Droit international général

This post is posted on behalf of Arnav Sharma, Jindal Global Law School, Sonipat, India

 

Introduction

On 25th July 2025, a single judge bench of the Delhi High Court delivered a judgment in Engineering Projects (India) Limited v. MSA Global LLC (Oman) in CS (OS) 243 of 2025[1] that has stirred considerable discourse in international arbitration circles. The fundamental question at issue in the instant case was whether an Indian Court can grant an anti-arbitration injunction to stay proceedings in a foreign-seated arbitration on grounds of the proceedings turning oppressive and vexatious due to procedural impropriety, notwithstanding internationally well-settled principles of minimal judicial intervention, party autonomy, and lex arbitri that govern international commercial arbitration? The Delhi High Court answered in the affirmative, holding that Indian civil courts possess inherent power under Section 9 read with Section 151 of the Code of Civil Procedure, 1908 (“CPC”) to intervene under exceptional circumstances where the arbitral process itself becomes a vehicle of abuse.

 

This ruling carries profound implications for India’s aspirations to position itself as a global arbitration hub. By granting relief that undermines the exclusive jurisdiction of the Courts at the Seat (Singapore in the instant case), the ruling has invited scrutiny vis a vis its alignment with the territorial principle as elaborated upon in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. (“BALCO”)[2], and with internationally accepted ‘best practices’ which are well-settled considering that they promote predictability and finality in cross-border dispute resolution.

 

Facts

Engineering Projects (India) Limited (“EPIL”), a public sector enterprise, entered into a sub-contract agreement with MSA Global LLC (Oman) (“MSA”) for the design, supply, installation, integration, and commissioning of a border security system at the Yemen-Oman border. The agreement contained an arbitration clause stipulating that any disputes would be resolved by way of arbitration under the rules of the International Chamber of Commerce (“ICC”) with Oman’s law being the governing law, while conferring exclusive jurisdiction upon the courts at New Delhi, India. For the sake of clarity, Article 19 of the agreement between the parties containing the aforementioned arbitration clause, is extracted in its entirety as under:

 

“ARTICLE 19

LAW AND ARBITRATION

19.1 Disputes if any, arising out of or related to or any way connected with this agreement shall be resolved amicably in the First instance or otherwise through arbitration in accordance with Rules of Arbitration of the International Chamber of Commerce. The jurisdiction of the Contract Agreement shall lie with the Courts at New Delhi, India.

 

19.2 This Agreement shall be governed by, construed and take effect in all respects according to the Laws and Regulations of the Sultanate of Oman.

 

19.3 Any dispute or difference of opinion between the parties hereto arising out of this Agreement or as to its interpretation or construction shall be referred to arbitration. The Arbitration Panel shall consist of three Arbitrators, one Arbitrator to be appointed by each party and the third Arbitrator being appointed by the two Arbitrators already appointed, or in event that the two Arbitrators cannot agree upon the third Arbitrator, third Arbitrator shall be appointed by the International Chamber of Commerce. The place of the Arbitration shall be mutually discussed and agreed.

 

19.4 The decision of the Arbitration Panel shall be final and binding upon the parties.”

 

In the course of performance of the contract, disputes arose between the parties concerning alleged delays in contractual performance. Consequently, MSA invoked the arbitration agreement in 2023 nominating Mr. Andre Yeap SC (“Mr. Yeap”) as a co-arbitrator. Thereafter, on 20.04.2024, Mr. Yeap submitted his statement of acceptance, availability, impartiality and independence to the ICC, expressly declaring that he had “nothing to disclose” with respect to any facts or circumstances that could give rise to justifiable doubts as to his impartiality or independence. EPIL nominated Hon’ble Justice Mr. Arjan Kumar Sikri (Retd.) as its co-arbitrator. The Tribunal was duly constituted on 05.09.2023 with Mr. Jonathan Acton Davis KC being appointed as the presiding arbitrator by the co-arbitrators.

 

In June 2024, the tribunal rendered a first partial award on MSA’s application for interim measures. EPIL challenged this award before the Singapore High Court. In December 2024, in preparation of the evidentiary hearings, EPIL, through a Gujarat High Court Judgment dated 05.07.2024 titled Neeraj Kumarpal Shah v. Manbhupinder Singh Atwal, discovered the Mr. Yeap had been previously appointed as an arbitrator in separate proceedings involving Mr. Manbhupinder Singh Atwal who happens to be MSA’s Managing Director, Chairman, and Promoter. This prior involvement had not been disclosed when Mr. Yeap accepted his appointment. As such, on 19.01.2025, EPIL filed a challenge application before the ICC Court under Article 14(1) of the ICC Rules alleging non-disclosure and raising doubts about Mr. Yeap’s independence and impartiality. The ICC Court in its decision acknowledged the non-disclosure as “regrettable” but rejected EPIL’s challenge on merits, finding that the circumstances did not establish justifiable doubts regarding Mr. Yeap’s impartiality or independence. Subsequently, EPIL filed an application before the Singapore High Court under Article 13(3) of the UNCITRAL Model Law seeking determination on the validity of Mr. Yeap’s continued participation, and also simultaneously approached the Delhi High Court by filing the instant suit seeking a declaration and permanent injunction restraining MSA from continuing the ICC arbitration with the present tribunal composition. Further complicating the matter, MSA filed an enforcement petition before the Delhi High Court for the recognition and enforcement of the First Partial Award while also obtaining an anti-suit injunction from the Singapore High Court restraining EPIL from continuing its proceedings before the Delhi High Court.

 

The Dispute

The crux of the legal controversy in this case was around three inter-related questions.

 

1. Whether an Indian Civil Court has the jurisdiction to entertain a suit seeking an anti-arbitration injunction against a foreign-seated arbitration, particularly in light of the fact that the parties had agreed to arbitrate under ICC Rules with Singapore being designated as the seat. In this respect, MSA relied upon the judgment in Indus Mobile Distribution Pvt. Ltd. v. Datawind Innovations Pvt. Ltd. (“Indus Mobile”)[3] to contend that once parties agree to a specific seat of arbitration, it is solely the Courts at that seat that retain supervisory jurisdiction over the arbitral process to the exclusion of all other Courts. MSA further argued that the suit was barred by Section 5 and Section 45 of the Arbitration and Conciliation Act of 1996 which are the statutory embodiment of the principle of minimal judicial intervention and the territoriality doctrine affirmed in BALCO.

 

11. Whether the non-disclosure by Mr. Yeap rendered the arbitration proceedings vexatious, oppressive, and violative of Indian Public Policy. In this regard, EPIL argued that Mr. Yeap’s failure to disclose this material information constituted a manifest violation of Article 11 of the ICC Rules, which mandates arbitrators to disclose any facts or circumstances likely to give rise to justifiable doubts as to their impartiality or independence. EPIL contended that such non-disclosure strikes at the root of party consent and procedural fairness thereby rendering the entirety of the arbitral process illegitimate. On the other hand, MSA relied upon Article 11.2 of the ICC Rules read with Clause 3.1.3 of the IBA Guidelines which mandate disclosure only if an arbitrator has been appointed on two or more occasions in the past three years by a party or one of its affiliates; MSA contends this requirement had not been satisfied in the instant case.

 

III. Whether EPIL was entitled to interim injunctive relief restraining the continuation of arbitral proceedings pending final disposal of the suit.

 

As such, this dispute was centred around reconciling party autonomy and minimal judicial intervention on one hand, with the Court’s duty to prevent abuse of process and ensure procedural fairness on the other [4].

 

The Decision

 

On Maintainability

At the very outset, the Delhi High Court affirmed the strong presumption in favour of the civil court’s jurisdiction as under Section 9 of the CPC, which confers authority to adjudicate all suits that are of a civil nature unless the same is expressly or through implication barred by statutory law. The Court relied on the case of Dhulabhai v. State of Madhya Pradesh[5] and held that the exclusion of civil court jurisdiction cannot be readily inferred and must be clearly provided by law. Further, the Court distinguished the rulings in Indus Mobile and BALCO, noting that while these judgments do affirm the seat principle and the territoriality doctrine, they did not create an absolute bar on civil courts’ power to grant an anti-arbitration injunction in exceptional circumstances. The Court found guidance in the Union of India v. Dabhol Power Company[6] and ONGC v. Western Company of North America [7], wherein it was held that Indian Courts do have the power to grant injunctions against foreign proceedings whenever the circumstances make the proceedings oppressive, or where such an injunction is necessary or expedient, or when the ends of justice so require; with the former specifically referring to Sections 5 and 45 of the Arbitration and Conciliation Act of 1996 and stating that neither of them oust, entirely, the jurisdiction of the Indian Courts. Additionally, the Court emphasised the distinction between anti-suit injunctions and anti-arbitration injunctions, noting that the latter require a higher threshold of oppression or vexatiousness to be met, citing examples along the lines of doubts as to the consent of the parties, allegations of forgery, or fundamental procedural impropriety which can meet the aforementioned threshold. Crucially, the Court held that the principle of minimal judicial intervention does not and must not translate into negligible interference[8], and said this crucial difference has been preserved to ensure that private dispute resolution mechanisms such as arbitration do not turn oppressive or operate in an unruly manner, which can be deemed contrary to the foundational principles of judicial propriety.

 

On Vexatiousness and Oppressiveness of the Proceedings

The Court began the discussion in this regard by defining “vexatious” as proceedings instituted in the absence of sufficient legal basis and primarily intended to annoy, harass, and/or burden the opposing party, and “oppressive” as conduct that unjustly imposes harsh burdens or unfair disadvantages upon a party to the proceedings. Thereafter, in reference to the ICC Rules, the Court noted that Article 11 therein casts a categorical obligation upon arbitrators to make full and frank disclosure of any circumstance that might give rise to justifiable doubts regarding their impartiality or independence. It was emphasised that this obligation must be assessed from the perspective of the parties as is clear from the language of the provision insofar as it says “in the eyes of the parties”, rather than from an arbitrator’s subjective perception of bias. Further, it was noted that the arbitrator cannot withhold disclosure on the ground that the fact appears benign or remote in lieu of the fact that the obligation arises when there exists even a possibility that the information, if known to the parties, might give rise to an apprehension of bias in the parties’ minds.

 

The Court found that Mr Yeap’s non-disclosure was deliberate and calculated. Even though Mr. Yeap admitted in his response to the initial challenge application that he had made enquiries and was aware of the potential need for disclosure, he chose not to do the same based on his subjective assessment that four years had passed since the prior appointment in the matter concerning MSA’s Chairman. Moreover, Mr. Yeap had acknowledged in the initial proceedings that “had I made the disclosure, the possibility of the Respondent seeking to challenge my impartiality could not be discounted”. The Court viewed this statement as evidence of the fact that the non-disclosure was intentional and aimed at avoiding objection. Further, the Court held that the ICC Court’s decision on the challenge, while acknowledging the non-disclosure as “regrettable”, erroneously misplaced the burden on EPIL to demonstrate actual bias rather than focusing on the breach of the mandatory disclosure requirement, thereby noting that the decision was a classic case of operation successful, but patient dead. The logic behind this was that, while the ICC Court’s decision may seem sound on the surface and in compliance with the formal procedure, it did not address the substantive loss of confidence in the arbitral process’s neutrality.

 

On Interim Injunction

As such, applying the triple test of (i) prima facie case, (ii) balance of convenience, and (iii) irreparable harm for interim injunction as under Order XXXIX Rules 1 and 2 of the CPC, the Court found that all three conditions were satisfied and accordingly stayed the ICC arbitral proceedings until final disposition of the suit and restrained both parties from participating in the arbitration with the tribunal’s present composition.

 

Concluding Remarks

While the judgment articulates laudable concerns about procedural fairness and impartiality, the approach that has been adopted raises serious questions about jurisdictional overreach, inconsistency with India’s pro-arbitration legislative intent, potential damage to India’s credibility as an arbitration-friendly jurisdiction.

 

Firstly, the most fundamental flaw in the judgment lies in its erosion of the seat principle which is unarguably a cornerstone of international arbitration law[9]. The UNCITRAL Model Law, which forms the very basis of India’s Arbitration and Conciliation Act, is predicated on the seat principle, which has also been unequivocally affirmed by the Indian Supreme Court in cases such as BALCO. By granting an anti-arbitration injunction in this matter, the Delhi High Court effectively usurped the supervisory jurisdiction of the Singapore courts. The Singapore Court had already considered and rejected EPIL’s challenge to Mr. Yeap’s appointment, yet the Delhi High Court substituted its own judgment on the same issue. This created an untenable situation of conflicting judicial orders: the Singapore High Court granted an anti-suit injunction restraining the Delhi proceedings on 23 May 2025, while the Delhi High Court proceeded to grant an anti-arbitration injunction on 25 July 2025. Judicial conflicts of such nature undermine the predictability and finality that parties seek when choosing arbitration, not to mention the violation of principles of comity between courts. Additionally, it’s not as if EPIL was rendered remedy-less before the seat courts at Singapore. There were multiple appeals available to Singapore High Court’s decision on the challenge to Mr. Yeap’s impartiality. The Delhi High Court’s position could still have been appreciated had EPIL had no remedy left at the seat courts except to continue with vexatious and oppressive arbitral proceedings, but this was not the case. Further, the judgment’s reliance on Dabhol Power Company and ONGC v. Western Company were misplaced considering that those cases involved enforcement of foreign awards or bank guarantees, and not the question of intervening in ongoing foreign-seated arbitrations with active supervisory courts. Not to mention that the judgment’s characterisation of MSA’s conduct as vexatious appears rather selective and outrightly ignores EPIL’s own forum shopping tendencies, i.e., filing parallel challenges before ICC, Singapore Courts, and Delhi Courts simultaneously.

 

Secondly, while the Court correctly emphasised the importance of arbitrator disclosure, the underlying principles were applied in a problematic manner. The Court failed to consider that four years had passed since Mr. Yeap’s prior appointment, and neither the ICC Rules nor the IBA Guidelines mandate disclosure of appointments separated by such a temporal gap unless it can be demonstrated that the same constitutes a pattern of repeated appointments; this standard is akin to Entry 20 of the Vth Schedule to India’s 1996 Act. The ICC Court’s decision carefully considered these standards and concluded that while disclosure would have been prudent, a failure to do the same did not give rise to justifiable doubts about Mr. Yeap’s impartiality or independence. The Delhi High Court’s characterization of this reasoned decision as operation successful, but patient dead is rather dismissive, fails to engage with the substantive reasoning, and fails to also take into account the fact that international arbitration institutions like the ICC possess expertise in assessing arbitrator conflicts; it is a clear case of ‘due process paranoia’ [10]. Domestic courts ought to be cautious about second-guessing such determinations, especially when institutional rules provide clear mechanisms and standards for such challenges. Further, the judgment entirely conflates two distinct issues: whether disclosure was required, and whether non-disclosure renders the arbitrator actually biased.

 

Lastly, the present judgment runs counter to India’s objective to become an arbitration-friendly jurisdiction, as expressed in the Law Commission’s 264th Report. By allowing a non-seat court to stay a foreign-seated arbitration based on alleged procedural impropriety, the decision sends a troubling signal to international parties i.e., choosing India as a contracting party, even with a foreign seat, exposes you to unnecessary intervention by Indian Courts; this is precisely what the BALCO regime sought to eliminate[11]. The judgment also creates a dangerous precedent for other jurisdictions. If Indian courts can intervene in Singapore-seated arbitrations, what is to stop Chinese courts from intervening in London-seated arbitrations, or vice versa? The result would be a race to obtain competing injunctions, undermining the entirety of the international arbitration framework.? Beyond doctrinal concerns, this is also a clear case of practical ineffectiveness. The ICC tribunal and Singapore courts are not bound by the Delhi High Court’s judgment and have continued to recognise the arbitration’s validity. Singapore subsequently issued a permanent anti-suit injunction against EPIL on 18.09.2025, and initiated contempt proceedings when EPIL obtained yet another ex parte injunction from the Delhi courts restraining MSA from participating in the Singapore contempt proceedings. This cycle of competing injunctions serves neither party’s interests and brings both judicial systems into disrepute, which is a massive concern, especially when this ordeal was wholly avoidable considering that under the New York Convention, any award rendered in this arbitration would have ultimately been enforceable in India only through the procedures in Part II of the 1996 Act, at which point EPIL could have raised objections under Section 48, including alleged violation of public policy. The availability of this post-award remedy also undermines the necessity for pre-emptive intervention.

 

A better approach would have been for the Court to (i) recognise that the seat court in Singapore has exclusive supervisory jurisdiction, (ii) acknowledge that EPIL has adequate remedies through the ICC challenge process and challenges before Singapore courts under Article 13 of the UNCITRAL Model Law, along with post-award resistance to enforcement, and (iii) decline jurisdiction on forum non conveniens grounds while allowing EPIL to pursue its remedies before the aforementioned appropriate fora.

 

[1] 2025 SCC OnLine Del 5072.

[2] (2012) 9 SCC 552.

[3] (2017) 7 SCC 678.

[4] See https://www.scconline.com/blog/post/2022/10/20/party-autonomy-or-the-choice-of-seat-the-essence-of-arbitration/ for a discussion.

[5] 1968 SCC OnLine SC 40.

[6] 2004 SCC OnLine Del 1298.

[7] (1987) 1 SCC 496.

[8] See https://disputeresolution.cyrilamarchandblogs.com/2025/08/delhi-high-court-clarifies-scope-of-anti-arbitration-injunctions-in-foreign-seated-proceedings/ for a discussion.

[9] See https://indiacorplaw.in/2025/09/08/jurisdictional-overreach-and-the-illusion-of-equity-a-critique-of-the-delhi-high-courts-intervention-in-epi-v-msa-global/ for a discussion.

[10] See https://forum.nls.ac.in/nlsir-online-blog/arbitrator-non-disclosure-before-the-delhi-high-court/ for a discussion.

[11] See https://legalblogs.wolterskluwer.com/arbitration-blog/a-shield-of-justice-or-a-sword-through-the-seat-the-delhi-high-courts-contentious-anti-arbitration-injunction/ for a discussion.

FAMIMOVE 3.0 is an international project co-funded by the European Commission under the JUST-2025-JCOO program. The project’s full name is Families on the Move: The Coordination between international family law and migration law.

This project seeks to build on the results of FAMIMOVE 2.0 by focusing on children on the move in vulnerable situations and by consolidating the networks already established of experts in family law, child protection and migration law. It involves 7 universities in 6 EU Member States.

The duration of the project is two years from 1 March 2026 to 29 February 2028.

The Consortium is coordinated by Prof. Marta Pertegás Sender (Maastricht University) and is comprised of the following partners: Prof. Thalia Kruger (Antwerp University), Prof. Orsolya Szeibert (Eötvös Loránd University), Prof. Ellen Desmet (Ghent University), Prof. Ulf Maunsbach (Lund University), Prof. Carlos Esplugues (University of Valencia) and Prof. Fabienne Jault (University of Versailles Saint-Quentin-en-Yvelines). They will be supported by colleagues with expertise in these fields from their universities and beyond.

As indicated in the project summary, “FAMIMOVE’s general objective is to contribute to the effective and coherent application of the EU acquis in the field of international family law, in particular by ensuring more awareness of international child protection instruments applicable to migrant children […].”  In particular, FAMIMOVE 3.0 “intends to map the measures for the protection of children in 6 EU MS in family law and their interaction with migration law. In addition, it will put in place three transnational sub-projects relating to the portability of civil status documents (with a focus on statelessness and the age of the child), the interrelationship between international child abduction and migration law, and the protection of Ukrainian children in the EU.”

As part of this project, interviews will be conducted with Ukrainian children in order for them to express their views, which will be duly taken into account, and to fully participate in the results of the project in accordance with the UN Convention on the Rights of the Child.

As indicated, FAMIMOVE 3.0 is a spin-off of earlier projects with the same name, namely FAMIMOVE 2.0 and FAMIMOVE. The website of FAMIMOVE 2.0 is still operational. To view it, click here. One of the main achievements of this project is the book entitled Children in Migration and International Family Law: The Child’s Best Interests Principle at the Interface of Migration Law and Family Law and may be consulted here. We have previously posted on this project here and here.

FAMIMOVE resulted in two insightful documents published by the European Parliament: Children on the Move: A Private International Law Perspective and Private International Law in a Context of Increasing International Mobility: Challenges and Potential.

Any new development will be published here – stay tuned.

 

Views and opinions expressed in this project are however those of the authors only and do not necessarily reflect those of the European Union or the European Commission. Neither the European Union nor the granting authority can be held responsible for them.

The EAPIL Winter School was established in 2024. The three editions organised so far attracted, globally, more than 80 participants, mostly PhD students, young academics and professionals, coming from 16 countries. The courses, held at the Department of Law, Economics and Cultures at the University of Insubria, in Como, have resulted in collective volumes that […]

The following call was kindly shared with us by Michiel Poesen (University of Aberdeen).

This is a call for papers and panels for the Private International Law subject section at the SLS Annual Conference 2026. This year, the annual conference will take place at the University of East Anglia in Norwich. The conference dates are: 2-4 September 2026.

The Private International Law section will meet in the first half of the conference on 2-3 September, and we can run up to four sessions, each lasting 90 minutes.?Doctoral students are very welcome and are encouraged to submit papers for consideration in the Subject Sections Programme. The conference theme is Doing Law Differently, but the Private International Law Subject Section welcomes paper and panel proposals on any topics connected to our discipline.

Conference Information

The 2026 conference at UEA will be fully in-person. This decision reflects a move globally to resume in person conferences, as well as the significant costs surrounding the delivery of a fully virtual attendance. However, it will be possible for members of the SLS to register to view the plenary sessions at the conference online. Furthermore, Council members who are not attending the 2026 Conference will still be able to attend the Council meeting and AGM virtually?and, consistent with our EDI priorities, speakers who cannot attend may, on sufficient notice, be able to present virtually. We will also endeavour to allow speakers unable to attend at the last minute due to ill-health or travel restrictions to present virtually. We continue to offer support for attendance via our Annual Conference Additional Support Fund (ASF) to support those with special circumstances warranting additional support. Priority for support will be given to applicants who have no other source of funding.

Submitting through Oxford Abstracts

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Friday 27 March 2026. All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed here – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same email address this year (if that address remains current). For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.

This is the fourth year we will be running first blind peer review, with a subsequent non-blind review once initial decisions have been made to consider profile diversity before final decisions are made and communicated. The feedback from convenors on this process has been very positive. We intend to communicate decisions on acceptance by Friday 8 May 2026.

Submission Format

We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the Private International Law subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.?Sessions are 90 minutes in length. Those proposing panels should include up to three speakers per panel (though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity).

As the SLS is keen to ensure that as many members with good quality papers as possible can present, speakers should not present twice at the conference at the expense of another credible paper.?The general expectation is that authors will submit no more than one single and/or one co-authored paper. There should be a maximum of 3 speakers per paper. For papers with more than 3 authors, the authors should consider submitting a panel. Submissions with multiple authors should clearly identify non-speaking and speaking authors. When you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

The Best Paper Prize

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career, and which is open to those presenting papers individually or within a panel.? The Prize carries a £300 monetary award, and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.

To be eligible for the Best Paper Prize :

• Speakers must be fully paid-up members of the SLS (where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and must be fully paid up. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final).
• Papers should be submitted as a word document and must not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count).
• Papers must be uploaded to the paper bank by 11:59pm UK time on?Friday 28 August 2026.
• Papers must not have been published previously or have been accepted or be under consideration for publication.
• Papers must have been accepted by a Convenor in a Subject Section and an oral version of the paper must be presented at the annual conference by at least one of the authors.
• Where a paper is delivered as part of a panel, the paper will only be eligible for consideration where: (a) the abstract for the panel indicates that this specific paper will be delivered at the annual conference, and that abstract has been accepted by a Convenor in a Subject Section; and (b) an oral version of the specific paper has been presented at the annual conference by at least one of the authors.
• Where a Convenor or Final Panellist is unable to judge, for example, where there is a conflict of interest, they will nominate another member of the Section or Executive Committee member to act as an alternate (a conflict of interest includes, but is not limited to, where a Convenor, Chair or Judge is a colleague or PhD supervisor of an author).
• The SLS adopts the same policy as Legal Studies as regards AI. The policy is available via this?link.

In 2020, the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal.

To be eligible for the Best Paper by a Doctoral Student Prize:

• Speakers must be fully paid-up members of the SLS who are doctoral students (where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be fully paid up members and all authors must be doctoral students, whatever their discipline. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final).
• Papers must be submitted in word document format and should not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count).
• Papers must be uploaded to the paper bank by 11:59pm UK time on?Friday 28 August 2026.
• Papers must not have been published previously or have been accepted or be under consideration for publication.
• Papers must have been accepted by a Convenor in a subject section and an oral version of the paper must be presented by at least one of the authors at the annual conference.
• Where a paper eligible for this prize wins the Best Paper Prize, the judges may at their discretion award the prize for Best Paper by a Doctoral Student to a different nominated paper.
• The judges may announce a shortlist at their discretion with the winner to be announced by the first week in November.
• Where a paper is delivered as part of a panel, the paper will only be eligible for consideration where: (a) the abstract for the panel indicates that this specific paper will be delivered at the annual conference, and that abstract has been accepted by a Convenor in a Subject Section; and (b) an oral version of the specific paper has been presented at the annual conference by at least one of the authors.
• Where a Convenor or Final Panellist is unable to judge, for example, where there is a conflict of interest, he or she will nominate another member of the Section or Executive Committee member to act as an alternate (a conflict of interest includes, but is not limited to, where a Convenor, Chair or Judge is a colleague or PhD supervisor of an author).
• The SLS adopts the same policy as Legal Studies as regards AI. The policy is available via this?link.

Registration and paying for the conference

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 19 June 2026 to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you.?Booking information will be circulated in due course and will open after the decisions on the response to the calls are made. Understanding the challenges faced by higher education, the SLS will keep ticket prices at 2025 rates for the 2026 conference.

With best wishes,

Dr Michiel Poesen
Dr Patricia Živkovi?

Co-convenors of the Private International Law section

Philippine Blajan, who is a professor at the University of Versailles Saint Quentin, has published La combinaison des autonomies en droit international privé des contrats. Étude des interactions entre le choix de juridiction et le choix de loi (The Combination of Party Autonomies in the Private International Law of Contracts. A study of the interactions between […]

On 18 February 2026, a Corrigendum to Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) has been published in the Official Journal of the European Union. The Corrigendum […]

Written by Dr Priskila Pratita Penasthika, Assistant Professor, Faculty of Law, Universitas Indonesia

INTRODUCTION

The Indonesian Personal Data Protection Law, Law Number 27 of 2022 (Indonesian PDP Law), came into effect on 17 October 2022. Before its enactment, data protection rules in Indonesia were fragmented across different sector-specific laws and regulations. The Indonesian PDP Law aims to unify these laws and regulations, providing greater clarity and ensuring consistent personal data protection across all sectors in the country. The Indonesian PDP Law sets out normative provisions on personal data protection; however, detailed, practical rules have yet to be specified in the implementing regulations. As of now, the drafting of these implementing regulations is still underway.

Many of the fundamental elements of the Indonesian PDP Law, including definitions of covered data and entities, lawful grounds, processing obligations, accountability measures, and relationships between data controllers and processors, are modelled after the European Union’s General Data Protection Regulation (GDPR). Nonetheless, several key provisions are tailored specifically to the Indonesian context. For instance, the Indonesian PDP Law has broad extraterritorial reach, which shall apply to entities insofar as their personal data processing activities have legal implications within Indonesia or pertain to an Indonesian national data subject outside Indonesian jurisdiction.

To date, there have been five decisions by the Constitutional Court of the Republic of Indonesia (Mahkamah Konstitusi Republik Indonesia) concerning the Indonesian Personal Data Protection Law. Briefly, the Indonesian Constitutional Court functions as one of Indonesia’s apex judicial authorities, alongside the Supreme Court. Its primary jurisdiction involves the constitutional review of enacted laws (undang-undang) in Indonesia to assess their conformity with the 1945 Indonesian Constitution (as lastly amended in 2002), thereby safeguarding the constitutional rights therein. Its decisions are final, legally binding, and possess immediate legal effect upon issuance, with no provisions for appeal or annulment by any other institutional body.

This piece will focus on the most recent ruling by the Constitutional Court issued on 19 January 2026 regarding the Indonesian PDP Law, namely Case Number 137/PUU-XXIII/2025, as it pertains to matters within private international law.

FACTS

The Petitioner mainly requests a constitutional review of Article 56 of the Indonesian PDP Law, which specifies the requirements for cross-border personal data transfers. Article 56 delineates a tiered set of prerequisites for such transfers. A personal data controller responsible for transmitting personal data abroad (data exporter) must verify that the recipient country offers an adequate or higher level of personal data protection than that provided by the Indonesian PDP Law. If this requirement is not met, the data exporter must ensure that sufficient and binding data protections are in place in the recipient country. If neither condition is satisfied, the data exporter is obliged to obtain consent from the data subject prior to transferring personal data abroad. Furthermore, the forthcoming implementing regulations are expected to provide further details on the specific requirements for cross-border data transfers.

The petition was initiated with the briefing announcement issued by the White House on 22 July 2025 concerning the Framework for Negotiating a Reciprocal Trade Agreement between Indonesia and the United States of America (Indonesia-USA Reciprocal Trade Agreement Negotiation Framework). As part of this framework, Indonesia has committed to establishing legal certainty regarding the ability to transfer personal data outside its borders to the United States.

The Petitioner argued that the Indonesia-USA Reciprocal Trade Agreement Negotiation Framework has led to a key interpretation of Article 56 of the Indonesian PDP Law concerning the transfer of citizens’ personal data beyond Indonesian borders. The Petitioner maintained that, under a strict interpretive approach, the PDP Law allows data controllers to assess the adequacy requirement independently, without parliamentary oversight. This could potentially weaken democratic accountability and expose personal data vulnerable to misuse. Additionally, the Petitioner emphasised that such commitments should require approval from the House of Representatives, as they directly impact national sovereignty and the protection of citizens.

The foundation of the Petitioner’s petition is based on Article 28G, paragraph (1) of the 1945 Indonesian Constitution, which protects citizens’ rights to their dignity, family, honour, and property, as well as the right to be free from threats to their fundamental rights. Additionally, the Petitioner referred to Article 11 of the 1945 Indonesian Constitution, which confers authority on the House of Representatives and the President to conclude international agreements.

Therefore, the Petitioner requests that the Constitutional Court interpret the provisions of Article 56 of the Indonesian PDP Law to mean that transferring personal data to jurisdictions such as the United States should occur only if there is an international agreement approved by the Indonesian House of Representatives. Moreover, transfers to countries considered to lack adequate personal data protection standards should take place only with the consent of the data subjects, after informing them of the risks involved in the cross-border transfers of their personal data.

CONSTITUTIONAL COURT DECISION

The Constitutional Court rejected all of the Petitioner’s petition and arguments. According to the Court, the cross-border transfer of personal data constitutes part of the administrative and technical measures carried out by the executive branch, rather than an agreement between nations that creates rights and obligations in the domains of politics, defence, or sovereignty. Based on this reasoning, the Court affirmed that there is no constitutional obligation to involve the Indonesian House of Representatives in any cross-border data transfer process, including in determining the adequacy decision regarding such a personal data transfer.

Regarding the adequacy decision, the Court held that the personal data controller (data exporter) shall undertake technical verification procedures to ascertain whether the recipient country of the personal data transfer maintains data protection standards that are adequate or even higher than those provided in the Indonesian PDP Law. Furthermore, the Court pointed out that cross-border personal data transfers do not rely solely on the personal data controller to ensure adequacy or higher protection standards in the recipient country. Instead, it also necessitates the existence and active involvement of the Personal Data Protection Authority (PDPA), as prescribed in Articles 58-61 of the Indonesian PDP Law. The PDPA is tasked with overseeing, evaluating, and implementing technical policy measures to ensure compliance with requirements for cross-border personal data transfers. Nevertheless, it is important to note that such authority has yet to be established.

 REMARKS

Despite the Constitutional Court’s rejection of the petition, Case Number 137/PUU-XXIII/2025 brings to light persistent concerns regarding the Indonesian PDP Law, particularly its provisions on cross-border personal data transfers. These issues call for further discussion and highlight the pressing need to pass the implementing regulations and establish the PDPA.

First, clarification is required regarding the party responsible for conducting cross-border transfers of personal data. Article 56 of the Indonesian PDP Law exclusively employs the term ‘personal data controller’ (pengendali data pribadi) in the context of cross-border data transfers, which seems to imply that only personal data controllers are authorised to carry out such transfers.

Second, it is necessary to delineate which countries are recognised as having adequate or higher levels of personal data protection. In this context, Article 60(f) of the Indonesian PDP Law provides that the PDPA is empowered to assess whether the requirements for cross-border personal data transfers are satisfied. The significant role of the PDPA in cross-border personal data transfer is also emphasised by the Constitutional Court Judges in Case Number 137/PUU-XXIII/2025. Since the PDPA has not yet been established or designated to date, this situation underscores the urgent need to set up or appoint such an authority.

Third, the forthcoming implementing regulations of the Indonesian PDP Law are expected to clarify issues surrounding cross-border personal data transfers, including the incorporation of whitelists and blacklists of specific jurisdictions, standardised contractual language, and specific data processing activities such as pseudonymisation and encryption. It is also presumed that the personal data controller and the forthcoming PDPA will be required to report to the Indonesian Ministry of Communication and Digital regarding cross-border transfers of personal data.

Fourth, as set out at the outset of this piece, the Indonesian PDP Law has an extensive extraterritorial scope. In the event of a personal data breach involving cross-border transfer of personal data, any individuals, corporations, public entities, and international organisations—irrespective of their origin or residence—whether functioning as personal data controllers or processors, may be considered potential defendants for violations that affect the rights of an Indonesian data subject. Referring to Article 2 of the Indonesian PDP Law, this applicability is contingent upon the occurrence of their misconduct (1) within the jurisdiction of Indonesia or (2) outside of Indonesia, provided that such misconduct results in legal consequences (a) within the Indonesian jurisdiction or (b) impacting an Indonesian personal data subject outside of Indonesian territory.

The subsequent issue concerns the court’s jurisdiction. As no cross-border data protection litigation has occurred in Indonesia to date, the court’s position in this matter remains indeterminate. Nevertheless, Indonesian courts are notorious for their indifference and insularity when addressing foreign-related issues. Furthermore, Indonesian civil procedural law does not specify provisions regarding parallel litigation. Consequently, in case of parallel proceedings concerning a cross-border data transfer dispute, it is likely that the Indonesian court would exercise jurisdiction and proceed with the legal proceeding in Indonesia, notwithstanding the existence of an ongoing legal proceeding involving the same dispute and parties in a foreign court.

If proceedings are conducted in a foreign court, the complexities of the issues may increase. Indonesia maintains a stringent stance that a foreign judgment is not enforceable unless it pertains to damages arising from marine salvage. Any foreign, other than those on damages resulting from marine salvage, must undergo re-examination by an Indonesian court. In light of this stance, it is apparent that Indonesian courts would not recognise or enforce foreign judgments concerning cross-border personal data transfer disputes and would require such disputes to be relitigated before an Indonesian court.

Practical challenges also include the complexities of seizing assets or digital evidence located in foreign jurisdictions, given that Indonesia has not yet acceded to the HCCH 1970 Evidence Convention.

Further details concerning the Indonesian PDP Law and its private international law aspects are available in Priskila Pratita Penasthika, “Chapter 12 – Indonesia” in Adrian Mak, Ching Him Ho, and Anselmo Reyes (eds.), Privacy and Personal Data Protection Law in Asia (Hart Publishing, 12 December 2024).

 

 

 

 

 

 

 

 

 

 

 

 

On 24 February 2026, the Council of the European Union approved the position of the European Parliament at first reading (reported on this blog) on the proposal for a directive amending, among other legislative measures, Directive (EU) 2024/1760 on corporate sustainability due diligence (CSDDD). The directive has thereby been formally adopted (the final text can […]

The author of this post is Katja Karjalainen, who is a professor at University of Lapland, Finland. In its decision of 4 December 2025 (KKO:2025:102), the Finnish Supreme Court clarified that a parental agreement on intended habitual residence is irrelevant under the 1980 Hague Child Abduction Convention (the 1980 Hague Convention) and that a child […]

Advocate General Spielmann’s opinion in case C-876/24, Vueling Airlines (Juridiction compétente en cas de contrat en ligne de transport aérien national) will be published on Thursday 26th. The Court of First Instance No 1, Fuenlabrada, Spain, has referred the following questions to the Court of Justice: First. Must Article 3(1) of Regulation (EC) No 2027/97 [of […]

On Friday 29 May 2026 in Groningen, the Netherlands, Dr. Benedikt Schmitz from the University of Groningen is hosting a larger symposium on the topic of “Digitalisation of Justice: Perspectives from Germany and the Netherlands”

Theme

This event brings together leading and upcoming scholars to explore how digital transformation – from AI in adjudication to fully online proceedings – is reshaping our legal systems, while raising important questions about access to justice, procedural fairness, and the rule of law.

Programme

• A keynote by Dr. Benjamin Grimm, Minister of Justice and for Digitalisation (Federal State of Brandenburg, Germany)
• Expert panels on:
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  • Civil Procedure (Prof. Dr. Gralf-Peter Calliess; Prof. Dr. Pauline Ernste; Patrick Koerts)
  • Criminal Procedure (Prof. Dr. Hannah Ofterdinger; Assoc.-Prof. Dr. Dorris de Vocht; Assoc.-Prof. Dr. Laura Peters; Asst.-Prof. Dr. Glenn Thodé)
  • Administrative Law (Prof. Dr. Sarah Rachut; Prof. Dr. Sofia Ranchordas; Asst.-Prof. Dr. Ida Varošanec)
• Elevator pitches by emerging scholars presenting cutting-edge research (Serap Bilgin, Noelle Funk, Sabrina Pölle, Constanze Rothermel, Anne Spijkstra)
• Plenty of time for discussion and networking, including coffee breaks, lunch, poster sessions, and an optional conference dinner

The full programme can be found on the conference website: https://weakerparties.eu/events/digitalisation-of-justice/

Time and Venue

• 29 May 2026, 8.30-17.10 CET
• Venue: House of Connections, Grote Markt 21, Groningen, the Netherlands

Registration

• This event is strictly in-person only.
• Attendance is free of charge.
• Register here: https://weakerparties.eu/events/digitalisation-of-justice/

On 25 February 2026, the Catholic University of the Sacred Heart in Milan will host a seminar in English titled Recognition of U.S. Securities Class Actions in Europe: Compatibility of Opt-Out Claims with the Right to a Fair Trial. The main speaker will be Meltem Ece Oba (Koç University, Istanbul), while Marco Lamandini (University of […]

The latest issue of the International and Comparative Law Quarterly (Volume 74, Issue 4) features one article on private international law. Adeline Chong, ‘Salami-Slicing’ and Issue Estoppel: Foreign Decisions on the Governing Law, 875-903 Whether an issue estoppel arises over foreign decisions on the governing law of the claim has not been directly considered by an English […]

The team of editors behind the EAPIL blog has just become larger. Konrad Duden, a professor of civil law, private international law and comparative law at the University of Hamburg, and Caterina Benini, a post-doctoral researcher and adjunct professor at the Catholic University of the Sacred Heart in Milan, have joined the blog as permanent […]

A new issue of ZEuP – Zeitschrift für Europäisches Privatrecht is now available and includes contributions on EU private law, comparative law and legal history, legal unification, private international law, and individual European private law regimes. The full table of content can be accessed here: https://rsw.beck.de/zeitschriften/zeup.

The following contributions might be of particular interest for the readers of this blog:

Ignacio Tirado: UNIDROIT on the Occasion of Its (first) 100 Years

In the editorial, UNIDROIT on the Occasion of Its (First) 100 Years, Ignacio Tirado, Secretary General of UNIDROIT, traces the organisation’s origins and evolution, reflects on how it has navigated a turbulent century, and offers thoughts on how its centenary should be celebrated and what lies ahead for the Institute.

Wolfgang Wurmnest und Marie-Sophie Pillin: Der Data Act: Ein punktuelles europäisches Vertragsrecht für den Zugang und die Nutzung von Daten

Wolfgang Wurmnest and Marie-Sophie Pillin on Der Data Act: Ein punktuelles europäisches Vertragsrecht für den Zugang und die Nutzung von Daten highlights key private law provisions of the European Data Act. It analyzes the relationship between data controllers, users, and recipients, which in future will primarily be governed by contracts. In addition, the paper examines the new European rules on unfair contract terms.

Christian Kohler, Marlene Brosch, Jean-Christophe Puffer-Mariette: Unionsrecht und Privatrecht: Zur Rechtsprechung des EuGH im Jahre 2024

In Unionsrecht und Privatrecht: Zur Rechtsprechung des EuGH im Jahre 2024, Christian Kohler, Marlene Brosch and Jean-Christophe Puffer-Mariette offer an overview of numerous judgments of the ECJ in 2024 that are relevant to private law. Particularly noteworthy are decisions on the effects of Union citizenship and the enforcement of the General Data Protection Regulation as well as numerous judgments on consumer protection directives. A number of issues relating to the prohibition of discrimination and market freedoms have also been decided; judgments on copyright are equally worth mentioning.

Susanne Gössl: Das „Anerkennungsprinzip“ und das Internationale Recht der Geschlechtszugehörigkeit nach „Mirin“

Susanne Gössl on Das „Anerkennungsprinzip“ und das Internationale Recht der Geschlechtszugehörigkeit nach „Mirin“ comments on the recent ECJ decision of 4 October 2024, C-4/23 – Mirin regarding gender identity. The note explores how the Court strengthens the portability of a lawfully acquired gender identity within the EU, the limits of public policy objection, the treatment of non-binary gender entries, and the broader consequences of Mirin for the acceptance of a personal status in EU private international law. Finally, it assesses the repercussions of the judgment for German law.

For those interested in the EU’s sustainability framework, the article by Moritz Böbel, Ronjini Ray, and Marc-Philippe Weller on Die EU-Entwaldungsverordnung und ihre Auswirkungen auf den Globalen Süden am Beispiel von Indien provides an analysis of the EU’s deforestation regulation and its impacts on the Global South, focusing on India.

This post was written by Jerca Kramberger Škerl, Professor of Private International Law and Civil Procedure at the University of Ljubljana, Faculty of Law, and Working Group member for Slovenia in the EAPIL Working Group on Anti-SLAPP Directive Transpositions. On 28 January, the Slovenian Parliament adopted the Act on Protective Measures concerning Strategic Lawsuits against […]

The thirty-ninth annual survey on choice of law in the American courts is now available on SSRN. The survey covers significant cases decided in 2025 on choice of law, party autonomy, extraterritoriality, international human rights, foreign sovereign immunity, adjudicative jurisdiction, and the recognition and enforcement of foreign judgments.

The cases discussed in this year’s survey address (among other things) the situs of cryptocurrency, exploding batteries in e-cigarettes, the sale of an antique military tank, the validity of an Urfi marriage ceremony, whether the Hague Service Convention prohibits email service on defendants in China, the enforcement of a Philippine forfeiture judgment, and claims of expropriation by German authorities during the Soviet occupation after World War II.

This annual survey was admirably maintained by Symeon Symeonides for three decades. The present authors are pleased to have extended this tradition.

Yesterday, the Project Report of the ELI Project “Enhancing Child Protection: Private International Law on Filiation and the European Commission’s Proposal COM/2022/695 final”

It contains constructive amendments to the original Commission’s Parenthood Proposal and intends to bring it more in line with the acquis and general considerations of EU PIL. Furthermore, it puts the best interest of the child in the focus of the analysis.

For a short background: In December 2022, the EU Commission published the Proposal for a Regulation on Private International Law Rules Relating to Parenthood (COM (2022) 695 fin). An analysis of the original proposal can be found, e.g., here.

Shortly afterwards, at the European Law Institute (ELI), a project group was established (led by Dr. Ilaria Pretelli and me). The following report, which proposes amendments to the initial Commission’s Proposal, was approved by the ELI Council in September 2025 and the ELI Membership in January 2026. The report was published yesterday and is available online here.

The Report examines the Commission Proposal and its critical role in advancing fundamental rights within the EU. While preserving the Commission’s Proposal’s core vision and framework, this analysis recommends strategic refinements that strengthen alignment with the existing EU acquis, foster deeper European integration, and enhance the protection of children’s fundamental rights. In addition, it expands upon the Proposal’s initial emphasis on the EU Strategies for children’s rights and LGBTIQA+ equality by incorporating a comprehensive women’s rights perspective.

If you are interested in the Report or the Proposal and like academic discussions about the subject, there will be a webinar on March 12, 2026, from 12:30-14:00 CET.

The author of this post is Caterina Benini, post-doctoral researcher and adjunct professor at the Catholic University of the Sacred Heart in Milan. The recognition and enforcement of foreign punitive damages judgments in Italy is no longer considered anathema. In 2017, overturning its previous opposition, the Joint Sections of the Italian Supreme Court held that […]

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By Ross Pey, Western University, Canada

1. Introduction

In Case C-86/23 E.N.I. and Y.K.I. v HUK-COBURG-Allgemeine Versicherung AG II (‘HUK-COBURG II’), the principal issue that arose was whether a Bulgarian compensation provision may be interpreted as having mandatory effect. In suggesting that it does not, the Court required the facts to have sufficiently close links with the forum. (Hereinafter the ‘sufficient connexion test’) Ostensibly, a freestanding sufficient connexion test could be viewed as a disguised jurisdictional control of the forum rather than part of a mandatory law analysis. In doing so, parallels to renvoi and forum non conveniens are drawn.

2. Facts

The daughter of the Bulgarian claimants died in a road traffic accident in Germany. The person responsible was insured by the defendant. The claimants commenced a claim in Bulgaria against the defendant for non-material damages suffered for the loss of their daughter. (HUK-COBURG II at [16]–[17])

The case was dismissed on appeal. As German law governed the claim under the Rome II Regulation, the claimants ‘had not established that the mental pain and suffering sustained had caused pathological harm’ required under German law. (HUK-COBURG II at [20], [24], [51])

Crucially, the Court also said that Bulgarian law, in particular Article 52 Zakon za zadalzheniyata i dogovorite (‘ZZD’), did not apply to the case as a mandatory overriding rule under Article 16 Rome II Regulation. This issue as to whether the ZZD applied as a mandatory overriding rule was appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation), which then referred the question to the ECJ.

3. The CJEU’s Reasoning

In essence, the ECJ said that although it is for the member state court to assess whether Article 52 ZZD was a mandatory overriding rule, it strongly suggested that it did not. (HUK-COBURG II at [47]-[54]). In the operative part, the Court said that that the Rome II Regulation must be interpreted as meaning that a forum law ‘cannot be regarded as an ‘overriding mandatory provision’, within the meaning of that article, unless, where the legal situation in question has sufficiently close links with the Member State of the forum, the court before which the case has been brought finds, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that national provision was adopted [.]’ (Emphasis mine)

4. Issues with Linking Sufficient Connexion and Mandatory Law

When faced with an allegedly mandatory provision, HUK-COBURG II requires a three-step analysis: (1) identify whether the law has a mandatory effect, (2) identify whether the facts have a sufficiently close connexion with the forum, and (3) determine whether the facts fall under the statute. One reading of the sufficient connexion test in this context is that it is intrinsic to the concept of mandatory law and is read in by the ECJ into the requirements of Article 16 Rome II Regulation. [1] However, there are two issues with this view.

Firstly, it may be that a sufficient territorial connexion forms part of the reason why a forum statute is a mandatory statute and is relevant to determining whether a mandatory rule applies to the facts.[2] But linking territorial connexion and mandatory effect is problematic as they are analytically distinct. In Soldiers, Sailors, Airmen and Families Association v Allgemeines Krankenhaus Viersen GmbH [2022] UKSC 29, Lord Llyod-Jones warned that there is a risk of ‘confusion’ if both territoriality and mandatory effect are conflated. The former relates to the intrusion into the territorial affairs of another state, while the latter relates to ‘whether the public policy of the forum displaces the more modest presumption that statutes only apply if they form part of the applicable law.’[3]

Secondly, one might argue that sufficient territorial connexion is required for a forum rule to be deemed a mandatory rule. But the difficulty here is why a territorial connexion with the forum matters at all. The point of mandatory overriding rules is that such rules are so important to the forum that they justify the departure from the law chosen by default choice of law rules. Viewed this way, it is difficult to see why the facts must be sufficiently connected with the forum for a mandatory law to apply. Forum mandatory overriding rules operate precisely because they are reflections of fundamental values of the forum. Requiring a territorial connexion could dilute this.

This is not to say that the Bulgarian law ought to be viewed as mandatory law. Rather, from an interpretative standpoint, grounding a rejection simply because the Bulgarian law fails to satisfy a sufficient connexion test is at least open to question.

5. A Disguised Jurisdiction Analysis?

From the above discussion, there exist questions regarding the role of a freestanding connexion test with the concept of overriding mandatory law. It is, however, plausible to read the judgment differently, where the sufficient connexion test is a jurisdictional analysis of forum choice disguised as a choice of law analysis.

Firstly, this interpretation is not precluded by the judgment itself. In the operative part, the ECJ stated that the ‘legal situation in question has sufficiently close links with the Member State of the forum’ before the forum court seised conducts a mandatory law analysis. Further, in the Court’s own analysis of what constitutes mandatory law from paragraphs 37 to 54, the Court did not place reliance on the lack of a sufficient territorial connexion. It was a factor in its own right (paragraphs 32 to 36) but does not seem necessary to the mandatory law analysis and the suggestion that Art 52 ZZD does not have a mandatory effect.

Secondly, both the ECJ judgment and the Advocate General’s opinion suggest this. The Court observed at paragraph 36 that although the claim was brought by the parents, who are domiciled in Bulgaria, the accident took place in Germany and was insured by a German insurer. The daughter who died and the person who caused the accident were Bulgarians, but are now residents in Germany. To a common lawyer, this discussion bears a striking resemblance to Step 1 of the forum non conveniens analysis in Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460, where the court asks which jurisdiction has the most real and substantial connexion with the dispute (ie. the ‘natural forum’). The jurisdictional impetus is fortified by the Advocate General’s opinion, which at paragraph 53 explicitly states that ‘the requirement of a close link helps to prevent forum shopping.’

This jurisprudential instinct to discuss the sufficiency of connexion is not unwarranted. Under the Brussels I bis Regulation, jurisdiction is allocated by a series of brightline rules, normally based on the domicile of the defendant (Article 4), and at times the claimant (for instance, under Article 11). Crucially, in Case C-281/02 Andrew Owusu v N. B. Jackson, the ECJ erred on the side of certainty in rejecting the doctrine of forum non conveniens. But in doing so, it deprived the courts of a flexible tool to control jurisdiction, making an indirect control via choice of law rules understandable.[4]

In fact, controlling jurisdiction via choice of law is not new. Briggs observes in 1998 that the doctrine of renvoi has, in part, served such a function in English law historically.[5] In this vein, the doctrine of forum non conveniens was part of the ‘tailor-made rules against forum shopping which went straight to the heart of the problem, and did not seek to operate by remote control.’[6]

If so, HUK-COBURG II is another example of the interrelatedness of the conflict of laws. When jurisdictional rules are understood rigidly, the pressure points move to other areas, including the choice of law.

[1] Eg. Dominika Moravcová, ‘Navigating the nexus: The Doctrinal Significance of close connection in the Enforcement of (not only) overriding mandatory norms’ (2025)

[2] Eg. Hague-Visby Rules scheduled to the Carriage of Goods by Sea Act 1971.

[3] Soldiers, Sailors, Airmen and Families Association v Allgemeines Krankenhaus Viersen GmbH [2022] UKSC 29 [36].

[4] The irony here is that the ECJ has now read in a sufficient connexion test into both Rome I and II Regulations, a move which it declined to do in the Brussels I bis Regulation.

[5] Adrian Briggs, ‘In Praise and Defence of Renvoi’ (1998) 47(4) The International and Comparative Law Quarterly 877.

[6] Adrian Briggs, ‘In Praise and Defence of Renvoi’ (1998) 47(4) The International and Comparative Law Quarterly 877, 879.