation should also be equal. For this reason, their right to select a court should be the same unless the parties specifically agree otherwise. Under the principle of disposition of procedural rights, parties are allowed to agree on an asymmetric jurisdiction clause whereby one party’s right to choose the court is restricted while the other party is not. An asymmetric jurisdiction clause constitutes a significant, exceptional restriction on one party’s procedural rights, which should be determined through the parties’ clear and explicit intention. Otherwise, unequal or unfair rights and obligations shall not be presumed.[25]

Therefore, the SPC decided that the disputed jurisdiction clause is not an asymmetric one because it only highlights the exclusive jurisdiction of Hong Kong courts and doesn’t specify that the guarantee has the right to bring the proceedings to other competent courts.

F. Conclusion

It seems that Chinese courts take a liberal stance on asymmetric choice of court agreements, showing their respect to party autonomy and freedom to contract in international civil and commercial jurisdiction. In 2024, reviewed and approved by the SPC, two cases[26] recognizing the validity of asymmetric choice of court agreements are incorporated into the People’s Court Case Database as reference cases.[27] What’s more, as has been mentioned before, the Summary recognizes the validity of asymmetric choice of court agreements based on the assumption that those agreements are compatible with CPL’s provisions on exclusive jurisdiction or do not infringe certain weaker parties’ interests. Asymmetric choice of court agreements are ubiquitous in international civil and commercial contracts, especially in international financial contracts. Chinese courts are adapting to the development trends of international commercial practice and are getting prepared to deal with complicated civil and commercial disputes.

Nonetheless, there is still a long journey to go for Chinese courts to establish a sophisticated mechanism to handle such agreements. As for now, Chinese judicial practice regarding asymmetric choice of court agreements remains inconsistent. Additionally, most cases only involve simple disputes concerning whether Chinese courts have jurisdiction under such agreements. Things may get really complicated when other mechanisms in international civil procedure like lis pendens rule apply to such agreements. A proper solution to those issues relies on a unified and nuanced standard for courts to apply. Whether there will be a judicial interpretation or legislation regarding asymmetric choice of court agreements, and how Chinese courts will handle complex disputes related to such agreements remain to be observed in the future.

For practitioners, it is noteworthy that Chinese courts tend to apply lex fori on asymmetric choice of court agreements. The asymmetric nature of the jurisdiction clause should be precisely and clearly expressed. Additionally, if the asymmetric choice of court agreement is a standard one, under the Civil Code of PRC, it is suggested that the drafting party, when concluding a contract, should prompt the jurisdiction clause through conspicuous indicators such as distinctive words, symbols, or fonts that are sufficient to bring the clause to the other party’s attention. Upon the other party’s request, the drafting party should also fully explain the jurisdiction clause to the other party.

 

[1] See Mary Keyes and Brooke Adele Marshall, ‘Jurisdiction agreements: Exclusive, Optional and Asymmetrical’ (2015) 11 Journal of Private International Law 345, 349.

[2] See Louise Merrett, ‘The Future Enforcement of Asymmetric Jurisdiction Agreements’ (2018) 67 International and Comparative Law Quarterly 37, 40-41.

[3] See e.g., Ms X v. Banque Privee Edmond de Rothschild Europe (Societe), French Cour de cassation (Supreme Court) (First Civil Chamber) September 2012, Case 11-26.022, Commerzbank Aktiengesellschaft v Pauline Shipping Limited and Liquimar Tankers Management Inc [2017] EWHC 161 (Comm).

[4] Although asymmetric choice of court agreements may take various forms, the typical example abovementioned in note 2 is the most common type in practice. Therefore, asymmetric choice of court agreements in this article only refer to agreements under which one party may bring proceedings only in the chosen court but the other party may bring proceedings in other courts as well. See Brooke Marshall, Asymmetric Jurisdiction Clauses, (Oxford University Press 2023) 17; Trevor Hartley & Masato Dogauchi, Explanatory Report on the Convention of 30 June 2005 on Choice of Court Agreements (HCCH Publications 2013) 85.

[5] See Hang Seng Bank Ltd. v. Shanghai Tiancheng Storage Co., Ltd. & Lin Jianhua, (2019) Hu 74 Min Chu 127 Hao [(2019)?74??127?]; Sun Jichuan v. Chen Jianbao, (2021) Jing Min Xia Zhong 76 Hao [(2021)????76?]; XYZ Co. v. Chen & Su, (2022) Lu Min Zhong 567 Hao [(2022)???567?].

[6] See Hang Seng Bank Ltd. v. Shanghai Tiancheng Storage Co. Ltd. & Lin Jianhua, (2019) Hu 74 Min Chu 127 Hao [(2019)?74??127?], paras. 94.

[7] See DBS Bank (Hong Kong) Limited v. Forward (Zhaoqing) Semiconductor Co., Ltd. et al, (2011) Yue Gao Fa Li Min Zhong Zi Di 82 Hao [(2011)????????82?]; Suen Kawi Kam v China Dragon Select Growth Fund, (2019) Jing Min Xia Zhong 279 Hao [(2019)????279?]; Hwabao Trust Co., Ltd. v. Xiao Zhiyong, (2021) Hu Min Xia Zhong 60 Hao [(2021)????60?].

[8] See Hwabao Trust Co., Ltd. v. Xiao Zhiyong, (2021) Hu Min Xia Zhong 60 Hao [(2021)????60?], para. 10.

[9] See GOOD VANTAGE SHIPPING LIMITED v. Chen Fuxiang et al, (2020) Min 72 Min Chu 239 Hao [(2020)?72??239?], paras. 13, 15.

[10] See Beijing Huahai Machinery Co., Ltd. v. KAMAT GmbH & Co. KG, (2017) Jing 02 Min Zhong 4019 Hao [(2017)?02??4019?]; Winwin International Strategic Investment Funds Spc v. Chen Fanglin, (2019) Min Min Xia Zhong 151 Hao [(2019)????151?]; Antwerp Diamond Bank v. Weinstock Michel, (2013) Yue Gao Fa Li Min Zhong Zi Di 467 Hao [(2013)????????467?]; Guosen Securities (Hong Kong) Financial Holdings Co., Ltd v. Yunnan Zhongyuan Industrial Group Co., Ltd. et al, (2017) Zui Gao Fa Min Xia Zhong 423 Hao [(2017)??????423?]; Picc Xiamen Branch v. A.P. Moller – Maersk A/S, (2017) Zhe Min Xia Zhong 119 Hao [(2017)????119?]; Zhu Yuquan v. AxiCorp Financial Services Pty Ltd, (2021) Jing Min Zhong 893 Hao [(2021)???893?].

[11] Article 270 of CPL provides: ‘This Part (Part 4 of CPL, Special Provisions on Foreign-Related Civil Procedures) shall apply to foreign-related civil actions within the People’s Republic of China. For issues not addressed in this Part, other provisions of this Law shall apply.’

[12] See Antwerp Diamond Bank v. Weinstock Michel, (2013) Yue Gao Fa Li Min Zhong Zi Di 467 Hao [(2013)????????467?]; Suen Kawi Kam v. China Dragon Select Growth Fund, (2019) Jing Min Xia Zhong 279 Hao [(2019)????279?]; GOOD VANTAGE SHIPPING LIMITED v. Chen Fuxiang et al, (2020) Min 72 Min Chu 239 Hao [(2020)?72??239?]; Hwabao Trust Co., Ltd. v. Xiao Zhiyong, (2021) Hu Min Xia Zhong 60 Hao [(2021)????60?]; Guosen Securities (Hong Kong) Financial Holdings Co., Ltd v. Yunnan Zhongyuan Industrial Group Co., Ltd. et al, (2017) Zui Gao Fa Min Xia Zhong 423 Hao [(2017)??????423?]; Picc Xiamen Branch v. A.P. Moller – Maersk A/S, (2017) Zhe Min Xia Zhong 119 Hao [(2017)????119?]; Zhu Yuquan v. AxiCorp Financial Services Pty Ltd, (2021) Jing Min Zhong 893 Hao [(2021)???893?].

[13] See e.g. Sun Jichuan v. Chen Jianbao, (2021) Jing Min Xia Zhong 76 Hao [(2021)????76?]; XYZ Co. v. Chen & Su, (2022) Lu Min Zhong 567 Hao [(2022)???567?]; GOOD VANTAGE SHIPPING LIMITED v. Chen Fuxiang et al, (2020) Min 72 Min Chu 239 Hao [(2020)?72??239?]; Zhu Yuquan v. AxiCorp Financial Services Pty Ltd, (2021) Jing Min Zhong 893 Hao [(2021)???893?].

[14] See Winwin International Strategic Investment Funds Spc v. Chen Fanglin, (2019) Min Min Xia Zhong 151 Hao [(2019)????151?], para. 2.

[15] See Antwerp Diamond Bank v. Weinstock Michel, (2013) Yue Gao Fa Li Min Zhong Zi Di 467 Hao [(2013)????????467?]; Sun Jichuan v. Chen Jianbao, (2021) Jing Min Xia Zhong 76 Hao [(2021)????76?].

[16] See Sun Jichuan v. Chen Jianbao, (2021) Jing Min Xia Zhong 76 Hao [(2021)????76?], para. 15.

[17] ‘On the one hand, the borrower’s exclusive choice could facilitate the enforcement of judgements. On the other hand, the bank’s right to choose the competent court could reduce commercial costs, which will eventually benefit ordinary clients (including the borrower). In this sense, the borrower’s position is no weaker than under an exclusive jurisdiction clause.’ See Bank of Tianjin CO., LTD. Shanghai Branch v. Gong Chongfang et al, (2022) Hu 0115 Min Chu 87551 Hao [(2022)?0115??87551?], para. 7.

[18] See Shaoxing Haoyi Trading Co., Ltd. v. GMA-CDMS et al, (2016) Zhe Min Xia Zhong [(2016)????294?]; Picc Xiamen Branch v. A.P. Moller – Maersk A/S, (2017) Zhe Min Xia Zhong 119 Hao [(2017)????119?].

[19] See Picc Xiamen Branch v. A.P. Moller – Maersk A/S, (2017) Zhe Min Xia Zhong 119 Hao [(2017)????119?], para. 10.

[20] Article 496, paragraph 2 of the Civil Code of PRC provides: ‘Upon concluding a contract, where a standard clause is used, the party providing the standard clause shall determine the parties’ rights and obligations in compliance with the principle of fairness, and shall, in a reasonable manner, call the other party’s attention to the clause concerning the other party’s major interests and concerns, such as a clause that exempts or alleviates the liability of the party providing the standard clause, and give explanations of such clause upon request of the other party. Where the party providing the standard clause fails to perform the aforementioned obligation of calling attention or giving explanations, thus resulting in the other party’s failure to pay attention to or understand the clause concerning its major interests and concerns, the other party may claim that such clause does not become part of the contract.’ See Civil Code of the People’s Republic of China, The State Council of the People’s Republic of China, https://english.www.gov.cn/archive/lawsregulations/202012/31/content_WS5fedad98c6d0f72576943005.html, visited on 10th March, 2025.

[21] See Sun Jichuan v. Chen Jianbao, (2021) Jing Min Xia Zhong 76 Hao [(2021)????76?].

[22] See Winwin International Strategic Investment Funds Spc v. Chen Fanglin, (2019) Min Min Xia Zhong 151 Hao [(2019)????151?]; GOOD VANTAGE SHIPPING LIMITED v. Chen Fuxiang et al, (2020) Min 72 Min Chu 239 Hao [(2020)?72??239?].

[23] See Suen Kawi Kam v. China Dragon Select Growth Fund, (2019) Jing Min Xia Zhong 279 Hao [(2019)????279?]; Hwabao Trust Co., Ltd. v. Xiao Zhiyong, (2021) Hu Min Xia Zhong 60 Hao [(2021)????60?].

[24] See Bank of Communications Trustee Ltd. v. China Energy Reserve and Chemicals Group Company Ltd., (2021) Zui Gao Fa Min Zai 277 Hao [(2021)?????277?], para. 25.

[25] See Bank of Communications Trustee Ltd. v. China Energy Reserve and Chemicals Group Company Ltd., (2021) Zui Gao Fa Min Zai 277 Hao [(2021)?????277?], para. 26.

[26] See Bank of Communications Trustee Ltd. v. China Energy Reserve and Chemicals Group Company Ltd., (2021) Zui Gao Fa Min Zai 277 Hao [(2021)?????277?]; XYZ Co. v. Chen & Su, (2022) Lu Min Zhong 567 Hao [(2022)???567?].

[27] According to Article 19 of Procedures for the Construction and Operation of the People’s Court Case Database, the people’s courts should refer to similar cases of the Database when hearing cases. However, this reference may not be used as a basis of the adjudication. See Susan Finder, Update on the People’s Court Case Database, Supreme People’s Court Monitor, https://supremepeoplescourtmonitor.com/2024/12/, visited on 26th February 2025.

Limitation period of the enforcement of a UK judgment in Greece

A judgment issued by the Division of Maritime Disputes of the Piraeus first instance court at the end of last year [nr. 3400/2024, unreported] was confronted with an issue which seldomly appears before Greek courts.

The issue raised before the Piraeus Court of First Instance, in the context of Regulation 44/01, was the following: Is it permissible to revoke the recognition of a foreign (English) judgment (order) that  was declared  enforceable in Greece, when allegedly it is no longer enforceable in the State of origin?

The court approached the case from three perspectives:

Firstly, it clarified that a decision of the Supreme Court issued five years ago [Areios Pagos nr. 767/2019], allowing the revocation of the enforceability of a foreign judgment under similar circumstances according to Greek law, cannot be considered as relevant precedent, because it concerned a US judgment, and not a decision of an EU Member State court of law.

It then examined and highlighted the relevant jurisprudence of the CJEU, which ratione materiae resembles to the dispute at issue, i.e., under the Brussels I regime. It stressed that revocation of enforceability under Reg. 44/01 is strictly allowed for specified grounds only, with the case at hand, i.e., loss of enforceability in the state of origin, not being such a ground. The party against whom enforcement is sought in the executing Member State, could raise such a ground, only in the context of enforcement proceedings in the executing state, the court clarified.

Finally, it went into a detailed analysis and reference to the defences against enforcement under English law, focusing on the provisions of the UK Civil Procedure Rules and the Limitation Act, and identifying relevant case law of the English courts. Relevantly, the Piraeus court rejected in substance the arguments raised by the applicants, noting that under English law the judgment of the English court at hand had not lost its enforceability in principle, but rather that special conditions must be met for enforcement in UK to be authorised (i.e., existence of property there, not previously found). Juxtaposing English and Greek law, the Piraeus court made the distinction of enforceability of judgments and the existence of additional modalities, procedures or preconditions that must be fulfilled for enforcement proceedings to take place.

This is one of the rare decisions published by Greek courts, which demonstrates the potential complexity of the subject matter under the Brussels I Regulation, which reappears sporadically, although it gave way to Regulation 1215/2012 some ten years ago.

The specificity of the case lies in the distinctive time of its occurrence: the ground of refusal did not occur at one of the exequatur stages [application to declare enforceability, appeal, second appeal], but much later, when the remedies under Brussels I before the courts of the state of execution have been unsuccessfully exhausted by the debtor.

The likelihood of similar situations occurring under the current regime of Regulation Brussels I bis is scarce. In this case, the judgment debtor is left with either the opposition (stay of execution) under Article 933 of the Greek Code of Civil Procedure, or the filing of a negative declaratory action, in case the enforcement procedure has not been initiated by the judgment creditor.

Finally, let us not forget that the United Kingdom has left the European Union, and, for the time being, there is no direct commencement of enforcement in Greek territory, such as the model of Regulation nr. 1215/2012, not even the previous system of exequatur under EU Regulation nr. 44/2001. A new corridor is expected to open later this year, given that the UK has ratified the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

For further reading on the issue, see Requejo-Isidro(-Chiapponi), Brussels I bis, A Commentary on Regulation (EU) 1215/2012 (2022), Art. 41, nos. 41.22 et seq, Althammer, in: Simons/Hausmann, Brussels I Regulation – Kommentar zur VO (?G) 44/2001 und zum Übereinkommen von Lugano, Unalex Kommentar (2012), Art. 38, nos. 26 & 29); Geimer/Schütze, Europäisches Zivilverfahrensrecht (3rd ed., 2010), Art. 41, no. 44 et seq.

Hot off the press and published in the Cambridge Law Journal, the article “The Inference of Similarity,” written by Marcus Teo, delves into the intricacies of what has traditionally been referred to as the “presumption of similarity” in English legal proceedings. Teo’s work challenges the conventional understanding of this presumption, arguing that it should be seen not as a true presumption but rather as an inference that courts can draw under certain circumstances.

Teo begins by outlining the challenges litigants who wish to rely on foreign law in English courts face. They must first demonstrate that the relevant choice-of-law rule selects the foreign law as applicable and then prove that the foreign law supports their claim or defence. This task is often complicated by the patchy or vague nature of foreign law evidence, leading courts to apply what has been termed a “presumption of similarity”—the idea that foreign law is presumed similar to English law when not sufficiently proven.

However, Teo argues that this “presumption” is misleading. The paper contends that it should not be understood as a true presumption but rather as an inference that courts can draw when there is reliable evidence to suggest that English and foreign courts would render similar rulings on the same facts. This distinction is crucial because a true presumption would be unprincipled, lacking the justifications of logic, convenience, and policy that support other legal presumptions.

Teo’s paper further explores the nature of legal presumptions and inferences, providing a detailed analysis of how they function within the legal system. He explains that legal presumptions are meant to facilitate practical reasoning in situations of evidential uncertainty, allowing courts to proceed “as if” a presumed fact exists until contrary evidence is presented. In contrast, inferences are conclusions drawn from sufficient evidence, representing an actual belief that the inferred fact exists.

The paper also addresses the implications of understanding the “presumption of similarity” as an inference rather than a true presumption. Teo argues that this understanding resolves various controversies surrounding its use in civil proceedings and does not render the proof of foreign law unpredictable or inconvenient in practice. The author emphasises that courts should aim to replicate the ruling a foreign court would render on similar facts, and when English law reflects a shared tradition or universal ethos, this may be enough to infer that a foreign court would render a similar ruling.

Teo’s insights have significant doctrinal implications, particularly in cases where foreign law is partially proven. He explains that when a party has proven only part of the foreign law, the inference of similarity can still be drawn if the court can reliably conclude that the foreign court would likely render a ruling similar to English law’s. This approach prevents parties from using the presumption as a tactical move to fill gaps in their foreign law evidence.

Marcus Teo’s paper offers a fresh perspective on the “presumption of similarity” in English law, advocating for a more nuanced understanding of it as an inference. This shift in perspective not only clarifies the role of foreign law in English courts but also ensures that the application of foreign law aligns with the substantive values underlying choice-of-law rules. As legal scholars and practitioners continue to grapple with the complexities of foreign law, Teo’s work provides a valuable framework for navigating these challenges.

For those interested, the article may be found here!

ConflictofLaws.net is happy to announce Saloni Khanderia from Jindal Global Law School as our new General Editor. Saloni joined the blog’s Editorial Board in 2019 and has been an active contributor ever since. She takes over from Jeanne Huang (University of Sydney) and will serve as the blog’s General Editor together with Tobias Lutzi (University of Augsburg).

The Editorial Board is indebted to Jeanne for her over two years of service as General Editor. During her tenure, important changes have been implemented regarding the blog’s operation, including the redesign of our frontpage with the new calendar feature. At the same time, our community has continued to grow to more than 2,5k subscribers of our e-mail newsletter and 5k followers on LinkedIn. We’re deeply grateful for the time and energy she has dedicated to the blog and are delighted that she will stay on the Editorial Board.