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.

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

Dexia SA v Comune di Torino [2026] EWHC 1401 (Comm) is the continuation of Dexia SA v Comune Di Torino [2025] EWHC 1903 (Comm) which I cross-refer to in an earlier post. The 2025 judgment is a declaratory one, incl on the validity of choice of court and breach of that clause by Torino, given the actions it has started in Italy.

Baker J in current case deals again with the issue of characterisation and applicable law, echoing issues in Banca Intesa which  I discuss here. The issues are considered not under the Rome I Regulation (assimilated law in the UK) rather under the 1980 Rome Convention,  with the statutory text however not materially different. He follows Dexia Crediop SpA v Comune di Prato [2017] EWCA Civ 428, the landmark authority. The critical question given Article 3(3) Rome Convention’s ‘purely domestic contracts’ rule (in the event all elements relevant to the “the situation” (notably not the same as ‘contract’) are domestic to one country, choice of law for a law other than that country, cannot trump the mandatory law of that country) is whether, apart from the ISDA law and jurisdiction clause “all the other elements relevant to the situation are connected with one country only”.

Of note at this stage is that claimant (‘Dexia’) is a French banking corporation which has succeeded to the rights and obligations of its former subsidiary in Italy, Dexia Crediop SpA, previously Crediop SpA. In other words the initial contract at issue, was concluded between two Italian corporations, but with choice of law for English law.

In Comune di Prato in the Court of Appeal,  the Court approved of the approach of Cooke J in Caterpillar Financial Services Corporation v SNC Passion [2004] EWHC 569 (Comm) [404] that “the inquiry is not limited to elements that are local to another country, but includes elements that point directly from a purely domestic to an international situation”. [134] in Prato, the CA singled out the use of the ISDA Master Agreement as a strong element in a finding of ‘international’ as opposed to purely domestic contracts.

In the case at issue, Baker J [81] holds

“the choice of law was not the only element relevant to the situation that disconnected it from Italy. Thus:

(i) the ISDA Master Agreement chosen was the ‘Multicurrency – Cross Border’ agreement rather than the ‘Local Currency-single Jurisdiction form’, so it contemplated more than one currency and the involvement of more than one country, as well as being in the English language;

(ii) the Transactions were part of a wider set of derivative agreements entered into with other banks, including JPM, a foreign bank (relative to the putative exclusive tie to Italy); and

(iii) the Transactions were the subject of two back-to-back hedges with Barclays Bank plc originally dated 12 April 2006 and amended on 24 June 2008, one of which was novated to Goldman Sachs International on 23 July 2015, and both Barclays Bank plc and Goldman Sachs International are foreign banks (relative to the putative exclusive tie to Italy).

English judges now firmly hold that the use of the multicurrency-cross border version of the ISDA Master Agreement, which in and of itself contemplates more than one currency and more than one jurisdiction, establishes an international element sufficient to rule out a Article 3(3) exception.

In doing so, they justifiably honour the party autonomy principle of Article 3 and Rome I in general, and pay heed to the need to apply Article 3(3) restrictively. However others will find that considerable weight put on the multicurrency form a touch excessive (and ofc in the case at issue, other elements, too, led to a disapplication of A3(3)). German courts, I understand, have a different approach to the issue and Rob Rooman, one of my PhD students and FWO fellow at Leuven, has a paper on the issues forthcoming.

Geert.

Handbook of EU private international law, 4th ed, 2024, 3.76 (5th ed forthcoming January 2027).

 

This post was contributed by Eirini Tsikrika, a PhD candidate at National and Kapodistrian University of Athens and a practising lawyer. As already announced on this blog, on 4 June 2026 Advocate General Norkus delivered his opinion in Case C-41/25, Orsay, concerning a request for a preliminary ruling referred to the Court of Justice by […]

La prochaine édition de Dalloz actualité sera publiée le mardi 30 juin.

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The fourth issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) for 2026 will be published on 1 July. The following advance abstracts have been kindly provided by the editor of the journal. L. Schwannecke, Challenging the European Certificate of Succession: Prerequisites and consequences after the CJEU decision in Albausy (German) According to Art. 67 […]

 

This post was kindly prepared by Sai Ramani Garimella, Associate Professor, Faculty of Legal Studies, South Asian University.

 

A judgment-creditor is often concerned about the enforcement of foreign court orders, and that concern is not completely misplaced in India. The Supreme Court’s decision in Messer Griesheim v Goyal MG Gases is a useful illustration of the law governing the enforcement of foreign court orders and of the discussion of their finality and binding nature. Twenty-three years after the underlying loan transaction, and after much litigation, the Court has finally closed the chapter, refusing to enforce a 2006 English court’s summary judgment for roughly USD 5.8 million. Along the way, it has also clarified two recurring questions that often come up whenever a foreign money decree is sought to be executed in India:

• (i) When does a summary or “leave to defend” judgment qualify as a judgment “on the merits” under Section 13(b) of the CPC, and
• (ii) What is the real effect of a conditional RBI/foreign-exchange approval on the enforceability of a decree?

A JV was contracted between a German company, Messer Griesheim GmbH (hereinafter, Messer Griesheim) and Goyal MG Gases (hereinafter, Goyal), an Indian company engaged in the industrial gases business, in 1995. To fund capital expenditure, Goyal arranged an External Commercial Borrowing (ECB) of USD 7 million from Citibank, London, with Messer Griesheim standing as guarantor. The Foreign Exchange Regulation Act, 1973 (FERA), required both the Government of India and the Reserve Bank of India (the Central Bank) to approve borrowing and guarantees. The RBI’s approval letter dated 3 September 1997 imposed conditions, amongst others, that “in case of invocation of guarantee, no liability whatsoever will extend to the Indian company.” When Goyal defaulted, Citibank invoked the guarantee in 2001, and Messer Greisheim paid USD 4.78 million. It then sought reimbursement from Goyal by way of contractual subrogation. Goyal refused, asserting that the payment had been adjusted against its own unrelated claims against Messer (arising from alleged breaches of the JV and non-compete arrangements), claims it said were worth roughly Rs. 500 crore. Unable to recover amicably, Messer Greisheim sued in England.

 

The English Court Proceedings

1. 2003: Messer Greisheim obtained an ex parte default judgment after Goyal failed to appear.
2. Ill-advised on the difficulty of enforcing such orders in India, Messer Greisheim applied to have it set aside and sought a summary judgment instead.
3. Goyal responded that it had genuine defences, including three alleged oral side-agreements under which Messer Greisheim had supposedly agreed not to seek recourse against Goyal or to absorb the loan liability as part of a settlement.
4. On 7 February 2006, the English Court rejected Goyal’s defences as lacking a “real prospect of success” and entered summary judgment for approximately USD 5.8 million, plus interest and costs. Goyal did not appeal.

 

The Indian Execution Proceedings

Messer Greisheim applied to the Indian court for execution of the said order under Section 44A of the Code of Civil Procedure, 1908. The journey through the Indian courts was itself convoluted:

1. The Single Judge of the Delhi High Court (2013) held the judgment enforceable.
2. The Division Bench (2014) of the DHC ruled against jurisdiction as per the requirements of Section 44A.
3. The judgment-creditor appealed to the Supreme Court, which held that the DHC possessed jurisdiction in its original civil capacity and sent the matter back for a decision on the merits.
4. On remand, the DHC’s Division Bench finally refused enforcement, holding that the English court’s order violated Section 13 of the CPC, both for failing to be a judgment “on the merits” and for disregarding the RBI’s conditional approval.

5. On appeal, the Supreme Court agreed with the Division Bench of DHC (though for partly different reasons), bringing the saga to a close.

 

The Statutory Framework: Section 13 read with Section 44A, CPC

Under Section 44A CPC, an order from the competent court of a “reciprocating territory” (the UK is one such) can be applied for execution before a district court in India. However, such enforcement may be denied if it is hit by the exceptions listed in CPC, S 13: absence of jurisdiction, judgment not on merits, incorrect view of international law or refusal to recognise Indian law, violation of natural justice, fraud, or a claim founded on breach of Indian law.

The Supreme Court reaffirmed that these exceptions must be construed narrowly, in keeping with the principle of comity of courts; such a narrow construction may not be interpreted as against scrutiny at all.

 

Issue I: Was the English Summary Judgment “On the Merits”?

Pivoting upon jurisprudence from the Privy Council (Daniel Thomas Keymer v P. Viswanatham Reddi (AIR 1916 PC 121) and L. Oppenheim and Co. v. Hajee Mahomed Haneef Sahib (AIR 1922 PC 120)) as well as Indian decisions such as International Woollen Mills v Standard Wool (UK) Ltd, Middle East Bank v Rajendra Singh Sethia (AIR 1991 CAL 335), and K.M. Abdul Jabbar v Indo-Singapore Traders Pvt Ltd. (1980 SCC OnLine Mad 186) the Supreme Court held that a judgment entered merely because a defendant was refused leave to defend, without any real investigation into the rival contentions, cannot be treated as a judgment “on the merits” within Section 13(b).

Significantly, the Court did not treat “summary judgment” as a dirty word. It referred to the English law on summary judgment (Civil Procedure Rules 24.2, and the decisions in Easyair v Opal Telecom and Swain v Hillman). The Court noted that the English law required the defence to lead evidence of only a “realistic,” not a “fanciful,” prospect of success, and that a court should hesitate to finally decide a case without trial wherever a fuller investigation of the facts could affect the outcome. The point of the analysis was not that English procedure is somehow defective, but that this very test, properly applied to Goyal’s defences, should have led to a trial rather than summary disposal.

The Court found that Goyal’s defences were not fanciful:

1. There were contemporaneous statutory documents, board-approved Balance Sheets for FY 2001-02 and FY 2002-03, and Minutes of Board Meetings recording that Goyal owed nothing to Messer and that the loan repayment had instead been adjusted against Goyal’s own claims. These were signed by Messer Greisheim’s own nominee director, Mr Winfrid Schmidt, who had also seconded the relevant resolutions. Under Sections 194, 210, 211, and 215 of the Companies Act, 1956, such board-approved financial statements carry presumptive evidentiary value.
2. An e-mail dated 20 February 2003, in which Goyal disputed the claimed liability, did not appear to have been placed before or weighed by the English Court at the summary stage.
3. Goyal’s defence rested on disputed oral agreements, exactly the kind of factual controversy that, in the Court’s view, calls for cross-examination and a full trial rather than summary adjudication.

Importantly, the Supreme Court was careful to state that it was not adjudicating the merits of these defences itself; it addressed only whether they crossed the threshold of being “triable.” Having found that they did, the Court held that denying Goyal leave to defend amounted to a denial of fair trial, attracting both Section 13(b) (not on merits) and Section 13(d) (violation of natural justice) of the CPC. This alone was sufficient to dismiss the appeal and refuse enforcement.

86. […] The adjudication by way of summary judgment in the presence of bona fide triable issues renders the judgment one not delivered on merits within the meaning of Section 13(b).

The Court also revisited the Indian “leave to defend” jurisprudence under CPC, Order XXXVII (IDBI Trusteeship v Hubtown; B.L. Kashyap v JMS Steels), reiterating that denial of leave to defend is meant to be the exception, reserved for cases where the defence is frivolous or vexatious — not the default response to a contested claim.

 

Issue II: The FERA Angle; Adjudication vs Enforcement

1. Section 47(1)/(2): A contract that evades FERA cannot be enforced, but a contract conditioned on obtaining RBI/Government permission is not itself invalid merely because permission is pending.
2. Section 47(3): This provision states that nothing prevents legal proceedings from being brought in India to recover sums otherwise due; however, “no steps shall be taken for the purpose of enforcing any judgment or order” except to the extent permitted by the RBI/Central Government.

The Court  interpreted Section 47 as creating a clear two-stage scheme:

1. Stage 1-Adjudication: Courts may determine liability and order a decree without any prior RBI clearance. There is no bar on access to justice at this stage.
2. Stage 2-Enforcement: Before the execution of such a decree under Order XXI CPC, the RBI/Government permission becomes a precondition.

The Court held that the 1997 RBI condition operated as a regulatory precondition to execution, not a substantive defence that extinguishes the underlying liability. To that limited extent, the Court reversed the Division Bench’s reasoning on this specific point of law.

 

The Takeaways from Messer Greisheim

1. Summary and default judgments travel poorly across borders. A foreign judgment valid in its home jurisdiction could fail the Section 13(b) “merits” test in India only if the foreign court did not substantively engage with a defendant’s documented, triable defences. Foreign claimants strategising for default-to-summary judgments (switching from default judgment to summary judgment to improve enforceability) are alerted to the risk of failure. However, Messer Greisheim rejected the idea of inherent suspicion against summary judgments, the Court held that a 13(b) hit applies only when the record of the case establishes an unfair truncation of a legitimate dispute.

40. At the same time, the jurisdiction to grant summary judgment is not intended to convert the proceeding into a “mini-trial”, but rather to enable cases where there is no real prospect of success to be disposed of summarily.

1. Contemporaneous corporate records can defeat a foreign decree at the enforcement stage, even years later.
2. Foreign exchange regulatory permissions regulate execution, not adjudication. The judgment offers welcome clarity that conditional RBI approvals do not operate as a permanent shield against liability. They instead govern the timing and quantum of actual remittance once a decree is to be executed, a sensible accommodation between access to justice and India’s exchange-control regime.

 

Conclusion

Does the Indian law appear to allow a merits examination, a revision au fond? Messer Greisheim answered that in the negative. It was observed that by relying strictly on a summary procedure to dismiss a genuinely triable defence, the English court bypassed a full trial on the merits. A reading of CPC, S 13, indicates that Indian courts are prohibited from conducting a revision au fond.

• The executing court cannot act as an appellate court.
• It cannot re-examine the substantive facts, reweigh the evidence, or substitute its own view on the merits for that of the foreign judge.

Messer Griesheim is ultimately a cautionary tale about procedure trumping substance. Messer Greisheim may have had a sound claim under the loan agreement’s subrogation clause. But by obtaining a summary judgment that bypassed Goyal’s triable defences instead of testing them at trial, it ended up with a decree that, twenty years and several rounds of litigation later, wasn’t enforceable in India. For foreign judgment creditors eyeing Indian assets, the lesson is unambiguous: a decree obtained without the Indian defendant being allowed a genuine opportunity to contest disputed facts is a fragile asset in the Indian execution courts, however efficiently it may have been obtained abroad. Section 13(b) thus speaks loud and clear – such summary judgment becomes suspect when it appears to have been entered solely to bypass a highly contested matter. Courts in India can review the record, as Messer Greisheim observed, only to identify whether the decision related to a summary procedure was indeed based upon sound reasons and wasn’t aimed at truncating an otherwise triable dispute.

Saisie à titre préjudiciel par le Rechtbank Den Haag (Tribunal de La Haye), la Cour de justice de l’Union européenne, réunie en grande chambre, a précisé les conditions dans lesquelles un parent ressortissant d’un État tiers peut se voir reconnaître un droit de séjour dérivé sur le fondement de l’article 20 du Traité sur le fonctionnement de l’Union européenne, alors même qu’il dispose déjà d’un droit de séjour dans un autre État membre de l’Union.

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On 10 September 2026, the University of Ljubljana, Faculty of Law, together with the Institute for Comparative Law, will host the Second Private International Law Conference, a unique regional event dedicated to contemporary developments in private international law. The conference will gather distinguished academics, judges, attorneys, arbitrators, and legal practitioners from Slovenia and Europe to […]

Gralf-Peter Calliess and Moritz Renner have edited the fourth edition of Rome Regulations: Commentary published by Wolters Kluwer. The volume provides an article-by-article analysis of the three Rome Regulations and takes account of developments that have occurred since the publication of the previous edition in 2020. These include recent case law of the Court of […]

Par dérogation aux principes d’égalité de traitement et de transparence, l’article 72 de la directive 2014/24/UE autorise la modification d’un marché public sans nouvelle procédure de passation à condition qu’il soit encore « en cours ». Dans l’affaire Strominator Elektro, la Cour de justice de l’Union européenne juge qu’un marché de travaux n’est plus « en cours » dès lors que son titulaire a intégralement exécuté ses prestations, que celles-ci ont été définitivement réceptionnées et que la facture finale a été émise. Le défaut de paiement du prix par le pouvoir adjudicateur est, à cet égard, indifférent. Au-delà de ce point, l’adjonction de prestations nouvelles relève d’un marché nouveau, en principe soumis à mise en concurrence.

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The following call for papers has kindly been shared with us by the editors of The Journal of Law, Market & Innovation (JLMI).

The Journal of Law, Market & Innovation (JLMI) welcomes submissions for its second issue of 2027.

The Call for Papers for this second issue is devoted to European Regulatory and Supervisory Bodies in the Digital Realm.

You can find the call with all the details at the following link:

A NEW CONSTELLATION OF EU STATE REGULATORY AND SUPERVISORY BODIES IN THE DIGITAL REALM

Prospective articles should be submitted in the form of full papers to submissions.jlmi@iuse.it within 1 December 2026. The publication of the issue is set for the end of July 2027.

For further information, or for consultation on a potential submission, you can contact us by email at editors.jlmi@iuse.it.

Visit our website to read the full announcement.

This post was written by Giacomo Marola (PhD). On 18 June 2026, following AG Rantos’ Opinion, discussed on this blog, the CJEU delivered its judgment in Case C-232/25, Idziski, concerning jurisdiction under Article 5(3) of the Brussels I Regulation, now Article 7(2) Brussels I bis, over personality rights infringements. Facts of the Case Idziski arises […]

In case C-14/25, Thüringer Aufbaubank, a request for a preliminary ruling lodged on 15 January 2025, the Oberster Gerichtshof (Supreme Court, Austria) is asking the Court to interpret several provisions of Regulation 805/2004 creating a European Enforcement Order for uncontested claims: Is Article 21(2) in conjunction with Article 25 of Regulation No 805/2004 […] to be interpreted […]

For those (like myself) who view private international law as we know it today as essentially a European invention of the 19th century it is fascinating to see examples of earlier and non-European regimes. One example is Article 48 (on ‘Infringements between peoples outside civilization’) of the Tang Code (653 CE) which reads:

For the people outside [our] civilisation, if infringements occur between those of the same kind, they will be judged by their customary law. If they are of different kinds, then the law [of our empire] shall be applied.
諸化外人, 同類自相犯者, 各依本俗法; 異類相犯者, 以法律論

There has long been a debate of whether this is a true conflicts rule, much of which rests on how broadly to define what conflict of laws actually is and presupposes (for earlier discussion see, e.g. Qingkun Xu, The Codification of Conflicts Law in China: A Long Way to Go, 65 Am. J. Comp. L. 919, 925-6 (2017) with references).  Thảo Anh Hoàng (Huế University, Vietnam), in a new article, sides with those who view this as a true conflict of laws rule and also discusses its reception and application in Vietnam and elsewhere in Asia. (Thảo Anh Hoàng, Early conflict-of-laws rules: Vietnam’s Lê Code (1483) in East Asian and global contexts, 14 Comp. Leg. Hist. 29–54(2026). In addition, she  provides a fascinating and enlightening discussion of the risks of applying modern concepts to ancient phenomena that is instructive to everyone interested in private international law beyond its black letters. Based on parts of her doctoral thesis currently being written at Montpellier under the supervision of Carine Becharef Jallamion, the article is a tribute to both the productive potential of comparison beyond Europe and North America, and the promising young researchers from Asia.

 

Thảo Anh Hoàng, Early conflict-of-laws rules: Vietnam’s Lê Code (1483) in East Asian and global contexts, 14 Comp. Leg. Hist. 29–54 (2026).

This post was contributed by Dr. Augustin Gridel, who is associate professor at the Faculty of law of Nancy, University of Lorraine, France. On 4 June 2026, in Terve v Intesa (C-791/24), the Court of Justice ruled for the first time on the allocation of jurisdiction under the Brussels I bis Regulation in the field of […]

The Faculty of Laws of University College London is looking to appoint as Research Fellow in Law one or more outstanding candidates with research interests in law and related fields. This Post Doctoral Research Fellowship provides a development opportunity for early career researchers in law who have exceptional potential, for a fixed and non-renewable term of two years. While the Fellowship is not limited to any particular area of legal study, conflict of laws is one of the areas in which applications are particularly welcome. UCL Laws is a world-leading academic institution, with a long tradition of private international law research and teaching, which is currently led by Professor Alex Mills, Professor Ugljesa Grusic and Joshua Folkard. The deadline for applications is 1 July 2026. More information about the post is available here. If you have any specific questions about this post and/or the duties attached to it, please contact Professor Colm O’Cinneide, Vice-Dean (Research).

The proceedings of the 18th Jornadas ASADIP in Rio de Janeiro 2025 have been published. María Mercedes Albornoz César González, Jaime Moreno-Valle and Verónica Ruiz Abou-Nigm as editors have collected no less than 46 contributions (plus a prologue and a foreword) by authors from Latin America and elsewhere to the 800 page tome entitled “Imaginario regional – resonancia global. El derecho internacional privado interamericano y el escenario mundial”. Most  are in Spanish or Portuguese, a few in English. They cover a vast array of topics, doctrinal and/or theoretical, structured along seven themes: (i) foundations, (ii) normative structure, (iii) procedure, (iv) substantive protections, (v) digitization, (vi) human rights, (vii) teaching of private international law. The volume  once again demonstrates both the ambition and the  high quality of private international law reasoning on the continent. It can, as can many other excellent OAS publications, be downloaded  free of charge from the OAS website.

The Faculty of Laws of University College London is looking to appoint as Research Fellow in Law one or more outstanding candidates with research interests in law and related fields. This Post Doctoral Research Fellowship provides a development opportunity for early career researchers in law who have exceptional potential, for a fixed and non-renewable term […]

On 15 and 16 October 2026 the EUSuccess Project will host a conference entitled EU Succession Regulation: First Decade of Application, Strengths, Challenges, Future Outlooks taking place at the Faculty of Law and Administration of the Jagiellonian University in Kraków (Poland).  The event will bring together academics and practitioners to discuss functioning in practice of the […]

Lorsqu’un forfait touristique a pour objet une croisière maritime, les demandes de dédommagement en raison du décès d’un passager ou de lésions corporelles subies par celui-ci sont régies par le droit maritime ou par le droit du tourisme selon qu’ils sont survenus à bord du navire ou bien à terre.

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La Cour de justice de l’Union européenne précise les conditions dans lesquelles l’absence d’assurance peut conduire à une réduction de l’indemnisation des exploitants agricoles que l’État verse en cas de calamité naturelle. À travers une interprétation finaliste du règlement d’exemption, la Cour confirme le mouvement de verdissement du droit des aides d’État tout en consacrant une limite fondée sur l’exigence d’un effort raisonnable, destinée à encadrer les conditions environnementales imposées aux bénéficiaires.

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