Conflictoflaws

As previously announced, we are launching the second online symposium on recent developments in African private international law. As part of this symposium, a series of blog posts addressing various aspects of recent developments in African private international law will be published on this platform over the coming days.

We open the series with a blog post by Abubakri Yekini (Senior Lecturer in Law at the University of Manchester) and Chukwuma Samuel Adesina Okoli (Assistant Professor in Commercial Conflict of Laws at the University of Birmingham and Senior Research Associate at the Centre for Private International Law in Emerging Countries at the University of Johannesburg), focusing on the recognition and enforcement of international judgments in Nigeria.

 1. Introduction

Questions surrounding the recognition and enforcement of judgments have become increasingly prominent in Nigeria, both in academic writing and in practice (Yekini, 2017; Okoli and Oppong, 2021; Olawoyin, 2014; Adigun, 2019; Bamodu, 2012; Olaniyan, 2014; Amucheazi et al, 2024; PN Okoli, 2016). This development is not surprising. Nigerian individuals, companies, and public authorities are now routinely involved in disputes with cross-border elements, whether arising from international trade, investment, migration, or human rights litigation.

Nigeria operates a common law system governed by a written Constitution. The Constitution carefully allocates governmental powers among the three branches of government. Section 6 vests judicial power in the courts, while section 4 assigns legislative power to the National Assembly and State Houses of Assembly. Courts therefore play a central role in the interpretation and development of the law, but always within clearly defined constitutional limits. The Constitution and statutes enacted by the legislature form the bedrock of domestic law.

This constitutional structure has direct implications for the status of international law in Nigeria. Section 12 of the Constitution makes it clear that treaties and other international legal instruments do not become part of Nigerian law merely because Nigeria has signed or agreed to them at the international level. For such instruments to have domestic force, they must be enacted by an Act of the National Assembly. This position has long been settled and repeatedly affirmed by the courts (see Abacha v Fawehinmi (2000) NGSC 3).

Private international law in Nigeria largely remains judge-made, inherited from English common law as part of the received English law. Within this framework, courts have articulated principles governing when foreign judgments may be recognised, when they may be enforced, and when enforcement must be refused (Toepher Inc of New York v. Edokpolor (1965) All NLR 301; Macaulay v RZB of Austria (2003) 18 NWLR (Pt. 852) 282; Mudasiru & Ors v. Onyearu & Ors (2013) LPELR; GILAR Cosmetics Store v Africa Reinsurance Corporation (2025) LPELR-80701 (SC)).

Alongside these common law principles, there are two principal statutory regimes dealing with the recognition and enforcement of foreign judgments (Willbros West Africa Inc v Mcdonnel Contract Mining Ltd (2015) All FWLR 310, 342). The statutory registration scheme is governed by the Reciprocal Enforcement of Judgments Act 1922 (“1922 Ordinance”) and the Foreign Judgments (Reciprocal Enforcement) Act 1960 (“1960 Act”), but the latter is not yet in force (Macaulay v RZB of Austria (2003) 18 NWLR (Pt. 852) 282; Ekpenyong v. A.G and Minister of Justice of the Federation (2022) LPELR-57801(CA)). These frameworks have traditionally been applied to judgments of courts established under the laws of foreign states.

More recently, Nigerian courts have been confronted with judgments of international and regional courts created by treaty, most notably the ECOWAS Court of Justice (CBN v Gegenheimer & Anor (2025) LPELR-81477 (CA)). These courts are not courts of foreign states in the ordinary sense. Their jurisdiction derives from agreements between states, and they operate within legal systems that exist alongside, rather than within, national judicial structures. The fact that the ECOWAS Court sits in Abuja does not alter this position; it is not part of the Nigerian judicature as enumerated under section 6(5) of the Constitution.

Judgments of international courts therefore raise questions that are different in kind from those posed by judgments of foreign national courts. International courts increasingly hear cases involving Nigerian parties and Nigerian institutions. Claimants who succeed before such bodies understandably would seek to enforce their judgments before Nigerian courts, particularly where the international legal framework does not provide a direct enforcement mechanism.

It is against this background that this short article examines the recognition and enforcement of international court judgments in Nigeria. It does so by situating recent judicial developments within Nigeria’s existing constitutional and legal framework and by questioning whether current approaches are consistent with the limits imposed by that framework.

2. The Existing Enforcement Frameworks in Nigerian Law

There are two main mechanisms for recognition and enforcement of foreign judgments in Nigeria. A brief overview of these mechanisms is necessary to appreciate the kinds of judgments Nigerian law already recognises and, equally importantly, those it does not.

a. Common law enforcement of foreign judgments

At common law, a foreign judgment may be enforced in Nigeria by bringing an action on the judgment itself. The judgment is treated as creating an obligation, often described as a debt, which the judgment creditor may seek to recover (Toepher Inc of New York v. Edokpolor (1965) All NLR 301; Willbros West Africa Inc v Mcdonnel Contract Mining Ltd (2015) All FWLR 310, 342). Over time, Nigerian courts have identified conditions that must be satisfied before this route is available. These include whether the foreign court had jurisdiction over the judgment debtor, whether the judgment is final and conclusive, and whether it was obtained in circumstances consistent with basic requirements of fairness (Yekini; Okoli and Oppong)).

This common law route has always been limited in scope. It was developed to deal with judgments of foreign national courts operating within recognised state legal systems. Its underlying assumptions are rooted in territoriality and sovereignty. Jurisdiction at common law is assessed through concepts such as presence, residence, or submission within the territory of a sovereign state (Adams v. Cape Industries plc [1990] Ch. 433). Service of process, which founds the jurisdiction of the foreign court, is itself an exercise of sovereign authority.

The common law therefore assumes a relationship between two national legal orders: the foreign court that issued the judgment and the Nigerian court asked to give it effect. International courts do not fit easily within this framework. They are not organs of any single state. Their authority derives from treaties through which states agree to submit particular categories of disputes to an international judicial body. The legal force of their judgments exists, first and foremost, at the international level. Whether such judgments can have domestic effect depends on how each state structures the relationship between its domestic law and international obligations.

Some commentators have suggested that common law principles could be extended to accommodate international court judgments (Adigun, 2019). Others have acknowledged this possibility while also highlighting the uncertainties it would create  (Oppong and Niro, 2014). Whatever the merits of these arguments, the critical point for present purposes is that the common law enforcement of judgments was never designed with international courts in mind. Extending it in this direction would require courts to resolve questions for which the common law offers no clear answers. Which international courts would qualify? Would ratification of the relevant treaty be sufficient, or would domestication be required? What defences would be available, and whose public policy would apply? (Oppong and Niro).

In the absence of legislative guidance, courts would be left to answer these questions on an ad hoc basis. That would place courts in the position of deciding which international obligations should have domestic force and on what terms. In Nigeria’s constitutional framework, that is a role more properly reserved for the legislature. Unlike jurisdictions where courts are constitutionally mandated to engage in continuous development of the common law, Nigerian courts have traditionally exercised caution, particularly where the subject matter is affected by express constitutional provisions such as section 12 (cf Art 39(2) of the Constitution of the Republic of South Africa, 1996; Government of the Republic of Zimbabwe v Fick 2013 (5) SA 325 (CC) where the South African Constitutional Court enforced a judgment of the Southern African Development Community Tribunal against Zimbabwe by developing the common law regime. See also the Zimbabwean case of Gramara (Private) Ltd v Government of the Republic of Zimbabwe, Case No: X-ref HC 5483/09 (High Court, Zimbabwe, 2010).

b. Statutory regimes for foreign judgments

 The limitations of the common law action on a judgment have long been recognised. Because the judgment creditor must commence fresh proceedings, jurisdiction must be established against the judgment debtor, and procedural obstacles may delay or frustrate enforcement (Yekini, 2017; Okoli and Oppong). To address these concerns, Nigerian law provides for statutory registration of foreign judgments in defined circumstances.

Two principal statutes govern this area. The first is the Reciprocal Enforcement of Foreign Judgments Ordinance 1922, Cap. 175, Laws of the Federation of Nigeria, 1958 (“1922 Ordinance”). This statute applies on a reciprocal basis to judgments from a limited number of jurisdictions, including the United Kingdom Ghana, Sierra Leone, The Gambia, Barbados, Guyana, Grenada, Jamaica, Antigua and Barbuda, St Kitts & Nevis, St Lucia, St Vincent, Trinidad & Tobago, Newfoundland (Canada), New South Wales and Victoria (Australia). Its scope is narrow and largely historical, but it remains in force.

The second is the Foreign Judgments (Reciprocal Enforcement) Act 1960, Cap. F35, Laws of the Federation of Nigeria, 2004 (“1960 Act”). The Act was intended to replace the 1922 Ordinance and to provide a more comprehensive framework for reciprocal enforcement. It proceeds on the basis of reciprocity. Judgments from foreign countries may be registered and enforced only where the Minister of Justice is satisfied that reciprocal treatment will be accorded to Nigerian judgments and issues an order designating the relevant country and its superior courts (section 3(1)(a)).

Although Nigerian courts have, in practice, permitted registration under the 1960 Act notwithstanding the absence of formal designation (Kerian Ikpara Obasi v. Mikson Establishment Industries Ltd [2016] All FWLR 811), the structure of the Act would still not accommodate international courts judgments. It is concerned with judgments of courts of foreign states. It does not purport to regulate the enforcement of decisions of international courts created by treaty. The requirement of designation reflects a deliberate choice to tie enforcement to prior executive action i.e designation, rather than leaving the matter to judicial discretion. A similar conclusion was reached by the Ghanaian court in Chude Mba v The Republic of Ghana, Suit No HRCM/376/15 (decided 2 February 2016), where the applicant sought to enforce an ECOWAS Court judgment in Ghana. The court noted that “the ECOWAS Community Court is not stated as one of the courts to which the legislation applies” (see Oppong, 2017) for a fuller discussion of the case).

c. Treaty-based enforcement

 Beyond these reciprocal regimes, Nigerian law recognises that international judgments may be enforceable where the National Assembly has chosen to give direct effect to international obligations through legislation. Arbitration provides the clearest illustration.

Nigeria signed the ICSID Convention in 1965 and enacted the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act in 1967 to give domestic effect to its obligations. That Act provides that ICSID awards are enforceable as if they were judgments of the Supreme Court of Nigeria. The result is a clear and mandatory enforcement regime that leaves little room for doubt or judicial improvisation. A similar approach is reflected in the Arbitration and Mediation Act 2023, which governs the recognition and enforcement of international arbitral awards more generally.

These examples reflect the dualist framework set by the Constitution. Where international obligations are intended to produce direct domestic effects, legislation provides the necessary legal authority. The legislature defines the scope of enforcement and the procedures to be followed. Courts are then required to apply the law as enacted. Therefore, it is crystal clear that Nigerian law has always treated the enforcement of judgments as a matter requiring domestic legal framework. This provides the backdrop against which the enforcement of international court judgments must be assessed.

3. CBN V. Gegenheimer & Anor (2025) LPELR-81477(CA) – The Nigerian Case

In May 2025, the Nigerian Court of Appeal had the opportunity, for the first time as far as we are aware, to engage directly with the question of the enforcement of international court judgments in Nigeria. The case arose from a monetary judgment of ?63,650,925.00 and USD 10,000 made by the ECOWAS Court of Justice against Nigerian authorities following a successful human rights claim. The judgment creditor subsequently approached the Federal High Court to register and enforce that award, which ultimately led to garnishee proceedings against funds held by the Central Bank of Nigeria.

For present purposes, the central issue was whether Nigerian courts had jurisdiction to enforce a judgment of the ECOWAS Court. More specifically, one of the complaints before the Court of Appeal was whether the 1st Respondent had complied with the conditions precedent for the enforcement the ECOWAS judgment, notwithstanding the requirements stated in section 4 of the 1960 Act, particularly the requirement relating to the conversion of foreign currency into Naira, and whether the judgment could be enforced in the absence of express domestic legislation authorising such enforcement.

The Court of Appeal answered these questions in the affirmative. In doing so, it reasoned as follows:

It is of common knowledge that the ECOWAS Court of Justice, established in 1991 and located in Abuja, hears cases from West African States, including Nigeria. It was created pursuant to Articles 6 and 15 of the Revised Treaty of ECOWAS. Its organisational framework, functioning, powers, and applicable procedures are set out in Protocol A/P1/7/91 of 6 July 1991; Supplementary Protocol A/SP21/01/05 of 19 January 2005; Supplementary Protocol A/SP.2/06/06 of 14 June 2006; Regulation of 3 June 2002; and Supplementary Regulation C/Reg.2/06/06 of 13 June 2006. In other words, its jurisdiction covers Nigeria. Accordingly, the argument by learned counsel for the Appellant that Nigeria did not domesticate the ECOWAS Court Treaty, Protocol, and Supplementary Protocols is lame.

The Court further observed that the ECOWAS Court Protocol, particularly the 1991 Protocol as amended by the 2005 Supplementary Protocol, establishes the ECOWAS Community Court of Justice as the principal legal organ of ECOWAS, outlines its mandate, jurisdiction, functioning, and procedures, grants it competence over human rights violations within member states, and allows individuals to approach the Court directly without exhausting local remedies.

The Court also upheld the trial court’s conclusion that non-compliance with section 4(3) of the 1960 Act does not rob the court of jurisdiction to enforce the judgment.

What appears clear from the decision is that the ECOWAS judgment was effectively registered and enforced on the basis of the ECOWAS Supplementary Protocol A/SP21/01/05 of 19 January 2005, Supplementary Protocol A/SP.2/06/06 of 14 June 2006, Regulation of 3 June 2002, and Supplementary Regulation C/Reg.2/06/06 of 13 June 2006, with a passing reference to the 1960 Act to indicate that the judgment nothing under the Act robs the court off its jurisdiction.

That reasoning is difficult to sustain. The first difficulty lies in the Court’s treatment of domestication. The fact that Nigeria has accepted the jurisdiction of the ECOWAS Court answers the international question of competence; it does not answer the domestic question of enforcement. Jurisdiction determines whether the Court may hear a case and issue a judgment at the international level. It does not determine whether that judgment can be enforced within Nigeria. These are distinct matters. In a dualist constitutional system, the latter inquiry depends on the existence of domestic law authorising enforcement.

The Court did not identify any Nigerian statute that performs this function. Instead, it relied on the existence of ECOWAS instruments themselves. This approach blurs the distinction between international obligation and domestic law. It assumes that once Nigeria is bound internationally, domestic courts may act without further domestication. That assumption runs directly against Nigeria’s constitutional structure, particularly section 12 of the Constitution.

Equally problematic is the suggestion that the physical location of the ECOWAS Court in Abuja makes any legal difference. International courts frequently sit within the territory of member states without becoming part of the host state’s judicial system. The ECOWAS Court is not a Nigerian court, at least within the meaning of section 6 of the 1999 Constitution, and its judgments are not Nigerian judgments. Treating them as such because the Court sits in Abuja has no legal foundation. Jurisdiction at the international level determines whether a court may hear a case; it does not determine whether its judgment can be executed against assets or institutions within Nigeria. Physical location is therefore irrelevant. A court may sit in Abuja and still operate entirely outside the Nigerian legal system, as is the case with the ECOWAS Court.

The second difficulty concerns the Court’s reference to the 1960 Act. The proceedings proceeded as though the ECOWAS judgment could be situated within Nigeria’s foreign judgment enforcement regime. Yet, as discussed earlier, the Act was designed to deal with judgments of courts of foreign states and operates on the basis of reciprocity. The ECOWAS Court does not, and could not realistically, fall within that category. It is not a court of a foreign country, and it has never been designated under the Act. One would therefore have expected the Court to be explicit that the Act does not apply to the judgment in question. Instead, citing provisions of the Act in determining whether the trial court had jurisdiction risks creating the impression that the statutory regime is equally applicable to questions arising from the enforcement of international court judgments. This is an impression that is difficult to reconcile with the structure of the legislation.

This critique should not be misunderstood. It is not a denial of Nigeria’s international obligations, nor is it an argument that successful claimants before international courts should be left without remedies. The point being made is that domestic courts must act within the established legal framework, particularly in an area where foreign judgments do not have direct force of law except as permitted by statute or common law.

Ghanaian courts have consistently emphasised the country’s dualist constitutional structure, under which international and regional judgments are not binding domestically unless the underlying treaty or enforcement framework has been incorporated into Ghanaian law by legislation. In Republic v High Court (Commercial Division), ex parte Attorney General and NML Capital Ltd Civil Motion No. J5/10/2013 (unreported), the Supreme Court held that, in the absence of domestic legislation giving effect to the United Nations Convention on the Law of the Sea (“UNCLOS”), orders of the International Tribunal for the Law of the Sea were not binding on Ghana, notwithstanding Ghana’s international obligations. Similarly, in Chude Mba v Republic of Ghana (supra), where enforcement of an ECOWAS Community Court judgment was sought, the High Court confined its analysis strictly to the statutory regime, namely the Courts Act 1993, the High Court (Civil Procedure) Rules 2004, and the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument 1993, and concluded that enforcement was unavailable because the regime depends on reciprocity and presidential designation of the foreign court, which were absent. Notably, in both instances the courts did not consider the common law regime for the recognition or enforcement of foreign or international judgments, treating the issue as one governed exclusively by statute and constitutional principles of dualism.

A similar outcome was reached in a very recent case in Anudo Ochieng Anudo v Attorney General of the United Republic of Tanzania,  where the High Court of Tanzania declined to register and enforce a judgment of the African Court on Human and Peoples’ Rights, holding that such judgments fall outside the scope of Tanzania’s Reciprocal Enforcement of Foreign Judgments Act (Cap. 8 of the Laws of Tanzania, 2019). The court, inter alia, ruled that the Act applies only to judgments of foreign superior courts designated by ministerial notice and does not extend to international or regional courts established by treaty, including the African Court. Because the applicant anchored his claim exclusively on the Act and did not plead constitutional or international law as an independent basis for enforcement, the court held itself bound by the pleadings and precedent confirming that African Court judgments cannot be enforced under the statutory regime absent express legislative authorisation.

The decision of the Court of Appeal in CBN v Gegenheimer, with respect, is therefore a misnomer, as it lacks a solid legal foundation within Nigeria’s existing constitutional and statutory framework. Whether judgments of international courts ought to be enforceable in Nigeria is ultimately a question for the legislature. Until such laws are enacted, courts should be cautious about assuming powers they have not been granted.

4. Conclusion

It is clear that judgments of international courts are not enforceable in Nigeria in the absence of specific legal framework permitting their enforcement. The position is well illustrated by the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act 1967 and, more recently, the Arbitration and Mediation Act 2023, both of which demonstrate how Nigeria gives domestic effect to international obligations when it intends to do so.

The common law route is ill-suited to international court judgments. It was developed for judgments of foreign state courts and rests on assumptions of territorial jurisdiction and sovereignty that do not translate easily to treaty-based international courts. Extending it in this direction would leave courts to determine, without legislative guidance, which international judgments are enforceable and on what terms.

The decision in CBN v Gegenheimer is distinctive because it concerns the ECOWAS Court, a regional court whose jurisdiction Nigeria has accepted and whose role in access to justice is well recognised. Even so, acceptance of jurisdiction at the international level does not resolve the domestic enforcement question. Section 12 of the Constitution remains a barrier to direct enforcement in the absence of domestication. For that reason, the decision may yet face serious difficulty if the issue reaches the Supreme Court.

Beyond the ECOWAS context, it is difficult to see how judgments of other international courts could presently be enforced in Nigeria without similar legislative intervention. If international court judgments are to have domestic effect, the solution lies not in judicial improvisation, but in clear legislative action.

Written by Hadrien Pauchard (assistant researcher and doctoral student at Sciences Po Law School)

The fourth and last issue of the Revue Critique de droit international privé of 2025 has just been released. It contains four articles, eight case notes, and six book reviews. In line with the Revue Critique’s policy, the doctrinal part will soon be made available in English on the editor’s website (for registered users and institutions).

In the first article, Prof. Andrea Bonomi (Université de Lausanne) conducts an in-depth analysis of “Le droit suisse des successions internationales : heurs et malheurs de la récente réforme” (The Swiss law of international successions: the good and bad fortunes of the recent reform). Described by the author as a true “compromise” à la Suisse, the reform introduces original solutions, which are discussed as follows:

By a statute adopted on 23 December 2023 and entered into force on 1 January 2025, Switzerland has recently reformed its private international law rules in matters of international succession. Inspired by a highly commendable objective of harmonisation, this legislative revision will undoubtedly improve coordination between Swiss law and the European Succession Regulation. This objective is achieved both through a unilateral alignment of certain Swiss rules with those of the European Regulation and through a strengthening of the autonomy of the de cujus. Certain solutions are original and would deserve to be considered by the European legislator in the context of a future revision of the Regulation. However, during its legislative process, the initial draft encountered unforeseen resistance, which led, with regard to forced heirship, to a distinctly Swiss compromise that deprives the reform of part of its effectiveness and coherence.

In the second article, Prof. Gilles Cuniberti (University of Luxembourg) shares “Quelques réflexions sur la notion de juridiction en droit judiciaire européen” (Some thoughts on the concept of jurisdiction in European judicial rules). Surveying both European regulations and case law, the contribution provides a comprehensive overview of this important issue and suggests avenues for reflection to arrive at a consistent and effective approach. Its abstract reads as follows:

The dejudicialization of private law has led the European lawmaker to extend the benefits of European regulations on private international law to non-judicial authorities by broadly defining the concept of ‘court’ within the meaning of these texts. At the same time, the European Court of Justice has embarked on a process of restricting the same concept by excluding decisions rendered by judicial authorities not exercising judicial functions. This contribution examines the varied definitions adopted by the different regulations and questions the appropriateness of the direction taken by case law within the framework of the Succession Regulation. It concludes by proposing a return to a purely organic criterion for decisions rendered by judicial authorities.

In the third article, Dr. Melynda BouAoun (Université Saint-Joseph de Beyrouth & Université La Sagesse) reports on “La légitimation d’un enfant né hors mariage au Liban : une décision audacieuse marquant l’ouverture du système juridique libanais aux systèmes étrangers” (The legitimization of a child born out of wedlock in Lebanon: a bold decision marking the opening of the Lebanese legal system to foreign systems). The groundbreaking ruling gives the author an opportunity to share though-provoking observations on Lebanese family law regarding both jurisdiction and conflict of laws in a pluralist system. They are introduced as follows:

On March 13, 2025, the First Instance Court of Mount Lebanon, competent in matters of personal status and family law, delivered a remarkable decision by recognizing as legitimate a child born out of wedlock to a Lebanese couple belonging to two different religious communities, Shiite and Druze. This article aims to comment on this bold decision, which stands out at a time when issues of filiation — and personal status matters more broadly — continue, in principle, to fall within the jurisdiction of religious authorities in the Lebanese legal system.

The last article is authored by Dr. Emeric Prévost (Université de Kyushu, amongst other affiliations in France and Japan), commenting on “La loi applicable aux droits réels sur bitcoins. A propos d’une décision japonaise” (The law applicable to right in rem over bitcoins. About a Japanese decision). It offers a roadmap for navigating the complex issues raised by the private international regulation of blockchain, which could certainly inspire jurisdictions beyond the archipelago’s waters. The article’s abstract reads as follows:

The decision of 25 April 2024 of the Tokyo District Court is particularly significant in that it is the first to address, under Japanese private international law, the issue of the law applicable to proprietary rights over bitcoins. While a general principle of proximity appears to be affirmed, the judges also expressly refer to the lex situs rule in order to resolve the conflit mobile situation arising from the transfer of bitcoins from one legal system to another. In addition to implicitly recognising the movable nature of bitcoins, the judgment further emphasises the effective control that holders of the private key associated with a unique public address on the Bitcoin network can exercise over the corresponding crypto-assets. The Tokyo judges thus treat control of the private key both as a connecting factor for locating the disputed bitcoins and as an essential condition for property rights created under a foreign law to produce any effect within the Japanese legal order. Finally, the decision also highlights the difficulties in establishing a causal link between alleged breaches of an intermediary’s due diligence obligations and the violation of property rights over crypto- assets such as bitcoins. The decision therefore offers both valuable insights into the current state of the law and an outlook on possible future developments for the private international law of digital finance and crypto- assets.

Since 1957, the fourth issue of the Revue critique includes its annual Bibliographical Index that provides readers with the possibly most comprehensive list of publications in the various branches of private international law from the previous year. Thanks to contributions from Prof. Alejandra Blanquet (Université Paris-Est Créteil), Prof. Christine Budzikiewicz (Phillips-Universität Marburg), Prof. Béligh Elbalti (Osaka University), Prof. Pietro Franzina (Università Cattolica del Sacro Cuore), Prof. Louise Merrett (Cambridge), and Prof. Symeon Symeonides (Willamette University), the 2024 Bibliographic Index will soon be available on the publisher’s website. This multilingual Index includes a large general section devoted to private international law, a special section on international arbitration, and a section dedicated to case law panorama. For 2024, it features a particularly rich segment on Devoir de vigilance (Corporate Due Diligence), but also numerous references on the year’s hottest topics such as Election de for (Choice of court) or Filiation (Filiation).

The full table of contents is available here.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.

It is not uncommon for African and foreign scholars of private international law (PIL) to lament the current state of the field in Africa. Until the early years of the 21st century, PIL was widely regarded, often with little hesitation, as ‘a neglected and highly underdeveloped subject in Africa’.[i] Professor Forsyth famously described it as a ‘Cinderella subject, seldom studied and little understood’.[ii] This limited scholarly attention is reflected, for instance, in the treatment of African PIL in the Hague Academy courses, which include only 4 courses specifically devoted to PIL in Africa, the most recent of which dates back to 1993.[iii] Since then, a number of pleas for greater attention to PIL in Africa,[iv] as well as calls for enhanced cooperation with African countries to ensure better involvement and inclusiveness,[v] have been voiced.[vi]

The last fifteen years, however, have witnessed a noticeable increase in scholarly interest and institutional engagement with PIL in Africa. This is reflected first in the growing body of academic publications,[vii] and the emergence of initiatives aimed at articulating and strengthening an African perspective on the discipline. These include, among others, the publication of the African Principles on the Law Applicable to International Commercial Contracts, and the organization of a series of online workshops on ‘Private International Law in Africa’.

At the institutional level, since 2011, 6 African States have become Members of the HCCH, with Namibia and Rwanda joining respectively in 2021 and 2025, bringing the total number of African HCCH Member States to 9. The recent opening of a regional office for Africa in Morocco further underscores the growing institutional presence and engagement of the HCCH on the African continent.

More importantly, 33 years after the last Hague Academy Course devoted to PIL in Africa, the subject will once again be addressed within the framework of the Hague Academy. In the forthcoming Summer Courses, Prof. Richard Oppong will indeed deliver a course on the ‘Internationalism in Anglophone Africa’s Commercial Conflict of Laws’ This undoubtedly marks a significant milestone in the renewed visibility and recognition of PIL on the African continent.

There is, however, one aspect that remains relatively underemphasised: the rich and diverse, yet still understudied, body of African case law on PIL. This ‘hidden treasure’ demonstrates a simple, but often overlooked, fact: Africa is deeply connected to the rest of the world. From Chinese and Brazilian judgments being recognised in Mozambique, to Indonesian and Texan judgments being considered by courts in Uganda, or Canadian judgments sought to be enforced in Egypt; from Malawian courts applying the doctrine of forum non conveniens to many other remarkable decisions across the continent, African courts are actively engaging with transnational legal issues, including international jurisdiction and applicable law in employment contracts, the validity of foreign marriages, and cases of international child abduction. This case law also reveals the challenges faced by courts across the continent, which are often called upon to deal with complex issues using outdated or inadequate legal frameworks. Far from confirming the widespread perception of a stagnating field, judicial practice in Africa shows that important, and often fascinating, developments are taking place across the continent, developments that deserve far greater scholarly attention and engagement. Only through sustained scholarly engagement, by studying, commenting on, and comparing judicial approaches, and by highlighting shortcomings in existing legal frameworks and practices, can Africa develop a strong and distinctive voice in the field of PIL.

This is precisely the purpose of the present online symposium. Building on an established tradition of this blog, Conflictoflaws.net will host the second online symposium on African private international law.[viii] The main objective of the symposium is to shed light on selected aspects of recent developments in private international law in Africa. A number of scholars known for their active commitment to the development of private international law on the African continent have kindly agreed to comment on some of these cases or to share their views on what, in their opinion, best illustrates the diversity of private international law in Africa.

The symposium will run over the coming days and will feature contributions addressing a wide range of themes and African jurisdictions. These include the following:

1. Chukwuma Okoli (University of Birmingham) and Abubakri Yekini (University of Manchester, Uk), on the recognition and enforcement of international court judgments in Nigeria
2. Béligh Elbalti (The University of Osaka, Japan), on the enforcement of a Chinese judgment in Mozambique
3. Boris Awa (Kigali Independent University, Rwanda), on the recognition and enforcement of foreign judgments in the CEMAC region
4. Solomon Okorley (University of Johannesburg, South Africa), on the application of the 1980 HCCH Convention in South Africa
5. Anam Abdul-Majid (Advocate and Head of Corporate and Commercial Department, KSM Advocates, Nairobi, Kenya), on international jurisdiction in employment contracts in Kenya
6. Theophilus Edwin Coleman (University at Buffalo School of Law, New York), on proof of foreign law and fragility of foreign marriages in Ghanian courts
7. Elisa Rinaldi (University of Pretoria, South Africa), on Cross-border employment, contract and delictual liability merge in the South Africa

As aptly pointed out by Professor Oppong, ‘there is a need for greater international engagement with African perspectives on [PIL]. There is also a need to attract more people to researching and writing on the subject in Africa.’[ix] In line with these observations, we likewise hope that this initiative ‘will contribute to both greater international engagement with, and increased participation in, private international law in Africa’.[x] Therefore, we encourage readers, in Africa and elsewhere, to actively engage with this initiative by sharing their views or by highlighting other developments of which they are aware. We also hope that this initiative will encourage researchers in Africa and beyond to make fuller use of the available resources and case law, and to comment on them, whether in the form of blog posts or scholarly contributions in academic journals.

This platform remains open and welcoming to such contributions.

Béligh Elbalti & Chukwuma S.A. Okoli

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[i] Richard F. Oppong, ‘Private International Law in Africa: The Past, Present, and Future’ 55 AJCL (2007) 678.

[ii] Christophe F. Forsyth, Private International Law – The Modern Roman-Dutch Law including the Jurisdiction of the High Courts (5th ed., Juta, 2012) 46-47.

[iii] Abd-El-Kader Boye, ‘Le statut personnel dans le droit international privé des pays africains au sud du Sahara: conceptions et solutions des conflits de lois: le poids de la tradition négro-africaine personnaliste’, 238 Recueil des Cours  (1993) ; U U. Uche, ‘Conflict of Laws in a Multi-Ethnic Setting: Lessons from Anglophone Africa’, 228 Recueil des Cours (1991) ; Salah El Dine Tarazi, La solution des problèmes de statut personnel dans le droit des pays arabes et africains 159 Recueil des Cours (1978) ; and Ph. Francescakis, ‘Problèmes de droit international privé de l’Afrique noire indépendante’, 112 Recueil des Cours (1964).

[iv] Richard F. Oppong, ‘Private International Law and the African Economic Community: A Plea for Greater Attention’ 55 ICLQ (2006) 911.

[v] Richard F. Oppong, ‘The Hague Conference and the Development of Private International Law in Africa: A Plea for Cooperation’ 8 YPIL (2006) 189.

[vi] Orji Agwu Uka, ‘A call for the wider study of Private International Law in Africa: A Review of Private International Law In Nigeria’, on this blog; Chukwuma Okoli, ‘Private International Law in Africa: A Comparative Lessons’, on this blog.

[vii] Jan Neels, ‘List of Publications on South African Private International Law as from 2020’, on this blog; Chukwuma Okoli, ‘Private International Law in Africa: A Comparative Lessons’, on this blog.

[viii] The first online symposium organized on this blog was devoted to Private international law in Nigeria. The symposium features interesting contributions by Chukwuma S. A. Okoli and Richard Oppong, Anthony Kennedy,Richard M. Mlambe, Abubakri Yekini and Orji Agwu Uka.

[ix] Richard F. Oppong, ‘Private International Law Scholarship in Africa (1884-2009)’ 58 AJCL (2010) 326.

[x] Oppong, Ibid.

Posted on behalf of Jason Mitchell, barrister at Maitland Chambers in London and at Group 621 in Johannesburg.

An Australian, Hannon, wants to book a Southern African safari with his partner, Murti, as a surprise birthday gift. He sees one he likes on an Australian travel website. Hannon fills in the online form.

It turns out that the website is just the agent for a South African company, Drifters Adventours. Drifters emailed Hannon the price and payment details. Attached to the email is a brochure. The brochure says, “Drifters do not accept responsibility for any loss, injury, damage, accident, fatality, delay or inconvenience experienced while on tour.” The brochure also says, “You will be required to complete and sign a full indemnity prior to your tour departure.”

Fast forward a few months, and Hannon and Murti arrive in Cape Town. At some point, Hannon signs an indemnity (for himself and, purportedly, on Murti’s behalf too). Murti is none the wiser. The indemnity excludes Drifters’s liability for everything and anything. It also states, “This contract between Drifters and the client will be deemed to be the only contract between Drifters and the client The place and conclusion of contract will always be taken as South Africa, and any disputes, claims, or actions brought against Drifters can only be made under South African jurisdiction, and the parties agree to submit to the non-exclusive jurisdiction of the South African Courts.”

Hannon and Murti, and a few others in the tour group, take their seats on the converted Toyota safari truck. After a few days along South Africa’s west coast, they reach Namibia. A few days later, they arrive in Botswana. One day, while in Botswana, Murti got out of her seat to fetch something from a locker at the back of the truck (the brochure said she could). Murti tripped and fell against a window. The window fell from its frame. Murti hit the road.

Murti sued Drifters in Johannesburg. Drifters pointed to the exclusion of liability in the first disclaimer in the brochure and in the second disclaimer that Hannon signed. The High Court found for Murti, holding that the first disclaimer was too vague (even if it were binding on Murti) and that Hannon did not have actual or ostensible authority to bind Murti to the second disclaimer. The Supreme Court of Appeal dismissed an appeal. The Court agreed with the High Court’s findings that there was no evidence that Murti agreed to the first disclaimer and that Hannon did not have authority to bind Murti to the second disclaimer. The Court also held that Drifters did not adequately draw the disclaimers to Murti’s attention in the way that s.49 of the Consumer Protection Act requires.

So far so good. But why does South African law apply? The Court doesn’t say. It can’t be because of the dispute resolution clause in the second disclaimer: after all, the court just found that the disclaimer does not bind Murti (and besides, there is no choice of South African law in what is a largely incoherent clause). This is a(nother) regrettable oversight. It is by no means obvious that South African law applies. The delict likely occurred in Botswana (Murti alleged that negligent driving caused her injuries, though she also alleged a negligent failure to maintain the truck and a negligent failure to warn). Just last year, the Supreme Court of Appeal confirmed that “[t]he law applicable to a delict shall be the lex loci delicti, but the lex loci delicti may be displaced in favour of the law of the country with a manifestly closer, significant relationship to the occurrence and the parties” (then-Acting Justice Koen, who wrote this judgment, signed onto that judgment).

If the accident happened in Botswana, then, as a starting point, Botswana law should apply. Although Drifters is a South African company and the tour began and ended in South Africa, it is not evident that South Africa has a manifestly closer, significant relationship to the accident and the parties involved. These are the only factors that point towards South Africa.

The closest the Court comes to a conflict of laws analysis is its conclusion (and it’s just that: a conclusion) that the (South African) Consumer Protection Act applies because, under s.5(1), the Act applies to “every transaction occurring within the Republic”. It is, of course, possible for the forum to apply its own statute to override an otherwise applicable law (or overriding mandatory provisions, in the Rome language). But, as I have argued elsewhere, much more is needed than Parliament simply saying, ‘This Act applies to anything that happens in the Republic’: see To override, and when? A comparative evaluation of the doctrine of mandatory rules in South African private international law is found in the 2013 SALJ 757, where a better example is section 47 of the Electronic Communications and Transactions Act, which states that “the protection provided to consumers … applies irrespective of the legal system applicable to the agreement in question.” Like before, maybe the Court would have gotten to the same answer with a copy of Forsyth’s Private International Law close by (that is, a careful conflicts analysis could point to South African law anyway, or Botswana law could be the same, or the Court could have applied the Consumer Protection Act as a mandatory rule). But that’s not really the point. When litigation involves foreign elements—Australians on holiday, a South African tour guide, a car crash in Botswana—courts should be alive to the possibility that another law governs.

The recently published Part 4 of the Juridical Review for 2025 contains articles based on the International Perspectives on Scots Law seminar series held at the University of Stirling during 2023/2024. Some of these articles will be of interest to private international law aficionados:

‘The Pre-enactment Legislative Review Process in Scotland’ by Robert Brett Taylor and Adelyn L.M. Wilson (University of Strathclyde);

‘Taking the Transnational Nature of the UK Competition Appeal Tribunal Seriously: A Private International Law Perspective’ by Mihail Danov (University of Exeter);

‘The Evolution of Business and Human Rights Litigation against Multinational Companies’ by Mukarrum Ahmed (University of Lancaster);

‘Parties’ Intention and the Future Internationalisation of Scottish Arbitration – A Review of Scottish cases post 2010′ by Hong-Lin Yu (University of Stirling);

‘The Art of Persuasion: Embracing the Auld enemy and Beyond’ by Dr Mo Egan (University of Stirling).

The following information was kindly shared with us by the editors of the JLMI.

The Journal of Law, Market & Innovation (JLMI) welcomes submissions for its third issue of 2025.

The Call for Papers for this 3rd issue is devoted to Digital markets, consumer autonomy and consumer welfare.

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

Digital markets, consumer autonomy and consumer welfare

Prospective articles should be submitted in the form of abstract (around 800 words) or draft articles to submissions.jlmi@iuse.it within 25 february 2026. The publication of the issue is set for the end of November 2026.

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.

The following information was kindly shared with us by De Gryuter Brill.

The Hague Academy is a renowned international institution dedicated to the study and teaching of public and private international law. Supported and recognized by the United Nations, the Academy aims to foster rigorous and impartial analysis of legal issues arising from international relations. Its courses address both theoretical and practical dimensions of international law, including legislation and case law. In principle, all courses are published in the Collected Courses of The Hague Academy of International Law in the language in which they were originally delivered. The courses on private international law that were published in 2025 are:

• Volume 451: Garcimartin, F.: Responses to a Legally Fragmented World: A Private Law Perspective (General Course of Private International Law)
• Volume 449: Esplugues, C.: New Dimensions in the Application of Foreign Law by Courts (and Arbitrators) and Non-Judicial Authorities
• Volume 446: Dickinson, A.: Natural Justice in Recognition and Enforcement of Foreign Judgments
• Volume 446: McLachlan, C.: On the Interface Between Public and Private International Law (General Course on International Law)
• Volume 445: Rodríguez Benot, A.: Le régime économique des couples en droit international privé

For a full listing, including the courses on public international law and international arbitration, please visit The Hague Academy Collected Courses Online / Recueil des cours de l’Académie de La Haye en ligne.

On Tuesday, February 3, 2026, 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). Stellina Jolly (South Asian University) will speak, in English, about the topic

“Forging a Path for Climate Justice: Integrating Public and Private International Law in Transboundary Litigation in India”

Cross-border climate litigation, gaining traction globally, requires active engagement with private international law for effective dispute adjudication. Although Indian climate jurisprudence has not yet substantively addressed cross-border disputes, emerging trends suggest that this scenario may soon evolve. The talk analyses three plausible litigation scenarios involving Indian and foreign parties to assess the readiness of Indian private international law in addressing transboundary climate harm. Firstly, Indian plaintiffs filing cases in foreign jurisdictions against transnational corporations headquartered abroad, alleging climate-related harm caused within India; secondly, foreign plaintiffs filing cases before Indian courts for the harm caused by Indian transnational corporations in their jurisdictions; thirdly, foreign plaintiffs filing cases before Indian courts for the transboundary harm caused by Indian companies as a result of their Greenhouse gas (GHG) emissions. The talk evaluates the adequacy of Indian private international law in addressing cross-border climate cases and proposes incorporating environmental and human rights considerations in the determination of choice of law.

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.

A new collective volume entitled “La circolazione dello statuto personale / La circulation du statut personnel” has recently been published by Pacini Giuridica. Edited by Gustavo Cerqueira (Nice), Nicolas Nord (Strasbourg) and Claudio Scognamiglio (Rome), the book brings together the proceedings of an international conference held on 19 January 2024 in Rome, in the prestigious Giallombardo Hall of the Italian Court of Cassation.

The conference and the resulting volume stem from a joint initiative supported by several leading institutions in the fields of private law, comparative law and private international law: the Société de législation comparée (Comparative Methodology of Civil Law Section), the Associazione Civilisti Italiani and the International Commission on Civil Status (CIEC), with the support of the of the Italian Court of Cassation and the Faculty of Law and Political Science of Nice.

The volume addresses the circulation of personal status in a broad sense, at a time when increasing mobility of persons, the continuous renewal of issues relating to personal status, and sustained legislative and judicial activity across jurisdictions make this topic more relevant than ever. Rather than focusing on a single issue, the contributors adopt a comprehensive approach encompassing civil status in cross-border situations, personal identification, family relationships, filiation, and nationality. Taken together, these areas reflect the contemporary legal conception of the person, shaped by complex family ties and by the dynamics of cross-border recognition.

With contributions from scholars and practitioners from France, Italie and Switzerland, the book offers a genuinely civil, international and comparative perspective. Its bilingual Italian-French format further enhances its accessibility and comparative value for a European private international law readership. The richness of the discussions reproduced in the volume confirms the relevance of the chosen approach and makes a significant contribution to ongoing scholarly debates on the circulation of personal status.

Further information on the book is available on the publisher’s website. 

English translation of fate Table of Contents:

Civil Status and Cross-Border Situations

Gustavo Cerqueira, Civil Status and Borders
Francesco Salerno, The Paradigm of Substantive Values in the Extraterritorial Relevance of Personal Status
Marion Ho-Dac, Personal Status and International Cooperation: Attraction, Diversity and Obstacles

Identification of the Person

Giovanni Di Rosa, Identification of the Person: The Circulation of Surnames
Fernanda Munschy, The Cross-Border Circulation of Modified Gender Identity: From Attribution to Free Choice
Francesca Bartolini, The Circulation of a Person’s Sex: Attribution, Rectification and Autonomy

Union of Persons

Lukas Heckendorn Urscheler, The Circulation of Registered Partnerships: Tensions between Terminological Unity and Conceptual Diversity
Alessandra Spangaro, The Circulation of Registered Unions: Between Terminological Unity and Conceptual Diversity
Enrico Al Mureden, Same-Sex Marriage and Its Circulation: Between the Rights of the Couple, the Protection of the Child and the Prohibition of Surrogacy
Ilaria Pretelli and Renzo Calvigioni, Unions Celebrated Abroad: Certificates of Capacity and the Opportunities Offered by the New CIEC Convention No. 35

Filiation

Gordon Choisel, Filiation Based on Parenthood, or the Reversal of French International Public Policy
Mirzia Bianca, The Proliferation of Models of Parenthood: Reflections on De Facto Parenthood
Sylvain Bollée, Surrogacy: Spontaneous Circulation and Imposed Circulation
Roberto Senigaglia, The Circulation of Filiation Status Arising from Surrogacy Practices Established in EU and Non-EU States: The Case for a Differentiated Approach

Nationality

Hugues Fulchiron, Nationality and the Circulation of Personal Status: The Multiplication of Contemporary Issues
Sabine Corneloup, Evidentiary Difficulties and Obstacles to the Circulation of Status in Matters of Nationality

Conclusions
Liliana Rossi Carleo, The Circulation of Personal Status: Concluding Remarks

The latest issue of the Dutch Journal on Private International Law (NIPR) has been published. It contains the following contributions.

NIPR 2025, Issue 3

Editorial

Mathijs ten Wolde / p. 421

Articles

Steven Stuij, De positie van art. 10:2 BW in het Nederlands burgerlijk procesrecht / p. 423-444

Abstract

Article 10:2 of the Dutch Civil Code stipulates that the rules of private international law as well as the applicable law designated by those rules are to be applied ex officio. There has been a debate as to the positioning of this provision in relation to other rules of civil procedure on party autonomy as a result of two cases of the Dutch Supreme Court (‘Hoge Raad’). This contribution will address this problem and discuss different views on the issue of the interaction between Article 10:2 of the Dutch Civil Code and certain provisions of the law of civil procedure.

Jeroen van Hezewijk en Cathalijne van der Plas, De logica van Lindeteves; zijn de regels over internationaal derdenbeslag wel adequaat? / p. 445-470

Abstract

Receivables and other debts owed to a party (e.g., wages, bank balances, etc.) are part of that party’s assets. As such, other parties may seek to have recourse to those assets in the context of (pre- or post-) judgment enforcement efforts. In an international context, this presents various legal challenges. This article investigates these challenges by mapping out which (private and public law) interests are at stake when considering the attachment or garnishment of receivables/debts in an international context. It then reviews the Dutch doctrine and case law, in particular the leading 1954 Supreme Court precedent Lindeteves/Meilink. It assesses whether the Dutch legal rules adequately address the interests that they purport to protect. The authors conclude that public international law concerns that are sometimes voiced, in particular the so-called ‘principle of territoriality’, do not substantially restrict the Dutch practice of allowing attachments of and enforcement against (certain) international receivables/debts. The interest of protecting the third-party debtors (i.e., the debtors under the debt that is to be attached) against unfair prejudice (in particular the risk that they might be forced to pay twice: once to the judgment creditor and once to their original creditor, the judgment debtor) is not necessarily optimally served by the Dutch practice. The authors conclude that the Dutch practice is, in some respects, over-protecting and, in other respects, under-protecting the third party. Therefore, certain aspects of the current Dutch framework could be tweaked or reconsidered.

Case notes

Bryan Verheul, In de spiegel van artikel 24 Brussel Ibis? Over de exclusieve bevoegdheidsgronden onder Brussel Ibis in derdelandssituaties na BSH Hausgeräte/Electrolux (C-339/22) / p. 471-486

Abstract

In BSH Hausgerate, the Court of Justice of the European Union (‘CJEU’) was asked to rule on the relationship between Article 24(4) and Article 4(1) Brussels Ibis in the context of infringement proceedings concerning a patent registered in several EU Member States and in Turkey (a third State). While the judgment has far-reaching implications for intellectual property practice, this case note focuses mainly on the issues arising from the fact that the patent in dispute is (also) registered in Turkey. In his Opinion, the Advocate General seised upon this scenario to question the territorial scope of Brussels Ibis’ jurisdictional scheme in relation to third States. He proposed attributing so-called ‘reflexive effect’ to Article 24 as a means of filling what he described as a ‘gap’ in the Regulation’s territorial scope vis-a-vis third States. While adopting a different approach, the CJEU nonetheless advanced the debate by clarifying the territorial scope of the jurisdictional rules in a third State context. It held that – although not at issue in the present case – jurisdiction under Article 4(1) may be limited by the public international law principle of non-interference. In doing so, the CJEU distinguished between proceedings in a Member State resulting in inter partes decisions and those producing erga omnes effects. The CJEU’s reasoning seems capable of extending to other matters covered by Article 24, yet the broader discussion on the relationship between territorial scope and third States is far from concluded.

Ekaterina Pannebakker, Internationale rechtsmacht bij een vordering uit een pactum de contrahendo, Hof van Justitie EU 15 juni 2022, C-393/22, NJ 2023/335, NIPR 2023/747 (EXTÉRIA) / p. 487-500

Abstract

Which courts have jurisdiction over claims for breach of a pre-contractual agreement? This question was addressed by the Court of Justice of the European Union in C-393/22 (EXTERIA). In contrast to an earlier decision, Tacconi, in which the Court dealt with non-contractual liability in tort for breaking off negotiations, EXTERIA concerns liability in matters relating to a contract, namely, a claim for performance of a pre-contractual agreement. Such pre-contractual agreements are frequently used in commercial practice. Examples include letters of intent, memoranda of understanding, and heads of terms. In EXTERIA, the Court of Justice develops the existing private international law framework relating to obligations arising from such pre-contractual commitments.

By Luisa Cassar Pullicino and Krista Refalo, Ganado Advocates

In the preliminary reference Case C-77/24 Wunner (the Titanium Brace case), the CJEU was asked to determine whether a damages claim brought by a consumer directly against company directors for losses suffered from unlicensed online gambling fell within the scope of the Rome II Regulation (Regulation (EC) No 864/2007), or whether it was excluded under Article 1(2)(d) as a “non-contractual obligation arising out of the law of companies”.

The practical stakes were considerable. If Rome II applied, Article 4(1) would designate the law of the place where the damage occurred — which, for online gambling losses, would normally be the habitual residence of the consumer. If excluded, the applicable law would instead be determined by national conflict-of-laws rules, typically, the lex societatis.

The case arose from losses suffered by an Austrian consumer who participated in online games of chance offered by Titanium Brace Marketing Limited, a Maltese-registered online gambling company that did not hold a licence under Austrian gambling law. Following the company’s insolvency, the consumer brought an action for damages directly against two former directors, alleging that they were personally liable for having allowed or caused the unlicensed offering of gambling services in Austria.

The Austrian Supreme Court referred questions to the CJEU concerning: first, whether such a claim is excluded from the scope of Rome II under Article 1(2)(d); and secondly, if Rome II applies, how the applicable law should be determined.

2.1 Structural vs Functional approach

The Court reaffirmed that the exclusion in Article 1(2)(d) is not confined to ‘structural aspects’ of companies, but must be interpreted functionally, by reference to the nature of the obligation giving rise to liability. Drawing on its earlier case law, including BMA Nederland, the Court held that the decisive question is whether the non-contractual obligation arises from reasons specific to company law or external to it.

Where a director’s liability flows from obligations “incumbent on them owing to the creation of the company or to their appointment and linked to the management, operation or organisation of the company”, it is considered a company law matter, and is excluded from Rome II.

By contrast, where liability arises from the breach of an obligation external to the company’s affairs, the exclusion does not apply.

2.2 Application to unlicensed online gambling

Applying that test, the CJEU held that Article 1(2)(d) does not cover actions seeking to establish the tortious liability of company directors for breaches of national prohibitions on offering games of chances to the public without the requisite license. The Court reasoned that the directors’ alleged liability did not arise from company law. The claim was based on an alleged infringement of a general statutory prohibition under Austrian gambling law, applicable to ‘any person’ offering games of chance without a licence. As such, the action did not concern the internal relationship between the company and its directors, but the breach of a regulatory norm protecting the public.

The consequence was that the action fell within the scope of Rome II, with the applicable law determined in accordance with Article 4.

The consequence of the ruling is significant. In online gambling cases, the “place where the damage occurs” will often coincide with the habitual residence of the consumer, since that is where participation in the gambling activity takes place and where the financial loss is suffered.

As a result, any action for damages brought directly against a director will, in principle, be governed by the law of the consumer’s residence, regardless of where the company is incorporated, where the directors reside, or where the relevant management decisions were taken.

Following the preliminary ruling, the case will now be remitted to the Austrian court which is responsible for applying the CJEU’s guidance and determining whether the directors actually incur liability under applicable Austrian law.

4.1 A Tense Separation of Office and Obligation

The Court’s distinction between obligations “specific to company law” and obligations “external” to it may be potentially difficult to sustain in this context.

A director’s decision to offer online gambling services in a Member State without holding the requisite licence is not a general act performed erga omnes. It is a paradigmatic management decision, taken precisely because the individual holds the office of director and exercises control over the company’s commercial strategy. The duty to ensure regulatory compliance in market entry is closely bound up with corporate governance and risk allocation, particularly in highly regulated sectors such as gambling.

The Court relies on the fact that the prohibition is framed as a general rule applicable to “any person”. However, in practice, only those directing the activities of the undertaking are capable of infringing the prohibition in the manner alleged.

4.2 The generic ‘duty of care’ analogy

The Court relies heavily on the distinction drawn in earlier case law between:

• a specific duty of care owed by directors to the company (company law), and
• a generic duty of care erga omnes (tort law).

However, this analogy sits uneasily with regulatory breaches in highly regulated sectors such as gambling. Unlike ordinary negligence, compliance with licensing regimes is inseparable from corporate governance. Treating such obligations as “external” significantly limits the operation of Article 1(2)(d) in regulated industries.

The ruling confirms the applicability of Rome II while, in substance, applying the consumer-protective logic of Article 6 of the Rome I applicable to contractual obligations:

51. In the present case, those requirements militate also in favour of designating the place where the player is habitually resident as the place where the alleged damage occurred…

The CJEU justifies the approach as analogous to the determination of the ‘place where the harmful event occurred or may occur’ in Article 7(2) of Regulation No 1215/2012 for the purposes of jurisdiction. However, this approach may risk encroaching on the distinction between contract and tort that has traditionally been treated as structurally decisive in EU private international law.

There are several preliminary rulings delineating the parameters of the ‘place where the damage occurred’ for the purposes of Article 4(1) of Rome II, and yet the CJEU saw fit to propose a specific sub-connecting factor within the umbrella of Article 4(1), for claims brought by the players of games offered by gambling companies. The sub-connecting factor identified essentially reproduces the one in Article 6 of Rome I for consumer claims in contract: the habitual residence of the consumer.

The outcome may be defensible from a consumer-protection perspective, but it raises questions of doctrinal coherence and legal certainty. Once the Court characterises the claim as non-contractual, the consequences of that classification should follow. Consumer protection under Article 6 Rome I is not triggered by consumer status alone, but by participation in a consumer contract meeting specific conditions. Its rationale – derogation from general connecting factors in favour of the consumer’s habitual residence – is inseparable from the existence of a contractual relationship with a professional acting in the course of its business. Rome II, by contrast, contains no equivalent consumer-specific rule, suggesting a deliberate legislative choice not to extend such protection to non-contractual obligations. Applying that logic here might have prompted closer engagement with the reliance on a conflict rule whose rationale depends on the existence of a contract in the absence of one.

While the Court insists that the imputation of liability is a matter for the applicable tort law rather than the lex societatis, the choice-of-law outcome itself has unmistakable substantive consequences.

By designating the consumer’s habitual residence as the applicable law, the Court enables claimants to:

• bypass the insolvent company,
• sue directors personally, and
• subject them to a foreign legal system with which their corporate conduct may have only an indirect connection.

This functionally might be compared to a form of veil-piercing, where the corporate shield of separate juridical personality is not pierced by substantive company law doctrines, but by re-characterising managerial conduct as ‘external’ to company law for the purposes of Rome II. The result may be an expansion of directors’ personal exposure as a by-product of the determination of applicable law.

The judgment in Wunner undoubtedly strengthens consumer protection and curtails the avoidance of host-state gambling controls through cross-border structuring. Yet it does so by drawing a distinction that is debatable. Do directors decide whether the company should hold a licence as private individuals, or as corporate officers?

Treating these decisions as external to company law risks blurring the boundary between corporate responsibility and personal liability, and in doing so, transforms Rome II from a neutral conflict-of-laws instrument into a powerful substantive lever. Whether this functional carve-out can be confined to gambling cases, or will spill over into other regulated sectors, remains an open and important question.

Directors of gaming companies should therefore carefully assess their personal and corporate risk profile when deciding which jurisdictions to offer online games in, as jurisdictional and applicable law rules may result in implications well beyond traditional frameworks.

Just 10 days left to participate in the public consultation on the Draft Text of a possible new HCCH convention on parallel proceedings and related actions!

The public consultation, launched on 18 November 2025, will close on 26 January 2026 at 9.00 a.m. CET. Experts, practitioners and judges from diverse legal traditions with experience in cross-border litigation and private international law more broadly are encouraged to participate in the consultation.

In 2021, the HCCH established a Working Group on matters related to jurisdiction in transnational civil or commercial litigation (WG), comprised of over 60 subject-matter experts from across the globe. The WG, after nine meetings, has developed a Draft Text containing provisions aimed at addressing parallel proceedings and related actions taking place in multiple States, acknowledging the primary roles of both jurisdictional rules and the doctrine of forum non conveniens. The objective of this future instrument would be to enhance legal certainty, predictability, and access to justice by reducing litigation costs and mitigating inconsistent judgments in transnational litigation in civil or commercial matters.

The public consultation seeks feedback on whether the Draft Text would, in practice, assist in addressing such matters and how the provisions in the Draft Text could be improved. The consultation is supported by a Consultation Paper comprising an Executive Summary, a detailed explanation of the key provisions and the operation of the Draft Text, and specific questions.

Responses received from this consultation will be submitted to all HCCH Members for consideration in advance of the next meeting of the Council on General Affairs and Policy (CGAP), the governing body of the HCCH, in March 2026, at which the Members of the HCCH will decide on the next steps for the project.

For more information on the public consultation, please visit: https://www.hcch.net/en/projects/legislative-projects/jurisdiction/public-consultation

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

One of the requirements for issue estoppel is identity of issue. However, the process of ‘refining down’ or ‘salami-slicing’[1] is not always clear. The argument that the issue is different because the two courts would arrive at different conclusions on the governing law is increasingly being utilised as a litigation strategy. If the first court applied its choice of law rules to determine that the governing law of the claim is Utopian law, would an issue estoppel arise over this decision in the second court if under the second court’s choice of law rules, Ruritanian law is the governing law? The answer depends on whether the ‘slice’ is thick or thin. Is the relevant issue ‘What law governs the dispute or issue?’ or ‘What law is identified by our (forum) choice of law rules to govern the dispute or issue?’

For example, there is considerable difference in tort choice of law rules. Some jurisdictions apply the double actionability rule.[2] Most jurisdictions adopt the lex loci deliciti or lex loci damni rule,[3] with differences on how the relevant locus is identified and whether a flexible exception in favour of the law of closer connection is present. Party autonomy is also permitted in certain jurisdictions.[4] Thus, in tort claims, the issue could be framed in different ways: eg, ‘what is/are the law(s) governing the tort?’, ‘what is the lex loci delicti?’, ‘where in substance did the tort arise?’, or ‘where was direct damage suffered’? It will be obvious that only the first, broad, framing of the issue, or, in other words, a ‘thick’ slice, will result in there being identity of issue. In essence, the question is: does a difference in choice of law rules matter for issue estoppel purposes?

The Hong Kong Court of Final Appeal in First Laser v Fujian Enterprises (Holdings) Co Ltd[5] took the view that an issue estoppel can arise over a foreign decision on the governing law of the dispute. However, there is a suggestion in the Singaporean Court of Appeal decision of Gonzola Gil White v Oro Negro Drilling Pte Ltd that a difference in the two laws is relevant.[6] Arguably, the Court’s views were limited to the specific situation where the Singaporean court as the second court would have arrived at Singaporean law after application of Singaporean choice of law rules. This is because the Singaporean court views it as part of its constitutional responsibilities to safeguard the application of Singaporean law.[7]  If this is correct, it is doubtful that the same approach would be adopted by at least the English courts, as English courts are prepared accord preclusive effect to a judgment of a foreign court even where that foreign court had made an error on English law in its judgment.[8]

The English Court of Appeal in Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2)[9] held that no issue estoppel will arise over a question involving forum international public policy. This is entirely explicable as each country’s public policy differs. It has also been suggested that no estoppel arises over an issue which is subject to a forum overriding mandatory rule.[10] Decisions on sensitive matters which give rise to comity considerations should also be excluded.[11]

The question is whether decisions on the governing law merit the same treatment. It is argued that for most private law claims, a foreign decision on the governing law of the dispute or on a specific issue in the claim is generally capable to giving rise to an issue estoppel. A contrary conclusion would disregard the policies underlying estoppel and allow forum shopping. However, some choice of law categories – eg, choice of law for consumer contracts or employment contracts, or for environmental torts – are underpinned by public policy considerations. For these special choice of law categories, it is suggested that the forum court retains the prerogative to decide on the issue of the governing law for itself, despite a prior foreign decision on the same point. In other words, a narrow ‘slice’ is appropriate.

The same broad-narrow question arises in other contexts. It could arise in the jurisdictional context: would the first court’s decision on the applicability of the personal equities exception for the Mocambique rule give rise to an estoppel in subsequent proceedings in a different court? What about a decision on which court is forum (non) conveniens? How about arbitration, where the balance of competing considerations may lie differently compared to international litigation? For example, should an issue estoppel arise over a foreign decision on subject-matter arbitrability?[12] Is it relevant if the first court decided this issue at the pre-award stage or at the post-award stage pursuant to proceedings to enforce an arbitral award? Does it matter if the first court is the court of the seat?[13]

These, and other questions, are considered in the open access article Adeline Chong, ‘Salami-Slicing’ and Issue Estoppel: Foreign Decisions on the Governing Law’, International and Comparative Law Quarterly (FirstView).

[1] Desert Sun Loan v Hill [1996] 2 All ER 847, 859 (Evans LJ).

[2] Eg, Singapore: Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377 (Singapore

CA); Hong Kong: Xiamen Xinjingdi Group Co Ltd v Eton Properties Ltd [2020] 6 HKC 451; Japan: Act on General Rules for Application of Laws (Act No 78 of 2006), art 22.

[3] Eg, Rome II Reg, art 4(1).

[4] Eg Rome II Reg, art 14; Swiss Federal Code on Private International Law, art 132.

[5] [2013] 2 HKC 459 (HKCFA).

[6] [2024] 1 SLR 307 [87] (Singapore CA).

[7] Ibid [78]-[79].

[8] Good Challenger Navegante SA v MetalExportImport SA, (The “Good Challenger”) [2003] EWCA Civ 1668, [54]–[55]. See also Godard v Grey (1870) LR 6 QB 139.

[9] [2012] EWCA Civ 855.

[10] Merck Sharp & Dohme Corp v Merck KGaA [2021] 1 SLR 1102 [55] (Singapore CA).

[11] See the reference to ‘matters of high policy’ in Yukos [2012] EWCA Civ 855 [151].

[12] Diag Human SE v Czech Republic [2014] EWHC 1639 (Comm) [58].

[13] See The Republic of India v Deutsche Telekom AG [2024] 1 SLR 56 (Singapore CA).

The 19th World Conference of the International Society of Family Law (ISFL) will take place in Istanbul, Türkiye, from 9 to 12 September 2026. The conference will be hosted by Pîrî Reis University at its Marine Campus in Tuzla, offering a distinctive coastal setting for this major event.

The theme of the conference is “Family Law & Vulnerability.”

The conference will explore how family law engages with different forms of vulnerability across diverse legal systems and social contexts. Contributions addressing the theme from comparative, interdisciplinary, theoretical or practice-oriented perspectives are welcomed.

The deadline for abstract submission has been extended to 20 February 2026. Abstracts may be submitted for paper presentations (including jointly authored papers) as well as for organized panels. Detailed submission guidelines are available on the conference website.

Conference registration will open in late February 2026. Registration fees for participation in the scientific program are as follows:

• ISFL members: €400 (early bird) / €450 (regular)
• Non-members: €500 (early bird) / €550 (regular)
• Participants from low-income countries: €250 (early bird) / €300 (regular)

The early bird rates will apply until 1 May 2026. Registration fees cover access to the scientific sessions of the conference; social events will be subject to separate registration and fees.

The conference venue, Tuzla, is located on the Asian side of Istanbul and is conveniently close to Sabiha Gökçen International Airport, which serves numerous international and domestic flights. Tuzla is well connected to other parts of the city by public transport.

A list of recommended hotels on the Asian side of Istanbul will be published on the conference website in due course, providing a range of accommodation options with convenient access to the venue by public transport.

Further information on registration procedures, accommodation and the conference program will be made available on the official conference website: www.isfl2026.org.

Giacomo Marola’s International Jurisdiction over Infringements of Personality Rights in EU Private International Law (2025 Wolters Kluwer) addresses a deceptively simple but persistently debated question: where should a claimant be entitled to sue when reputation, privacy, or personal data are infringed across borders? As the book makes clear from the outset, this question lies at the intersection of private international law, fundamental rights, and the realities of online communication. Personality rights disputes are structurally conflictual, typically opposing the protection of moral integrity to freedom of expression, while the Internet continues to strain jurisdictional rules built around territorial connecting factors. Against this backdrop, the book offers a timely and systematic assessment of the EU framework.

Chapter I constitutes the analytical core of the work. It provides a detailed examination of Article 7(2) of the Brussels I-bis Regulation and the Court of Justice’s case law on the ‘place of the harmful event’ in personality rights disputes. From Shevill to eDate Advertising, Bolagsupplysningen, Mittelbayerischer and Gtflix, Marola carefully examines the construction of locus actus and locus damni, focusing in particular on the publisher’s place of establishment, the persistence of the ‘mosaic’ approach, and jurisdiction based on the victim’s centre of interests. The chapter goes beyond doctrinal reconstruction by assessing these solutions against the objectives of proximity, predictability, and procedural balance, and by advancing a well-argued proposal de lege ferenda.

Chapter II places the EU approach in comparative perspective through an analysis of US jurisdictional doctrine in defamation and online tort cases. By retracing the path from Keeton and Calder to the rise and decline of the Zippo test and the renewed prominence of the ‘effects’ doctrine, the chapter sheds light on both convergences and structural differences. In doing so, it provides a useful corrective to overly enthusiastic transatlantic borrowings sometimes found in the European literature.

The final chapter turns to the General Data Protection Regulation and its interaction with the Brussels I-bis Regulation. Chapter III examines both public and private enforcement mechanisms, with particular attention to Article 79 GDPR and its implications for jurisdictional choice in data protection litigation. By integrating GDPR disputes into the broader analysis of personality rights, the book captures an increasingly central area of cross-border litigation.

Overall, the monograph combines doctrinal precision, critical insight, and pragmatic proposals, making it a valuable contribution for scholars and practitioners engaged with jurisdictional questions at the crossroads of EU private international law and fundamental rights.

On Thursday 12 February 2026, the Australasian Association of Private International Law (AAPrIL) is hosting its first seminar of 2026, as Professor Stephen Pitel presents free online and in-person (Qld, Australia) on the topic, ‘Reconsidering the “Proper Party” Basis for Jurisdiction’.

Abstract:

In several jurisdictions the fact that a defendant is a ‘proper party’ to a legal proceeding constitutes a sufficient basis for taking jurisdiction over that defendant. Advocates of the proper party basis rely on considerations of fairness and efficiency to support it. Do these considerations support the proper party basis, especially if it is given a wide scope? Recently Canadian courts have been reconsidering their approach to the proper party basis, as seen (somewhat opaquely) in Sinclair v Venezia Turismo, 2025 SCC 27. This presentation will explore that reconsideration and offer thoughts for changes in other jurisdictions including Australia and New Zealand.

Chair:

Mary Keyes is Professor of Law at Griffith University, and President of AAPrIL. She is a leading scholar on questions of international jurisdiction and international family law. Mary is co-author of Private International Law in Australia, and is a member of the Working Group on Jurisdiction at the Hague Conference on Private International Law.

Presenter:

Stephen Pitel Stephen G.A. Pitel is a Professor in the Faculty of Law at Western University. His research and teaching are focused on private international law, tort law, civil procedure and legal ethics. Stephen is the author of Conflict of Laws (3rd ed. 2025) and co-author of Private International Law in Common Law Canada: Cases, Text and Materials (5th ed. 2023) and Statutory Jurisdiction: An Analysis of the Court Jurisdiction and Proceedings Transfer Act (2012). His tort law scholarship includes co-authoring Fridman’s The Law of Torts in Canada (4th ed. 2020) and Cases and Materials on the Law of Torts (11th ed. 2023). In the field of legal ethics, Stephen is a contributor to Lawyers’ Ethics and Professional Regulation (4th ed. 2021). He is a former President of the Canadian Association for Legal Ethics.

Details:

Date and time: Thursday 12 February 2026, 5:00pm to 6:00pm (AEST)*

Date and time Thursday 12 February 2026, 5:00pm to 6:00pm (AEST)
in person: Griffith University, Southbank, Brisbane: Room 4.03 Building S07. The map is available here.

RSVP (essential): Please register via this link by COB Wednesday 11 February 2026, and advise whether you are attending in person or online. Please access the Teams link here. There is no cost.

* NZ. 8:00pm-9:pm; ACT, NSW, Tas and Vic. 6:00pm-7:00pm; SA, 5:30pm-6:30pm; Qld, PNG. 5:00pm-6:00pm; NT, 4:30pm-5:30pm; WA, 3:00pm-4:00pm

The Child Support Forum in cooperation with the International Union of Judicial Officers is pleased to invite every interested stakeholders of the cross border child support recovery to an open conference on January 28th, 2026 from 3 to 5:30 pm (CET).

According to Art. 41 of Regulation (EC) No. 4/2009 and Art. 32 of the 2007 Child Support Convention, the enforcement procedure shall be governed by the law of the state of enforcement. But in practice, the prospects of successfully initiating cross-border enforcement proceedings are not always easy to assess. In order to enforce successfully, it is necessary to know the specifics of the legal system of the state of enforcement (the Requested state).

Key questions in this context are:

• What does the process of enforcement of child support looks like in different states?
• Are maintenance claims given a degree of priority?
• How do Central Authorities facilitate the ongoing enforcement of maintenance decisions?
• What are the conditions for children to be exempted from costs?

The meeting aims to review the international legal framework and provide an overview of the various national enforcement systems. Finally, the advantages and disadvantages of the different systems from a legal policy perspective shall be discussed.

The participation is free of charge but registration is required.

To register, click here.

Following the successful release of Legal Challenges of China’s One Belt One Road Initiative: Private International Law Considerations late last year, as previously announced on this blog,  co-editors Dr Poomintr Sooksripaisarnkit (University of Tasmania) and Dr Sai Ramani Gariimella (South Asian University) are pleased to invite you to an upcoming online book launch.

This virtual event will feature insights from three distinguished contributors:

• Dr Jie (Jeanne) Huang (University of Sydney)
• Dr Nobumichi Teramura (Keio University Law School)
• Professor Beligh Elbalti (The University of Osaka)

Presentations will be followed by a moderated Q & A and discussion session.

This event is open to the public; please refer to the attached flyer to scan the QR Code for Zoom access.

Canada’s highest court does not grant leave to appeal in many cases involving private international law.  In November 2025 it granted leave to appeal from NHK Spring Co., Ltd. v Cheung, 2024 BCCA 236, in which the British Columbia Court of Appeal agreed with the court below in holding that it had jurisdiction to hear a price fixing class action.  The action is interesting because it involves what could be described as a “foreign” conspiracy that had effects within Canada.

The defendants are Japanese entities and the claim alleges that they conspired to fix the price of “suspension assemblies” which are a component of hard disk drives which are in turn a component of things like computers.  The claim alleges that Canadians purchased products that contained these assemblies and because of the price fixing they paid more than they otherwise would have done.

The defendants object to being sued in British Columbia.  As the Court of Appeal explained (at [11]), “None of the appellants have a relevant personal presence in Canada. Their headquarters are overseas. They do not operate in Canada. They do not carry out business in Canada for Assemblies. There have been no direct sales of Assemblies in Canada. There has been no pleading that they conspired to fix prices in Canada, actually fixed prices in Canada, or allocated markets within Canada. The initial action does not name a defendant located in Canada and there is no Canadian market for Assemblies. That market exists outside Canada. Assemblies are low cost components and any overcharge in relation to a particular final product is arguably negligible.”

British Columbia is one of the provinces that has adopted a statute on jurisdiction (the CJPTA) and it presumes a real and substantial connection to the forum, and thus territorial competence (jurisdiction), in a proceeding concerning a tort committed in the forum (s 10(g)).  The Court of Appeal relied on several of its own prior decisions in stating (at [43]) that “The judge’s statement that the tort of conspiracy is committed where the harm occurs, even if the conspiracy is entered into elsewhere, is indisputably correct” (emphasis added).  It went on to conclude that the presumed connection had not been rebutted by the defendants.

The parties’ written arguments for and against leave to appeal are available here.  The defendants seek to have the SCC develop the law on how the place of a tort is identified.  They raise the concern that the focus on the location of the harm does not sit well with earlier SCC decisions, notably Club Resorts (available here) rejecting the place of damage or injury as a sufficient jurisdictional connection.  The defendants also ask the SCC to provide more clarification on how a presumption of jurisdiction is to be rebutted, though it should be noted that since those arguments were filed the SCC has released Sinclair v Venezia Turismo, 2025 SCC 27 which does contain significant discussion of that stage of the analysis.

In response, the plaintiffs argue that the law regarding the place of the tort of conspiracy for jurisdiction purposes is well-settled and not in need of development or revision.  In the context of taking jurisdiction, it is acceptable for more than one place to be considered the place of a tort; a single place need not be identified.  The plaintiffs rely on the longstanding approach in Moran v Pyle National (Canada) Ltd., [1975] SCR 393.  Not surprisingly, both sides of the dispute rely on various aspects of the competing decisions in the English Brownlie litigation.

As is its practice, the SCC did not provide reasons for granting leave to appeal.  We have to await clues in the oral argument and then of course the subsequent written decision to determine what the SCC thought warranted its involvement.

I. Introduction

On 1 January 2026, the Legislative Decree No. 25/2025 promulgating a new Civil Transactions Act (hereafter ‘NCTA’) entered into force. The NCTA repeals and replaces the former Federal Civil Transactions Act of 1985 (hereafter ‘the 1985 Act’). The adoption of the NCTA forms part of the State’s broader and ongoing effort to comprehensively update and modernize its legal system, an effort that has already touched major legislative instruments, including, among many others, the 2022 Civil Procedure Act, the 2024 Personal Status Act, the 2023 Competition Act, and the 2022 Commercial Transactions Act.

Since the 1985 Act contained a codified set of conflict-of-laws rules, its replacement necessarily entails a re-examination of the UAE’s private international law framework and, at least in principle, the introduction of new or revised choice-of-law provisions. Against this background, this note offers a preliminary and necessarily tentative assessment of the modifications introduced by the NCTA. It focuses on the main features of the new law in relation to choice-of-law regulation, highlighting both the changes introduced and the limits of the reform.

II. The Choice-of-Law System under the 1985 Act and its Evolution

1. Choice of Law Rules under the 1985 Act

It is worth recalling that the first codification of conflict-of-laws rules in the UAE was introduced in 1985 as part of the 1985 Act. This codification consisted of 29 provisions (Arts. 10–28), incorporated into the Preliminary Part of the Act. In both structure and substance, the UAE codification closely followed the Egyptian model. Remarkably, despite the 37 years separating the two codifications, most of the Egyptian rules were retained almost unchanged. Some divergences nevertheless existed. For instance, while renvoi is entirely excluded under Egyptian law (Art. 27 of the Egyptian Civil Code), it is permitted under the 1985 Act only where it leads to the application of UAE law (Art. 26 of the 1985 Act).

The codification was relatively simple, comprising general choice-of-law rules structured by reference to broad legal categories, dealing in particular with status and capacity (Art. 11); marriage, its effects, and dissolution (Arts. 12–14); maintenance (Art. 15); guardianship and other measures for the protection of persons with limited capacity and absentees (Art. 16); succession and wills (Art. 17); real rights (Art. 18); contractual obligations (Art. 19); non-contractual obligations (Art. 20); and procedure (Art. 21).

The codification also included general provisions governing characterization (Art. 10); the priority of international conventions (Art. 22); general principles of private international law (Art. 23); national law (Art. 24); multi-jurisdictional legal systems (Art. 25); renvoi (Art. 26); public policy (Art. 27); and the application of UAE law in cases where the content of the applicable foreign law cannot be ascertained (Art. 28).

2. The 2020 Reform

It was not until 2020 that the choice-of-law rules were partially reformed through the Legislative Decree No. 30/2020, which amended certain provisions of the 1985 Act. This reform was not comprehensive but instead targeted four key areas.

First, the rule on substantive and formal validity of marriage was amended to replace the former connecting factor based on the lex patriae of each spouse with the lex loci celebrationis (Art. 12).

Second, the rule on personal and patrimonial effects of marriage and its dissolution based on the lex patriae of the husband was similarly abandoned in favor of the lex loci celebrationis.

Third, Article 17, relating to succession and wills, was revised to allow professio juris for both the substantive and the formal validity of wills. As regards the former, the will is governed by the law chosen by the testator, failing which the lex patriae of the deceased at the time of death applies. As for formal validity, professio juris now operates as an additional alternative connecting factor.

Finally, the reform addressed public policy. For reasons that remain unclear, Article 27 expressly limited the operation of the public policy exception by excluding matters traditionally associated with personal status – such as marriage, divorce, filiation, maintenance, guardianship, succession, and wills – from its scope, despite the fact that these matters are generally regarded as having a strong public policy character (Art. 3).

Other provisions, however, were left unchanged, notwithstanding the fact that many of them are outdated and no longer reflect contemporary developments in private international law, in particular the persistence of traditional connecting factors such as the common domicile of the contractors and the locus contractus in contractual matters or double actionability rule for non-contractual obligations. More fundamentally, the reform failed to address the interaction between the conflict-of-laws rules contained in the 1985 Act and the provisions delimiting the scope of application of the 2005 Personal Status Act, which was subsequently replaced by the 2024 Personal Status Act. This unresolved issue of articulation continues to generate significant legal uncertainty (for an overview, see my previous posts here).

III. The New Reform under the NCTA

It was therefore with genuine enthusiasm that the reform of the existing legal framework was awaited, particularly in light of the ongoing efforts to modernize the UAE legal system and align it with international standards. However, while the reform does present some positive aspects (1), it is with considerable regret that the NCTA appears to have devoted only very limited attention to the modernization of the UAE conflict-of-laws regime (2).

This assessment is grounded in two main observations:

First, the existing system has largely been maintained with only some minor changes, including changes in wording.

Second, the very limited modifications that were introduced reflect a legislative approach that, at best, appears insufficiently informed by contemporary developments in private international law.

1. Positive Aspects of the Reform

Three main positive aspects can be identified:

The first concerns the clear affirmation of party autonomy as a guiding principle in contractual matters. Under the 1985 Act, although party autonomy was formally recognized, its formulation tended to present it as an exception rather than as a genuine principle. This shortcoming has now been remedied in the NCTA. The new provision expressly states that “contractual obligations, as to both form and substance, are governed by the law expressly chosen by the parties.” In addition, the NCTA abolishes the place of conclusion of the contract as an objective connecting factor applicable in the absence of a choice of law by the parties, thereby moving away from a traditional and often criticized criterion.

Second, the questionable rule allowing the application of UAE law when one of the parties has multiple nationalities is now abandoned. According to the new rule, in case a person has multiple nationalities, the law of nationality under which that person entered the UAE would apply.

The third important modification concerns public policy. As noted above, the 2020 reform introduced considerable confusion and ambiguity in the application of the public policy exception by unduly restricting its scope and excluding matters that have traditionally been regarded as falling within public policy. The NCTA addresses this difficulty by removing the limitation introduced in 2020 and by restoring the public policy exception to its more general function within the UAE conflict-of-laws system.

Another modification of particular significance should also be highlighted, although it must be acknowledged that its practical impact may be more symbolic than substantive. This concerns the abandonment, in the current reform, of any explicit reference to Islamic Sharia in the context of public policy, even though such a reference, which appeared in the original provision in 1985, was expressly maintained in the 2020 reform. This omission marks a notable shift in legislative technique and appears to signal a move toward a more neutral formulation of public policy, at least at the level of statutory language.

The removal of the explicit reference to Islamic Sharia may thus be understood as part of a broader trend toward the modernization and internationalization of the UAE’s private international law framework. This interpretation is further supported by the redefinition of the role of Islamic Sharia as a formal source of law under the NCTA. Indeed, whereas former Article 1 of the 1985 Act set out a detailed hierarchy of rules prioritizing specific schools of jurisprudence (most notably the Maliki and Hanbali schools), the new Article 1 of the NCTA adopts a more open-ended formulation, granting judges greater discretion to select “the solution that is most appropriate in light of the interests at stake,” without specifying any particular school of reference. A similar approach was adopted in the 2024 reform of the Personal Status Act.

2. Limits of the Reform and Persisting Issues

 Notwithstanding the positive aspects identified above, the reform also presents a number of significant shortcomings. These concern both certain newly introduced provisions, whose design or content raises serious difficulties, and important issues that the legislature chose not to address or appears to have overlooked altogether. Taken together, these weaknesses considerably limit the extent to which the reform can be regarded as a genuine modernization of the UAE conflict-of-laws regime.

a) New Solutions Introduced in the NCTA

i) The The Conflict-of-Law rule in Matters of Marriage and its Dissolution:  The Further Extension of the Scope of the Nationality Privilege

As noted above, prior to the entry into force of the NCTA, the lex loci celebrationis governed the substantive and formal validity of marriage (Art. 12), as well as its personal and patrimonial effects and its dissolution (Art. 13). Marriages concluded between  foreigners, or between a foreigner and a UAE citizen, could also be recognized as valid in form if they complied with the formalities of the place of celebration, or if they respected the formal requirements prescribed by the law of each of the spouses (Art. 12). The application of these rules was, however, subject to an important exception: they did not apply if one of the parties was a UAE citizen at the time of the marriage, except with respect to capacity (Art. 14).

First, it should be noted that the NCTA failed to resolve the inconsistency between Articles 12 and 14. While Article 12 allows the formal validity of marriages concluded by UAE citizens abroad to be governed by the lex loci celebrationis, Article 14 removes this possibility by subjecting all matters relating to the formation of marriage, its effects, and its dissolution exclusively to UAE law when one of the parties is a UAE citizen.

Second, and more importantly, the NCTA extends the scope of the exception in a problematic manner. Under the new rules, the exception now applies not only to persons who were UAE citizens at the time of the marriage, but also to those who subsequent to their marriage acquired UAE citizenship, and retained that citizenship up to the time the action is brought.

On its face, this rule raises two main concerns. First, it introduces retrospective effects by applying UAE law to marriages concluded before the acquisition of citizenship. This potentially affects the validity, formalities, and effects of marriages that were lawfully concluded under foreign law. Second, it may create uncertainty in cross-border matrimonial relations, as spouses who acquire UAE nationality after marriage could inadvertently subject themselves to UAE law even if all formal and substantive requirements were originally satisfied abroad. Such an extension of the nationality privilege, while it may be of very limited practical relevance, represents a questionable departure from traditional conflict-of-law principles based on the ideas of acquired rights, and the respect of the legitimate expectations of the parties.

ii) The Conflict-of-Law rule in Contractual Matters

Despite the positive aspects noted above, the new rule suffers from significant shortcomings. These shortcomings relate, first and foremost, to the scope and the regime of party autonomy. In particular, the provision remains silent on several crucial issues: whether the chosen law must have any connection with the parties or the contract; whether an initial choice of law may be modified at a later stage; and whether techniques such as dépeçage or the choice of non-State law are permissible. All these uncertainties undermine the effective operation of party autonomy and weaken legal certainty.

Second, in the absence of a choice of law by the parties, the NCTA not only retains the outdated reference to the parties’ common domicile as the primary objective connecting factor, but also introduces a new connecting factor whose application is likely, in practice, to lead systematically to the application of UAE law. Under the new rule, where there is neither a choice of law nor a common domicile, the contract is governed by the law of the State in which the principal obligation is to be performed. Unlike the traditional test of the “characteristic obligation”, which typically leads to the identification of a single governing law presumed to have the closest connection with the contract, the notion of “principal obligation” is inherently problematic in the field of choice of law. This is because bilateral contracts, which constitute the main instruments of international trade, by their very nature involve more than one principal obligation, such as the delivery of goods and the payment of the price in a contract of sale. As a result, in contracts involving a UAE party, whether as obligor or obligee, the performance of at least one principal obligation will often take place in the UAE, thereby triggering the systematic and largely indiscriminate application of UAE law. Even if the term “principal obligation” is understood as referring to the “characteristic obligation,” the new provision departs from the general approach adopted in leading recent codifications by designating the place of performance (locus solutionis) of that obligation, rather than the more widely accepted and more predictable connecting factor of the habitual residence of the party performing the characteristic obligation.

Of course, the parties may seek to avoid this difficulty by choosing the law applicable to their contract. However, given the very weak status of foreign law in the UAE, where it is treated as a mere question of fact, and the considerable hurdles imposed on the parties in establishing its content in judicial practice, the practical relevance of party autonomy is largely illusory. This assessment is once again confirmed by several recent Supreme Court decisions in which the law chosen by the parties was not applied on the grounds that the chosen law was not ascertained as required (see Dubai Supreme Court, Appeal No. 720 of 13 August 2025; Appeal No. 1084 of 22 October 2025; Appeal No. 1615 of 23 December 2025). The same difficulties arise in family law matters, as discussed in a previous post, but they are identical in substance in civil and commercial cases as well.

b) Persisting Issues

Notwithstanding the few positive developments highlighted above, the conflict-of-laws rules incorporated in the NCTA largely preserve the traditional Egyptian model introduced into the region in 1948. As a result, they remain significantly disconnected from contemporary developments and comparative trends in private international law and fail to fully reflect the principles increasingly adopted in other jurisdictions to address the needs of cross-border transactions, family relations, and international commercial practice. The reform also preserved a traditionally rigid approach, leaving little room for flexibility and excluding exception clauses that would allow courts to depart from the designated applicable law in favor of a more closely connected one. In particular, the NCTA does not introduce tailored conflict rules designed to reflect the specific characteristics of certain legal relationships. This omission is especially noticeable with regard to protective regimes for weaker parties, including employees and consumers. Unlike many modern conflict-of-laws systems, the NCTA does not limit the role of party autonomy in these contexts, nor does it provide specific choice-of-law rules for employment or consumer contracts. Similar shortcomings can be observed in the absence of specialized rules governing particular categories of torts or addressing specific aspects of family relationships.

Finally, as was already the case following the 2020 reform, the NCTA fails to resolve the longstanding and fundamental issue concerning the articulation between the rules delimiting the scope of application of the Personal Status Act and the choice-of-law rules set out in the NCTA. This problem has become even more acute with the recent introduction of “civil personal status” legislation at both the federal level and the local level in the Emirate of Abu Dhabi, thereby further complicating the overall normative landscape (for an overview see my previous posts here and here).

IV. Some Concluding Remarks

Taken as a whole, while the adoption of the NCTA could have provided an opportunity to undertake a thorough and forward-looking reform of the UAE’s private international law framework by drawing inspiration from the most recent developments in the field and from general trends observed in comparative law. Such a reform would have helped consolidate the UAE’s position and ambitions as a leading hub not only for international finance and business transactions, but also as a melting pot of multiple nationalities living harmoniously within its territory. However, the reform ultimately falls short of this ambition. It largely preserves an outdated structure and introduces only limited, and at times problematic, adjustments. Moreover, the reform does nothing to address the strong homeward trend observed in judicial practice, which significantly limits the practical relevance of choice-of-law rules. This trend is particularly evident in personal status legislation and in the very weak status accorded to foreign law. In this respect, the NCTA represents a missed opportunity to align the UAE’s conflict-of-laws regime with modern comparative standards and to enhance legal certainty, predictability, and coherence in an increasingly international legal environment.