Agrégateur de flux

I have long argued – in articles, blog posts, and amicus briefs – that it violates due process to invoke a forum selection clause to obtain personal jurisdiction over a defendant who was not a party to the agreement in which the clause appears. This position has not yet achieved universal acceptance. The state courts in New York, in particular, have repeatedly held that forum selection clauses can be used to assert personal jurisdiction over non-party defendants who are “closely related” to the parties or the transaction. In this blog post, I use a recent case—Bandari v. QED Connect Inc.—decided by Magistrate Judge Gary Stein (SDNY) to highlight some of the problems with the “closely related” test.

The dispute in Bandari grew out of a stock purchase agreement. The plaintiff, Jalandher Bandari, was a resident of Texas. He agreed to purchase shares in QED Connect, Inc., a New York holding company, from David Rumbold, a resident of Illinois. The sale was orchestrated by Nanny Katharina Bahnsen, the chief executive officer of QED and a resident of Colombia. There were three parties to the stock purchase agreement: Bandari, Rumbold, and QED. (Bahnsen signed the contract on behalf of QED.) The agreement contained an exclusive forum selection clause choosing the state and federal courts sitting in New York City.

Although Bandari tendered the purchase price (approximately $150,000), he never received the shares he was promised. When Bandari asked for his money back, Bahnsen made excuses and eventually stopped responding to his emails. Bandari subsequently brought a lawsuit in federal court in New York against QED, Rumbold, and Bahnsen. After none of the defendants appeared to defend the suit, Bandari moved for a default judgment.

The federal courts in New York will not grant a default judgment until they determine that personal jurisdiction exists. The court quickly concluded that it had personal jurisdiction over Rumbold and QED because they had signed the contract containing the New York forum selection clause. The court then went on to conclude—wrongly, in my view—that Bahnsen was also subject to personal jurisdiction in New York because she had negotiated the sale and signed the contract on behalf of QED:

A party to a contract with a forum-selection clause may invoke that clause to establish personal jurisdiction over a defendant that is not party to the contract but that is “closely aligned” with a party, or “closely related” to the contract dispute itself, such as corporate executive officers. As the CEO of QED and the individual who negotiated the transaction with Bandari and signed the Agreement on behalf of QED, Bahnsen is “closely related” to both a party to the Agreement and to the dispute. Thus, she is also bound by the forum selection clause.

This conclusion is inconsistent with basic principles of agency law; an agent is not a party to a contract that the agent signs on behalf of a disclosed principal. It is inconsistent with basic principles of contract law; a person may not be bound by an agreement without their express consent. And it is inconsistent with basic principles of personal jurisdiction; a person who lacks minimum contacts with the forum is not subject to personal jurisdiction unless she consents. Nevertheless, the court concluded that Bahnsen was subject to personal jurisdiction in New York because she was “closely related” to the parties and the transaction.

This conclusion is made all the more jarring by that fact that the court also held that Bandari had failed to state a valid claim for breach of contract against Bahnsen because she was not a party to the agreement. In the court’s words:

[A]lthough Bandari’s breach of contract claim is asserted against all three Defendants, there is no basis for a finding of contract liability as to Bahnsen. Bahnsen is not a party to the Agreement and she signed the Agreement solely on behalf of QED. It is well established that a corporate officer who signs a contract on behalf of the corporation cannot be held personally liable for the corporation’s breach, absent a showing that the officer was the alter ego of the corporation. The Complaint does not adequately plead an alter ego theory of liability against Bahnsen and hence it does not state a viable breach of contract claim against her.

The court held, in other words, that Bahnsen (1) was subject to personal jurisdiction in New York by operation of the forum selection clause, but (2) could not be held liable for breach of contract because she was not a party to the agreement containing the forum selection clause. The hand that authored the personal jurisdiction section of the opinion was seemingly unaware of what the hand that authored the breach of contract section of the opinion was doing.

One can, of course, reconcile these conflicting statements by taking the position that forum selection clauses are not subject to the usual rules of agency law, contract law, and personal jurisdiction. There are, however, constitutional problems with such an approach. Under this line of reasoning, a person residing in a foreign country (Colombia) is subject to personal jurisdiction in New York when she negotiates and signs a contract that contains a New York forum selection clause on behalf of the entity that employs her even though she is not the alter ego of the company and is not herself a party to the agreement. These actions are, in my view, insufficient to subject her to personal jurisdiction in New York.

Although the court declined to enter a default judgment against Bahnsen on the claim for breach of contract, it did enter a default judgment against her on the plaintiff’s claims for securities fraud and common law fraud. A contract to which she was not a party, therefore, paved the way for the assertion of jurisdiction and the imposition of liability. New York has long sought to attract litigation business from around the world. It has been largely successful in those efforts. If that state continues to assert personal jurisdiction over foreign executives merely because they negotiate and sign contracts in their corporate capacity, however, one wonders whether these executives may start directing the company’s attorneys to choose another jurisdiction.

[This post is cross-posted at Transnational Litigation Blog.]

Positive Group / Conseil
Politique étrangère et de sécurité commune
Guerre en Ukraine : le Tribunal confirme les mesures restrictives contre Positive Group PAO, une entité active dans le secteur russe des technologies de l’information et titulaire d’une licence délivrée par les services de renseignement intérieurs russes

Meta Platforms Ireland / Commission
Rapprochement des législations
Règlement sur les services numériques : le Tribunal annule les décisions de la Commission fixant la redevance de surveillance applicable à Facebook, Instagram et TikTok

Autriche / Commission
Le recours de l’Autriche contre l’inclusion de l’énergie nucléaire et du gaz fossile dans le régime des investissements durables est rejeté

We are delighted to share the Call for Papers for a virtual early-career conference on ‘Global Harm, Local Justice | The Future of Cross-Border Torts’, hosted by K.C. (Kirsten) Henckel and M.A.S. (Martin) Bulla from the University of Groningen on 6 February 2026.

Abstracts of 300–500 words must be submitted by 1 December 2025.

On 24 October 2025, a conference titled Adapting Private International Law in an Era of Uncertainty will be held at the Asser Institute in The Hague. The conference will begin with a welcome by Machiko Kanetake (Asser Institute) and the opening remarks by Vesna Lazić (Asser Institute and Utrecht University), followed by a keynote address […]

The second issue of the Chinese Journal of Transnational Law for 2025 was just published. It contains a special issue on “Private International Law and Sustainable Development in Asia” with Ralf Michaels,  Verónica Ruiz Abou-Nigm, Hans van Loon as guest editors. It builds on The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law.

Ralf Michaels, Verónica Ruiz Abou-Nigm, Hans van Loon, “Private International Law and Sustainable Development in Asia”

Since the publication of ‘The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law’ in 2021, the importance of private international law for sustainable development is increasingly being recognised. The article describes the background to that project and surveys its subsequent reception and further development in scholarly literature. Moreover, it traces the need for, and trend towards, regionalization of the relevant research, including in Latin America, Africa and Asia-Pacific. It can thus serve as introduction to the special issue on private international law and sustainable development in Asia.

Jiabao Zhou, “Private International Law as Foreign Relations Law? Orienting Chinese Private International Law Towards Sustainable Development”

The Chinese Foreign Relations Law (‘the FRL’) – a collection of rules legalizing China’s foreign policies – was enacted in 2023. While technically a set of policy goals and public law rules, it provides an opportunity to orient Chinese private international law (‘PIL’) towards sustainable development. Notably, the FRL connects Chinese PIL with sustainable development for the first time and revisits the conceptions of what is being understood as ‘domestic’ versus ‘foreign’, and ‘public’ versus ‘private’. This article explores how PIL can leverage this shift to accommodate sustainability as a normative value, foster positive interactions with foreign laws and courts, and develop a robust and tailored regulatory function. By doing so, Chinese PIL, as a form of foreign relations law, can expand its function beyond conflict resolution and develop a role in China’s foreign policy and global sustainability governance.

 

Ke Mu, “The Role of State-Owned Enterprises in the Pursuit of the Sustainable Development Goals”

Business conduct and enterprises’ commitment to social responsibility have a far-reaching impact on corporate shareholders and external stakeholders, but they are not effectively aligned with the globally recognized agenda of Sustainable Development Goals (SDGs). The necessity and difficulty of studying state-owned enterprises’(SOEs) roles in corporate governance and the SDGs agenda stem from their unique position at the intersection of various legal sectors and their underrated status within the SDGs schemes and relevant studies. In particular, the issue of characterizing SOEs from the perspective of private international law is emblematic, raising doubts about whether to treat SOEs as private or state entities in international dispute resolution and how such categorization may affect their performance of sustainability obligations. A sovereign function test is routinely invoked for deciding whether state immunity applies to SOEs. This test proposes four criteria: (a) state ownership and control, (b) nature of the activities at issue, (c) principal purposes of the entities, and (d) specific purposes of the activities at issue. However, given the limitations of this test, an additional criterion can be added consisting in examining whether the SOEs could have carried out the same act – or could have seized the same property – without relying on state power. Zihao Fan, “Promoting Cities’ Sustainable Development vis Access to Justice: Observations on the Jurisdiction of Chinese Mainland” This article explores how transnational jurisdiction influences cities’ sustainable development in view of providing access to justice in SDG 16. While cities are often regarded as administrative units within a State, effective jurisdictional designs can promote transnational access to justice on city-level, providing efficiency, transparency and predictability, which in turn attracts people, capital and technology required to advance the sustainability objectives embodied in SDG 11. By analysing China’s jurisdictional framework, this article examines both general jurisdictional rules and special jurisdictional arrangements that impact cities. The revised monistic approach of the 2023 Civil Procedure Law indirectly affects cities by determining how foreign-related cases are allocated, while special jurisdictional arrangements, such as China International Commercial Courts and local International Commercial Courts, directly strengthen selected cities’ dispute resolution capabilities. Additionally, the evolution of China’s centralised jurisdiction system demonstrates the importance of adapting jurisdictional strategies to economic development and judicial expertise. Adeline Chong and Stefanie Schacherer, “Extra-territorial Liability and Enforcement: Finding Ways to Tackle Haze Pollution is Southeast Asia” Periodic transboundary haze pollution resulting from land fires in Southeast Asia poses significant sustainability challenges for the region. The majority of transboundary haze is attributed to peatland fires in Indonesia, with winds bringing haze pollution to other countries in the region. Attempts have been made to tackle this problem. At the public international law level, the Association of Southeast Asian Nations (ASEAN) concluded the ASEAN Transboundary Haze Agreement which entered into force in 2003. However, the lack of sanctions for breach and the adoption of the principle of non-interference between ASEAN member states meant that this agreement and other policy-oriented measures have had limited effect. In the hopes of ameliorating the problem, Singapore enacted the Transboundary Haze Pollution Act in 2014. This act, which is extraterritorial in scope, imposes criminal and civil liability on entities responsible for haze pollution which causes damage in Singapore. Nevertheless, practical issues still remain. This paper examines regional efforts to deal with the transboundary haze pollution problem. In particular, it accesses the Singapore Act from a private international law viewpoint, by considering jurisdictional, choice of law, and judgement enforcement issues. Lastly, suggestions are made as to concrete steps forward.

Bùi Th? Qu?nh Trang and Nguy?n Th? H?ng Trinh, “Exploring the Potential for Climate Change Litigation in Vietnam: A Forward-Looking Assessment”

Climate change litigation is increasingly recognized not just as a strategic tool but also as an effective method for advocating more robust climate change mitigation and adaptation targets and ensuring the enforcement of environmental laws by governments and private actors alike. In several developed countries, climate change litigation emerged, with typical cases setting precedents in other jurisdictions. In the context of Vietnam, a developing country with a unique communist legal system, climate change litigation presents a novel area of inquiry; thus, this study explores the nascent field of climate litigation, assessing its viability in Vietnamese judicial practices. Notably, the study suggests that in Vietnam’s typical jurisdiction, the vertical climate actions are less likely to materialize compared to horizontal cases. Furthermore, in these international horizontal litigations, the choice of law rules primarily mandate the application of local law.

Anselmo Reyes, “The Impartial Judge, Climate Change and the Conflict of Laws”

The article reflects on how an impartial judge might approach disputes involving environmental, social and governance (ESG) issues, especially climate change. Section II expresses doubts about the efficacy of a purely private international law analysis in dealing with climate change litigation and suggests ways of addressing such concerns. Section III focuses on Asia and comments on the extent to which the observations in section II are applicable to the Asian context. Section IV offers tentative thoughts, in light of sections II and III, on how judges can and should conduct themselves in ESG disputes relating to climate change.

 

Zixuan Yang, “Providing Legal Identity for All: A Comparative Study of the Cross-Border Recognition of Personal Status in the European Union and Asian Regionalization”

In this paper, I argue that the civil registration and its distance from the private international law (PIL) pose peculiar challenges for achieving the goal of ‘Providing Legal Identity for All’ among the Asian intra-regional circular migrants. Civil registration of personal and family status combines public administration with private law. More public registration of personal status means more involvement of local public order and interest. Therefore, registration regulations are less attentive than PIL to the potential foreign-related legal situations. Hence, will greater public involvement in registration raise a conflict between the defence of ordre public and individuals’ aspirations to maintain their personal status? The territorial limits of administrative act have so far foreclosed the possibility of transnational civil registration. When it comes to the identity that does not fit into the domestic categories, questions arise whether and how to recognize them in the domestic legal system. This poses special burdens and additional costs for intra-regional circular migrants if their legal identity cannot be well defined and recognized in the several jurisdictions concerned, which is essentially contrary to the presumed erga omnes effect of individuals’ identity rights.

 

Stellina Jolly and  Prakriti Malla, “International Child Abduction Jurisprudence in India and Nepal: An Evaluation of Gender Consideration in the Attainment of SDG 5″

Despite the growing incidence of child abduction facilitated by the mobility and prevalence of non-resident marriages involving Indian and Nepalese citizens with foreign nationals, both India and Nepal have refrained from acceding to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Indian executive has vocally supported criticisms against the Abduction Convention, advocating for the inclusion of domestic violence as a basis for exception under the Abduction Convention and proposed domestic legislation. In contrast, the official position of Nepal remains undisclosed, with recent case law offering limited insight into its engagement with the Abduction Convention. Against this backdrop, the article scrutinizes the recognition of gender perspectives in statutory provisions and case law in India and Nepal concerning international child abduction. It should be noted that Sustainable Development Goal (SDG) 5, which calls for the elimination of all forms of violence against women and girls in the public and private spheres – including trafficking, sexual and other types of exploitation – also includes addressing domestic violence in family spheres. This article, therefore, considers the inclusion of gender considerations within the realm of child abduction as a core consideration in the attainment of SDG 5.

 

Rong-Chwan Chen, “Taiwan’s Path Toward Sustainable Development Goal 5 in Private International Law”

Sustainable Development Goal 5 (SDG 5) has different implications for countries. This paper explores Taiwan’s path toward SDG 5 and examines the legal environment surrounding this path. Taiwan’s unilateral implementation of UN conventions effectively bridges certain gaps between itself and the international community. Reforms in private international law and the legalization of same-sex marriage have further promoted gender equality from a conflict-of-laws perspective. The recognition of the exceptional validity of polygamous marriages illustrates the pursuit of justice in cross-border legal conflicts. It is observed that alternative applicable laws, ordre public, and overriding mandatory provisions serve as effective tools for states to advance SDG 5. Taiwan’s traditional rules on ancestor worship associations collide not only with modern legislation on estate succession but also with foreign laws when the membership disputes involve foreign elements. This paper argues that the nature of rules on estate succession should be distinguished from that of ancestor worship or family lineage, and that SDG 5 is helpful in modernizing the local customary rules on ancestor worship associations. It further suggests that the provisions on legal persons in the Choice of Law Act 2010 may be applied by analogy to determine the governing law for the membership of unincorporated ancestor worship associations.

 

Advocate General Norkus opined early July in Case C-485/24 Locatrans Sarl v ES. At issue is the application of the protective regime for lex contractus viz employees under the Rome Convention (applicable ratione temporis in the case at issue).

The facts of the case echo, but with distinctions, CJEU Weber, Koelzsch, and  Voogsgeerd, as well as Nogueira (Ryanair). The novelty of the question in current case is the period of work to be taken into account in determining which law is applicable if the employee has worked for his or her employer in two separate stages: first, in several States and next, during the period preceding the end of the employment relationship, on a permanent basis in a single State, which parties clearly intend to be the new place of habitual performance.

The opposing views are summarised (23):

Referring to the judgment in Weber, Locatrans and the Czech Government submit, inter alia, that where the employee carries out the same activities for his or her employer in more than one State, account must be taken of the whole duration of the employment relationship in order to identify the place where the person concerned habitually worked and, consequently, the law applicable in the absence of a choice made by the parties. For its part, the French Government considers that, that being the case, the most recent period of work could be taken into account in order to determine, in the light of all of the relevant circumstances, the existence of closer connections with another country. By contrast, ES maintains, as a preliminary point, that, despite the wording of the question referred for a preliminary ruling, he did not change his place of work during his employment relationship. He submits, therefore, that his situation is clearly distinguishable from that which gave rise to the judgment in Weber, where the worker had performed his duties successively in two different places of work. In any event, even if the judgment in Weber were to be held to be relevant to the present case, ES argues that reference must be made to the most recent period of work. For its part, the Commission maintains that, in a case such as that at issue in the main proceedings, in which the dispute concerns the termination of the contract and where the relevant facts for the purposes of coming to a judgment arise at the end of the contract, account must be taken of the most recent period of work.

(36) the core rule per Koelzsch is

‘the country in which the employee habitually carries out his [or her] work in performance of the contract’ is that in which or from which, in the light of all of the factors which characterise that activity, the employee performs the greater part of his or her obligations towards his or her employer’

In footnote the AG adds that what must be at the heart of the national court’s assessment is the activity of the worker and not that of the employer (for which he refers to the Handbook, much obliged and humbly noted).

Having summarised the relevant case-law, (51) the Opinion takes a decisive turn when the AG refers to the need to interpret the regime with stability in mind:

[I] would point out that, in so far as the employment relationship is a permanent one, the elements characterising that relationship, such as the performance of work, the place of performance of the work or the remuneration, may change. In particular, in a cross-border employment situation, the country where the employee ‘habitually carries out his [or her] work’ may also change depending on changes in objective circumstances. In other words, the law applicable in the absence of a choice made by the parties may change due to the very nature of the employment relationship, which continues over time. However, since one of the objectives of the Rome Convention is to fortify confidence in the stability of the relationship between the parties to the contract, a change in the applicable law resulting from changes in factual circumstances must also be the result of a clear intention on the part of the parties. That change must not affect legal relationships which arose prior to that change, so that, rationae temporis, the dispute remains governed by the law applicable at the time those circumstances arose (tempus regit actum). (footnotes omitted)

Tempus regit actum is a principle with direct appeal and application for procedural law, for issues of intertemporary law (scope of application ratione temporis, particularly of statute) and for formal validity in private international law. Its application for substantive provisions in private international law is less obvious (there are traces of it of course in Rome I’s Article 3(2) on voluntary change of applicable law, Article 11’s formal validity, and Article 13 incapacity).

For employment contracts, in my opinion the very first agreed “place from where the employee habitually carries out his work” must be seen as an implicit mutual choice of law, and any mutually agreed (or at least  transparent and uncontested) change in said place, as an implicit change in that choice of law. Article 3(2) must then be applied mutatis mutandis

The parties may at any time agree to subject the contract to a law other than that which previously governed it, whether as a result of an earlier choice made under this Article or of other provisions of this Regulation. Any change in the law to be applied that is made after the conclusion of the contract shall not prejudice its formal validity under Article 11 or adversely affect the rights of third parties.

(52) the AG follows a similar approach focused on deciding what it is the parties are actually litigating about, to then fix the lex causae applicable to the claim, to the relevant, mutually agreed, place of habitual employment in force at the time:

In the light of the foregoing, the essential question is what is, in the present case, the relevant criterion for determining, in concreto, the point in time at which the subject matter of the dispute arose in order to identify the place where the employee habitually carried out his work and, consequently, the law applicable in the absence of a choice made by the parties.

(54) the AG like the Commission identifies the nature of the claim as one in which the employee’s dispute concerns the termination of the contract. The facts relevant to the determination of that dispute in casu it seems arise at the end of that contract, hence the most recent period of employment (with fixed place of employment in France) should be taken into account to determine the lex causae. (57) Gleichlauf is mentioned as one of the reasons for suggesting so.

If followed by the CJEU, a sophisticated litigant could of course abuse this approach to formulate their claim in such a way as to lead to an attractive applicable law. However as a general rule the approach seems a solid one to me.

Geert.

EU Private International Law, 4th ed 2024, 3.39 ff.

Opinion Norkus AG this morningFavor laboris in Rome Convention, applicable lawPlace of habitual place of employment must focus on most recent period if place has become fixed, by mutual agreementC‑485/24 Locatrans curia.europa.eu/juris/docume… (citjng ia your truly – sincerely humbled)

— Geert Van Calster (@gavclaw.bsky.social) 2025-07-03T11:57:31.029Z

This post was written by Sara Migliorini and João Ilhão Moreira, who both teach at the Faculty of Law of the University of Macau. It builds on article they co-authored, titled Clashing Frameworks: the EU AI Act and Arbitration, just published on the European Journal of Risk Regulation. The EU AI Act (hereinafter, the “Act” […]

The third issue of the Journal of Private International Law was published today. It contains the following articles

Andrew Tettenborn, “English conflicts law at sea – the transfer and creation of proprietary interests in ships”

Surprisingly, the law applicable to the creation and transfer of proprietary interests in ships remains remarkably obscure as a matter of the English conflict of laws. In this article an attempt is made to investigate the relevant authorities and to reconcile them. The conclusion is that, subject to exceptions, English courts will recognise transfers if they are effective under any one or more of (1) the lex situs, (2) the law of the registry and (3) (in the case of equitable interests) English law.

 

Gerard McCormack, “Hands up for UK joining the Hague Judgments Convention 2019 but lukewarm on the UK returning to the Lugano Convention 2007”

This article considers the relative merits of the Hague Judgments Convention 2019 and the Lugano Convention 2007 for the UK in the post-Brexit era viewed primarily from the extent of the insolvency exceptions in both Conventions (and in the Hague Choice of Court Convention 2005) as they apply to UK schemes of arrangement and UK restructuring plans for companies. The article briefly takes account of some broader issues relating to arbitration and exclusive choice of court agreements, primarily through the lens of The Prestige litigation, before reaching a conclusion in favour of the UK having become a Party to the Hague Judgments Convention 2019 in 2025 and against the UK rejoining the Lugano Convention 2007.

 

Guangjian Tu and Tiezheng Yang., “The doctrine of public policy in Chinese courts’ choice of law in the modern age”

It is generally agreed that in private international law the doctrine of public policy plays a fundamentally important role in the application of foreign law and can work as a safety valve. This doctrine has also been reflected in Chinese legislation as in many other jurisdictions. However, the application of this doctrine in Chinese courts is inconsistent, which could not only lead to uncertainty but also jeopardise justice. This article examines how the doctrine of public policy has been applied in choice of law in Chinese courts since 2010 when the new Chinese choice of law codification was made. It finds that there are basically four main types of cases in which Chinese courts have applied the doctrine of public policy to exclude the application of foreign laws. After detailed analysis and reflection, it is suggested that this doctrine continue to be applied for some of those cases but not for others.

Katja Karjalainen, “Acquiring a child abroad and paths to parenthood in Finland: The difference between private adoptions and international surrogacy arrangements”

The article delves into issues of legal tourism and global justice. By referencing the Hague Adoption Convention as well as Finnish legal approaches and case law with respect to the confirmation of a child-parent relationship following private intercountry adoptions and international surrogacy arrangements (ISAs), the article elaborates on the problematics of recognition. Doubts with respect to ethical and commercial aspects of arrangements and the deprivation of rights of vulnerable individuals have been presented with respect to both cases. The article shows the paradox between the legal approaches in these two cases that both entail an independent endeavour to get a child abroad. In doing so, the article underlines how the regulatory framework built up by the Hague Adoption Convention for the area of intercountry adoptions creates more space for global justice and collective interests than non-regulation, but may, in some cases, be detrimental to individual rights and interests. Non-regulation of ISAs underlines individual rights and interests and at the same time erodes domestic legal norms.The article delves into issues of legal tourism and global justice. By referencing the Hague Adoption Convention as well as Finnish legal approaches and case law with respect to the confirmation of a child-parent relationship following private intercountry adoptions and international surrogacy arrangements (ISAs), the article elaborates on the problematics of recognition. Doubts with respect to ethical and commercial aspects of arrangements and the deprivation of rights of vulnerable individuals have been presented with respect to both cases. The article shows the paradox between the legal approaches in these two cases that both entail an independent endeavour to get a child abroad. In doing so, the article underlines how the regulatory framework built up by the Hague Adoption Convention for the area of intercountry adoptions creates more space for global justice and collective interests than non-regulation, but may, in some cases, be detrimental to individual rights and interests. Non-regulation of ISAs underlines individual rights and interests and at the same time erodes domestic legal norms.

 

Maria Hook, “Are “extraterritorial” consumer laws anti-internationalist?”

This article asks whether extraterritorial consumer laws, defined as laws that create a risk of regulatory overlap, are anti-internationalist. Drawing on New Zealand law as a case study, the article argues that extraterritorial consumer laws may recognise intersecting but legitimate regulatory interests. If the plaintiff gets to choose the law, indirectly or directly, there is an appropriate process for identifying the applicable law based on the principle of favor laesi. In this sense, extraterritorial consumer laws do not just give effect to local interests, to be balanced with competing internationalist concerns. Rather, they themselves may reflect an internationalist approach to private international law, even if the approach is not universally adopted. The article then explores potential implications of this argument for the court’s analysis of the applicable law and jurisdiction. Courts may be more willing to embrace an extraterritorial interpretation of consumer laws, and to lean into the plaintiff’s ability to rely on foreign law despite local law also being applicable in principle (as has happened in New Zealand). Courts may also treat the plaintiff’s choice of forum with deference when they decide whether to exercise jurisdiction on the basis of the doctrine of forum (non) conveniens.

 

Aleksandrs Fillers, “Venue in the Brussels Ia Regulation”

Anybody who has even superficial knowledge of EU private international law has heard about its cornerstone – the Brussels Ia Regulation. Typically, the major issue when dealing with the said regulation is to determine which Member State can hear the dispute. However, the Brussels Ia Regulation has a second layer. In addition to rules of international jurisdiction, the Regulation, as interpreted by the CJEU, contains venue rules that determine which specific court can hear a case. This issue is far less known to courts and practitioners and often glossed over by scholars. The article aims to provide a comprehensive study of venue rules in the Brussels Ia Regulation.

A conference will take place in Wrocław, on 17-18 September 2025, under the title Simplifying Cross-Border Judicial Videoconferencing in Europe. The event, part of the SimpliVi Project, is organized by the Austrian Federal Ministry of Justice (Project Coordinator) in collaboration with Court of Appeal Wrocław (Project Partner and Conference Host). Those interested in attending the […]

The third issue of Lloyd’s Maritime and Commercial Law Quarterly for 2025 has recently been published. It contains two private international law case notes and a book review.

Andreas Giannakopoulos, “Asymmetric Jurisdiction Clauses and EU Exceptionalism”

Matthew Hoyle, “Full Service: Freezing Injunctions and Service Out (Again)”

Thomas Raphael, “The Virtues of Symmetry”

This guest post is posted on behalf of Kamakshi Puri, Senior Associate at Cyril Amarchand Mangaldas, Delhi, India, and dual-qualified lawyer (India and England and Wales).

 

The Singapore High Court recently clarified the scope of the court’s jurisdiction over foreign non-parties to the arbitration. In an application to set aside two interim injunctions, in Alphard Maritime Ltd. v Samson Maritime Ltd. & Ors. (2025) SGHC 154,[1] the court held that the the seat per se did not confer jurisdiction against non-parties to an arbitration, and that jurisdiction would first have to be established through regular service-out procedures before the seat court could grant an injunction against a non-party.

 

Factual Background

 

Briefly, the applicant, Alphard Maritime (“Alphard”), initiated SCMA arbitration[2] against its debtor, Samson Maritime (“Samson”), and Samson’s wholly owned subsidiary, Underwater Services (“Underwater”), for alleged breach of a settlement agreement for the sale of approx. nine vessels and Samson’s shareholding in Underwater to Alphard (“Subject Assets”). Alphard initiated arbitration upon receiving information of the pledge/mortgage of the Subject Assets to J M Baxi Marine Services (“Baxi”) in breach of the Settlement Agreement. In addition to the ex-parte freezing order against Samson and Underwater, Alphard had received from the seat court, acting in support of the arbitration, an ex-parte prohibitory injunction restraining Baxi and other creditors of Samson from assisting in or facilitating the dissipation of, or dealing with, any of Samson and Underwater’s assets worldwide. Baxi was not a party to the Settlement Agreement. While one of the defendants was based out of Singapore, Samson and Underwater were bound by the jurisdiction conferred to the seat court; however, Baxi was a foreign non-party to the arbitration.

 

While the interim freezing injunction against Samson and Underwater was vacated on the finding that there was no evidence of dissipation or risk of dissipation of assets, and the court observed that there was no basis for the injunction which in effect prohibited Baxi and/or the lenders from asserting their own contractual rights or enforcing proprietary rights against Samson which pre-dated the Settlement Agreement, the injunction was vacated primarily on the finding that the Singapore court, as the seat court, had no jurisdiction over Baxi or the foreign lenders.

 

Seat Court’s Jurisdiction over Foreign Defendants

 

A court must have in personam jurisdiction to grant an injunction against a party. Under Singapore law, which follows the English law on jurisdiction, jurisdiction is based on service of proceedings, and the court assumes jurisdiction over a foreign party (not having a presence in Singapore and not having submitted to the proceedings) through permission for service out of the claims. [3] The court allows permission for service out where “the Singapore Court is the appropriate forum for hearing the proceedings”.[4] For the assessment of whether permission for service out should be granted, i.e., that Singapore Court is the appropriate forum, the claimant is required to meet the following three-prong assessment: [5]

 

1. A good arguable case that there is sufficient nexus with the Singapore court;
2. Singapore is the forum conveniens; and
3. There is a serious question to be tried on the merits of the claim.

 

The “sufficient nexus” refers to the connection between the court and the defendant and follows the logic that a party may only be called to a foreign court where they have a sufficiently strong connection to the state. Practice Directions 63(3)(a) to (t) set out “Factors” that guide as to the possible connection that the foreign defendant may have with the Singapore court. [6]

 

Alphard relied on 2 factors – first, PD 63(3)(d), a claim to obtain relief in respect of the breach of a contract governed by the laws of Singapore. This was held to be inapplicable, as Baxi was neither a party to the contract, nor committed any breach. Second, PD 63(3)(n) claims made under any other written law of Singapore. In this regard, it was contended that the claim against Baxi was under Section 12A of the International Arbitration Act, i.e., an exercise of the Singapore court’s power to grant an injunction against non-parties in support of Singapore-seated arbitration, which wide power ensured that non-parties did not collude with the defendants to frustrate the fruits of a claim. The court accepted PD 63(3)(n) as a relevant factor.

 

However, since sufficient nexus with the court is not enough for permission to service out, the court proceeded to the next equity, i.e., whether Singapore was the ‘forum conveniens’. Forum conveniens is an exercise in determining the most appropriate court for deciding the lis. It is the assessment of the connection of the dispute with the Singapore court. The ‘dispute’ here was the prohibitory injunction against Baxi. The court held that to be the ‘appropriate court’ for interim relief against a specific party, it required more than the arbitration being seated in Singapore. The seat court would be the appropriate court if the dispute with the specific party could be traced to the arbitration, or assets/obligations were substantially that of party to the arbitration, i.e.,

 

1. Was the non-party bound by the arbitration agreement even if it was not a party to the arbitration?
2. did the non-party hold assets in Singapore, which arguably belonged beneficially to a party to the arbitration (non-party was a trustee / pass-through for the assets)
3. was the non-party a corporate entity held/owned by the party to the arbitration, and therefore, did the dissipation of assets of the party amount to the dissipation of value of the party (merger of identity between the party and non-party)?

 

The Court held that in the absence of any of the above, the seat court would not be the de facto appropriate forum for injunctions against all non-parties even when the injunction is in aid of Singapore-seated arbitration. The court did not find any reason for Baxi, an entity pursuing its independent remedy against the Alphard, to be brought before the Singapore court.

 

Notably, Alphard had already pursued interim relief under Section 9 of the (Indian) Arbitration and Conciliation Act, 1996, against the Defendants, including Baxi, before the High Court of Bombay. [7] The Bombay High Court, acting further to its power for making interim orders for protection of the subject matter in arbitration, including in international commercial arbitration where the place of arbitration is outside India [8], granted a status quo injunction, including on Baxi, on further dealing in or creating any further third-party interests in the shares held by Samson in Underwater and a disclosure order in respect to the transaction for pledge created in favour of Baxi.

 

Concluding Thoughts

 

For the known benefits of enforcement and limited grounds of challenge of awards under Singapore law and before Singapore courts, foreign parties regularly opt for Singapore as the neutral seat of arbitration. In such cases, the only nexus of the dispute with the court is its designation as the seat court. Separately, arbitral tribunals do not have jurisdiction over non-parties to an arbitration; thus, courts assume adjudication for interim relief applications against non-parties to the arbitration. With this decision, the Singapore court has confirmed the non-seat court’s interference for interim reliefs where parties require protective orders vis-a-vis non-parties to the arbitration.

[1] Available here.

[2] Arbitration under the Singapore Chamber of Maritime Arbitration (“SCMA”) Rules.

[3] S. 16(1)(a)(ii) of the Supreme Court of Judicature Act 1969: “16.—(1)  The General Division has jurisdiction to hear and try any action in personam where — (a) the defendant is served with an originating claim or any other originating process — …(ii) outside Singapore in the circumstances authorised by and in the manner prescribed by Rules of Court or Family Justice Rules.”

[4] Rules of Court 2021, Rule 1(1) of Order 8 of ROC 2021 “1.—(1)  An originating process or other court document may be served out of Singapore with the Court’s approval if it can be shown that the Court has the jurisdiction or is the appropriate court to hear the action” .

[5] Supreme Court Practice Directions 2021, Para 63(2).

[6] Prior to 2021, this condition was similar to English law, i.e., the “Good and arguable case that a gateway applies”. While “gateways” have been done away with, the Practice Directives have set out a non-exhaustive list of factors (PD 63(3)(a)–(t)) which a claimant “should refer to” in order to meet the requirement under PD 63(2)(a). These factors mirror the gateways with were earlier found in the Rules of Court 2014. See Ardavan Arzandeh, The New Rules of Court and the Service-Out Jurisdiction in Singapore, (2022) Singapore Journal of Legal Studies 191–201.

[7] Alphard Maritime Ltd. v Samson Maritime Limited & Ors. Commercial Arbitration Petition (L) No.7499 of 2025, Order dated 02.04.2025, available here.

[8] Section 9 read with Section 2(2) of the Arbitration Act, 1996.

The fourth annual APILA Conference will take place in person at Doshisha University in Kyoto (Japan) on Saturday 13 (Day 1) and Sunday 14 (Day 2) December 2025.  The APILA Conference will be in the form of two days of roundtable discussions in English.  Persons whose abstracts have been selected (see next paragraph) will deliver oral presentations in turn on Days 1 and 2.  Each presentation will run for about 10 minutes and be followed by a discussion of about 10 to 15 minutes in which participants will have the opportunity to comment on the presentation.  The objective of the APILA Conference is to assist presenters to refine prospective research papers with a view to eventual publication. 

Persons who are interested in delivering presentations at the APILA Conference are invited to submit abstracts of their proposals in English.  While proposals may be on any topic, they should (1) focus on private international law issues and (2) somehow relate to Asia (broadly defined).  Further, while every effort will be made to fit in as many presentations as possible, given the constraints of time, it may not be feasible to accept all proposals.  Inevitably, in that case, some selection may be necessary.  APILA apologises in advance for this.  Everything else being equal, priority will be given to proposals exploring cutting edge questions (albeit not necessarily definitively answering them) in one or more of the following areas: (1) international dispute resolution (especially international arbitration and mediation), (2) data protection and data privacy, (3) competition law (including within digital markets), (4) family law (including succession), (5) intellectual property rights, (6) Islamic private international law, (7) environmental issues (including climate change), (8) business and human rights, (9) cryptocurrency and the blockchain, (10) sanctions and counter-sanctions, (11) the economic analysis of private international law rules, and (12) artificial intelligence.

Abstracts are to be submitted by email to reyes.anselmo@gmail.com by Saturday 25 October 2025.  Persons whose abstracts have been accepted will be so informed by Saturday 1 November 2025. The latter persons are thereafter requested to submit their presentations in PowerPoint format or (if the presentation is in the form of a draft paper) in pdf format by email to reyes.anselmo@gmail.com by Saturday 22 November 2025.  All PowerPoints and draft papers received will be circulated in advance electronically among APILA Conference participants.  Participants will thus be able to read into the topics to be discussed in advance of the APILA Conference.  Oral presentations can then focus on succinct statements of key takeaways and more time can be allotted to discussion.

Please note that APILA’s available funding is limited.  Therefore, in the normal course of events, APILA regrets that it will not be able to provide funding for the travel and accommodation expenses of presenters and attendees.

The second issue of the Revue critique de droit international privé for 2025 was published over the summer. It contains four articles and numerous casenotes. The first article is authored by Delphine Porcheron (University of Strasbourg) and discusses transnational actions for compensation of international crimes committed by States (Les actions transnationales en réparation de crimes […]

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