Droit international général

By Juliano Alves Pinto, Brazilian tech diplomat; former Deputy Consul of Brazil in San Francisco (2013–2016); State Undersecretary of Science, Technology, and Innovation (2019–2021); HCCH expert on digital economy (2023–2024); and Government Affairs Director at the Digital Cooperation Organization (DCO) (2024–2025)

Could Private International Law be an answer to digital governance? Though this idea has already been debated among PIL scholars, it must be said that it has not yet broken the bubble of the PIL niche. Diplomats usually overlook PIL as a small part of the larger International Law realm, which embraces Public International Law as the standard bearer of the multilateral framework that has been established ever since the Westphalia Peace in 1648.

However, the uniqueness of digital platforms architecture and its asymmetric relationship with individuals all around the world has made PIL emerge as a relevant normative toolbox to tackle the numerous situations in which the user needs to protect themselves from the leonine contracts and the frequent algorithmic abuses on data extraction, data privacy and, even more often, IA misleading guidance.

A digital platform is usually comprised of a number of layers, which may reflect different jurisdictions according to the territory in which a specific component of the platform architecture is localized. That said, an individual can access a platform in a country A and the platform could be hosted in a country B. Their personal data -collected by the platform- could be stored on a cloud-based server in a country C, not to mention third-party applications used by the platform that could be placed in different jurisdictions. If a lawsuit is set, which law is applicable? Is it the place of business the usual connecting factor?

Instead of long-lasting negotiations to approve an international treaty on a specific emerging technology governance, which usually turns out to be time and resource consuming, a simplified PIL convention that offers an applicable law methodology, defining connecting factors in typical conflict of law situations, as well as the ubiquity of specific platform layers, might be more effective. The current world order on digital governance is a highly fragmented reality, with a number of multilateral initiatives being launched within or without the UN System, from the traditional International Telecommunications Union to the emerging Digital Cooperation Organization, sponsored by Saudi Arabia.

Domestic regulatory frameworks on new technologies are becoming the standard approach in an array of jurisdictions. An example is the digital tokens realm, which has already been regulated in different countries, from Switzerland (2018) to Brazil (2022) and the EU (2023). Even though it might be difficult for lawmakers to cope with technology change, even a provisional regulation is better than self-regulation alone.

From an International Relations perspective, the International Regimes Theory is often regarded as the go-to approach among diplomats and multilateralism experts, as it deals with the idea that cooperation among countries, regardless of self-interest, should be done by a minimal normative system, not necessarily formalized by treaties or an international organization framework.  Stephen Krasner defined international regimes in 1982 as sets of “principles, norms, rules, and decision making procedures around which actors converge in a given issue-area of the international relations.” [1] Normally these principles, norms, and rules are established by the actors themselves to make sure goals through cooperation are achieved. From a digital multilateralism point of view, it is no wonder that the very definition of internet governance included in the WSIS Tunis Agenda in 2005 coincides with Krasner’s classic approach:

34. A working definition of Internet governance is the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.[2]

It is worth noting that the WSIS approach embraces multiple actors, beyond the typical state-centered approach, as innovation requires a triple-helix perspective, alongside the private sector and Academia. Still, governance itself cannot be achieved without a minimal rule-based system. The main difficulty of multilateralism and Public International Law is the time needed to reach the necessary consensus to build up international rules by which countries need to abide.

Technology develops in a much faster pace, which means that the already-late-coming domestic norms ­are often approved quicker than any multilateral framework. In this sense, treaty-based multilateralism might not be the only solution to provide the necessary protection to individuals and digital platforms all around the world.

The other side of the coin is that domestic frameworks alone fail to provide individual protection when cross-border relationships are established through digital platforms and their multiple layers localized in different jurisdictions. PIL in this sense could be the right answer to law efficacy, not only from a multilateral perspective but also from a domestic regulatory system approach.

Interestingly, flexibility and adaptation became one of the main features of International Regimes Theory, not only by embracing new actors but also through the construction of unorthodox multilateral arrangements.[3] That said, PIL institutes, such as applicable law, jurisdiction and judgment recognition, could be included as components of any regime building methodology, whereas domestic regulatory frameworks could become the main normative sources of newly PIL-based regimes of digital governance. The Hague Conference on Private International Law (HCCH) has been tackling this issue since 2022, having successfully established two groups of experts on digital tokens and CBDC’s. Though unfamiliar to most tech diplomats and multilateralism specialists, both initiatives might be fundamental to change the current fragile digital governance landscape, as the definition of the law applicable to platforms might shed some light onto a rather obscure international reality.

Hence, it is about time for tech diplomats, scholars, and policy makers to embrace PIL as a relevant digital governance mechanism. At the end of the day, we just need to make sure individuals receive the necessary protection across the globe, regardless of the jurisdiction concerning the multiple layers of a platform’s architecture.

—

This contribution is a summarized version of a PhD thesis originally written in Portuguese that will soon be included on: https://www3.ufmg.br/pesquisa-e-inovacao/teses-e-dissertacoes

[1] KRASNER, Stephen (1982) Structural Causes and Regime Consequences: Regimes as Intervening Variables

[2] WSIS: Tunis Agenda for the Information Society (2005)

[3] SNIDAL, ABBOTT (2009) The governance triangle: Regulatory standards institutions and the shadow of the state

The sweeping pace of technological advancement and the accelerated transition to the digital realm are generating novel and complex challenges for the law. Established legal frameworks are increasingly being tested within the digital environment, where cutting-edge technologies — such as digital platforms and artificial intelligence — have come to play a decisive role in both social and economic activity.

Although the European Union may not yet have attained its full technological maturity, it stands at the forefront of confronting the legal implications of the digital era. The Union’s legislative agenda seeks to maintain a delicate equilibrium between, on the one hand, promoting innovation and technological development, and, on the other, safeguarding the fundamental rights of individuals while ensuring transparency and accountability among digital service providers.

The areas most profoundly affected by the digital transformation of European law include data protection — governed primarily by Regulation (EU) 2016/679, commonly known as the General Data Protection Regulation (GDPR); electronic commerce and digital platforms facilitating cross-border transactions — regulated by Directive 2000/31/EC; cybersecurity; electronic governance; and digital markets — significantly shaped by Regulation (EU) 2022/1925. Within these domains, a dense and intricate body of Regulations, Directives, and legislative Acts has redefined the structure and operation of the online marketplace.

Prominent among these legislative instruments are the Digital Services Act (DSA) and the Digital Markets Act (DMA), both designed to counter disinformation and enhance transparency in the operation of digital platforms; the Digital Governance Act (DGA), which seeks to reinforce the effective and trustworthy governance of digital services; the Data Act (DA), aimed at facilitating data access, management, and reuse in innovative applications; and the Artificial Intelligence Act (AIA), which establishes a comprehensive regulatory framework to ensure the safe, lawful, and ethical deployment of artificial intelligence systems. Collectively, these instruments have come to dominate contemporary European legal discourse concerning the digital transformation.

The 17th online conference of Lex&Forum, held on 27 February 2025, was devoted to issues of particular interest and considerable complexity within the field of law. This session was organized, on this occasion, in collaboration with Frederick University of the Republic of Cyprus.
The conference was chaired by Professor Panagiotis Degleris of the co-organizing University, within the framework of which the following presentations of the invited speakers were delivered: Theodoros Galanis, PhD, ‘The Digital Markets Act: Brief Overview and Implementation Challenges’; Efrosyni Siougle, PhD, Head of Advisory and Compliance at the Data Protection Authority, ‘The interaction of the GDPR with recent EU legislative developments (DSA, DMA, DGA, DA, AIA)’, Ioannis Revolidis, Lecturer in Media, Communication & Technology Law, Law School, University of Malta, ‘The Strengthened 2022 Code of Practice on Disinformation: Continuities and Innovations in EU Digital Regulation’; Anastasia Kalantzi, PhD, Lawyer, ‘The General Data Protection Regulation as court evidence in the digital age’, Maria Stylianidou, Assistant Professor, Law School, Frederick University,
‘The Protection of Whistleblowers in the Digital Age / The Contemporary Face of Governance’.

As the Praefatio of the first issue of the year, we have the great honor of presenting the speech-reflection of an unrivaled scientific career and academic ethos of the world-renowned international law Professor, Mr. Symeon Symeonides at the scientific symposium organized in his honor as an academic farewell by the Willamette University School of Law, in collaboration with the ‘Association of American Law Schools Section on Conflict of Laws’, in May 2024, on the topic of “Reflections from Fifty Years in the Conflicts Vineyard: An Immigrant’s Story”.

In the case-law section, we present (a) The CJEU, 27.2.2025, Società Italiana Lastre/Agora, on asymmetrical choice of court agreements (commented by Prof. D. Stamatiadis), (b) the domestic rulings: Piraeus Court of Appeal 398/2024, on service to a company with a registered office in Singapore (commented by A. Anthimos), Athens Court of First Instance cases 3150/2024 and 269/2025, on recognition of a final (non-appealable) divorce judgment issued by a Swiss court (connected with the legal opinion by Ass. Prof. K. Rokas), and Athens Court of First Instance 244/2025, on recognition of the res judicata effect of foreign court orders issued by a U.S. court placing a legally incapacitated adult under guardianship and appointing a conservator of the adult’s estate (commented by Ass. Prof. G.-A. Georgiades), and (c) the foreign National Court Caselaw, Cour de Cassation, 2.4.2025, Pourvoi n. 23-11.456, on submission of a request for a preliminary ruling to the CJEU regarding whether a claim for damages arising from the abrupt termination of a commercial relationship is contractual or non-contractual in nature. (commented by E. Tsikrika), and Cassazione Civile, 10.7.2024, ??. 18445/2024, on determination of the child’s ‘habitual residence’ in cases of international child abduction involving a child of tender age. (commented by Judge I. Valmantonis).

The scientific section includes a study by Prof. Efie Kinini (Univeristy of Athens) on “The limitation period for a damages claim in cases of infringement of competition rules. Reflections prompted by the CJEU judgment in Heureka and the Opinion of Advocate General Medina in Nissan” and a legal opinion of Ass. Prof. K. Rokas (Aristotle University of Thessaloniki), on ‘Recognition of a foreign divorce judgment from a third country: the requirement concerning the applicable law under Article 780 of the Greek Code of Civil Procedure’. It also features the thoughts of Dr. Apostolos Anthimos, on ‘UK Third party costs orders enforceable in Greece’, as well as the particularly important in enforcement of foreign judgements proceedings Certificate of enforceability under Article 53 of the Brussels I bis Regulation, edited by Judje A.  Kargopoulos.. The issue concludes with the regular quarterly review of the CJEU’s case-law, covering the period January-March 2025, by Dr. A. Anthimos.

Lex&Forum renews its scientific appointment with its readers for the next 18th issue, with the central topic of ‘The EU Accession to the ECHR – Procedural Hurdles and Prospects Before the ECtHR -‘.

                                                                                    Prof. Paris Arvanitakis

The sweeping pace of technological advancement and the accelerated transition to the digital realm are generating novel and complex challenges for the law. Established legal frameworks are increasingly being tested within the digital environment, where cutting-edge technologies — such as digital platforms and artificial intelligence — have come to play a decisive role in both social and economic activity.

Although the European Union may not yet have attained its full technological maturity, it stands at the forefront of confronting the legal implications of the digital era. The Union’s legislative agenda seeks to maintain a delicate equilibrium between, on the one hand, promoting innovation and technological development, and, on the other, safeguarding the fundamental rights of individuals while ensuring transparency and accountability among digital service providers.

The areas most profoundly affected by the digital transformation of European law include data protection — governed primarily by Regulation (EU) 2016/679, commonly known as the General Data Protection Regulation (GDPR); electronic commerce and digital platforms facilitating cross-border transactions — regulated by Directive 2000/31/EC; cybersecurity; electronic governance; and digital markets — significantly shaped by Regulation (EU) 2022/1925. Within these domains, a dense and intricate body of Regulations, Directives, and legislative Acts has redefined the structure and operation of the online marketplace.

Prominent among these legislative instruments are the Digital Services Act (DSA) and the Digital Markets Act (DMA), both designed to counter disinformation and enhance transparency in the operation of digital platforms; the Digital Governance Act (DGA), which seeks to reinforce the effective and trustworthy governance of digital services; the Data Act (DA), aimed at facilitating data access, management, and reuse in innovative applications; and the Artificial Intelligence Act (AIA), which establishes a comprehensive regulatory framework to ensure the safe, lawful, and ethical deployment of artificial intelligence systems. Collectively, these instruments have come to dominate contemporary European legal discourse concerning the digital transformation.

The 17th online conference of Lex&Forum, held on 27 February 2025, was devoted to issues of particular interest and considerable complexity within the field of law. This session was organized, on this occasion, in collaboration with Frederick University of the Republic of Cyprus.
The conference was chaired by Professor Panagiotis Degleris of the co-organizing University, within the framework of which the following presentations of the invited speakers were delivered: Theodoros Galanis, PhD, ‘The Digital Markets Act: Brief Overview and Implementation Challenges’; Efrosyni Siougle, PhD, Head of Advisory and Compliance at the Data Protection Authority, ‘The interaction of the GDPR with recent EU legislative developments (DSA, DMA, DGA, DA, AIA)’, Ioannis Revolidis, Lecturer in Media, Communication & Technology Law, Law School, University of Malta, ‘The Strengthened 2022 Code of Practice on Disinformation: Continuities and Innovations in EU Digital Regulation’; Anastasia Kalantzi, PhD, Lawyer, ‘The General Data Protection Regulation as court evidence in the digital age’, Maria Stylianidou, Assistant Professor, Law School, Frederick University,
‘The Protection of Whistleblowers in the Digital Age / The Contemporary Face of Governance’.

As the Praefatio of the first issue of the year, we have the great honor of presenting the speech-reflection of an unrivaled scientific career and academic ethos of the world-renowned international law Professor, Mr. Symeon Symeonides at the scientific symposium organized in his honor as an academic farewell by the Willamette University School of Law, in collaboration with the ‘Association of American Law Schools Section on Conflict of Laws’, in May 2024, on the topic of “Reflections from Fifty Years in the Conflicts Vineyard: An Immigrant’s Story”.

In the case-law section, we present (a) The CJEU, 27.2.2025, Società Italiana Lastre/Agora, on asymmetrical choice of court agreements (commented by Prof. D. Stamatiadis), (b) the domestic rulings: Piraeus Court of Appeal 398/2024, on service to a company with a registered office in Singapore (commented by A. Anthimos), Athens Court of First Instance cases 3150/2024 and 269/2025, on recognition of a final (non-appealable) divorce judgment issued by a Swiss court (connected with the legal opinion by Ass. Prof. K. Rokas), and Athens Court of First Instance 244/2025, on recognition of the res judicata effect of foreign court orders issued by a U.S. court placing a legally incapacitated adult under guardianship and appointing a conservator of the adult’s estate (commented by Ass. Prof. G.-A. Georgiades), and (c) the foreign National Court Caselaw, Cour de Cassation, 2.4.2025, Pourvoi n. 23-11.456, on submission of a request for a preliminary ruling to the CJEU regarding whether a claim for damages arising from the abrupt termination of a commercial relationship is contractual or non-contractual in nature. (commented by E. Tsikrika), and Cassazione Civile, 10.7.2024, ??. 18445/2024, on determination of the child’s ‘habitual residence’ in cases of international child abduction involving a child of tender age. (commented by Judge I. Valmantonis).

The scientific section includes a study by Prof. Efie Kinini (Univeristy of Athens) on “The limitation period for a damages claim in cases of infringement of competition rules. Reflections prompted by the CJEU judgment in Heureka and the Opinion of Advocate General Medina in Nissan” and a legal opinion of Ass. Prof. K. Rokas (Aristotle University of Thessaloniki), on ‘Recognition of a foreign divorce judgment from a third country: the requirement concerning the applicable law under Article 780 of the Greek Code of Civil Procedure’. It also features the thoughts of Dr. Apostolos Anthimos, on ‘UK Third party costs orders enforceable in Greece’, as well as the particularly important in enforcement of foreign judgements proceedings Certificate of enforceability under Article 53 of the Brussels I bis Regulation, edited by Judje A.  Kargopoulos.. The issue concludes with the regular quarterly review of the CJEU’s case-law, covering the period January-March 2025, by Dr. A. Anthimos.

Lex&Forum renews its scientific appointment with its readers for the next 18th issue, with the central topic of ‘The EU Accession to the ECHR – Procedural Hurdles and Prospects Before the ECtHR -‘.

                                                                                    Prof. Paris Arvanitakis

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

I have of course reported on the lengthy jurisdictional battles (in which for the sake of clarity, I was instructed) surrounding the litigation, in England, following the collapse of the Fundão Dam in Southeast Brazil on 5 November 2015, chiefly here.

In Municipio de Mariana et al v BHP Group UK Limited and BHP Group Limited [2025] EWHC 3001 (TCC), Justice O’Farrell held last Friday in what by any measure is a groundbreaking business and human rights case, testifying in the process to the ability of the courts in England to deal with claims of this absolute magnitude (one will remember that the alleged impossibility for the English courts to try cases of this enormity was one of the arguments for Turner J, later overturned, to reject jurisdiction for the English courts).

[76] During case management hearings, it was agreed that the Court should determine key liability issues and significant defence issues at a first stage trial before considering the entitlement and quantum of any individual or group claims. Current judgment is the judgment on those key issues.

There has been a lot of primary analysis of the judgment over the weekend, and Jonathan McDonagh has complete yet concise overview of findings here.

This post, true to its host’s form, focuses on one important conflict of laws issue in the judgment.

The Rome II Regulation includes an “evidence and procedure carve-out”. On the other hand Article 15 Rome II includes within the scope of the applicable law identified by the Regulation (the ‘lex causae’), a number of subject-matter which national laws frequently consider to be part of that very procedural law.

Article 15’s specification of what is covered by the lex causae identified by Rome II includes “rules of prescription and limitation”.

The tension between the procedural carve-out and Article 15’s reference to ‘rules of prescription and limitation” makes an appearance in current claim by way of the precise way in which proceedings have been commenced.

The Claimants’ case [816] is that the Brazilian rules of prescription, which include Article 202 (I) of the Civil Code, provide that service of the claim form is the key procedural step required to stop time running. However, what amounts to proper service will be a question of procedural law.

[817] BHP’s case is that A15 Rome II sets out a non-exhaustive number of matters which must be determined in accordance with the law applicable to non-contractual obligations, which cannot constitute matters of procedure for the purpose of Article 1(3). [820] They argue Brazilian, not English, law applies to the question of whether the claim form contained sufficient information for the purposes of limitation.

In particular, defendants argue that the claim forms as issued by claimants, were not effective for proceedings to have ‘commenced’ as a matter of Brazilian law. In their view, the relevant section of the Brazilian Code of Civil Procedure (‘BCCP’), Article 319 BCCP, applies with respect to specification of the “factual and legal grounds of the claim” (Article 319(iii)), “the specified demand for relief” (Article 319(iv)), and “the value of the claim” (Article 319(v)). Defendants argue that this is required to enable the Defendants to provide a full answer and defence.

It is my view that Civil Procedure Rules – CPR on the required content of claim forms to effect service, must follow lex fori (or more precisely: must follow residual conflict of laws rules for procedural issues, which tends to lead to lex fori), even if the enquiry into the consequences of the claim form subsequently is relevant for limitation purposes.

The judge [821] holds

In my judgment, a distinction must be drawn between the substantive rules of prescription, which it is agreed are subject to Brazilian law by reason of Article 15(h), and the procedural rules for effecting valid issue and service of a claim in this jurisdiction, which should be characterised as procedural and therefore fall to be governed by English law, the Civil Procedure Rules 1998 (“the CPR”). There may be cases in which it is unclear whether a specified requirement falls into the category of substantive law or procedural/evidential law. This is not such a case.

and [825]

Even if the Brazilian rules on commencement of proceedings applied, there is no real dispute between the Brazilian law experts that, it is likely that the claim forms would be effective to stop time running.

In conclusion [830]

For the above reasons, regardless of whether English law or Brazilian law applies to the requirements for issue and service of the claim forms, they would be considered to be valid to stop time running for prescription on the date of issue.

It is a neat conflicts nugget in a judgment otherwise largely discussing liability under Brazilian law as the lex causae. BHP On Friday immediately announced in a statement to investors (by whom they are nota bene also being sued) that they intend to appeal.

Geert.

EU Private International Law, 4th ed, 2024, ia 4.82 ff.

 

The T.M.C. Asser Instituut in The Hague, an independent and internationally renowned research centre in international and European law, affiliated with the University of Amsterdam, is looking to add a Private International Law Researcher to its team. The Institute, . The Researcher joining the Institute will have a duty to contribute to the Institute’s mission of […]

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

The Tatlici litigation continues to unfold as one of the most noteworthy examples of how national courts in Europe are responding to transnational defamation judgments obtained in the United States. The previous commentary examined Malta’s First Hall Civil Court judgment refusing to enforce the U.S. default award of US$740 million.[1] The Malta Court of Appeal’s judgment of 14 October 2025 builds upon that foundation by upholding non-enforcement while clarifying the legal reasoning behind it.[2] The Malta Court of Appeal’s judgment came as the second major development, following an earlier first-round enforcement attempt in Turkey that had already failed on venue.[3]

The Malta Court of Appeal upheld the First Hall Civil Court’s rejection of enforcement but replaced procedural formalism with a more principled proportionality analysis grounded in ordre public. The judges, Chief Justice Mark Chetcuti, Hon. Judge Robert G. Mangion and Hon. Judge Grazio Mercieca, held that the magnitude and moral nature of the award—being damages for defamation—“manifestly” offended Maltese public policy.[4] Such “astronomic” damages, the court reasoned, would have a chilling effect on free expression and thereby upset Malta’s constitutional balance between protecting reputation and safeguarding democratic speech.[5]

The court also noted that the absence of a reasoned Florida judgment hindered the court’s ability to test the applicant’s belated claim that the award represented “real” rather than moral damages.[6]

It is against this backdrop that the Maltese decision must be read alongside the unfolding NEKO 2018 A, LLC receivership before the U.S. District Court for the Southern District of Florida, which is a case that exposes how litigation finance now shapes both litigation conduct and judgment enforcement across borders.[7] The Florida proceedings, captioned Mehmet Tatlici and Craig Downs v. Ugur Tatlici—as cited in the Malta Court of Appeal’s judgment, directly link the plaintiff, Mehmet Tatlici, with his Florida attorney, Craig Downs, who appeared as co-plaintiff in the U.S. default judgment awarding US$740 million in damages.

 

Although litigation funding was not part of the Maltese court’s formal reasoning, the Tatlici dispute shows how financial mechanisms behind litigation are beginning to shape the transnational life of judgments. This connection matters for private international law because recognition and enforcement today concern not only the validity of foreign judgments but also the economic structures that propel those judgments across jurisdictions.

 

Litigation Funding as a Governance Warning

As Cassandra Burke Robertson observes, third-party funding externalises litigation risk and encourages high-variance, high-quantum claims that might otherwise settle early.[8] Funders’ capital increases the number of transnational lawsuits filed, raises settlement values, and spreads litigation across more jurisdictions.[9] This tendency is especially visible in defamation and other reputation-based torts, where damages are inherently subjective and national legal systems diverge sharply on what counts as a proportionate remedy.

Maya Steinitz’s governance theory underlines a concern that once funders gain control over budgets and strategic decisions, they develop portfolio-level incentives to pursue outsized awards that maximise aggregate returns—even when enforcement remains uncertain.[10] This creates a structural tension that private international law cannot ignore because enforcement courts are ultimately asked to enforce judgments whose underlying dynamics are driven as much by capital as by legal merit.

The NEKO receivership makes these abstract concerns tangible. In October 2025, NEKO 2018 A, LLC, a litigation funder with an investor’s interest, secured a collateral receivership over its funded law firm, the Downs Law Group, the same firm involved in Tatlici.[11] The receivership order placed all accounts, rights to payment, proceeds, substitutes, and records under the control of a court-appointed receiver and suspended pre-trial deadlines to “preserve resources … without the burden of potential protracted litigation.”[12] This effectively turned litigation receivables into tradable assets by allowing the funder to monetise pending claims and future enforcement proceeds.

Scholars such as John Gotanda and Ronald Brand warn that this financialisation of litigation detaches judgments from substantive justice and proportionality, compelling enforcement courts—like Malta’s—to reimpose those limits through ordre public review.[13] Seen from a private international law perspective, this convergence between capital markets and cross-border enforcement exposes a governance gap: Article 2(1)(k) of the Hague Judgments Convention 2019 explicitly excludes defamation from its scope, while the Convention remains entirely silent on litigation funding. This dual absence, of both defamation and funded claims, leaves national courts to fill that regulatory void case by case, relying on domestic ordre public standards to assess the enforceability of judgments shaped by third-party capital.

Funding Under Scrutiny for Potential Fraud on Court

The relationship between litigation funding and the manner in which a judgment is obtained deserves careful attention. While the Maltese appellate court did not address the issue of fraud, ongoing criminal proceedings in Turkey—where judicial and prosecutorial authorities are examining how the Florida judgment was obtained—illustrate how difficult it can be to distinguish legitimate litigation conduct from actions that are not merely procedural but go to the integrity of the adjudicative process.

In highly financed, cross-border cases, the line between assertive advocacy and excessive pressure can become blurred. When litigation outcomes are closely tied to the financial expectations of external funders, there is a risk that commercial considerations may influence legal strategy or procedural choices. As Steinitz’s governance analysis suggests, such dynamics can create “agency costs,” where professional judgment becomes constrained by the funder’s return-driven objectives.[14] These constraints indicate that there must be increased protection and openness in recognition and enforcement actions to guarantee that financing efficiency does not compromise procedural integrity in the judicial process. In extreme cases, these forces can blur the line between zealous advocacy and alleged fraudulent conduct, which has been a tension made visible in the Tatlici litigation.

Conclusion

The Tatlici litigation illustrates how the ordre public exception has evolved into a constitutional safeguard within the global enforcement of judgments. The Malta Court of Appeal’s 2025 decision affirming the refusal to enforce a US $740 million Florida defamation award and treating “astronomic” moral damages as incompatible with freedom of expression, the court used ordre public as an active tool of constitutional governance. This aligns with the argument advanced by Symeon C. Symeonides, who conceptualises the public policy exception as a constitutional checkpoint ensuring that foreign judgments do not erode the forum’s fundamental rights.[15]

At the same time, Tatlici exposes enduring tensions between litigation finance, procedural integrity, and the enforceability of transnational awards. The claimant’s connection to the US federal receivership shows how financial structures can shape litigation strategy and the formation of judgments, while the ongoing Turkish criminal inquiry into the alleged fraudulent procurement of the Florida judgment illustrates the risks that arise when capital-backed claims intersect with procedural fragility.

The case exemplifies a wider paradox in which a claimant secures an extraordinary foreign award yet lacks attachable assets in the rendering state and faces recognition refusals abroad, so the judgment’s practical value collapses despite its formal validity. The defendant in the US$740 million action now occupies a jurisdictional and enforcement limbo, subject to a judgment that can neither be executed in foro domestico nor circulate transnationally through recognition or exequatur.

Tatlici confirms that public policy, founded on proportionality and constitutional values, still marks the outer boundary of the transnational movement of judgments in a system increasingly exposed to the financialisation of litigation.

[1] Fikri Soral, ‘Tatlici?v?Tatlici: Malta Rejects?$740?Million U.S. Defamation Judgment as Turkish Case Looms’ (Conflict?of?Laws, 28?April?2025) https://conflictoflaws.net/2025/tatlici-v-tatlici-malta-rejects-740-million-u-s-defamation-judgment-as-turkish-case-looms/

accessed 4?November?2025.

[2] Tatlici v Tatlici (Court of Appeal, Malta, 14 October 2025) App ?iv 719/20/1. (“Appellate Judgement”)

[3] Istanbul Regional Court of Appeal, 4th Civil Chamber, Decision No 2025/3701, File No 2025/2327, 13 October 2025,

[4] Appellate Judgement (n 2) para. 53

[5] ibid. para 47-52

[6] ibid. para. 50.

[7] NEKO 2018 A, LLC v Downs Law Group, P.A. (US District Court for the Southern District of Florida, No 1:25-cv-24580, filed 6 October 2025) https://dockets.justia.com/docket/florida/flsdce/1:2025cv24580/698527

[8] Cassandra Burke Robertson, ‘The Impact of Third-Party Financing on Transnational Litigation’ (2011) 44 Case W Res J Intl L 159.

[9] ibid at 164

[10] Maya Steinitz, ‘Whose Claim Is This Anyway? Third Party Litigation Funding’ (2011) 95 Minnesota Law Review 1268, 1318–25 (discussing funders’ portfolio-level incentives and the resulting agency-cost problems in litigation governance).

[11] NEKO 2018 A v Downs Law Group (n 7).

[12] ibid

[13] See Ronald A Brand, ‘Recognition and Enforcement of Foreign Judgments’ (2013) 74 University of Pittsburgh Law Review 491, 520–28; John Y Gotanda, ‘Punitive Damages: A Comparative Analysis’ (2004) 42 Columbia Journal of Transnational Law 391. Both scholars argue that disproportionate awards, exacerbated by the financialisation of litigation, require recognition courts to restore proportionality through the ordre public exception.

[14] Steinitz (n 10) 1304, 1315.

[15] Symeon C Symeonides, ‘The Public Policy Exception in Choice of Law: The American Version’ (2025) Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) (forthcoming, also to appear in Emory Journal of International Law).

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

I am grateful to Dr Elias Van Gool, postdoc in our department, for his analysis of ASLB we.are.nature.Brussels et al v Région de Bruxelles-Capitale.

Of note is that both Elias and I struggle to find the right terminology for the Dutch ‘verharding’: ie any method by which soil is made impenetrable, typically by concreting it over in the course of construction works. Elias has used the term ‘soil sealing’, any suggestions for improvement will be happily received.

WeAreNature.Brussels: Climate litigation leading to a construction and soil sealing moratorium protecting Brussels’ remaining greenfields

This guest post was authored by Dr Elias Van Gool, FWO Post-Doctoral Researcher in environmental law at KU Leuven.

In the global surge of strategic litigation relating to climate change, few decisions at the national level can today still be considered truly novel. The 29 October judgement by the French-speaking Brussels Court of First Instance, however, is remarkable and worth signaling to readers of this blog.

Claimants – NGOs WeAreNature.Brussels, Bruxelles Nature and 1,330 local residents – sued the Brussels Capital Region (hereafter ‘the Region’), alleging that it was liable for breaching its general duty of care, interpreted in light of established climate science and the Region’s climate change mitigation and adaptation responsibilities. In essence, the claimants argued that continued net increases in soil sealing, which threaten Brussels’ remaining greenfields and other  open spaces, prevent the Region from achieving its own, European and international legal obligations relating to climate change. Given the Region’s knowledge of this issue, its continued failure to adjust its spatial planning to reverse this trend, and the resulting harm Brussels residents will suffer, the claimants argue that the government’s conduct is tortious.

After establishing that all claimants have the necessary standing, the court agrees with them on the merits and rules that the Region’s conduct – in particular its spatial planning policy – indeed violates its duty of care in relation to climate mitigation and adaptation. In its reasoning, the court first refers to the 2023 Klimaatzaak appeal judgement, which had already held that the Brussels Region’s inadequate mitigation efforts breach the general duty of care as well as Articles 2 and 8 ECHR. The court then finds that the Region’s lack of a sufficient accounting of greenhouse gas emissions and removals from land-based carbon sinks on its territory, violates European law, in particular the carbon accounting and inventory requirements under LULUCF Regulation 2018/841/EU and Governance Regulation 2018/1999/EU. Finally, the court observes that the Region’s remaining open land and unsealed surfaces continue to disappear and that this is made possible by the Region’s current spatial planning, which the court indeed considers as obsolete for successful climate mitigation and adaptation.

The decision is notable for how it recognizes that both climate mitigation and adaptation depend on adequate spatial planning to preserve and strengthen nature-based solutions. The Region’s diminishing green areas do serve as carbon sinks, which to a limited extent help to abate global climate change. For residents, land use is of course even more directly important for adaptation purposes, where the causal link between the government’s conduct and resulting harm is undeniably much stronger. While the decision focuses on flood risks, local residents are also vulnerable to heat stress and to a lesser extent droughts. These are all risks green infrastructure and unsealed surface areas help to mitigate, especially in an urban environment.

The most remarkable aspect of this decision is of course the injunction: a judicial moratorium on further construction and soil-sealing activities. Comparative overviews suggest that this is truly a novelty in global climate litigation.

Nevertheless, it is worth emphasizing that this injunction is limited in several respects. First, it only applies to non-built-up areas of more than 0.5 hectares. Second, the moratorium is temporary, expiring either on 31 December 2026 or earlier if the region adopts a new Regional Spatial Plan (PRAS). Third, the court does not itself impose the moratorium but rather ‘orders the Region to take the necessary measures’ to implement it. As my colleagues De Clercq and Dethier point out, this indirect formulation can be explained by reference to both the separation of powers and the legal protection of property rights. Finally, the claimants have neither sought nor obtained a penalty payment, which could otherwise have been used to compel the Region to implement the moratorium.

To provide additional context, the Brussels Region currently lacks a government with no solution in sight, which is a situation that can impact the injunction’s implementation. Furthermore, the Region is facing a serious housing crisis and a dismal budget deficit. The latter is crucial, since a definitive change in spatial planning prohibiting construction or soil sealing in areas where this was previously allowed, will entitle affected landowners to compensation for planning damage. Conversely, the court’s injunction will not be suspended if the Region were to appeal (which in Belgium it can do as of right). It is therefore my expectation that the actual implementation of the injunction will, at best, remain limited to the rejection of individual permit requests for soil sealing and construction activities on the affected land areas. The claimants may, of course, return to court to seek penalty payments, should the Region fail to comply with the injunction. They may furthermore seek an extension of the moratorium beyond the end of 2026.

Notwithstanding these local contextual caveats, the court’s injunction stands and, from a comparative climate litigation perspective, can be regarded as breaking new ground [pun intended]. In this respect, the decision may ultimately prove to be at least as influential internationally as it is on the ground in Brussels itself.

Elias.

The Judges’ Newsletter is an open-access biannual publication of of the Hague Conference on Private International Law devoted to judicial co-operation in the international protection of children. The latest issue tbrings together the contributions presented at the conference entitled 15 Years of the HCCH Washington Declaration – Progress and Perspectives on International Family Relocation, which took […]

The fourth issue of the Journal du droit international for 2025 has been released. It contains two articles and several case notes relating to private international law issues, including the 2024 case-law review dedicated to EU private international law prepared by Louis d’Avout, Jean-Sébastien Quéguiner, Stefan Huber, Patrick Kinsch, Lukas Rass-Masson, Sixto Sánchez-Lorenzo and Michael Wilderspin. […]

The German Law Journal has published a Special Issue featuring the proceedings of the international conference on Informed Consent to Dispute Resolution Agreements, held in Bremen on 20–21 June 2024 (see our earlier announcement here).

Edited by Gralf-Peter Calliess and Nicholas Mouttotos of the University of Bremen, the special issue brings together contributions from leading scholars in private international law, international civil procedure, and international arbitration. Contributors include: Symeon C. Symeonides, Nancy S. Kim, Gralf-Peter Calliess, Frederick Rieländer, Peter McColgan, Laura E. Little, Kermit Roosevelt III, Sören Segger-Piening, John F. Coyle, Hannah L. Buxbaum, Marta Pertegás Sender, Stephen Ware, Stefan F. Thönissen and Nicholas Mouttotos.

The collection addresses a central tension in modern dispute resolution: how to reconcile party autonomy in forum and choice-of-law agreements with the requirement of consent, and how informed should consent be, particularly where such agreements are embedded in standard-form contracts affecting weaker parties such as consumers and employees.

The issue encompasses perspectives from both the United States and the European Union, examining questions of constitutional fairness, access to justice, and the legitimacy of contractual self-determination. Contributions trace the historical development of party autonomy, critique the adequacy of existing consent models, examine their outward abandonment while also exploring comparative regulatory approaches to protecting vulnerable contracting parties.

The special issue is available in the German Law Journal, Volume 26, Special Issue 5, and the editorial can be found here. The German Law Journal is a pioneering (Gold) open-access, peer-reviewed forum for scholarship and commentary on comparative, European, and international law, offering free and unrestricted online access to its publications since 1999.

Julien Chaisse (City University of Hong Kong) is the author of Advanced Introduction to International Commercial Contracts, recently published by Edward Elgar. This practical, globally focused book explains how international commercial contracts are structured, negotiated, and enforced across major economies and key trade hubs. Instead of centring on a single jurisdiction, it provides comparative insights […]

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

Operafund Eco-Invest Sicav Plc & Anor v Spain [2025] EWHC 2874 (Comm)  is a truly exciting judgment for many reasons, most of all Pelling J’s entirely opposite view on the assignability of ICSID, ECT awards as compared to Stewart J in the Federal Court of Australia.

The latter, in Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028, reviewed here by Claudia Wortmann, held [287] ff that neither under public international law (the ICSID Convention and the Energy Charter Treaty): [304] ff nor under domestic Australian law, there is a bar to the principle of assignment of ICSID and indeed ECT awards.

In current English case the claim is one for substitution as claimants, of Opera Fund Eco Invest Sicav Plc and Schwab Holding AG, by Blasket Renewable Investments LLC. The claim failed.

The judge first of all held that Spain is not estopped from making assignment objection in the English proceedings. Before a foreign judgment can give rise to an estoppel, the judgment must be capable of being registered in E&W and that is not currently the position in relation to the FCA proceedings: the order is not yet final under Australian law and Spain has not submitted to the Australian proceedings. The judgment in the FCA proceedings is not final or binding therefore which in and of itself rules out issue estoppel. An additional argument by Spain that there can be no issue estoppel on a point of law was correctly dismissed with reference [29] ia to SKAT v MCML 2025] EWCA Civ 371.

Next however the judge here diverges entirely from the approach in Australia on assignment. Stewart J at the FCA held that there is no basis in public international law to read into the ICSID Convention a prohibition on assignment, and neither is there in in Australian law. [His findings on public international law essentially mean that the notoriously dualist approach of the Australian courts is in fact of little relevance to the judgment].

I am inclined to agree, including with the arguments in his judgment concerning the object and purpose of the Convention. Stewart J [309] ff and Pelling J [42] ff come ia to a different conclusion on the meaning of ‘party’ in A 54(2) ICSID.

I understand Hanno Wehland’s argument, cited in the English judgment, that investment law is a particularly sensitive area closely linked to issues of sovereignty. I also appreciate that this makes assignment of the right to bring a claim as an investor (transfer of standing as it were) particularly problematic.

Yet that is in my view radically different at the enforcement stage where the award effectively has become a money judgment.

Permission to appeal in the English case would seem guaranteed, and in the Australian case it is one as of right (which Spain is yet to effect but has said it will). Upon appeal both judgments might be reversed, either still leading to an opposite approach in both courts or to alignment in either direction.

A judgment of most high relevance.

Geert.

High Court: ICSID, ECT awards are unassignable Exciting issues viz issue estoppel following foreign judgment (Spain not having submitted in the AUS proceedings) & treaty interpetation, customary international lawOperafund v Spain [2025] EWHC 2874 (Comm)www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-11-11T22:19:41.389Z

When I reported Airgas USA v Universal Africa Lines ECLI:NL:HR:2025:1665 on BlueSky last Saturday,  it led to a rather wonderful reply which I am now definitely including in my conflict of laws slides.

A quick note on the judgment (Ekaterina Pannebakker meanwhile also looks at the background here) which for its Rome I discussion is fairly uncontroversial imo.

The relevant clause in the bill of lading (transport of dangerous goods by sea) reads [2.1 of the judgment]

The law of The Netherlands, in which the Hague-Visby Rules are incorporated, shall apply. Nevertheless if the law of any other country would be compulsorily applicable, the Hague-Visby Rules as laid down in the Treaty of Brussels of 25th August 1924 and amended in the Protocol of Brussels of 23rd February 1968 shall apply, save where the Hamburg Rules of the UN Convention of the Carriage of Goods by Sea of 1978 would apply compulsorily, in which case the Hamburg Rules shall apply. If any stipulation, exception and condition of these conditions would be found inconsistent with The Hague-Visby Rules or Hamburg Rules, or any compulsory law, only such stipulation, exception and condition or part thereof, as the case may be, shall be invalid. In case of carriage by sea from or to a port of the USA, this Bill of Lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved 16th April 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. The provisions stated in said Act shall, except as may be otherwise specifically provided herein, govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in custody of the carrier. The carrier shall not be liable in any capacity whatsoever for any delay, non-delivery or mis-delivery, or loss of or damage to the goods occurring while the goods are not in the actual custody of the carrier.

Choice of court in the bill of lading is for the Netherlands. For choice of law, the Bill employs dépeçage: Dutch law was picked as the lex voluntatis (the law freely chosen by the parties), with one carve-out: for goods carried by sea from or to a port in the United States, the 1936 Carriage of Goods by Sea Act of the United States (COGSA) was chosen to apply. With COGSA the US implemented the 1924 Hague Rules. I understand that COGSA is considered lois de police in the US, for any goods carried by sea from or to a US port.

The appealing party argued [3.1.1] that because COGSA is only part of the law of a State and not all of it, the dépeçage or carve-out is invalid.

The Supreme Court suffices with holding [3.1.3] very sec that under Rome I parties may select parts only of a given State law to apply dépeçage-style. In my view that is clearly correct (and with Rob Rooman I expand on choice of law per Article 3 Rome I in a forthcoming chapter for Pietro Franzina’s Edward Elgar’s commentary on Rome I).

The dépeçage at issue is not redundant, despite parties’ clearly being aware that COGSA is lois de police (overriding mandatory law) in the US. With the clause the application of COGSA is extended even when, such as here, not a US but a Dutch court hears the case. 

The remainder of the (succinct) judgment deals with  issues of ius (alienum) novit curia under Dutch CPR.

Dépeçage does not often reach the courts and for that reason it is worthwhile reporting on it. 

Geert.

EU Private International Law, 4th ed. 2024, 3.37

 

 

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:

• Mathias Reimann: The Elusive Goal of Private Law Unification – The Creation, Implementation, and Effect of Uniform Laws in the United States and Potential as a Model for Europe
  Mathias Reimann on The Elusive Goal of Private Law Unification – The Creation, Implementation, and Effect of Uniform Laws in the United States and Potential as a Model for Europe as an examination of how, in the United States, the core of private law is left to the individual states and thus often, and at times highly, diverse. A prominent vehicle for achieving greater uniformity has been the drafting and adoption of uniform and model laws, mainly under the auspices of the National Conference of Commissioners for Uniform State Laws (NCCUSL), now more commonly called the Uniform Law Commission (ULC). Since its foundation in 1892, this institution has produced hundreds of such laws and presented them to the state legislatures for enactment. While some have been (almost) universally adopted, most notoriously the Uniform Commercial Code, such success is far more the exception than the rule – the majority of uniform laws have been enacted by, at best, a small minority of states and, thus, failed significantly to enhance legal uniformity. Even where a statute’s text has been widely adopted, it is unclear how much uniformity that has created in terms of actual practical outcomes. On the whole, the uniform law movement has somewhat diminished, but it has not broadly overcome, the diversity of American private law. Its mediocre track record suggests that the uniform law approach would scarcely be a suitable model for the unification of private law in Europe; this is especially true since the conditions for producing, adopting, and uniformly interpreting such laws are much less favorable here than in the United States.
• Stefan Thönissen: Die Kommunikation der obersten Gerichte
  Stefan Thönissen on Die Kommunikation der obersten Gerichte as an exploration of how the relevance of supreme courts’ communication of their decisions is closely connected with the purpose of contributing to legal development and unification. Although this purpose is – to different degrees – common to all supreme courts, the way they communicate through their decisions significantly differs. In recent years, there have been substantial developments. However, these developments have not necessarily led to a convergence.
• Matteo Bruno Fontana: Die verjährungshemmende Wirkung europäischer Kollektivklagen nach Umsetzung der Verbandsrichtlinie
  Matteo Bruno Fontana on Die verjährungshemmende Wirkung europäischer Kollektivklagen nach Umsetzung der Verbandsrichtlinie as an analysis of how the new Consumer Rights Enforcement Act (VDuG) empowers consumer associations to bring representative redress actions (Sec. 14 et seq. VDuG). While the suspension of the limitation period by representative actions brought before a domestic German court is addressed in detail in Sec. 204a (1) German Civil Code (BGB), the suspensory effect of a foreign collective action is only partially governed by Sec. 204a (2) BGB. Against the backdrop of the discussion on the suspensory effect of individual actions brought in a foreign forum, this article lays out why foreign collective redress actions should be deemed to have a suspensory effect on the limitation period under German substantive law.

The volume also features to book reviews related to private international law:

• Alan Brown reviews Jens M. Scherpe/Stephen Gilmore (eds): Family Matters: Essays in Honour of John Eekelaar (Intersentia 2022)
• Tobias Lutzi reviews Eva Jueptner: A Hague Convention on Jurisdiction and Judgments. Why did the Judgments Project (1992–2001) Fail? (Intersentia 2024)

The Jean Monnet Chair in Legal Aspects of Migration Management in the EU and in Türkiye and Bilkent University Faculty of Law cordially invite you for the next Migration Talk by Professor Paul James Cardwell (King’s College London) on “Decoding the Language of Law in the post-Migration Crisis Period: the Informalisation of Migration”.

The author of this post is Massimo Benedettelli, formerly a Professor of International law at the University of Bari “Aldo Moro”. One of the leading jurists of the twentieth century has passed away. If the Italian academic tradition requires all international law professors to be versed in conflicts and the law of nations at once, […]

 

In Airgas USA v Universal Africa Lines (7/11/2025 ECLI:NL:HR:2025:1665), the Supreme Court of the Netherlands considered the interpretation of a so-called ‘Paramount clause’ in a bill of lading. Such clauses commonly signpost which rules govern the international carriage of goods by sea. The Court addressed such clause as a choice of law and held that article 3(1) of the Rome I Regulation does not preclude the parties from agreeing on such clause.

Facts

The dispute concerned liability for fire damage that occurred during the discharge of dangerous goods (refrigerated liquid ethylene in containers) transported by sea from the USA to Angola under a bill of lading.

The conditions of the bill of lading provided for jurisdiction of the Dutch courts; this is how the parties Airgas USA (Radnor, Pennsylvania, US) and Universal Africa Lines (Limassol, Cyprus) came to litigate in the Netherlands.

These conditions also included a so-called ‘Paramount clause’. Such clauses have been used in contracts for the international carriage of goods by sea, primarily to designate which uniform substantive law convention on the carriage of goods by sea applies. The clause in this case provided that Dutch law governed the contract and declared that if the goods were carried by sea from or to a port in the United States, the 1936 Carriage of Goods by Sea Act of the United States (COGSA) applied. The COGSA is the U.S. implementation of the 1924 Hague Rules.

Dispute

As the regimes of liability diverge across the conventions containing uniform law, and across national laws, this dispute revolved around the choice of law. The cassation claim advanced various arguments against the application of COGSA (and in favour of the mandatory application of Dutch law which implied a different limitation of liability).

The main arguments were that COGSA is not a ‘law of a country’ that may be chosen within the meaning of the Rome I Regulation, that even if the GOGSA applied, its application should not set aside those provisions of Dutch law that may not be modified by contract, and that the lower courts applied the COGSA incorrectly (requiring the Court to review this application, arguing that the COGSA’s content was identical to the Hague-Visby Rules and to Dutch law).

Decision

In its decision, the Supreme Court of the Netherlands referred to article 3(1) of the Rome I Regulation. First, it held that, according to this provision, the parties are free to choose the law governing their contract. They may choose either the law applicable to the entire contract or the law applicable to a specific part of the contract. This part of the contract is then governed by the chosen rules of law, which replace national law in its entirety, including those rules of national private law which cannot be modified by contract (at [3.1.2]).

Second, the Court held that article 3(1) of the Rome I Regulation does not preclude the parties from designating a part of a national legal system — and not that system in its entirety — as the applicable law. In this case, the parties had the right to choose COGSA as applicable law, while for matters not regulated in the COGSA the parties should fall back on Dutch law (at [3.1.3]).

Finally, the Court reminded that the question of whether lower courts correctly applied foreign law cannot, in principle, lead to a claim in cassation under Dutch civil procedure laws. Only if the lower courts had compared the rules of the legal systems potentially applicable and held that the outcome was identical to Dutch law could an exception be made; this was not the case in this dispute (at [3.2.1] e.v.).

Comment

The decision in Airgas USA v Universal Africa Lines sheds light on the exact effects, in Dutch courts, of a contract clause widely used in contracts for the international carriage of goods by sea. This enhances legal certainty. At the same time, one inevitably runs into various questions cognate to this decision. For example, should the Court’s considerations on partial choice of law be understood as confined to ‘Paramount clauses,’ or do they have broader implications? In this regard, does it matter that rules such as COGSA implement an international treaty (the Hague Rules)? Or is the ‘partial’ character of the choice of law related only to carriage to or from U.S. ports? These and undoubtedly other questions are themes for further reflection.

For inspiration: the clause that gave rise to the dispute in this case as quoted by the Supreme Court of the Netherlands at [2.1] is this:

‘The law of The Netherlands, in which the Hague-Visby Rules are incorporated, shall apply. Nevertheless if the law of any other country would be compulsorily applicable, the Hague-Visby Rules as laid down in the Treaty of Brussels of 25th August 1924 and amended in the Protocol of Brussels of 23rd February 1968 shall apply, save where the Hamburg Rules of the UN Convention of the Carriage of Goods by Sea of 1978 would apply compulsorily, in which case the Hamburg Rules shall apply. If any stipulation, exception and condition of these conditions would be found inconsistent with The Hague-Visby Rules or Hamburg Rules, or any compulsory law, only such stipulation, exception and condition or part thereof, as the case may be, shall be invalid. In case of carriage by sea from or to a port of the USA, this Bill of Lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved 16th April 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. The provisions stated in said Act shall, except as maybe otherwise specifically provided herein, govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in custody of the carrier. The carrier shall not be liable in any capacity whatsoever for any delay, non-delivery or mis-delivery, or loss of or damage to the goods occurring while the goods are not in the actual custody of the carrier.’

A conference on ‘the concentration of cross-border litigation’ (La concentration des contentieux transfrontières) will take place on 13 and 14 November 2025 at the University Toulouse Capitole. Background The event is jointly organised by the DANTE Research Centre (Univ. Versailles Saint-Quentin-en-Yvelines, Paris-Saclay) and the Institut de Recherche en Droit Européen, International et Comparé (IRDEIC) of the University Toulouse Capitole, […]

What does it mean to respect family life in modern Europe? With families increasingly diverse and cross-border by nature, the concept of family law is undergoing profound legal, cultural, and institutional changes. A newly published academic volume — El Derecho de Familia a la Luz del Derecho Fundamental Europeo al Respeto a la Vida Familiar — offers a rich and timely exploration of this transformation.

Edited by María Victoria Cuartero Rubio and José Manuel Velasco Retamosa, this book brings together leading voices in European family law, private international law, and human rights to examine how the fundamental right to respect for family life (Article 8 ECHR, Article 7 EU Charter) is reshaping family law across jurisdictions.

This collective volume is notable for its interdisciplinary scope and comparative approach. Contributors address legal challenges that sit at the intersection of: Family Law (marriage, parenthood, equality, succession); Private International Law (cross-border family relations, recognition of status); Fundamental Rights Law (interpretation of Article 8 ECHR); European Union Law (Brussels II ter Regulation, work-life balance directive); Family Policy & Socio-Legal Perspectives (gender equality, LGBTQ+ rights, surrogacy).

The book features contributions from a distinguished panel of legal scholars and practitioners, including: Rafael Arenas García (UAB); Katarina Trimmings (University of Aberdeen); Margherita Salvadori (University of Turin); Amélie Benoistel (Paris); Afonso Patrão (University of Coimbra), alongside a wide range of Spanish and international legal academics.

The volume is divided into four thematic parts, each exploring a key area of contemporary family law from a fundamental rights perspective:

1. Evolving Family Models (How are legal systems adapting to non-traditional families, cohabitation, reconstituted households, and gender dynamics within family law?)

2. Equality, Non-Discrimination & Diversity (Topics include discrimination in inheritance, recognition of same-sex parenthood, and the intersection of sexual/gender identity and private life under the ECHR)

3. Identity, Parenthood & Cross-Border Legal Status (Chapters address the legal recognition of parentage, surrogacy, nationality, and the right to personal identity — all within the context of European mobility)

4. European and International Cooperation (Focus on Brussels II ter, forum non conveniens, judicial cooperation, and the cross-border recognition of family rights in an EU context).

While the majority of the chapters are written in Spanish, the volume also includes important contributions in English and French, reflecting the book’s comparative and international character. For example, Katarina Trimmings contributes a chapter in English on Article 8 ECHR and children’s identity rights; Margherita Salvadori writes in English on the Italian ban on surrogacy and its cross-border effects; Amélie Benoistel contributes a chapter in French on reserved heirship and the ECHR.

This volume is more than a scholarly collection — it’s a map of the evolving European legal landscape on family life. Its strength lies in combining legal theory with practical analysis, using the right to family life as a unifying framework across jurisdictions.

For those working i.a. on cross-border custody or parental rights cases, legal recognition of same-sex or surrogate families, harmonisation of family law within the EU, or human rights protections in private family disputes, the book provides important insights.

 

Full text available here:
https://ruidera.uclm.es/server/api/core/bitstreams/7cd3dc93-51aa-4c8f-9df1-142fdd00ede3/content

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

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

The issue opens with Prof. Thibaut Fleury Graff’s (Université Paris Panthéon-Assas) and Dr. Inès Giauffret’s (Université Paris-Saclay, UVSQ) survey of Le droit des étrangers et ses temporalités. Retours choisis sur la jurisprudence 2024 en matière de migrations (Immigration law and its temporalities. Selected reviews of 2024 case law on migration). A valuable addition to the dossier that the Revue critique recently devoted to the reform of French immigration law, its abstract reads as follows:

The adoption of the Law of 26 January 2024 “on controlling immigration and improving integration” marked the beginning of 2024 in the field of migration. Supplemented by its implementing decrees, the law has already given rise to initial litigation, discussed in this paper, alongside the more traditional case law interpreting the rules governing the rights and status of foreigners in France, as well as the conditions of their detention. These rulings reflect the current period, caught between legislative facilitation of detention and removal on the one hand, and judicial protection of the rights and freedoms of non-nationals on the other.

In the second article, Prof. Étienne Farnoux (Université de Strasbourg) elucidates the subtle connections between Les droits fondamentaux, l’exception d’ordre public et la prohibition de la révision au fond dans le système de Bruxelles I (Fundamental rights, public policy exception and the prohibition of review on the merits in the Brussels I system) from the Real Madrid case. At the crossroads of private international law and European integration, the contribution answers fundamental questions raised by this now notorious judicial saga. Its abstract reads as follows:

The case, which arose when recognition was sought in France of a Spanish court’s ruling against a French newspaper ordering it to pay heavy damages, highlights the conflict between the European objective of mutual trust and the protection of fundamental rights, particularly the freedom of the press. In a decision dated October 4, 2024, the Court of Justice (on a preliminary reference by the Cour de cassation) outlined the general methodology for controlling the proportionality of a financial penalty imposed abroad, on the basis of international public policy, a mechanism strongly influenced by European law. This control, which was subsequently implemented by the Court de cassation in a ruling dated May 28, 2025, is severely limited by the European principle of prohibition of the review on the merits.

In the third article, Prof. Fabienne Jault-Seseke (Université Paris-Saclay, UVSQ) points out Les non-dits du droit européen du numérique en matière de droit international privé : l’exemple du règlement sur les services numériques (DSA) (The unspoken private international law aspects of European digital law: the example of the Digital Services Act (DSA)). In light of cyberspace’s peculiarity, the study paves the way for a clearly articulated policy of private international law in the digital sphere. Its abstract reads as follows:

The Digital Services Act (DSA) addresses issues of private international law in a very limited way. It mainly defines its territorial scope using a unilateral rule : it applies to any intermediary service provider that targets users in the European Union, regardless of its place of establishment. It is largely silent on other aspects of the private international law, such as determining the law applicable to illegal content or to actions for injunctions and damages. In terms of jurisdiction, it refers to the Brussels I bis Regulation, whose provisions are poorly adapted to the specificities of the digital world. The preference that the DSA seems to give to public enforcement rather than private enforcement cannot justify its silence on most questions of PIL, which are essential if we are to ensure effective protection of rights in the digital environment, which is almost always cross-border.

The doctrinal part wraps up with Dr. Marcel Zernikow (Université d’Orléans) study of Le renouvellement des méthodes de la coopération judiciaire au service du droit au procès équitable : l’instrument du certificat et la numérisation (Renewing judicial cooperation methods to uphold the right to a fair trial: the instrument of the certificate and digitalisation). The growing importance of international cooperation in cross-border proceedings indeed requires a modernized approach, which the author proposes to pursue as follows:

Judicial cooperation is an object of study in private international law that is justified by the need to make the State’s jurisdictional activity effective in a foreign territory. Since it describes the connection between State or judicial authorities of two different States, it is governed by their respective territorial procedural laws. This field is nevertheless undergoing a renewal of its methods, which will be studied through the prism of the introduction of a new instrument: the certificate. The latter is gradually being used to accompany public documents or judicial decisions or for evidentiary purposes. How has this development become the basis for digitalization, which relies on the interconnection of legal systems and individuals via the internet? The renewal of methods is universal insofar as it is based on the guarantee of the right to a fair trial in international civil proceedings.

The full table of contents is available here.

Previous issues of the Revue critique (from 2010 to 2024) are available on Cairn.