Agrégateur de flux

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

I flagged the Amsterdam courts’ reference to the CJEU in Case C-34/24 Stichting Right to Consumer Justice v Apple here. Sánchez-Bordona AG opined late March.

The application software (apps) for Apple devices which use iOS can be purchased from Apple’s ‘App Store’. Where a user whose Apple ID indicates the Netherlands as the country or region attempts to purchase a product in the App Store, that user will normally be redirected to the Netherlands online shop (‘App Store NL’). To change the country associated with their Apple account, users must accept new terms and conditions, and must also have a valid payment method in that new country. 

Applicant foundations are acting in the interests of all users (consumers and professional users) of Apple products and services who have been offered or have purchased products and services from App Store NL. They claim that Apple holds a dominant position in the market for distribution of apps which run on iOS, and in the payment system for those apps (IAP); that Apple is abusing its dominant position, within the meaning of A102 TFEU; and that     the abuse of a dominant position involves the receipt of excessive commission on the sale price received, through the IAP payment system, for apps in the App Store and that this is an unlawful act against users.

Apple argue that jurisdiction for the Amsterdam courts cannot be based on A7(2) BIa because the alleged harmful event did not occur in the Netherlands. That event cannot be located in Amsterdam (Netherlands) since no specific event took place exclusively or in particular in Amsterdam or in the Netherlands.  In the alternative, Apple maintains that the referring court has jurisdiction only as regards users who live in Amsterdam or who make purchases in Amsterdam via App Store NL.

The AG first of all recalls the principles of A7(2) forum delicti jurisdiction. Readers of the blog and /or Handbook will be very familiar with those.

Place of the event giving rise to the damage /Handlungsort /Locus delicti commissi

The AG (50) opines that “the principle that the decisive causal event, for the purposes of [A7(2) BIa] is synonymous with acts which implement the abuse of a dominant position is, to my mind, generally valid: its specific expression varies from case to case.” Reference in the main is made to C-27/17 flyLAL.

As I discussed at the time, this conclusion is not clear from the judgment in flyLAL itself. The AG also concedes that the CJEU’s approach is not clear, as also results from ia AMS Neve or Wintersteiger. I would most definitely applaud a CJEU confirmation of a rule I proposed earlier, that any and all places of implementation of abuse, are loci delici commissi /Handlungsorten.

In the case at issue, the AG sees identification of locu delicti commissi as follows (footnote 28):

treating the abuse of a dominant position as the sale to the end user in App Store NL may be an oversimplification. While the harmful effects claimed are, certainly, on the users’ side, the (alleged) abuse of the dominant position occurs, on the developers’ side, in the form of the unilateral imposition of conditions on those wishing to provide services that are executable on iOS. Those conditions include use of the IAP and the commission which Apple deducts from the price which iOS users pay developers (and which developers pass on to users). In my view, the imposition of those conditions is the event giving rise to the damage for the purposes of determining jurisdiction.

However (53) “as a working hypothesis, I shall proceed on the basis of the referring court’s choice of that event.” (‘that’ being the sales to the end user). This is a bit odd for surely the AG could have cut to the chase and directly put forward his own view on the ldc, seeing as ldc questions are being referred.

At any rate, taking the ‘place of the sale’ as ldc creates its own difficulties. The referring court believes that ‘the sale’ occurred in the Netherlands. Geolocation of consumers in The Netherlands via their Apple ID, and territorial  ‘targeting’ by Apple (57; echoes here of the consumer title’s direction of activities) suggest a ‘Dutch’ territory however that does not help us for the territorial allocation required for A7(2) locus damni determination. (62) One could pinpoint he conferral of jurisdiction to where in the Netherlands the device used to access App Store NL was located at the time of the sale. However that (63) creates issues of evidence, and multiplicity of proceedings.

(72) the AG, having referred to a number of CJEU authority both confirming the territorial identification of a court by A7(2), and the difficulties in identifying such a court, settles for

for a user who, by virtue of his or her Apple ID, is directed to App Store NL, all sales through that App Store occur at that user’s place of residence or establishment in the Netherlands, disregarding his or her actual physical location in that country at the time of each sale. (emphasis added)

(74) “That approach involves acceptance of a forum actoris which, in my view, is justified in the light of Apple’s commercial strategy.” : that strategy further explained as one where a specific audience is territorially ‘sought’: in other words (my words) if the seller uses geolocation and other territorial distinctions, it should not be surprised to be sued there. (This again echoes the consumer title).

Place where the damage occurred /Erfolgort /locus damni

This discussion is even more challenging than the Handlungsort. The referring court asks whether, in order to identify the competent court on the basis of the place where the damage occurred, ‘where the place where [the] purchases took place cannot be determined’, the user’s domicile may be used as a connecting factor. With reference to a number of authorities the AG believes it could, again supporting that conclusion by reference to Apple’s commercial strategy: (83)

the connecting factor based on the user’s domicile is, a fortiori, especially appropriate where, as here, the defendant (Apple) structures its business through the fragmentation, by country, of the market concerned and links end users to that market.

(84) Apple’s GTCs (not applicable here seeing as the claims are non-contractual) referring to the consumer’s place of habitual residence for both choice of court and -law is also referred to in support; of course those terms are an acknowledgment of the consumer title of Brussels Ia and informed by the consumer title of Rome I – yet they at any rate indeed support the conclusion that Apple can hardly be surprised to be sued in The Netherlands.

The impact of the representative action

This section has ruffled feathers: see ia Cécile Rouméas and Miguel Soussa Ferro. (92) The AG in my view justifiably insists on A7(2) forum possibilities being determined by reference to the original ldc and /or ld: “the assignment of a claim or the collective nature of an action do not preclude reliance on [A7)2], [however] international and territorial jurisdiction thereunder will continue to be set, in any event, by reference to the act which gave rise to the damage or the place where the damage occurred.”

(94) “A claim for damages does not lose its connection to the place where the harmful event occurred as a result of the transfer of the claim or because a third party takes over the claim pursuant to a legal provision. The event giving rise to the damage is also the same, and the evidence continues to be where it has always been.” : he is right, given the very origin of the ldc /ld distinction in CJEU Bier, and the territorial links between the court with special jurisdiction, and the events that led to the claim.

(96) “Compliance with the ‘predictability’ criterion precludes the court having jurisdiction, in respect of the same event giving rise to the damage, from changing according to whether the applicant is the holder of the interests, his or her successor, or a representative (of that holder or those interests).”

The AG acknowledges (97) “that, within a Member State, that requirement reduces the usefulness of the representative action mechanism where the national legislature has chosen [unlike eg in Austria, and see also CJEU Volvo, GAVC] not to designate a court having sole jurisdiction for the whole territory which hears that type of action.” (101) the AG equally justifiably points to the representative action having been discussed in the run up to Brussels I’a amendments, 2012 onwards. However no change in A7(2) was made.

This is exactly the type of amendment the EC may wish to put forward in its proposal for amendment, if any, of Brussels Ia and I do not see a de lege lata way to change it now. (For instance as I argue in a forthcoming chapter in a Kramer /Voet /Dori volume, ‘access to justice’ or ‘sound administration of justice’ de lege lata are not principles of Brussels Ia].

Member States may in the meantime find solace indeed in CJEU Volvo and the possibility for them to concentrate proceedings ex ante. The AG adds to this in conclusion of his Opinion, the possibility to concentrate those proceedings ex post, specifically via national lis pendens rules: this however requires ad hoc assessment which is not a risk funders etc of actions of this kind may be prepared to take.

Geert.

HCCH Monthly Update: April 2025

 

Membership

On 10 April 2025, Qatar applied to become a Member of the HCCH. On the same day, the Secretary General of the HCCH opened the six-month voting period during which all current Members of the HCCH may cast their vote on the proposal. Following this voting period, and provided a majority of votes are cast in favour, Qatar will be invited to become a Member by depositing an instrument of acceptance of the Statute of the HCCH. More information is available here.

 

Meetings & Events

From 2 to 4 April 2025, the conference “15 Years of the HCCH Washington Declaration: Progress and Perspectives on International Family Relocation” was held at the Embassy of Canada in Washington, D.C., United States of America. The conference was jointly organised by the Embassy of Canada, the International Academy of Family Lawyers (IAFL), and the HCCH. More information is available here.

From 7 to 11 April 2025, the Working Group on Parentage / Surrogacy met for the fourth time. Pursuant to its mandate, the Working Group continued its consideration of draft provisions for one new instrument on legal parentage generally, including legal parentage resulting from an international surrogacy agreement. More information is available here.

On 30 April 2025, the seventh meeting of the Working Group established to complete the Country Profile and work on the draft Cooperation Request Recommended Model Form for the 1996 Child Protection Convention was held online, hosted by the Permanent Bureau. More information is available here.

 

Upcoming Events

The webinar “HCCH 2019 Judgments Convention: Bridging Global Justice” will be held via Zoom on Tuesday 6 May 2025 from 4.00 p.m. to 5.30 p.m. (Hong Kong time), hosted by the HCCH’s Regional Office for Asia and the Pacific. Interested persons should register no later than this Friday, 2 May 2025, at 5.00 p.m. (Hong Kong time). More information is available here.

 

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

Novel Nutriology
Agriculture
La publicité au moyen d’allégations de santé relatives à des substances botaniques est actuellement interdite

Generalstaatsanwaltschaft Frankfurt am Main (Exportation d'argent liquide en Russie)
Mesures restrictives : l’interdiction d’exporter des billets de banque libellés en euros ou dans une autre monnaie officielle d’un État membre vers la Russie s’applique aussi lorsque l’argent vise à financer des traitements médicaux

The second issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) for 2025 has been published. The following abstracts have been kindly provided by the editor of the journal. C. Budzikiewicz/H.-P. Mansel/K. Thorn/R. Wagner, European Conflict of Law 2024: Business as usual? [German] This article provides an overview of developments in Brussels in the field […]

En droit européen de l’insolvabilité, les obligations exécutées au profit d’un débiteur soumis à une procédure d’insolvabilité, alors qu’elles auraient dû l’être au profit du praticien de l’insolvabilité de cette procédure, comprennent également l’exécution d’une obligation résultant d’un acte juridique passé par le débiteur après l’ouverture de ladite procédure d’insolvabilité et le transfert de la gestion des actifs au praticien de l’insolvabilité, à condition qu’un tel acte juridique soit opposable, conformément à la loi de l’État d’ouverture de cette procédure, aux créanciers parties à ladite procédure.

en lire plus

By Jason Mitchell, barrister at Maitland Chambers in London and at Group 621 in Johannesburg.

The Supreme Court of Appeal delivered judgment today in East Asian Consortium v MTN Group. The judgment is available here.

East Asian Consortium, a Dutch company, was part of the Turkcell consortium. The consortium bid on an Iranian telecommunications licence. The consortium won the bid. East Asian Consortium alleged that it was later ousted as a shareholder of the ultimate license holder, the Irancell Telecommunications Services Company. East Asian Consortium sued, amongst others, several subsidiaries of the MTN Group, a South African telecommunications company, in South Africa. East Asian Consortium alleged that the defendants unlawfully induced the Iranian government to replace East Asian Consortium with one of the MTN subsidiaries.

In 2022, the South African High Court held that Iranian law applies to East Asian Consortium’s claims. But the Court declined to exercise jurisdiction based on, amongst other things, state immunity and the act of state doctrine. East Asian Consortium appealed to the Supreme Court of Appeal.

The Supreme Court of Appeal reversed the High Court on state immunity and on the act of state doctrine. It reached the same conclusion as the High Court on the applicability of Iranian law, but for different reasons—and clarified that South African law uses the lex loci delicti as its general rule for choice of law in delict (or tort).

There are two immediate takeaways from the judgment:

South Africa’s act of state doctrine differs from the doctrine in English law

“…while we owe much to the English common law, and have much to learn from it, our common law is not a supplicant species.”

• English law (Belhaj, Deutche Bank) articulates the act of state doctrine as an exclusionary rule with limits and exceptions. The Supreme Court of Appeal rejects that approach, critiquing it as a doctrine “principally comprehended by what it is not.”
• Instead, the Supreme Court of Appeal adopts a broader balancing of interests: a “doctrine composed not of rules but of reasons that count for and against the court’s adjudication of a foreign state’s acts.”
• This interest-balancing version of the doctrine applies even when the lawfulness of the executive acts of a foreign country, taken within its territory, will have to be adjudicated by the South African court.
• The act of state doctrine is a common law doctrine, and the common law is subject to the Constitution. This means that the basis for the doctrine cannot be the separation of powers because, under the Constitution, foreign policy decisions are not beyond judicial scrutiny.
• Comity justifies the doctrine, but comity requires judicial pause not judicial abdication.
• Interest balancing considers, for example, the plaintiff’s constitutional rights (and, in particular, its right to have its dispute resolved in court), and the constitutional nature and implications of the claim (here, allegations of public corruption).

South Africa uses the lex loci delicti, but it can be displaced

• In 2010, the High Court in Burchell held that South Africa’s choice of law rule for delict is the legal system that has the most real or significant relationship to the dispute, with the lex loci delicti merely being one factor in that analysis.
• The Supreme Court of Appeal held that Burchell is wrong: the general rule is lex loci delicti. The lex loci delicti can be displaced if another legal system has a “manifestly closer connection”.
• The Supreme Court of Appeal also held that for transnational delicts (that is, when the relevant conduct or events do not happen in one country), a plurality approach should be taken to determine the lex loci delicti: the country in which the greater part of the events or conduct making up the elements of the delict took place.
• The Supreme Court of Appeal rejected an approach of subsidiary rules for particular delicts. This approach causes uncertainty about which elements should be given primacy for certain delicts. More fundamentally, it is based on the “doctrinal heresy” that South Africa has a law of delicts (like the English law of torts); South Africa instead has a “unified scheme of liability”. Subsidiary rules for each type of delict does not rhyme with that unified scheme.

The judgment was a relatively rare 3-2 split. A further appeal to the Constitutional Court is possible.

This post was written by Hannah Buxbaum, the John E. Schiller Chair in Legal Ethics and Professor of Law at the Indiana University Maurer School of Law in the United States.

Last month, Judge Edward Davila, a federal judge sitting in the Northern District of California in the United States, granted a motion by Google for a rare type of equitable relief: a worldwide anti-enforcement injunction. In Google v. Nao Tsargrad Media, a Russian media company obtained a judgment against Google in Russia and then began proceedings to enforce it in nine different countries. Arguing that the judgment was obtained in violation of an exclusive forum selection clause, Google petitioned the court in California for an order to block Tsargrad from enforcing it.

As Ralf Michaels and I found in a recent analysis, the anti-enforcement injunction is an unusual but important device in transnational litigation. There aren’t many U.S. cases involving these orders, and one of the leading decisions arose in the context of the wildly complicated and somewhat anomalous Chevron Ecuador litigation. As a result, there is little U.S. authority on a number of important questions, including the legal standard that applies to this form of relief and the mix of factors that courts should assess in considering its availability. Judge Davila’s decision in the Google case addresses some of these questions.

Background

In 2020, Google terminated Tsargrad’s Google account in order to comply with U.S. sanctions law. Tsargrad sued, alleging that Google violated its terms of service in terminating the account. Although those same terms included an exclusive forum selection clause choosing California courts, Tsargrad initiated the litigation in Russia. It cited a Russian procedural law that vested Russian arbitrazh courts with “exclusive jurisdiction” over disputes involving sanctioned parties, arguing that this rule prevented it from bringing suit in California.

Tsargrad prevailed on the merits in that case. The court ordered Google to restore Tsargrad’s account or suffer a compounding monetary penalty. Google did not restore access, and the penalty mounted to more than twenty decillion dollars (in Judge Davila’s words, “a number equal to two followed by thirty-four zeroes”). Tsargrad then started filing actions to enforce its judgment in a number of foreign courts. This prompted Google to seek an anti-enforcement injunction in the Northern District of California.

What Legal Standard Applies to Anti-Enforcement Injunctions?

An anti-enforcement injunction orders a party not to initiate or continue legal proceedings to enforce a judgment. It looks like a species of anti-suit injunction and might therefore be subject to the test used to decide those. As Judge Davila correctly recognized, though, the two contexts are quite different.

An anti-suit injunction aims to prevent parallel litigation from developing in the first place, avoiding a race to judgment and the possibility of inconsistent judgments on a single matter. Those risks aren’t relevant to anti-enforcement injunctions, where the foreign court has already entered a judgment. In such cases, the policy of res judicata also comes into play. Anti-enforcement injunctions are also potentially much more intrusive into other legal systems than anti-suit injunctions. The type of injunction that Google sought would have worldwide effect, blocking legal proceedings not only in courts with concurrent jurisdiction over the underlying dispute but in any court, anywhere, in which an enforcement proceeding might be brought. For these reasons, Judge Davila chose instead to apply the normal test for preliminary injunctions, requiring Google to demonstrate: (1) likely success on the merits, (2) irreparable harm, (3) a balance of equities favoring injunction, and (4) public interest favoring injunction.

Does Breach of a Forum Selection Clause Justify an Anti-Enforcement Order?

Once a foreign court has entered a judgment, it is (and should be) very difficult for the judgment debtor to obtain an order from a U.S. court completely blocking any enforcement efforts. In this case, there were two possible grounds for granting that relief. First, as in the Chevron case, it appeared that Tsargrad’s enforcement campaign was vexatious and oppressive. Apparently, Tsargrad had itself described its strategy as a “global legal war”—and may have viewed the twenty-decillion-dollar penalty as leverage to extort a settlement or force Google to defend itself in multiple forums. Second, it appeared that Tsargrad had procured the Russian judgment in breach of an exclusive forum selection clause. As Google argued, issuing an anti-enforcement injunction under those circumstances would both preserve the jurisdiction of the chosen courts and vindicate Google’s contractual rights.

The case proceeded on the second theory. This raised two interesting questions regarding a post-judgment injunction. First, because the breach of the forum selection clause had already happened, was there any ongoing or future harm to justify injunctive relief? Judge Davila concluded that there was—not based on the forum selection clause itself, but based on an additional implied term “bar[ring] parties from enforcing judgments obtained in violation of [a] forum selection clause.”

Second, wouldn’t the balance of equities here suggest that Google was far too late in seeking injunctive relief? It could have filed an ordinary anti-suit injunction based on the exclusive forum selection clause when Tsargrad initiated the litigation in Russia, rather than waiting until that action proceeded to judgment. (In Ralf’s and my study, this kind of delay surfaced as one of the most common reasons to deny anti-enforcement injunctions.) Judge Davila maneuvered around this issue. The basis for injunctive relief, he said, wasn’t the breach of the forum selection clause but rather the breach of the implied promise not to enforce judgments procured in violation of the clause. And Google couldn’t have sought relief for that breach until Tsargrad actually began its enforcement efforts.

What About Comity?

Every country has its own rules regarding the recognition and enforcement of foreign judgments. It’s one thing for a U.S. court to deny enforcement of a foreign judgment in the United States, under U.S. rules. But by barring a judgment holder from taking steps to enforce its judgment anywhere, a worldwide anti-enforcement injunction indirectly prevents other countries from considering the enforceability of that judgment under their rules. Judge Davila appreciated the serious comity concerns this raises. He concluded, however, that those concerns were outweighed in this case, citing the “grossly excessive” penalty imposed on Google and the vexatious nature of Tsargrad’s enforcement campaign. With the exception of Russia, then (“it is simply a bridge too far to enjoin a Russian citizen from enforcing a Russian judgment in Russian court”), he gave the order worldwide scope.

Conclusion

Pending a final decision on the merits, the court here did everything it could to block Tsargrad from enforcing the Russian judgment. In addition to entering the anti-enforcement injunction, the court entered an “anti-anti-suit injunction” barring Tsargrad from going back to Russia to seek an anti-suit injunction against the proceedings in California. The open question, as always, is what courts in other countries will do if Tsargard disregards the injunction and continues its efforts to enforce the Russian judgment.

This post is cross-posted at Transnational Litigation Blog.

Rzecznik Praw Obywatelskich (Récusation d’un juge de droit commun)
Principes du droit communautaire
Avocat général Spielmann : l’intervention d’un organe dépourvu de garantie d’indépendance dans une procédure de nomination d’un juge ne justifie pas, en soi, la récusation de celui-ci

Prezydent Miasta Mielca
Aide d'État
Aides d’État : la Cour précise les circonstances dans lesquelles des exonérations fiscales peuvent être interdites par le droit de l’Union

Fastned Deutschland
Liberté d'établissement
La Cour de justice précise les conditions dans lesquelles une concession peut être modifiée sans nouvelle procédure d’attribution

Commission / Malte (Citoyenneté par investissement)
Citoyenneté européenne
Citoyenneté de l’Union : le programme maltais de citoyenneté par investissement est contraire au droit de l’Union

This post was written by Lea Marion who is a Member of the Paris Bar. The legal characterization of claims for abrupt termination of established commercial relationships — an action specific to French law (Article L. 442-1, II of the French Commercial Code) — continues to be a fertile ground for uncertainty and doctrinal debate. […]

On 16 and 17 April 2025, the Australasian Association of Private International Law (AAPrIL) held its inaugural conference in Brisbane, Australia. Hosted by Griffith University—the home of AAPrIL President Mary Keyes—the conference featured stimulating panel presentations from speakers from around Australia and abroad.

The conference started with a panel on jurisdiction and judgments, chaired by Richard Garnett of Melbourne Law School. Reid Mortensen of USQ kicked things off with a presentation on Australia’s cross-vesting scheme. Priskila Penasthika of the Universitas Indonesia then spoke on ‘The Indonesian Language Contract Requirements versus Arbitration as a Choice of Forum’.

The second panel was on private international law and climate change, chaired by Lemuel Lopez of RMIT. Yao-Ming Hsu of the National Cheng-Chi University, Taiwan, spoke on ‘Cross-border/Transnational Climate Change Litigation and Private International Law’, then Ekaterina Aristova of Oxford presented on ‘Private International Law and Climate Change: Trends in Transnational Litigation’.

In the afternoon, Reid chaired a panel on Private International Law and Technology. Richard spoke on ‘Private International Law Aspects of Blockchain Contracts’, followed by Nargiza Abdurakhmonova of Griffith University who covered ‘Private international law and data protection in the Eurasian Economic Union’.

The first day was capped off with drinks and dinner overlooking the Brisbane River at South Bank. I had fish and beers. They were delicious.

Sore heads backed up well for the morning session on day 2, chaired by Mary, which considered ‘Prenuptial Agreements: Comparative Perspectives from France, Australia and Hong Kong’. Susannah Quinn of Mills Oakley provided an ‘Australian perspective, examining how Australian law handles foreign prenuptial agreements’, then Shu Mei Hoon of Drew Napier, Singapore spoke to ‘Exploring the treatment of prenuptial agreements in Singapore’. Emmanuelle Bonboire-Barthélémy of Chauveau Mulon & Associés provided a ‘French perspective, addressing the recognition and application of foreign prenuptial agreements in France and the international circulation of French marriage contracts in cross-border scenarios’.

After snacks, I chaired a session where Lemuel spoke on ‘Islamic Law in Non-Muslim Majority Jurisdictions: Lessons from the Philippines and Australia’, followed by Inma Conde of the University of Sydney and the Office of International Law (Australia), who spoke on ‘Ernst Rabel and the PIL Framework for International Sales’.

In the final session, Brody Warren, Assistant Director of the Private International & Commercial Law Section, Attorney-General’s Department (Australia), and formerly of HCCH fame, chaired a session where I defamed him and also spoke on ‘Extraterritorial enforcement of Australia’s eSafety regulation’. Paul Abraham of the University of Newcastle then presented on ‘Anti-enforcement Injunctions: A Discussion of Principles and Trends’. Last but not least, Mary spoke on ‘ Anti-suit Injunctions and Choices of Court’.

The first AAPrIL Conference was a great event and a credit to the organisational skills of Mary Keyes and Mel Davies of Griffith University. I will remember it for the collegiality as much as the educational content. Please join us for the next one! You can follow us at https://aapril.org/ and on LinkedIn.

UN/CEFACT would like to invite you to attend:

The United Nations Centre for Trade Facilitation and E-business (UN/CEFACT) under the United Nations Economic Commission for Europe (UNECE)

The 7th and 8th Working Group Meetings:

• -30 Apr 9-10:00 am (CET-Geneva) and 5-6:00 pm (AEST) Dr. Susanne Guth-Orlowski, CEO 4TheRecord, Germany: The battery passport and value chain transparency at scale (Zoom)
• –14 May 9-10:00 am (CET-Geneva) and 5-6:00 pm (AEST), Dr. Sagi Peari, the University of Western Australia Law School: ‘The UK’s Digital Assets Project and Conflict of Laws: Implications for the data transfer in the CRM value chains’ (zoom)
• For the zoom link and previous meeting minutes, please refer to the project webpage Critical Minerals Traceability and Sustainability
• For the work-in-progress UN/CEFACT white paper: https://docs.google.com/document/d/1sIT01KuoPFfQ9gMGVSLJxYBvXTzccjETWugflWs-6sY/edit?tab=t.0

The 6th Working Group Meeting

• –16 Apr 9-10:00 am (CET-Geneva) and 5-6:00 pm (AEST) , Dr.  Naeem AllahRakha, Tashkent State University of Law, Advocate High Court, Uzbekistan: Cross-border data protection and sharing in CRM-EV value chains (zoom)
• For the zoom link and previous meeting minutes, please refer to the project webpage Critical Minerals Traceability and Sustainability.

The 5th Working Group Meeting on Addressing Conflict of Laws and Facilitating Digital Product Passports in Cross-Border Value Chain:

–19 Mar 7-8:00 pm (Sydney Time), Dr. Fabian Sack, Sydney University (Zoom): Life cycle assessment

For the zoom link and previous meeting minutes, please refer to the project webpage Critical Minerals Traceability and Sustainability.

The 4th Working Group Meeting on Addressing Conflict of Laws and Facilitating Digital Product Passports in Cross-Border Value Chain:

–5 Mar 12-2:00 pm (Sydney Time), Dr. Yuhong Zhao, Chinese University of Hong Kong: ‘The Environmental Damage of Rare Earth Mining: Regulatory Challenges in China.’ (Hybrid)

For the zoom link and previous meeting minutes, please refer to the project webpage Critical Minerals Traceability and Sustainability.

For the whitepaper working outline, please refer to here. All comments are welcome. Please contact jeanne.huang@sydney.edu.au.

The 3rd Working Group Meeting on Addressing Conflict of Laws and Facilitating Digital Product Passports in Cross-Border Value Chain, 12-1:00 pm Wednesday, 19 Feb 2025 (Sydney Time) Prof. Leslie López Arias, Academia de Humanismo Cristiano University, Chile: Mining regulations in Peru/Chile 

For the zoom link and previous meeting minutes, please refer to the project webpage Critical Minerals Traceability and Sustainability.

The 2nd Working Group Meeting on Addressing Conflict of Laws and Facilitating Digital Product Passports in Cross-Border Value Chain, 7:00-8:00 pm Wednesday, 5 February 2025 (Sydney Time)

Keynote Speaker: Mrs. Kamola Khusnutdinova, Economic Affairs Officer and Secretary to UN/CEFACT. For Zoom Link, please contact Associate Professor Jeanne Huang: jeanne.huang@sydney.edu.au. We will continue working on the white paper outline. All comments are welcome. Please review the first meeting minute including the proposed white paper outline posted on the project page: Critical Minerals Traceability and Sustainability.

First Working Group Meeting Agenda

21 January 2025 (Sydney Time)

10:00 am – 11:00 am AEDT: The UN/CEFACT working group on ‘conflict of laws in the critical raw material (CRM) value chains’ meeting: Introduction and discussion of the UN/CEFACT White Paper draft outline

Moderator: Associate Professor Jie (Jeanne) Huang, Sydney University School of Law.

This is a hybrid event. Please contact jeanne.huang@sydney.edu.au for zoom details.

11:00 am – 12:00 pm AEDT: Research interview with Dr. David Brown who is a researcher with Mighty Earth and has done a lot of research on deforestation in CRM value chains in Indonesia.  For his recent publication, “From Forests to EVs,” which he co-authored with Mighty Earth.  Kindly refer to https://mightyearth.org/article/from-forests-to-electric-vehicles/. (The interview is not open to the public due to the research ethics requirement)

12:00 pm – 13:00 pm AEST: Lunch

13:00 pm- 14:00 pm AEDT: Professor Philip M. Nichols keynote:

Does Compliance with the Global Anticorruption Regime Require the Use of Artificial Intelligence?: The Case of Managing Global Critical Raw Material Value Chains

Background

Business firms constantly hear that artificial intelligence has changed the world and that they must either utilize artificial intelligence or fall behind. By extension, this would be true of regulatory compliance as well as operations. This article challenges the mantra of artificial intelligence as a ubiquitous agent of change. It does so through the lens of the global anticorruption regime, a transnational web of laws, regulations and norms that work together to reign in corruption. As this article demonstrates, the global anticorruption regime imposes on business firms a requirement to implement effective and up-to-date antibribery programs. Given the prevailing conception of artificial intelligence as the newly-critical tool for business, it would be easy to interpret “effective” and “up-to-date” as requiring the use of artificial intelligence. To determine whether in fact the global anticorruption regime does, this article undertakes two analyses. First, it carefully determines the systems requirements of the type of artificial intelligence most applicable to antibribery programs – systems that can distinguish between honest and corrupt actors and transactions – and determines the regulatory constraints on the use of artificial intelligence in that way. This article then asks specifically what tasks artificial intelligence would be asked to do as part of an antibribery program, and evaluates the capacity of artificial intelligence to perform those tasks given the already determined system requirements and constraints. These analyses yield a surprising conclusion: in some instances the use of artificial intelligence would be helpful, but for most business firms, particularly for smaller firms or firms that have not experienced bribery, the use of artificial intelligence would not be helpful and could be harmful. Regulators and legal scholars must not think of artificial intelligence as a panacea; its potential use must be analyzed in the context of objectives and the capacities, needs, and limits of artificial intelligence.

Dr. Philip M. Nichols is the Joseph S. Kolodny Professor of Social Responsibility in Business and Professor of Legal Studies and Business Ethics at the Wharton School of the University of Pennsylvania. He was Co-Chair, UN/CEFACT Law Group (United Nations experts committee on electronic commerce and trade facilitation), 1998 to 2005.

Event page: https://law-events.sydney.edu.au/event/globalanticorruptionregime_ai/

Registration: https://www.eventbrite.com.au/e/does-compliance-with-the-global-anticorruption-regime-require-the-use-of-ai-tickets-1143595548069?aff=oddtdtcreator UN/CEFACT would also like to call for participation:

White Paper on Addressing Conflict of Laws and Facilitating Digital Product Passports in Cross-border Value Chains 

Help draft the white paper on Addressing Conflict of Laws and Facilitating Digital Product Passports (DPPs) in Cross-border Value Chains to achieve legal coordination and establish traceability in global trade law. Aligned with regional and global initiatives, the White Paper seeks to address conflicts of law and foster the legal harmonization essential for the DPPs implementation across borders. The white paper will also ensure that DPPs comply with international standards, promoting interoperability and supporting a globally consistent approach. It will focus on the critical raw materials-the EV batteries value chain but will have broad implications for other industries.

The proposed White Paper will (1) present the status quo of conflict of laws in existing national and international laws relating to the implementation of DPPs, and (2) propose solutions for legal coordination and facilitate trade, especially:

1. Analyzing initial uptake of DPPs by industry stakeholders and anticipated impact;
2. Coordinating diversified national laws for cross-border data transfer involved in DPPs;
3. Obtaining mutual recognition of ESG certificates whose data are required by DPPs;
4. Promoting Interoperability between different DPPs; and
5. Incorporating UNTP and other UN/CEFACT industry standards/good practices into international and national trade laws to address legal conflicts in the adoption of DPPs.

Please provide your name/position/associations/email contacts;

Please indicate your expertise;

Please choose the ways to participate (multiple choice):

1. Participate as an active contributor in the working group to draft the White Paper (The group will typically have a one-hour meeting every two weeks from January to May 2025),
2. Participate as an observer in the working group to draft the White Paper,
3. Participate in research interviews, and
4. Any other ways that you think you can contribute.

Deadline to express your EOI is Friday 17 January 2025. Please contact the project lead Dr. Jie (Jeanne) Huang (Jeanne.huang@sydney.edu.au) and forward your email to her research assistant Raven Yang (raven.yang@sydney.edu.au).

 

 

In every private international law system, the forum state reserves the right to reject the application of a foreign rule that deeply offends the forum’s fundamental sense of justice and fairness. In all systems, this “public policy reservation” (ordre public) operates as an exception to the forum’s choice-of-law rules, not its rules on jurisdiction or access to courts. Surprisingly, the First and Second Conflicts Restatements in the United States deviate from this international consensus by narrowly phrasing the exception as a ground for denying a forum to foreign causes of action rather than as a ground for refusing to apply other foreign rules, including those raised as defenses.

A forthcoming article by Symeon Symeonides titled The Public Policy Exception in Choice of Law: The American Version discusses the origins of this unique formulation in Judge Cardozo’s classic but misinterpreted decision in Loucks v. Standard Oil Co. of New York, the problems it creates, its tacit rejection by most American courts, and the new flexible formulation of the exception in the proposed Third Conflicts Restatement.

The article will be published in Praxis des Internationalen Privat- und Verfahrensrechts (IPRax), as well as in a special issue of the Emory Journal of International Law dedicated to the renowned conflicts scholar Peter Hay.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

 

M. F. Müller-Berg: The effects of the new product liability directive on international product liability

The Swiss Federal Court had to decide on the international jurisdiction for a negative declaratory action in a product liability dispute in the case of cross-border manufacturing involving a division of labour. On the one hand, it affirmed the possibility of bringing a negative declaratory action in a product liability dispute at the place of action within the meaning of Art. 5 No. 3 Lugano Convention. On the other hand, in the case of cross-border manufacturing involving a division of labour, it considered the place of development to be the sole place of action for the product developer. This not only represents a rejection of a mutual attribution of the place of action in relation to other addressees under product liability law, but also an opening of the place of action in product liability to an interpretation specific to the addressee of liability.

 

N. C. Kranzhöfer: Third-party effect of a jurisdiction clause in a bill of lading by virtue of the consignee’s succession into the rights and obligations of the carrier

The ECJ had to decide whether a jurisdiction clause included in a bill of lading may be invoked against the consignee of the goods who has, pursuant to the applicable national law, succeeded in the carrier’s rights and obligations upon reception of the bill of lading. The Court drew on its case law beginning with the Tilly Russ case but was also required to answer questions that had been raised by inconsistencies in its more recent case law, in particular its judgment in the DelayFix case. The Court now rejects the choice-of-law rule formulated in the operative part of the DelayFix judgment pursuant to which the succession of the third party into the substantive rights and obligations of the original party to the jurisdiction clause is governed by the lex fori prorogati. Instead, the ECJ reaffirms its previous case law according to which the applicable law is to be determined pursuant to the private international law of the forum state. Moreover, the Court declares that national legal provisions are contrary to EU law if they make the third-party effect of a jurisdiction clause included in a bill of lading dependent on further conditions beyond the recipient’s full succession into the carrier’s substantive rights and obligations.

 

R. A. Schütze: Security for costs under the HCCH for Singapore residents in German courts

The Regional Court of Appeal (Oberlandesgericht) Köln has decided that a claimant residing in Singapore is obliged to provide security for cost under sec. 110 German Code of Civil Procedure (ZPO) despite the fact that the Hague Convention on Choice of Court Agreements is already in force between Germany and Singapore. The Court thus dissented from an earlier decision of the Austrian Supreme Court (OGH). The Regional Court of Appeal Cologne erroneously did not apply the Hague Convention on Choice of Court Agreements because it interpreted terms of the convention from the point of view of German Civil Procedure instead of applying an autonomous interpretation.

 

F. Hess: No anti-suit injunction to prevent enforcement of an ICSID award in third States

Investors cannot enforce intra-EU-investment treaty awards within the European Union. Against this background, investors seek to enforce awards abroad. To prevent an investor from enforcing an arbitral award issued by an ICSID tribunal in the United States or in other countries, Spain applied for an anti-enforcement injunction. The Regional Court of Essen refused to grant the injunction. It held that the claim was inadmissible because such an order would violate state sovereignty and was therefore incompatible with German and EU law. The article examines the interface between the Brussels Ibis Regulation and arbitration, noting that anti-arbitration and anti-enforcement injunction proceedings fall within the scope of the Regulation. It then argues that anti-suit and anti-enforcement injunctions are in principle incompatible with German law and that, unlike in disputes over standard essential patents where German courts have granted anti-anti-suit injunctions, there is no reason for an exception to this principle.

 

A. Schulz: One-year time limit and settling in under the Hague Child Abduction Convention

The Higher Regional Court of Stuttgart ruled that if a child is first wrongfully retained in one state and then taken to several other states without the consent of the left-behind parent, the first wrongful act – in this case the retention – remains decisive for the start of the one-year period under Art. 12 para. 2 Hague Child Abduction Convention, also in the state in which the child is present at the end. However, in line with a more recent opinion in legal literature, the Higher Regional Court of Stuttgart affirmed its discretion to order the child’s return even if the one-year period has expired and the child has settled in their current state of residence. It based this on an argumentum a fortiori in comparison with Art. 13 para. 1 lit. b) of the Convention and on the behaviour of the abducting mother, who had already ignored a Romanian return decision and declared that she would not allow the courts to dictate her country of residence and that of the child.

 

C. Uhlmann: The untraceable plaintiff in International Civil Litigation – possibilities and limitations of European Union law

In Credit Agricole Bank Polska, the ECJ decided upon the question which law governs international jurisdiction in a potential cross border case if defendant’s current residence cannot be localized: the Brussels Ia Regulation or national procedural law. The ECJ came to the conclusion that even in cases where the defendant is a national of a third state and a consumer, international jurisdiction under Art. 18(2) Brussels Ia Regulation is to be determined at the defendant’s last known residence as long as there is no firm evidence that the defendant’s residence is in another Member State or a third country. In „Toplofikatsia Sofia“ EAD, the ECJ dealt with national legislation with respect to Member State’s own nationals aiming to ensure a permanent domestic residence. Holding such national legislation contrary to EU law, the ECJ further articulated that international jurisdiction is governed exclusively by the Brussels Ia Regulation as soon as there are reasonable grounds for believing that the defendant resides in another Member State. The author agrees with the ECJ with respect to the result, but criticizes that its reasoning is not always conclusive.

 

J. Samtleben: International Procedure Law in the National Civil and Family Procedure Code of Mexico.

On 7 June 2023, a uniform Civil and Family Procedure Code for the entire Mexican state was promulgated in the Mexican Official Gazette. The legislatures of the federal area and the individual states have until 1 April 2027 to enact the Code and replace the corresponding procedural laws. In its Tenth Book, the Code contains a detailed catalogue of international procedural law that is partly based on traditional regulations, but which creates a new and detailed legal basis for many areas. For the first time, it expressly regulates the international jurisdiction of Mexican courts. The application of foreign law has also been regulated in detail. Among the provisions on international procedural cooperation, the enforcement of foreign protective measures and the use of videoconferencing are particularly noteworthy. As before, the enforcement of foreign judgments requires a request for legal assistance from the foreign court.

On Tuesday, May 6, 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 Konrad Duden (University of Hamburg) will speak, in English, about the topic

“Squaring the Circle – Recognising Rare Family Forms and Gender Identities Within the EU”

 

The principle of recognition has long been a feature of European private international law – increasingly also in matters of family law and the law of personal status. Recent case law has focused on so-called rainbow families – same-sex marriages and parenthood – and changes in legal gender markers. These are issues that are treated very differently across the EU, with extensive protection and equal treatment in some Member States, and clear and in some cases constitutional rejection in others. The CJEU is therefore trying to reconcile two contradictory principles: The exclusive competence of Member States in substantive family and civil status law on the one hand and the Union-wide recognition of families and gender identities registered in one Member State on the other. This presentation will examine how the CJEU attempts to resolve this conflict and what conclusions can be drawn from the case law on the nature and scope of the principle of recognition.

 

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.

Diplomatic agents, consular officers and other persons serving as staff members at a State’s representation abroad mostly move from one State to another throughout their career, sometimes spending no more than a few years, if not months, before they are assigned to a new post at a different location. Their situation illustrates well what the […]

Written by Fikri Soral, Independant Lawyer, Turkey; and LL.M. student, Galatasaray University, Turkey

A Maltese court has refused to enforce a $740 million default judgment issued by the 15th Judicial Circuit Court of Florida (Palm Beach County) in a defamation suit brought by Applicant Mehmet Tatlici against his half-brother, Defendant Ugur Tatlici. [1] The Florida court’s award—issued on 8 January 2020 in a defamation suit filed by Mehmet Tatlici against his half-brother—was deemed procedurally deficient and substantively incompatible with Malta’s public policy, particularly due to its lack of reasoning and its chilling effect on free expression.[2]

The Maltese court found that the Florida default judgment—submitted as a redacted, one-page certification—could not be meaningfully reviewed, as the complete, reasoned version was essential to assess whether any part of the judgment violated Maltese ordre public.[3] The court emphasized that it is not for the issuing court’s clerk to determine what may be withheld, and that the absence of judicial reasoning in a claim involving hundreds of millions in damages was, in itself, contrary to Malta’s fundamental procedural standards and ordre public.[4] Notably, the court flagged the stratospheric scale of the damages—€659,932,000—as irreconcilable with Malta’s defamation laws, viewing enforcement as a potential threat to freedom of speech and contrary to Malta’s ordre public.[5]

At the same time, parallel enforcement proceedings remain ongoing in Turkey, where Applicant Mehmet Tatlici is seeking recognition and enforcement of the same Florida judgment.[6] Simultaneously, a criminal investigation is underway in Turkey, concerning felonies of fraud, aggravated fraud, and document forgery in relation to how the Florida judgment was procured.[7]

Background and Procedural History

The proceedings stem from a protracted intra-family dispute between Mehmet Tatlici and his half-brother Ugur Tatlici, heirs to the late Turkish billionaire Salih Tatlici. On 8 January 2020, the 15th Judicial Circuit Court for Palm Beach County, Florida entered a default judgment in favour of Mehmet Tatlici in Mehmet Tatlici v. Ugur Tatlici, Case No. 50-2018-CA-002361-XXXX-MB, awarding him $740 million in damages for alleged defamation. The judgment was based on Mehmet Tatlici’s allegations that online publications on websites and social media had harmed his reputation and caused the collapse of a real estate project in Istanbul, the legitimacy of which is now disputed and appears to be addressed before a Turkish heavy penal court in Turkey for alleged fraud.[8]

Mehmet Tatlici claimed that the online publications led to the termination of a real estate development project in Istanbul, allegedly abandoned by a Romanian investor due to reputational concerns.[9]

Defendant U?ur Tatlici, however, denies any involvement in the publications and maintains that the defamatory material was fabricated by Applicant Mehmet Tatlici and his Florida lawyers to manufacture a basis for litigation.[10] According to his filings and expert submissions, the alleged project was never viable to begin with. The same materials state that the project was legally impossible under Istanbul’s zoning laws, relied on fictitious contractual arrangements, and was tied to a Romanian company with only $50 in registered capital, two offshore shareholders, and a concealed ultimate beneficial owner (UBO), lacking any credible financial capacity to support a development of that scale.[11] Defendant Ugur Tatlici also states that he was not made aware of the Florida proceedings at the time and therefore had no opportunity to contest the allegations or raise these objections in the original action.[12] He argues that the judgment was obtained by default through fraud and misrepresentation.[13]

Following the Florida judgment, Mehmet Tatlici launched recognition and enforcement proceedings in Malta and Turkey. In Malta, he filed Application No. 719/2020TA before the Civil Court (First Hall), which dismissed the application on 13 February 2025, citing several grounds, including the absence of a reasoned judgment, the gross disproportionality of damages, and the judgment’s incompatibility with Maltese public policy.

Meanwhile, enforcement efforts are ongoing in Turkey, where the case is before the Istanbul 13th Civil Court of First Instance presided over by Judge Hakan Kabalci. In parallel, Turkish prosecutors have opened a criminal investigation into the circumstances surrounding the Florida judgment, focusing on felonies of fraud, aggravated fraud, and document forgery. The matter is expected to be brought before a Turkish heavy penal court for further proceedings.

The Maltese Court’s Decision

In its judgment dated 13 February 2025 (Application No. 719/2020TA), the Civil Court (First Hall) of Malta, presided by Judge Toni Abela LL.D., denied enforcement of the $740 million (€659 million) Florida defamation judgment obtained by Mehmet Tatlici. The court grounded its refusal on unreasoned and incomplete nature of the Florida judgment, violations of Maltese ordre public, lack of jurisdiction, and broader free expression principles under Maltese and EU law.[14]

First, a critical basis for refusal was the failure to submit a full, reasoned version of the Florida judgment. The 740-million-dollar default judgment was a product of a single-page handwritten jury verdict form, devoid of any accompanying judicial opinion explaining the basis for the award.[15] The court highlighted that such a submission made it impossible to evaluate whether the judgment was consistent with Maltese public order and emphasized that reasoned judgments are not merely technical requirements but essential to meaningful judicial review.[16] Procedural formalities, the court stated, are part of ordre public in Malta and cannot be waived, even with party consent. [17]This alone rendered the application unenforceable.

Significantly, this procedural deficiency mirrors difficulties Applicant Mehmet Tatlici is encountering in ongoing Turkish enforcement proceedings, where the Applicant has also been requested to provide a complete, authenticated copy of the Florida judgment.

Second, beyond procedural failings, the court strongly objected to the scale of damages—€659,932,000—awarded for defamation. It observed that such “stratospheric” sums are entirely incompatible with the way defamation is treated under Maltese law.[18] The court emphasized that while monetary penalties for defamation are permissible, they must not have a chilling effect on individual expression or public discourse.[19]

The court explicitly referenced the applicant’s own anticipation that the respondent might invoke a SLAPP (Strategic Lawsuit Against Public Participation) defence.[20] While Malta does not directly adjudicate the merits of U.S. legal standards, it emphasized that the chilling effect of such judgments—especially when arising from online speech—raises serious concerns under Maltese and European principles of democratic discourse. Crucially, the court did not make any finding as to whether Defendant Ugur Tatlici authored the allegedly defamatory material. It declined to engage with the underlying merits of the Florida judgment and limited itself to the enforceability of that decision under Maltese law.

Third, the court further held that it lacked jurisdiction under Article 742 of the Maltese Code of Organization and Civil Procedure[21]. The application failed to establish any sufficient nexus with Malta—either through residence, assets, or subject matter.[22]

Broader Analysis

The Tatlici decision highlights how courts in recognition proceedings are increasingly attentive to the substantive and procedural legitimacy of foreign default judgments—particularly in cases involving defamation, extraordinary damages, and minimal jurisdictional connection to the forum of origin. Rather than approaching enforcement as a purely formal exercise in judicial comity, the Maltese court subjected the Florida judgment to a rigorous public policy review, grounded in Maltese constitutional values and European legal standards.

This cautious approach is especially warranted in defamation matters, which remain a notoriously unsettled area of private international law. The Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, which aims to promote the mutual recognition and enforcement of civil and commercial judgments across borders, expressly excludes defamation claims from its scope under Article 2(1)(k). This exclusion is not incidental—it reflects the deep and enduring divergences between legal systems in balancing reputation and freedom of expression, and in regulating media liability, damage awards, and procedural safeguards.

As a result, defamation judgments—especially when obtained by default and accompanied by disproportionate damages—remain subject to domestic standards in the enforcing forum. The Tatlici ruling exemplifies how national courts can, and must, use that discretion to filter out foreign judgments that fail to meet local thresholds of proportionality and constitutional legitimacy.

In this respect, the case underlines a growing transatlantic divergence. Although the United States offers strong First Amendment protections in theory, its procedural system permits extraordinary libel damages, especially through default, without requiring the detailed judicial reasoning expected in civil-law jurisdictions. In Europe, by contrast, the enforcement of such awards is viewed not only as a matter of technical admissibility, but as a question of whether the judgment itself comports with core constitutional commitments—particularly the protection of democratic discourse and media freedom.

The Tatlici judgment sits comfortably alongside other recent European decisions—such as Real Madrid v. Le Monde[23] in France and ZDF[24] in Germany—which have refused to enforce even intra-EU defamation rulings where the outcome would infringe national free expression standards. These cases reflect the principle that domestic free expression standards must not be undermined by “importing” judgments from systems with differing legal thresholds.

The question of jurisdiction further reinforces the court’s reasoning. In both Tatlici and the New Zealand case Kea Investments Ltd v. Wikeley Family Trustee Ltd[25], the enforcing courts questioned the legitimacy of default judgments rendered in forums with no meaningful connection to the underlying dispute. In Tatlici, the Florida judgment was entered by default, despite both parties being Turkish nationals, with no substantial ties to Florida, and the disputed real estate project located in Istanbul. Similarly, in Kea, the Kentucky default judgment was obtained without adversarial process. Notably, while the New Zealand Court of Appeal ultimately lifted an anti-enforcement injunction on procedural grounds, it upheld the High Court’s finding that the judgment had been fraudulently procured and was not entitled to recognition.[26]

The Kea case offers a compelling comparative example, where the courts found a U.S. default judgment to be fraudulently obtained and not entitled to recognition, despite ultimately reversing an anti-enforcement injunction on procedural grounds.[27] Though the injunction was lifted, the underlying concerns remained and reinforced the principle that fraudulently and strategically engineered default judgments cannot be presumed enforceable.[28]

In both cases, the core issue is not hostility to foreign law, but resistance to opportunistic use of foreign legal systems to generate leverage in unrelated or parallel disputes. The Tatlici decision affirms that enforcement forums are not neutral venues for rubber-stamping foreign awards. They are guardians of legal coherence and public policy, tasked with ensuring that enforcement respects the procedural and constitutional identity of the local legal order.

Taken together, these themes point toward a developing global norm that recognition and enforcement of defamation judgments will continue to operate outside the harmonized legal frameworks of instruments like the Hague Judgements Convention—and rightly so. The reasons are structural, not incidental. As long as national systems take various positions on how to balance speech, reputation, and remedies, enforcement will remain subject to localized scrutiny, particularly when judgments are opaque, exorbitant, or jurisdictionally artificial.

Conclusion

While Malta has now delivered a clear repudiation of the Florida judgment on procedural and public policy grounds, the spotlight now shifts to Turkey, where enforcement proceedings remain ongoing, and a parallel criminal investigation is actively examining whether the judgment was procured through fraud. As the jurisdiction most closely connected to both parties and to the disputed commercial project at the heart of the defamation claim, Turkey is uniquely positioned to conduct a fuller legal inquiry—assuming the proceedings unfold independently and free from undue influence, unlike concerns raised in the Florida case.

The outcome of the Turkish proceedings may prove decisive—not only for the parties involved but also for evolving standards of cross-border enforceability. In this sense, Tatlici is a test of how national courts respond to foreign default judgments used strategically— and whether such judgments can withstand scrutiny in jurisdictions with stronger procedural safeguards and a more immediate interest in the truth.

[1] Mifsud Av. Malcolm Noe v. Ugor Tatlici, Civil Court (First Hall), Judgment of 13 February 2025, Application No. 719/2020TA. Available at: https://ecourts.gov.mt/onlineservices/Judgements/PrintPdf?JudgementId=0&CaseJudgementId=151468 (“Judgement”)

[2] ibid, at pp. 2–8.

[3] ibid, at p. 3.

[4] ibid, at p. 5.

[5] ibid.

[6] Istanbul 13th Civil Court of First Instance (File No. 2024/416 E.)

[7] Beykoz Chief Public Prosecutor’s Office, Case No. 2025/720 Sor.

[8] Istanbul Anadolu 8th Criminal Judgeship of Peace, File No. 2024/9316 Misc.

[9] Docket Entry no. 183, 184 and 185, Mehmet Tatlici v. Ugur Tatlici (Case No. 50-2018-CA-002361-XXXX-MB) (“Original Action”) available at: https://appsgp.mypalmbeachclerk.com/eCaseView/search.aspx

[10] ibid. Docket Entry no. 105.

[11] ibid.

[12] ibid.

[13] ibid.

[14] Judgement, at pp. 2–8.

[15] Original Action, Docket Entry no. 38.

[16] Judgement, at p.4.

[17] ibid.

[18] ibid. at p.5.

[19] ibid.

[20] ibid.

[21] ibid. at p.8.

[22] ibid.

[23] Real Madrid Club de Fútbol v. Le Monde, Case C-633/22, ECLI:EU:C:2024:843 (CJEU, 4 October 2024)

[24] Bundesgerichtshof (BGH) [Federal Court of Justice], Case IX ZB 10/18, Judgment of 19 July 2018.

[25] Wikeley v Kea Investments Ltd [2024] NZCA 609.

[26] ibid.

[27] ibid.

[28] ibid.