Droit international général

By Luisa Cassar Pullicino and Krista Refalo, Ganado Advocates

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

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

1. Facts and Reference

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

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

2. The Court’s Reasoning: A Functional Interpretation of Article 1(2)(d)

2.1 Structural vs Functional approach

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

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

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

2.2 Application to unlicensed online gambling

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

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

3. The Consequence: Consumer Habitual Residence as the Applicable Law

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

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

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

4. Analysis

4.1 A Tense Separation of Office and Obligation

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

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

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

4.2 The generic ‘duty of care’ analogy

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

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

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

5. Consumer Protection Without a Consumer Contract?

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

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

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

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

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

6. Veil-Piercing Through Conflict-of-Laws

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

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

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

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

7. Conclusion

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

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

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

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

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

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

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

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

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

 

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

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

When I reviewed the AG’s Opinion in Case C‑77/24 [Wunner], I signalled my agreement with his view on the lex societatis carve-out in Rome I, yet disagreed with his findings on locus damni for purely economic loss.

The CJEU held yesterday and does follow the AG on both points.

On the lex societatis exception, it confirms [23] its Verein für Konsumenteninformation formulate, later also confirmed in Kerr: the exception “applies exclusively to the structural aspects of companies and other bodies, corporate or unincorporated”. It then [24] revisits BMA: only in instances where directors, auditors and the like have a non-contractual obligation for reasons specific to company law, is the carve-out engaged, not if the obligation is extraneous to company law. [30] An action seeking to establish liability on the part of the directors, owing to an alleged infringement of a general prohibition on offering online games of chance without holding a licence for that purpose is, the Court holds, not covered by the carve-out because such a legal action does not concern the relationship between a company and its directors. Like the AG, the Court finds support in Rome I Articles 15(a) and (g).

[41] the Court emphasises actual manifestation of the damage, per Vereniging van Effectenbezitters. In determining that place of actual manifestation, [43] (and seeking [42] support in CJEU Pinckney‘s “the place where the alleged damage occurred is liable to vary according to the nature of the right allegedly infringed and that a finding that damage has occurred in a particular Member State is subject to the requirement that the right in respect of which infringement is alleged is protected in that Member State”), the Court very much ties the locus damni assessment to the alleged infringement which grounds the accusation effectively of the claim in tort for breach of statutory obligation: here: “the damage alleged by [claimant] actually manifested itself when he participated, from Austria, in online games of chance offered in breach of a prohibition applicable in that Member State. In those circumstances, the damage must be regarded as having occurred in Austria.”

Austria is [44] also the place where the games are held to have taken place – essentially because in the Court’s view the internet nature of the game makes it all to difficult (“In the light of the very nature of online games of chance, which does not make it easy to situate them in a specific physical location”) to come to a proper location, hence “those games took place where the player is habitually resident.”

[47] “as regards the financial loss alleged to have been sustained on the player account specially created with a view to [claimant’s] participation in online games of chance, or on [claimant’s] personal bank account from which his player account was funded, it must be noted that that loss is only an indirect consequence of the alleged damage, which cannot be taken into account for the purpose of determining the law applicable under [A4(1) Rome II].”

I find all of this quite circular and, importantly, handing claimant a great way to manipulate locus damni hence applicable law by the choice of action aka by claim formulation.

Article 4(3)’s proper law of the tort analysis is left to the referring court, with a reminder that the exception must be interpreted restrictively.

Geert.

EU Private International Law, 4th ed 2024, 4.22 ff, 4.31 ff.

The authors of this post are Mathilde Codazzi (Paris-Panthéon-Assas University), Paul Eichmüller (University of Vienna) and Marco Pasqua (PhD, Catholic University of the Sacred Heart of Milan), co-Chairs of the EAPIL Young Research Network.  As already noted on this blog, the 5th Research Project of the EAPIL Young Research Network focuses on the applicable law […]

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

[9] [2012] EWCA Civ 855.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Giacomo Marola, shared a presentation of a monograph he authored, based on a PhD thesis he defended at the University of Pavia, titled “International Jurisdiction over Infringements of Personality Rights in EU Private International Law”, published by Wolters Kluwer in December 2025.  The resolution of conflicts of adjudicatory jurisdiction in civil law disputes arising from […]

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

Abstract:

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

Chair:

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

Presenter:

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

Details:

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

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

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

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

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

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

Key questions in this context are:

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

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

The participation is free of charge but registration is required.

To register, click here.

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

This virtual event will feature insights from three distinguished contributors:

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

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

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

An online conference titled Cross-Border Enforcement of Child Support: Pros and cons of the different national systems will take place on 28 January 2026, from 3:00 to 5:30 pm (CET). The event is organised by the Child Support Forum, in cooperation with the International Union of Judicial Officers, and is open to all stakeholders involved […]

The judges of the UK Supreme Court and the Privy Council were quite busy last term with private international law matters. The UK Supreme Court issued one judgment of relevance, whereas the Privy Council issued no fewer than three. This post briefly outlines the issues and decisions in these four cases. P&ID v Nigeria: Currency […]

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).