Droit international général

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

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

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

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

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

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

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

It is the time of the year when fees fall due. If you’re a member of the European Association of Private International Law, please take a moment to pay your annual fees! Ordinary members are required to pay 50 Euros, while associate members must pay 30 Euros. Fees can be paid by credit card or […]

The latest issue of the French journal dedicated to international dispute resolution, Perspectives Contentieuses internationales (PCI), has been released. It is an open access publication and can be freely read here. The main focus of the issue is the International Commercial Chamber at the Paris Court of Appeal (CCIP-CA). Nine contributions are provided, coordinated by […]

I. Introduction

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

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

 

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

 

1. Choice of Law Rules under the 1985 Act

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

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

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

 

2. The 2020 Reform

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

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

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

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

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

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

 

III. The New Reform under the NCTA

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

This assessment is grounded in two main observations:

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

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

 

1. Positive Aspects of the Reform

Three main positive aspects can be identified:

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

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

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

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

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

 

2. Limits of the Reform and Persisting Issues

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

 

a) New Solutions Introduced in the NCTA

 

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

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

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

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

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

 

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

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

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

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

 

b) Persisting Issues

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

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

 

IV. Some Concluding Remarks

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

The PAX Moot 2026 Vladimir Koutikov Round is well underway. The case was published on 13 October 2025 and is available here. The deadline for registration is 16 January 2026 at 23:59 CET.

Save the date: The oral rounds will take place from 15 to 17 April 2026 in Sofia, Bulgaria.

The schedule of the case (incl. other deadlines) is the following:

Deadline for Requests for Clarifications                                  16 January 2026, 23:59 CET

Deadline for Submission of the Memorials                             27 February 2026, 23:59 CET

Grading of Written Submissions                                                26 March 2026

Communication of Grading Sheets                                           27 April 2026

The PAX Moot is a specialized moot court competition focused on Transnational Law and Private International Law issues and is funded by the European Union. For more information, click here. To view the PAX partners, click here.

Views and opinions expressed are however those of the authors 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.

 

 

 

From 1 January to 30 June 2026, Cyprus holds the Presidency of the Council of the European Union for the second time. Beyond its broader political and institutional priorities, the programme of the Cyprus Presidency also addresses aspects of private international law. Operating under the motto “An Autonomous Union. Open to the World”, the Cyprus […]

The 27th Volume (2025) of the Japanese Yearbook of Private International Law (JYPIL) (Kokusai Shiho Nenpo [Japanese]) published by the Private International Law Association of Japan (Kokusai Shiho Gakkai [Japanese]) (“PILAJ”) has recently been released.

This new volume features the following table of content.

The papers are published in Japanese; all links below direct to the papers’ English summaries.

 

Special Feature I: Transformations of Law in the Digital Society

 

Digital Society and Data Protection

Kazuki SHISHIDO

 

Applicable Law to Copyright Infringement in the Era of Generative AI

Yuriko HAGA

 

Digital Asset Transactions and Private International Law

Tetsuo MORISHITA

 

Special Feature II: The Advent of the Age of Migration and the Role of Private International Law

 

Japan’s Foreign Labor Policy

Chizuko HAYAKAWA

 

Rethinking the Lex Patriae in Japanese International Family Law and Succession

Takami HAYASHI

 

Habitual Residence of Individuals with Short-term, Medium-term, or Unstable Periods of Stay

Miku KOIKE

 

From Academic Conference Presentations

 

After Brexit

— The Situation Surrounding Private International Law in the United Kingdom

Yuko OKANO

 

Meaning of the “Causal Fact” of a Maritime Lien

— A Study on the Scope of the Theory of Lex Rei Sitae at the Time of Completion of the Causal Fact

Yohei ITO

 

Mutual Legal Assistance and Infringement of Foreign State Sovereignty

— A Preliminary Analysis from the Perspective of Enforcement Jurisdiction Based on Practical Considerations

Kazuaki TAKAHASHI

 

Challenges and Prospects for Access to Extraterritorial Evidence between Japan and the United States

Atsushi SHIRAKI

 

The contents of all volumes are available here (English) and here (Japanese)

Papers included in volumes 1 (1999) to 24 (2022) are freely available on the PILAJ’s website.

English summaries of volumes from Vol. 18 (2016) are also available online.

Both current and past volumes of JYPIL may be ordered from the publisher’s website (Shinzansha).

Colombian private international law research has been witnessing a notable period of renewed scholarly activity. Following a previous announcement on this blog of the publication of a volume dedicated to the Colombian Draft Project on Private International Law, a further significant contribution has now been published, this time offering a broader and more systematic perspective on the field. This new contribution takes the form of a book edited by María Julia Ochoa Jiménez (Loyola University) and Claudia Madrid Martínez (University of Antioquia), entitled “A Private International Law for Colombia”, published in the Springer Textbooks in Law series (Springer, 2025).

According to the publisher’s website, the book offers a “[c]omprehensive study of issues underlying PIL, particularly in Latin America and Colombia”, provides “[s]ystematical analysis of PIL rules in Colombia, allowing readers to understand how they deal with global issues”, and “[a]ddresses rules in force, critically examines them and, accordantly, presents and discusses a legislative proposal”.

In the Preface, the editors themselves describe the “book’s approach” as “unique”. According to them, the book’s “main objective is to address how the most relevant issues in each of the main areas of this legal field manifest themselves in Colombia, analyzing them in a way that is both exhaustive in disciplinary terms and critically engaged.”

 

The book’s blurb reads as follows:

The book, which systematically analyzes private international law rules contained in the Colombian legal system, contributes to the study and knowledge of this legal field, and also has a positive impact on its practical application. In addition, attention is given to the need for a special legislation that not only fits the Colombian reality and takes into consideration the evolution of private international law in Latin America. The book appeals to a worldwide audience. It enables readers to better understand how private law deals with a variety of situations in the Global South. Such situations can be linked to virtually all global phenomena, including at least two: cross-border migration and international trade. Regarding this, Colombia stands out in Latin America because, although it has traditionally been the origin of many migrants, in recent years it has also come to play an important role as a destination and transit country for migrants from different regions. In addition, Colombia’s economic growth has led it to become part of several international trade agreements, for example, with the Andean Community, Venezuela, Mexico, MERCOSUR, Chile, the Northern Triangle, which includes Guatemala, El Salvador and Honduras, and also with Canada, the European Free Trade Association (EFTA), the United States, the European Union, South Korea, Costa Rica and the Pacific Alliance, of which Chile, Colombia, Mexico and Peru are members. All this, while resulting in an increase in situations with foreign elements that must be dealt with by national authorities, makes it unavoidable to know the Colombian private international law to know the legal landscape of the region in relation to global issues that currently must be addressed worldwide. Thus, the book is of interest to students in different countries. They find in it a guide to understand the theory and dogmatics of private international law in Latin America and Colombia. The academic relevance of the book is also reflected in its usefulness for scholars working in private international law and comparative law. It allows for an in-depth study of the problems that underly private international law in this part of the Global South. It is structured and written in such a way that it can be used as a textbook in undergraduate and graduate courses in subjects such as comparative law, private international law, international contracts, international trade, and international movement of persons and goods.

 

The book consists of 18 chapters divided into six sections and comprises a total of VIII + 308 pages.

 

The Table of contents includes the following:

 

Introduction (Pages 1-14)

María Julia Ochoa Jiménez

The lack of systematic studies hinders the development of private international law in Colombia. Academics, practitioners, or judges may encounter difficulties when faced with the application of the private international law rules contained in the Colombian legal system, which are scattered in various legal instruments. This volume not only systematically analyzes the technical mechanisms contained in such rules but also outlines the historical and theoretical context in which they exist. In addition, attention is given to the need for special legislation that fits Colombia’s reality and takes into consideration the developments of private international law in Latin America. This volume also embodies an effort to consider some of the global challenges facing Colombian private international law today in relation to issues concerning the protection of human rights, including those of the most disadvantaged groups.

 

Introductory Notions

Colombian Private International Law: Three Dimensions, One Perspective (Pages 17-29)

María Julia Ochoa Jiménez

This and the next chapters address, in an introductory manner, two fundamental questions that lie at the root of private international law and serve to understand its broad conceptual scope. Both questions are approached from the Colombian perspective, considering the current situation of the discipline in the country. The first question, which is dealt with here, is quite wide and refers to the role that private international law plays in today’s world. Thus, this chapter outlines what lies behind the national, international, and global dimensions of private international law, and also the relevance it has when it is particularly considered from the global perspective. The second question, on which the next chapter focuses, is not less vast and concerns the interactions between comparative law and private international law.

 

Private International Law and Comparative Law: A Colombian Approach (Pages 31-44)

María Julia Ochoa Jiménez

This chapter, and the previous one, address, in an introductory manner and from the Colombian perspective, two fundamental questions that lie at the root of private international law and serve to understand its broad conceptual scope. The first question, which is dealt with in the previous chapter, refers to the national, international, and global dimensions of private international law, and the relevance it has when it is particularly considered in the latter perspective. Here, the focus is on the second question, which is not less vast and concerns the interactions between comparative law and private international law. In this regard, this chapter explores how some forms that the former adopts can be identified in the different ways in which the latter is practiced in Colombia.

 

An Introduction to the Private International Law of the Latin American Countries Today (Pages 45-54)

Eugenio Hernández-Bretón

This chapter provides a comprehensive overview of the evolving landscape of private international law in Latin America. It highlights how Latin American countries have historically followed a territorialist approach but have increasingly modernized their legal frameworks over the past twenty-five years. Countries such as Venezuela, Uruguay, and Panama have enacted new Acts, while others like Cuba and Mexico have introduced reforms focusing on specific areas like international family law and civil procedure. Despite this modernization, traditional instruments like the Bustamante Code and Montevideo Treaties continue to coexist with these new legal developments. The chapter emphasizes the importance of continued academic and judicial engagement to assess the effectiveness of these evolving legal frameworks in practice.

 

International Procedural Law

 International Jurisdiction in Colombia (Pages 57-75)

Claudia Madrid Martínez

This chapter explores the rules on international jurisdiction in Colombia. It examines the criteria used to determine which courts have jurisdiction over private international law cases, which is the initial step in resolving such cases. It takes account of Colombian current law and the rules included in the Draft General Act on Private International Law for Colombia prepared by IADIP.

 

International Judicial Cooperation in Colombia (Pages 77-92)

Luis Alfredo Pinilla

This chapter provides an introduction to the Colombian regulation on international cooperation in civil and commercial matters. It describes the international treaties to which the country is a party, as well as the national legal framework on the subject. To this end, the chapter briefly presents the essential aspects of the most relevant treaties for Colombia. In doing so, it addresses in particular the 1965 Hague Service Convention and the 1970 Hague Evidence Convention. Furthermore, the chapter describes how letters rogatory and exhortos are regulated in domestic legislation. It also comments briefly on the proposal for international legal cooperation contained in the IADIP Draft General Act.

 

Extraterritorial Effect of Judgments in Colombian Private International Law (Pages 93-108)

María Julia Ochoa Jiménez, José Luis Marín Fuentes

This chapter deals with how the Colombian legal system addresses the recognition and enforcement of foreign judgments and arbitral awards. In order to do this, it presents the relevant rules of the General Code of Procedure Law of 2012 and Act No. 1563 of 2012. Attention is also paid to the ways in which these rules have been applied in practice by the Civil Chamber of the Supreme Court of Justice. Such a practical approach allows us to introduce the novelties included in the IADIP Draft General Act on Private International Law for Colombia.

 

Applicable Law: Cross-Cutting Questions

Sources and Methodological Plurality of Private International Law in Colombia (Pages 111-125)

Claudia Madrid Martínez

This chapter deals with two issues concerning the general theory of private international law considering the Colombian context: the sources of private international law and its methodological plurality. It addresses the complex interplay of sources in Colombian private international law and how it is rooted in a combination of international treaties and domestic laws that challenges the identification of a hierarchical order between them. The chapter also examines how the methodological plurality of Colombian private international law involves the application of internationally mandatory rules, special substantive rules, and conflict rules, highlighting its diverse and layered approach.

 

Application of Foreign Law in Colombia (Pages 127-133)

Claudia Madrid Martínez

The application of foreign law is one of the most intricate aspects of private international law. This issue entails both procedural and substantive complexities. In many cases, judges opt to apply their domestic law due to the challenges of understanding foreign legal systems. This chapter delves into procedural implications, distinguishing when foreign law is treated as law or as a fact. Moreover, it outlines the Colombian legal framework, emphasizing the “mixed system” that makes both judges and parties responsible for knowing foreign law and that must be balanced by some flexible guidelines that have been provided by the Constitutional Court.

 

General Institutions in Colombian Private International Law (Pages 135-160)

Claudia Madrid Martínez

This chapter focuses on the general rules and concepts of private international law that address the challenge of determining applicable law in cross-border cases. It discusses how Colombian private international law lacks codified rules on these institutions, as well as the way in which the IADIP Draft addresses them, in particular following the Inter-American Convention on General Rules of Private International Law.

 

Property

Property Rights in Colombian Private International Law (Pages 163-184)

María Julia Ochoa Jiménez

This chapter deals with how the lex rei sitae rule is introduced in Latin America in general and in Colombia in particular. It critically discusses its inclusion in the legal instruments currently in force in Colombia and takes into account how it is approached in the IADIP Draft. After briefly describing how this proposal refers to intellectual property, the chapter turns to the quite innovative regulation it contains regarding the international restitution of cultural property in general and of Indigenous cultural objects in particular. Finally, the chapter briefly refers to the IADIP Draft’s rules on mobile conflicts and jurisdiction before concluding with some final remarks.

 

International Intellectual Property Contracts in Colombia: Applicable Law and Dispute Resolution (Pages 185-197)

Brenda Salas

In international contracts concerning intellectual property, the general principle is to resort to the autonomy of the parties’ will. This means that the parties are free to determine both the law applicable to the contract and the means of dispute resolution. However, the question that arises in Colombia is how to determine the applicable law to the contract and the competent authority for conflict resolution when the parties have remained silent on these matters in an international contract concerning intellectual property. To this end, this chapter first analyzes the law applicable to the contract, then the competent authority for dispute resolution. Finally, it analyzes the regulation included in the Draft General Act on Private International Law for Colombia prepared by the Instituto Antioqueño de Derecho Internacional Privado.

 

Persons and Family

Natural Persons in Colombian Private International Law (Pages 201-219)

Laura Victoria García Matamoros

This chapter focuses on the individual scope of the personal status. It first discusses its elements, particularly considering the private international law perspective. Furthermore, it presents the advantages and disadvantages of the criteria to determine the law that must be applied to cross-border situations. Finally, the chapter critically approaches the Colombian legal system, paying special attention to the current situation and to the solutions proposed by two recent law drafts: the Draft General Act on Private International Law for Colombia prepared by the Instituto Antioqueño de Derecho Internacional Privado in 2021 and the Draft Civil Code of Colombia presented by the Universidad Nacional de Colombia in 2023.

 

Marriage and Marital Unions in Colombian Private International Law (Pages 221-241)

Laura Victoria García Matamoros

This chapter first examines the international legal relationships that give rise to the formation of a family. It then analyzes the legal regulation of these aspects within the Colombian legal system. Subsequently, the chapter briefly discusses the relevant provisions of two proposals: the Draft General Act on Private International Law for Colombia, prepared by the Instituto Antioqueño de Derecho Internacional Privado in 2021, and the Draft Civil Code of Colombia presented by the Universidad Nacional de Colombia in 2023.

 

International Family Law in Colombia (Pages 243-258)

Gloria Rivera Ocampo

This chapter presents the main international treaties and instruments that make up Colombian international family law, particularly those that contain rules regarding child protection and international adoption, which refer to the general principles on this subject matter, i.e., safeguarding the best interest of the child, non-discrimination, and efficiency in legal processes. Reference is also made to the fact that the lack of regulation on other issues, such as surrogacy and post-mortem insemination, poses complex challenges for Colombian family courts.

 

Commerce

Private International Law and Colombian Business Associations Law (Pages 261-275)

Juan Antonio Gaviria

The intersection between Colombian business association law and private international law is dealt with in this chapter. For this purpose, it identifies the current issues in the international interaction of for-profit entities and their shareholders or partners, studying the former under a double angle or edge: both as juridical persons, and therefore subjects of rights and duties, and international contracts. This entails analyzing the legal rules determining which companies are domestic and foreign and the legal relevance of such a distinction. The chapter also makes some comments on the IADIP Draft General Act on Private International Act for Colombia regarding business association law.

 

A New Beginning for Negotiable Instruments (Pages 277-288)

Daniel Rojas-Tamayo

Colombian private international law on negotiable instruments is intriguing: very few rules in recent codes and legislation contrast with a rather extensive regulation in antique treaties. Despite both choice-of-law and substantial rules, there are only three rulings of the Colombian Supreme Court on the subject matter. In this context, the IADIP Draft on Private International Law for Colombia studied in this chapter seems to offer a satisfactory and necessary regulation. Furthermore, the IADIP Draft modernizes Colombian law in various manners, such as embracing a different connecting factor and introducing freedom of choice.

 

The Lex Mercatoria Method: Addressing International Private Cases Beyond Conflict of Laws (Pages 289-308)

Néstor Raúl Londoño Sepúlveda

This chapter examines the use of lex mercatoria as a substitute legal system for transnational private conflicts. The lex mercatoria is a set of ad hoc, international rules that originate from non-state entities and govern business transactions outside of the conventional conflict of law system. In international arbitration, for example, arbitrators frequently rely on it in the lack of clear national legal frameworks. These transnational rules continue to offer adaptable solutions in international trade, addressing legal gaps and enhancing both domestic laws and international treaties, despite criticism regarding their regulatory scattering. The chapter explores the development of the lex mercatoria, its origins, and its empirical application.

Quick and easy access to German case law in private international law – One year of ‘IPRspr 2.0’ (and almost 100 years of ‘IPRspr’)

A comprehensive and carefully curated database providing free access to German court decisions on private international law – www.iprspr.de

Ralf Michaels/Jan Peter Schmidt

 

 

As is well known (at least among readers of this blog), the reality of private international law is found not in the highly abstract and often rudimentary black-letter rules, but only in their concrete application by courts. Case surveys are therefore crucial, but compiling the decisions comprehensively is hard. Private international law issues appear in all areas of private law and beyond: they can arise not only before civil and commercial courts, but also, for example, in criminal and in administrative proceedings. Sometimes courts do not even realize, or make explicit, the relevance of foreign law. The annual survey of US decisions on choice of law in the American Journal of Comparative Law, initiated by Symeon Symeonides and now continued by Coyle, Dodge, and Simowitz, relies on a keyword search. Other surveys do not even aim at being comprehensive.

In Germany, a continuous and close-to-comprehensive compilation has been available since 1928 and thus for nearly 100 years. ‘Die deutsche Rechtsprechung auf dem Gebiete des Internationalen Privatrechts’, or short ‘IPRspr’, is published by the Max Planck Institute in Hamburg and offers a complete and systematic documentation of German case law on private international law, including procedural law and foreign law.

Comprehensiveness is a goal that is hard to achieve, but the IPRspr goes a long way. Apart from other available databases, more than 100 journals (from private law and beyond) are regularly surveyed. Via the legal opinions it prepares for German courts, the Institute also becomes aware of at least some of the (unfortunately, quite numerous) decisions that otherwise remain unpublished.

One particular value of the collection, appreciated within the discipline, is that the decisions are not merely collected and republished, but carefully edited. This entails, among other things, that the decisions are distilled down to their private international law aspects and categorized according to subject matter. References to domestic and foreign sources are checked (and mistakes are rectified). Depending on the case, the (unofficial) headnotes are reformulated or completely rewritten. Both practitioners and scholars have long relied on the collection; the entirety of its volumes enable access to the whole body of German case law on private international law.

The publication of the IPRspr in book form, one for each year of decisions, was long the only viable option, but came with two shortcomings. First, some court decisions became known only with considerable delay. Second, the increasing number of private international law decisions made it necessary to leave some decisions out to keep the size of each volume manageable.

This changed in October 2024 when the ‘IPRspr’ was launched as a freely accessible database (www.iprspr.de). This is IPRspr 2.0 – a continuation of the old IPRspr and at the same time an entirely new, much more useful and convenient tool for legal research.

Since the shift to online access, the collection has increased by another 500 entries and surpassed the total number of 7,000 decisions, some of which were otherwise unpublished. Whereas the printed version, which has in the meantime been discontinued, typically lagged more than two years behind the reported period, the online database is close to achieving its goal of being entirely up to date. Currently, the decisions date back to 2004. Even earlier volumes, which date back to the cases of 1926, might be integrated in the future.

The access to new decisions is supported by an RSS-feed which can be limited to specific subject matters. Apart from the decisions as such, ‘IPRspr 2.0’ offers a wide range of search and retrieval functions. In addition to full-text searches, decisions can be filtered by, among other criteria, date(s), subject matter(s), jurisdiction(s), and statutory provision(s). Much more than in the old days of the print volumes, this allows for targeted research on specific and topical matters, be it for practical or for scholarly purposes. Hyperlinks make it possible to quickly access other cited decisions. Permalinks can be used for citations. More detailed instructions are found in the FAQ section of www.iprspr.de.

At the same time, the IPRspr has conserved – and expanded – its potential for identifying practically relevant issues and general trends. The latter point can be illustrated with a few examples:

• The total number of reported decisions per year has been relatively stable for the last 15 years, ranging between 300 and 400. Compared to 1970, the number has more than doubled.
• Decisions applying the Hague Convention on the Civil Aspects of International Child Abduction sharply increased beginning in 2016 and have declined again since 2022. The majority of cases concerned children abducted from Poland, the USA, and France. Since 2022, however, there have been more cases relating to Ukraine.
• Decisions concerning child adoption show a surprisingly unstable pattern. After a considerable increase in 2009, the number of cases later dropped, falling even to single digits between 2020 and 2023. 2024 once again saw a sharp increase to 32. Whether these shifts are mere coincidence or to be explained by specific factors might be worthy of further investigation.
• Decisions concerning the jurisdiction over consumer contracts (Article 17 Brussel Ibis Regulation) have sharply climbed since 2020, reaching almost 100 in 2023. As for the countries involved, Ireland and Malta are the clear front-runners, with the primary subject matter being data scraping in the first case and online-gambling in the second.

Shortly before reaching its 100th anniversary, the IPRspr has thus achieved the transition to the digital age, preserving many of its traditional features and adding important new ones. The IPRspr has become an even more useful tool for practitioners and scholars alike, and it hopefully inspires the creation of other free national databases, or even one for European PIL as a whole. Plans to add CJEU decisions to IPRspr are underway.

The IPRspr is compiled and edited by a team within the Institute’s Centre for the Application of Foreign Law, led by Jan Peter Schmidt. Its continued success depends, however, on its acceptance by the PIL community, both in Germany and abroad. We suggest that citations of decisions include the IPRspr number, at least in parallel to other possible case references (the format is Year-Number, e.g. “IPRspr 2025-110”). We kindly ask judges, academics and practitioners to submit or communicate new decisions, or case notes to these decisions, to iprspr@mpipriv.de. Any other kind of feedback, including suggestions for future improvements, is equally welcomed and can be sent to the same email address.

Decisions in the database – as edited by the IPRspr team – are published under a creative commons licence CC-BY 4.0. This means they can be republished, and even translated, freely. All that is required is naming IPRspr as a source.

The European Commission has established the Brussels Ia sub-group and launched a Call for Applications to select members of this group, which will support the revision of the cornerstone instrument of EU Private International Law. Members of the sub group will contribute to the evaluation of the Brussels Ia Regulation, support the preparation of any […]

by Fabienne Jault-Seseke

Volume 4 of the Revue Perspectives Contentieuses Internationales (PCI) has been published. Available in open access here.

It includes a special feature on ‘the International Commercial Chamber of the Paris Court of Appeal’ edited by Sandrine Clavel and Daniel Barlow. This feature provides an insight into the history of the chamber, its specific characteristics, its place in the European market for justice, and how it operates. It also includes a presentation of its case law in private international law by Marie-Elodie Ancel and François Mailhé. Case law in arbitration is the subject of three articles by Malik Laazouzi.

Here is the table of the contents of the « dossier »:

• La chambre commerciale internationale de la Cour d’appel de Paris, juridiction-modèle ? by Sandrine Clavel. Is the International Commercial Chamber of the Paris Court of Appeal a model jurisdiction?
• La place de la chambre commerciale internationale dans le paysage judiciaire national, by François Ancel (The place of the International Commercial Chamber in the national judicial landscape)
• La place de la chambre commerciale internationale dans le paysage judiciaire international, par Gilles Cuniberti (The place of the International Commercial Chamber in the international judicial landscape)
• Procédure et pratiques de la chambre commerciale internationale, par Daniel Barlow (Procedure and practices of the International Commercial Chamber)
• La jurisprudence de la chambre commerciale internationale en droit international privé, par Marie-Elodie Ancel et François Mailhé (The case law of the International Commercial Chamber in PIL)
• La jurisprudence de la chambre commerciale internationale en matière d’arbitrage international : l’articulation entre le contentieux arbitral et le contentieux étatique, par Malik Laazouzi (The relationship between arbitration and state litigation in the case law of the International Commercial Chamber)
• La jurisprudence de la chambre commerciale internationale en matière d’arbitrage international : le respect de la volonté des parties, par Malik Laazouzi (Respect for the will of the parties in the case law of the International Commercial Chamber)
• La jurisprudence de la chambre commerciale internationale en matière d’arbitrage international : le respect des droits et principes fondamentaux, par Malik Laazouzi (Respect for fundamental rights and principles in the case law of the International Commercial Chamber)

Volume 4 also includes two other articles (Varia) and three « focus » :

– « Le contentieux interaméricain des droits de l’homme, remède efficace à la violation des droits des peuples autochtones ? Réflexions à partir de l’affaire Lhaka Honhat ». Patrick Jacob examines ‘Inter-American human rights litigation: an effective remedy for the violation of indigenous peoples’ rights? Reflections based on the Lhaka Honhat case’. This case gave rise to a ruling by the Inter-American Court of Human Rights in 2020.

– « La notion de matière contractuelle dans le règlement Bruxelles I bis, sous l’angle des perspectives contentieuses ». Marjolaine Roccati provides a detailed analysis of the concept of contractual matters in the Brussels I bis Regulation from a litigation perspective.

– Les perspectives contentieuses de l’avis sur le climat : le juge national au premier plan (G. Giraudeau). On the opinion of the International Court of Justice : Litigation prospects for the climate opinion: national judges at the forefront (G. Giraudeau)

– Regarding the German OLG Hamm decision on climate litigation: « Affaire Lliuya / RWE, à contentieux, stratégique, décision stratégique » (F. Jault-Seseke).

– Regarding the recent French decree on amicable dispute resolution methods: « Refonte des dispositions du Code de procédure civile régissant les modes de résolution amiable des différends » (E. Myrto Kapetanaki).

Edoardo Benvenuti, a post-doc researcher at the University of Milan, has provided the following presentation of a book he authored, entitled ‘Giurisdizione in materia civile e commerciale nei confronti di convenuti domiciliati in Stati terzi e interessi materiali dell’Unione europea’ (Jurisdiction in Civil and Commercial Matters over Defendants Domiciled in Third States and the Substantive Interests […]

This post is posted on behalf of Jason Mitchell, barrister at Maitland Chambers in London and Group 621 in Johannesburg.

In Motorola Solutions v Hytera Communications Corporation, the Court of Appeal held that a judgment that includes a punitive damages component is unenforceable in its entirety (the judgment is available here). The punitive component cannot be severed so that the judgment creditor can enforce non-punitive components.

Motorola sued Hytera in the U.S. One of its causes of action was under the Defend Trade Secrets Act, a federal statute that allows for punitive damages of up to double any compensatory damages. On that cause of action, the U.S. court awarded Motorola compensatory damages of $135 million and punitive damages of $270 million. Motorola tried to enforce the U.S. judgment in England.

Enter the Protection of Trading Interests Act. Section 5 precludes recovery of “any sum payable” under a “judgment for multiple damages” (later defined as “a judgment for an amount arrived at by doubling, trebling or otherwise multiplying a sum assessed as compensation for the loss or damage sustained by the person in whose favour the judgment is given”).

Motorola argued that s.5 did not preclude enforcement of the compensatory component of the judgment, just the punitive component. The Commercial Court and the Court of Appeal rejected that argument: the language of s.5 “is clear and unambiguous in barring enforcement of the whole of multiple damages claim including its compensatory part.”

The Court of Appeal also noted that this interpretation of s.5 “acts as a discouragement to the claimant from seeking an award of multiple damages in the first place”. One wonders whether that aligns with the usual concern over comity: why should an English court project its own view of public policy onto foreign litigants and how foreign litigants choose to conduct litigation in foreign courts (and choose to ask for remedies under foreign statutes that expressly allow punitive damages). A few years ago, the Fourth Circuit’s Judge Wilkinson did not mince his words about the (in his view, exorbitant) effect of an English anti-suit injunction (here). An English court attempting to apply English public policy to create ex ante incentives and disincentives for how a U.S. litigant litigates under a U.S. statute may again raise eyebrows (and ire).

Motorola would have had better luck if Hytera had had some assets farther south. The equivalent statute in South Africa, the Protection of Businesses Act, also precludes enforcement of a “judgment … directing the payment of multiple or punitive damages”. On its plain text, the Act, like the English equivalent, seems to bar a judgment in its entirety. However, South African courts have effectively interpreted the Act out of existence. The Act says it applies to judgments “connected with the mining, production, importation, exportation, refinement, possession, use or sale of or ownership to any matter or material, of whatever nature, whether within, outside, into or from the Republic”, which seems broad. But courts have interpreted that phrase to mean that the Act applies only to judgments about raw materials used to make other things: Tradex Ocean Transportation SA v MV Silvergate 1994 (4) SA 119 (D); see also International Fruit Genetics LLC v Redelinghuys 2019 (4) SA 174 (WCC) (here) (holding that the Act does not even apply to a foreign judgment about a licensing agreement over grape varieties: grapes are raw materials, but, apparently, they aren’t made to use other things). So it should come as no surprise that, according to the leading practitioner text, “there is in fact no recorded instance in which the Act has been successfully invoked as a defence to enforcement” (C F Forsyth Private International Law (5th ed. 2012). The Act is, however, remarkable for this reason: if the Act applies, it precludes enforcement of any judgment (not just judgments that include punitive damages) without the permission of the “Minister of Economic Affairs” (now, presumably, the Minister of Trade, Industry and Competition). That is almost certainly unconstitutional (it probably survives only because the narrow interpretation of the Act’s ambit means that there has not been any need to challenge it—see International Fruit Genetics, above, noting that the constitutionality of the permission requirement is “questionable”).

With the Protection of Businesses Act out of the way, the common law would govern the enforceability of Motorola’s U.S. judgment (South Africa has an Enforcement of Foreign Civil Judgments Act, which sounds promising enough, but it applies only to “designated” countries: a list with just Namibia on it). There is no appellate authority on this, but High Courts seem to agree that an order for punitive damages is contrary to South African public policy, but disagree about how to characterise damages as punitive (unenforceable) or compensatory (enforceable). In Danielson v Human 2017 (1) SA 141 (WCC) (here), the High Court held (probably on shaky ground) that an order for treble damages under RICO is not punitive but compensatory (based on expert U.S. evidence on how U.S. law characterises treble damages under RICO—query why that should matter to a South African court, and, if so, query also whether that should have been a matter of U.S. federal or state law). Danielson distinguished Jones v Krok 1996 (1) SA 504 (T), which held that an order awarding punitive damages for breach of contract under California law was punitive and contrary to public policy. Jones did, however, still enforce the compensatory component of the order.

So, Motorola would have two arguments in a South African courtroom. It could be argued that an order for ‘punitive’ damages under the Defend Trade Secrets Act, like treble damages under RICO, is not punitive but compensatory (Danielson). Or, as a fallback, it could at least enforce the compensatory component of the U.S. judgment even if the punitive component were unenforceable (Jones).

 

Gaëlle Widiez (Bourgogne University) has recently edited a volume entitled The Specialization of Private International Law: Reflections from the Perspective of Business Law (La spécialisation du droit international privé : Réflexion dans le champ du droit des affaires), published by LexisNexis.

The book brings together the contributions of participants in a colloquium on the same theme, held in Dijon on 29 November 2024 and organized in collaboration with the Centre Droit Éthique et Procédures (CDEP) of the University of Artois.

The book’s description reads as follows:

(AI translation)

In contemporary private international law (PIL), there has been a marked proliferation of special rules on jurisdiction and choice of law, designed to respond more closely to the specific features of particular situations. This development, however, carries the risk of relegating the general rules of the discipline to a merely subsidiary role. Such specialization in PIL manifests itself primarily in two forms: first, the emergence of “micro-categories” accompanied by specific connecting factors; and second, the refinement—indeed, at times the “over-refinement”—of general conflict rules in order to tailor the connecting factor to certain specific situations. Against this background, the objectives of the research are twofold. On the one hand, it seeks to enrich and, where appropriate, to go beyond the three justifications traditionally advanced in support of this specialization: the need to better capture the growing complexity of social and economic relations; the internationalization and Europeanization of the discipline; and the increasing role of the judge, particularly at the European level. The analysis of the common and specific reasons underlying this process of specialization in PIL will thus be further developed and consolidated. On the other hand, a detailed examination of various examples drawn from business law will make it possible to assess more closely the effectiveness of this process of specialization. In addition, the study is expected to yield valuable insights into the sources of PIL, which may in turn usefully inform the future development of conflict-of-laws rules.

 

En droit international privé (DIP) contemporain, on constate une prolifération de règles de conflit de juridictions et de conflit de lois spéciales qui se veulent mieux adaptées aux aspérités des cas de figure particuliers, au risque de confiner les règles générales de la matière à un rôle subsidiaire. Cette spéculation du DIP se manifeste principalement sous deux formes : l’apparition de “petites catégories” assorties d’éléments de rattachement particuliers et l’affinement, voir le “raffinement”, de la règle de conflit général afin d’adapter le rattachement à certaines situations spécifiques. Partant, l’objectif de la recherche est double. D’une part, il s’agira d’enrichir et sans doute de dépasser les trois justifications classiquement avancées au soutien de cette spécialisation : volonté de mieux appréhender la complexification croissante des relations sociales et économiques, internationalisation/européanisation de la discipline et accroissement du rôle du juge, spécialement au niveau européen. La réflexion sur les raisons communes et spécifiques de ce processus de spécialisation du DIP sera étoffée et consolidée. D’une part, l’étude par le biais de divers exemples de droit des affaires permettra d’analyser au plus près l’efficacité du processus de spécialisation. De plus, il devrait s’en extraire de précieuses informations sur les sources du DIP qui pourraient utilement éclairer la fabrique des règles de conflit de demain.

 

The Table of contents includes the following:

 

Gaëlle WlDIEZ

Propos introductifs (3)

 

Nicolas BALAT

Réflexions générales sur la spécialisation (9)

 

PREMIÈRE PARTIE – La spécialisation des règles de DIP relatives à la protection des personnes et de la planète

 

Olivera BOSKOVIC

La spécialisation des règles de droit international privé en matière d’atteintes à l’environnement (17)

 

Marie NIOCHE

Directive « vigilance » et spécialisation du droit international privé (31)

 

Marion HO-DAC

Le contentieux international généré par l’intelligence artificielle (57)

 

Marie-Élodie ANCEL

Le contentieux international des données personnelles : réflexion à partir d’une règle de compétence« spécifique» au sein du RGPD (79)

 

DEUXIÈME PARTIE – La spécialisation des règles de DIP relatives à la régulation du marché

 

Valérie PIRONON

Le contentieux international de la concurrence (99

 

Juliette MOREL-MAROGER

La spécialisation des règles de droit international privé relatives à la régulation du marché. Le contentieux financier international (113)

 

Constantin RINGOT-NAMER

Le contentieux international en produits défectueux (129)

 

Béligh ELBALTI

La spécialisation du droit international privé : point de vue du monde Arabe et de l’Asie (145)

 

Sarah LAVAL

La spécialisation des règles de conflit de lois : l’exemple du droit international privé américain (175)

 

Cyril NOURISSAT

La spécialisation du droit international privé : le point de vue de l’Union européenne (187)

On Tuesday, January 13, 2026, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST). Jens Kleinschmidt (Trier University) will speak, in German, about the topic

“Zehn Jahre Europäische Erbrechtsverordnung – Stand und Perspektiven”

Seit zehn Jahren bestimmt die Europäische Erbrechtsverordnung die Planung und Abwicklung grenzüberschreitender Erbfälle in der EU. Eine Überprüfungsklausel (Art. 82 EuErbVO) sieht nach diesem Zeitraum einen Bericht über die Anwendung der Verordnung vor. Dies nimmt der Vortrag zum Anlass, aufbauend auf den Erfahrungen mit dem Rechtsakt über Zukunftsperspektiven nachzudenken. Den Ausgangspunkt bildet dabei das Europäische Nachlasszeugnis, dessen effet utile in der Rechtsprechung des EuGH wiederholt die Auslegung der gesamten Verordnung geleitet hat.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

After the Christmas break, the Court resumes its normal rhythm of hearings and publication of judgments and opinions until the “semaine blanche” in February. The judgment of the first chamber (F. Biltgen reporting, the other judges being T. von Danwitz, I. Ziemele, S. Gervasoni and N. Fenger) in case C-77/24, Wunner, is scheduled for Thursday […]

The international character of contracts is currently undergoing significant transformations. Whether deliberately chosen by the parties, rejected by domestic courts, endured in certain regulatory contexts, or even rendered obsolete, the notion of internationality – long considered a cornerstone of private international law – calls for renewed analysis. Against this background, a conference entitled “Revisiting the Internationality of Contracts” will be held on Monday, 9 February 2026 from 9:00 a.m. to 6:00 p.m. in the Grand Chamber of the French Court of Cassation.

The conference will bring together academics, judges, practitioners, and institutional actors to explore the multiple dimensions of contractual internationality, including its conceptual foundations, its contested or imposed forms, its role in specific contractual fields (consumer, employment, insurance, public contracts), its possible transcendence in European and arbitral contexts, and comparative perspectives from various legal systems around the world.

The event is organised under the direction of Gustavo Cerqueira, Giulio Cesare Giorgini, and Nicolas Nord, and will feature contributions from leading scholars and practitioners in private international law and international contract law.

The full programme of the conference can be downloaded here, information about how to register is available here.

As the new year begins, it’s a good time for a fresh start. One timely occasion to do so is the release, on 31 December 2025, of the annual update of the List of China’s Cases on Recognition of Foreign Judgments (Case List), prepared since 2019 by China Justice Observer (CJO), founded by Guodong Du and Meng Yu  (updates for the years 2020, 2022, 2023, and 2024 were also previously posted on this blog).

The Case List is compiled on the basis of a collection of “all Chinese court decisions involving the recognition and enforcement of foreign judgments (REFJ), as well as foreign decisions concerning the recognition and enforcement of Chinese judgments.” The stated intention behind this endeavor is to “build reasonable expectations on REFJ in China.”

The Case List constitutes a particularly valuable source of information on judicial practice relating to the recognition and enforcement of foreign judgments in China, both under international treaties concluded by China (for a full list, see here) and under domestic law, namely the Civil Procedure Law of the People’s Republic of China (2023 Amendment), Articles 298–303.

According to the 2025 update, a total of 120 cases involving China and 26 foreign States and regions, excluding foreign divorce judgments, have now been collected. This represents an increase of 11 cases compared to the previous update (109 cases in the 2024 update).

 

Key features of the 2025 update include the following:

• The List comprises 26 concise reports for each jurisdiction, together with a chart of bilateral judicial assistance treaties which China has concluded with 39 States, of which 35 bilateral treaties include judgment enforcement clauses.

• A total of eleven newly added cases involve one treaty jurisdiction – Uzbekistan (one case), and five non-treaty jurisdictions, namely, Australia (one case), New Zealand (four cases), Singapore (two cases), South Korea (two cases), and the United States (one case).

• Please note that Tian v Xu [2023] NZHC 3259 marks the first reported instance of a New Zealand court recognizing and enforcing a Chinese civil settlement statement (also known as a mediation judgment). By treating such instruments as equivalent to consent judgments, the New Zealand High Court has adopted a pro-enforcement approach consistent with precedents in Canada (Wei v Li 2019 BCCA 114) and Australia (Bank of China Limited v Chen [2022] NSWSC 749), providing a clear contrast to the earlier restrictive view expressed in Singapore (Shi Wen Yue v Shi Minjiu & Anor [2016] SGHC 137).

• Another noteworthy case is Sunvalley Solar Inc. v Baoding Tianwei Solarfilms Co. Ltd. (2019) Ji 01 Xie Wai Ren No. 3, where a Chinese court refused to enforce a U.S. default judgment rendered in breach of a valid arbitration agreement. By holding that a defendant’s absence does not constitute an implied waiver, the Chinese court shielded arbitration clauses from being bypassed via foreign default judgments.

• Other newly added cases, be it foreign judgments to be enforced in China or Chinese judgments to be enforced in foreign jurisdictions, provide a valuable comparative perspective on key issues in the eyes of courts from different jurisdictions, such as reciprocity ( e.g., the de jure reciprocity applied by a Beijing court in enforcing a South Korean IP judgment, the reciprocal consensus confirmed by a Shanghai court in enforcing a Singapore monetary judgment), natural justice (New Zealand), ascertainment and interpretation of foreign law (Singapore, Australia).

• Each case has been reviewed, and more details, such as the grounds, the case numbers, and causes of action, have been added.

• Case analyses have been aggregated under the country tags since 2022, so it is now easier to track down relevant cases, together with their information and analyses, in each country/region report. For example, under the tag ‘US-China Judgments Recognition and Enforcement’, one can find relevant case analyses involving mutual recognition and enforcement of judgments between the US and China.

 

For further details see here and here.

Happy New Year to all!

 

Written by Mayela Celis, Maastricht University

International child abduction is a topic that has given rise to an ever-increasing number of publications (our latest blog post attests to this trend). It easily sparks emotions among experts, sometimes triggering divergent views. However, from a global perspective, there is consensus on the basic principle: States should combat international child abductions and a child should be returned to the State of habitual residence, unless an exception is made out. In 2023, Elgar published the book entitled “Research Handbook on International Child Abduction: the 1980 Hague Convention”, eds. Marilyn Freeman and Nicola Taylor (Edward Elgar Publishing Limited, 2023). Although published a couple of years ago, it remains poignantly relevant.

This book brings together an adult who was abducted as a child, practitioners, judges, academics, NGO officials and central authority personnel. Many of the authors are at the forefront of this field and their contributions have left a long-lasting legacy in this area of law. While some topics are considered from an academic perspective, others have a more practical focus, striking the right balance between academia and practice.

This book review will be divided into two parts. The present and first post will deal with Part II to Part VI of the book. The second post will consider Parts VII & VIII and will include some personal views. The table of contents is available here.

This book is divided into 8 Parts:

• PART I – Introduction and key themes
• PART II – The impacts of international child abduction
• PART III – The 1980 Hague Convention – History and longitudinal trends
• PART IV – The 1980 Hague Convention – Implementation and operationalisation
• PART V- International child abduction in selected geographical regions
• PART VI – Non-Hague Convention countries
• PART VII – Key perspectives on international child abduction and Hague Convention proceedings
• PART VIII – Reflection and future directions

At the outset, it should be noted that this book has been dedicated to the memory of Anne-Marie Hutchinson for her invaluable contribution to this field.

Part II – The impacts of international child abduction

This Part begins with the long-term reflections of a former milk carton kid (Chapter 2 – FINKELSTEIN WATERS). A personal story of a woman who remembered seeing herself on a milk carton, when she was abducted as a child by her father and on the run, as part of a nationwide advertisement to find missing children. She recounts her life after her abduction from Norway to the United States, the previous abduction of her brothers from the United States to Israel and then to Norway, and the actions she has taken against child abduction, which includes speaking widely to the media and working with Lady Catherine Meyer, a left behind parent and founder of PACT.

It then moves on to discuss the psychological issues in child abduction and high conflict cases (Chapter 3 – CALVERT). The Chapter is rightly entitled in part “Ghosts in our Genes”, given that children in high conflict cases are haunted by these ghosts (or traumas) way into adulthood. It addresses the impact of developmental issues, parenthood and the voice of the child, noting that children want to be involved and valued, acknowledged and respected.

Part III – The 1980 Hague Convention – History and Longitudinal Trends

Part III begins by providing a historical context of the Hague 1980 Child Abduction Convention (subsequently, Child Abduction Convention or Convention), including some notable US developments preceding the treaty and a description of the Hague drafting process (Chapter 4 – ELROD). It also incorporates useful insights into the post-ratification history of the Convention and of the role of the HCCH as a leader in creating international family law.

This Part then continues with the value and challenges of statistical studies on the Child Abduction Convention (Chapter 5 – LOWE, STEPHANS). This article is written by the persons commissioned to draft these statistical studies so it is all the more valuable. After explaining the origin of the global studies, among other topics, it describes the modern statistical studies’ findings, such as the number of Hague applications and the outcomes. Beyond the descriptive nature of this article, it also provides useful insider information about funding issues, methodology, difficulties experienced, and challenges ahead. As stated in this article, this contribution was unable to take on board the latest study conducted on the basis of data of the year 2021, which provides valuable information regarding child abduction and the coronavirus pandemic, and which was prepared by the authors of this contribution (for more information, see Prel. Doc. No 3 of January 2023 of the 2023 Special Commission).

A note to the reader: although it was an idea left open by the authors, it should be noted that in 2021 the HCCH Council on General Affairs and Policy (CGAP Conclusion & Decision No 19) mandated the discontinuance of INCASTAT, an electronic statistical database.

PART IV – The 1980 Hague Convention – Implementation and operationalisation

Part IV begins with the role of the Permanent Bureau in the operation of the Child Abduction Convention (Chapter 6 – GOH ESCOLAR). This article starts with the role of the Permanent Bureau, the secretariat of the HCCH, and lists some of its tasks, which include: preparing, organising sessions and meetings, supporting the proper operation of the Child Abduction Convention, providing post-convention assistance (such as country profiles, holding seminars and INCADAT), facilitating communications and maintaining networks (including the International Hague Network of Judges and the Malta Process), organising and participating in international meetings, and maintaining of HCCH Regional Offices (in Latin America – ROLAC – and the Caribbean and Asia Pacific – ROAP -) and their key role.

A note to the reader: As of July 2025, there is a new HCCH Regional Office in Rabat, Morocco. For more information, click here.

It then moves on to the extremely relevant chapter on helping battered mothers and their children using Article 13(1)(b) (Chapter 7 – EDLESON, SHETTY, FATA) – . The authors begin by contextualizing the problem and setting forth decades of social research on domestic violence and their effects on battered women and children. This article then continues by analysing court decisions where the grave risk exception has been applied. It also discusses the Hague Domestic Violence project. Finally, it provides concrete recommendations to the Permanent Bureau of the Hague Conference and suggests possible actions for Central Authorities and practitioners. In particular, some recommendations to the Permanent Bureau include: encouraging the recognition that the exceptions to the return of children are an integral part of the Convention, focusing on the protection of children rather than adopting a technical approach to this treaty, and facilitating the drafting of a new revised edition of the Guide to Good Practice on Article 13(1)(b) with more comprehensive information on domestic violence. It should be noted that one of the authors has spearheaded research in this area with the ground-breaking book Battered Women, Their Children, and International Law: The Unintended Consequences of the Hague Child Abduction Convention (Northeastern University Press, 2012).

Subsequently, this Part deals with child participation and the child objection exception (Chapter 8, SCHUZ). This Chapter is divided into child participation and the child objection exception. With regard to the child participation, the direct and indirect hearings and separate representation are considered, with the author underscoring the need to convey the views of the child and not only the perceptions of the child’s interest, as well as the benefits of separate representation. Concerning the child objection exception, this chapter analyses the exception in a very structural manner by dividing in age and maturity, child’s objection including strength and validity and finally, the tricky question of discretion, which the author divides into welfare and convention considerations. Importantly, the author calls for internalising children’s rights when considering this exception and the adoption of a more child-centric approach.

Finally, this Part discusses a 20-year evolution in judicial activism (Chapter 9 – THORPE). The author was the first to table the proposal in 1998, on behalf of the UK, to create the International Hague Network of Judges. This chapter recounts the developments of direct judicial communications and of this network from their origin to up to 2021. With the support of key articles published in the HCCH Judges Newsletter, as he argues certain loss of memory – even to reminiscence his life during the Second World War -, the author takes us on the long journey of these initiatives, providing inside information and interesting details of the conferences held in the southern part of the Netherlands in the late nineties, in Brussels in 2009, and ending with some perspectives and conclusions during the corona pandemic. Importantly, he notes that “this is a history of harmony since, apart from the earliest days, there has been no real dissent and there is not a single case in which miscarriage of justice has resulted from an abuse of the general principles governing direct judicial communications.”

Part V – International child abduction in selected geographical regions

This Part focuses on the developments in two European regional courts and specific regions or States.

This Part begins with an analysis of the case law of the European Court of Human Rights (ECtHR) (Chapter 10 – KRUGER / LEMBRECHTS). This contribution is divided into the court’s role in international child abduction and the exceptions to return. The former deals primarily with Article 8 of the ECHR (and to a lesser extent art. 6) in areas such as the voice of the child and the duty to act expeditiously, while the latter provides a summary on the ECtHR case law on the exceptions under the Child Abduction Convention (arts. 12(2), 13(1)(a) and (b), 13(2) and 20). At the outset, this article includes a useful list of cases initiated by left-behind parents and by abducting parents (footnotes 7 and 8), from which conclusions may be drawn as to existing trends (see in particular that the cases heard before the Grand Chamber were initiated by abducting mothers). Importantly, references are made throughout this contribution to X v. Latvia and its impact on the best interests of the child and the exceptions under the Child Abduction Convention. It also includes relevant recent cases and a couple of interesting cases belonging to – what I refer to as – the “twilight zone”, that is the uncertain period between the Grand Chamber judgments of Neulinger and X v Latvia. Among their conclusions, they note that while the case law of the ECtHR is only binding on the members of the Council of Europe, its guidance can be useful to other States.

This Part then goes on to analyse the role of the Court of Justice of the European Union and international child abduction (Chapter 11 – HONORATI). It focuses on the relevant provisions of Brussels II ter, putting an emphasis on key concepts such as habitual residence and studying the court’s case law on this concept which amounted to 9 decisions as of July 2022 (see footnote 19 – citing benchmark cases such as A and Mercredi v. Chaffe, among others). Importantly, a section is devoted to the retention of jurisdiction, in which emphasis is laid on the differences between Brussels II ter and the 1996 Hague Convention. It then moves on to study return proceedings, including the child’s safe return and the overriding mechanism. Finally, the author submits that the guidance provided by the CJEU may be of interest to courts located in third States and may be of some value when dealing with similar topics.

Subsequently, Part V delves into the study of specific geographic regions or States: Australasia and the Pacific, United States, Asia, Africa and the Caribbean region.

With respect to Australasia and the Pacific (Chapter 12 – HENAGHAN / POLAND / KONG), it makes a recount of the developments of child abduction in Contracting and non-Contracting Parties to the Child Abduction Convention. First, it analyses key concepts such as rights of custody and habitual residence, as well as the most litigated issues under the Child Abduction Convention (in particular, the exceptions) in Australia, New Zealand and Fiji. It underlines the differences and similarities among these jurisdictions. Subsequently, it describes the (national or convention-inspired) procedures adopted by Pacific countries that are not Contracting Parties to the Convention when dealing with international child abduction, including Tonga’s steadfast intention not to join this treaty and Samoa’s review of family law.

With regard to the United States (Chapter 13 – CULLEN, POWERS), it describes the robust interpretation of the Convention in this State, noting that the US Supreme Court has rendered judgments in five key cases so far. The article focuses on two of those cases (Monasky and Golan), and touches briefly upon Abbott. Interestingly, this article pinpoints recent federal court judgments that may have an important impact on the operation of the Convention. It also raises the need to deal with the mature child exception in the United States. This Chapter should be read in conjunction with Chapter 7 (Fleeing for safety…).

With respect to Asia, Chapter 14 – NISHITANI focuses primarily on developments in Japan, with some brief references to other Asian countries (such as India and Pakistan). It starts by outlining the reason why it has been a challenge for Asian States to join the Convention. It then analyses the way key Convention concepts have been interpreted in Japan, including two Japanese Supreme Court judgments (2017 and 2020) regarding the change in circumstances when executing return orders and objections of the child. References to other useful Japanese INCADAT cases are included throughout this article. The author also discusses the reform to the Implementation Act and the Civil Executive Act of Japan in 2019 and helpfully suggests improving it by introducing ex officio enforcement mechanism (as opposed to relying on a party’s initiative). Finally, this article refers to the Malta Process, after sharing an interesting reflection on Islamic countries, the author makes a call for States to join the 1996 and 2007 Hague Conventions and Protocol, arguing that these treaties will support a safe return of the child.

With regard to Africa, Chapter 15 (SLOTH-NIELSEN) discusses primarily developments in South Africa, a country with vast jurisprudence on this topic. It begins with an analysis of the benchmark case Sonderup and Tondelli and the interplay of the Convention with the best interests of the child, as well as other South African cases. It also briefly mentions two outgoing cases from Morocco, decided in France and the United States, and legislation from Mauritius. Acknowledging that jurisprudence in this region is scant (apart from South Africa), the author suggests further judicial training in the region.

Regarding the Caribbean region, Chapter 16 (GORDON HARRISON) provides a summary of the status quo in this region regarding international child abduction. It includes a useful table with a list of 32 countries/territories in the Caribbean region and their status (independent State or a territory/country of a State – i.e. UK, France, the Netherlands, USA -). Information is included regarding specific States parties to the Convention (incl. any acceptances of accessions, which may be challenging to determine in the case of territories. Each State must extend the Convention to that particular dependent territory and this extension must have entered into force), and any designations to the Hague Network Judges. This chapter highlights that even in non-Contracting States, the spirit of the Convention has been persuasive (see p. 240, regarding Jamaica before acceding to the Convention) and that judges have been designated for the Hague Network in non-contracting countries (Suriname, Aruba and Sint Maarten). It ends with a useful list of challenges, recommendations and conclusions, which include judicial training and the development of internal guidelines.

A note to the reader: Just for the sake of clarification, it should be noted that St. Kitts and Nevis accepted the accession of Peru and not otherwise, and that Trinidad and Tobago has accepted 5 instead of 6 accessions.

Part VI – Non Hague Convention Countries

This Part deals with non-Hague Convention countries and more specifically, with India. Throughout the book reference is made to the fact that India is not a party to the Child Abduction Convention and what that means for children and families, given the mobility of the Indian population.

In this regard, the reader should bear in mind that this Part should be read in conjunction with Chapter 12 (Australasia and the Pacific), which includes research on Island nations not yet a party to the treaty, such as Samoa and Tonga, Chapter 14 (Asia), which refers to the hesitancy of India to join and information regarding Islamic States, and Chapter 16 (the Caribbean region), which refers to non-Contracting Parties, such as Suriname, and the lack of acceptances of accessions –  the Convention applies bilaterally for acceding States and thus in the case of a lack of an acceptance to an accession, the Convention does not apply -.

With regard to non-Hague Convention countries, Chapter 17 (MORLEY) provides, from a practitioner’s perspective, an overview of the existing practices in some non-Contracting States (including in those the author has litigated, such as a case between Japan and Bangladesh). He begins his contribution by noting the existence of bilateral agreements and MOUs on family law matters, the latter of which have proven to be deficient or highly ineffective. The author also emphasises the Malta process and lists highly useful strategies to recover children from non-Hague countries. This Chapter also deals with India (see pp. 244, 252-253, 256).

With respect to India, Chapter 18 (MALHOTRA, MALHOTRA) briefly analyses the Indian legislation under which a return may be requested and concludes that a writ of Habeas Corpus is the only means available. It then moves on to consider the Indian case law, in particular the numerous – and very contrasting throughout the years –  judgments of the Indian Supreme Court, which is undoubtedly the more interesting part of the article. It starts with the historical position adopted by the Indian Supreme Court and the dramatic shift in position in 2017, with the abandonment of principles such as “first strike” (first seized) and the primacy of comity of Courts, as well as the concept of forum conveniens in these matters. It also analyses Supreme Court decisions rendered in 2019, as well as features the widely publicised case of Jasmeet Kaur v. Navtej Singh. Importantly, it briefly explains the Indian failed attempt to gear up to become a party to the Child Abduction Convention and the sterile bill resulting from those efforts. It concludes by praising the emergence of mirror order jurisprudence in child custody matters, which has been adopted in an Indian-USA case.

Part II of this post will be published later on in 2026… stay tuned and Happy New Year!

How was the year 2025 for the EAPIL blog? Rather busy, to put it shortly! Some 300 new posts were published over the last twelve months, covering a broad range of subjects. A little less than a third of them were concerned with rulings (including upcoming rulings, as in the case of Marta Requejo’s monthly […]