Droit international général

The second issue of LMCLQ was recently published.

It contains the following conflict of laws works,

 

David Foxton, “The Applicable Law of an Arbitration Agreement: Floating or on the Rocks?”

 

Marcus Teo and Kah-Wai Tan, “Territoriality over Universalism”

 

Adrian Briggs, “Submission to a Russian Court”

Mathieu Combert and Jérémy Heymann are the editors of a book on the Circulation of Companies under EU Law (La circulation des sociétés en droit de l’Union européenne). The purpose of the book is to take stock of the case law of the CJEU and recent EU legislation in the field of company law from […]

On Tuesday, June 3, 2025, 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). Professor Michael Karayanni (Hebrew University of Jerusalem) will speak, in English, about the topic

“Voice and Exit in Private International Law: The Case of the Israeli Inter-religious Regime”

Private international law can play a significant role in countries with inter-religious legal regimes by offering individuals an option to “exit” their personal religious law in favor of secular law in effect in a foreign country. My presentation will examine the development of the lex loci celebrationis choice of law rule within Israel’s inter-religious regime. Additionally, it will investigate whether this development has empowered individuals with an adequate “voice” to challenge community-based religious norms.

 

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.

The author of this post is Antonio Leandro, Professor of Public and Private International Law at the University of Bari (Italy). On 23 January 2025, the German Federal Court of Justice (Bundesgerichtshof) submitted a request for a preliminary ruling to the Court of Justice of the European Union concerning Article 6(1) of Regulation (EU) 2015/848 […]

Written by George Jacob, Incoming Associate, Bombay Law Chambers

Globalisation has led to a rise in cross-border disputes, making international service of summons increasingly relevant. While domestic service in India is straightforward, sending summons to foreign defendants involves complex legal procedures. Proper service ensures that the defendant is duly notified and can respond, embodying the principle of audi alteram partem. Until recently, the procedure for international service in India was unclear. This ambiguity was addressed by the Kerala High Court in Charuvila Philippose v. P.V. Sivadasan.[1] This blog outlines the legal frameworks for international service, revisits the earlier Mollykutty[2] decision, and analyses the broader implications of Charuvila Philippose.

Process of Overseas Service of Summons in India – the Methods

Theoretically, serving of summons abroad should be straightforward. However, in India, the mechanism for international service of summons is tangled due to a patchwork of legal frameworks ranging from international treaties – such as the Hague Service Convention and Mutual Legal Assistance Treaties, to government routes such as Letters Rogatory and even provisions under the Indian Code of Civil Procedure, 1908. This section unpacks the various routes for international service from India; it lays the groundwork for understanding why the Charuvila Philippose case and the confusion it sought to resolve, matters.

 

1. Letters Rogatory and Mutual Legal Assistance Treaty (MLAT) Route

 

Traditionally, Indian courts have relied on letters rogatory for service abroad. A letter rogatory is a formal request issued by a court in one country to the judiciary of another, seeking assistance in serving judicial documents – in the absence of a binding treaty. This method was relied on situations when there were no specific agreements between countries.

 

In cases where bilateral Mutual Legal Assistance Treaties (MLATs) exist, the process becomes more structured. MLATs provides a treaty framework for cooperation on international service and other matters. Indian currently has MLATs with 14 countries. However, the abovementioned routes are cumbersome and slow.

 

2. The Hague Service Convention Routes – Article 2, 8 and 10

 

The rise in the number of cross-border disputes led to the development of the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965 (henceforth “Hague Service Convention” or “HSC”). India acceded to the treaty in 2006 and ratified it in 2007. Under Article 2 of HSC, India has designated the Ministry of Law and Justice as the Central Authority responsible for receiving and forwarding summons to the relevant authority in the foreign country where the defendant resides. Once received, the foreign Central Authority effects services on the defendants and returns proof of service. The HSC also permits alternate methods of service through Article 8 and Article 10. However, these routes are subject to each country’s reservations. Article 8 of HSC allows service through consular or diplomatic agents provided the receiving state has not objected. For example, Indian courts can serve a defendant in Canada directly through its consular or diplomatic agents in Canada as Canada has not opposed such a route. This is in contrast with People’s Republic of China which has opposed the Article 8 route, preventing India from serving a Chinese defendant through India’s diplomatic/consular agents in China. Article 10 of HSC allows service via postal channels, subject to whether the receiving country has not objected. For example, an Indian court may send a summons directly by post to a defendant in France, which permits such service. But this route is unavailable for defendants in Germany, as it has formally opposed service through postal channels under Article 10.

 

Indian Code of Civil Procedure Routes

 

In addition to international instruments for service, the Code of Civil Procedure, 1908 (henceforth “CPC”) provides a domestic legal framework for overseas service under Order V through Rules 25, 26 and 26A.

 

Rule 25 allows courts to serve summons via post, courier, or even email if the defendant has no agent in India authorized to accept service. Rule 26 provides for service through political agents or courts specifically appointed by Central Government in a foreign territory. However, this provision remains obsolete as no political agents or courts have been appointed till now. Rule 26A enables service through an officer appointed by a foreign country (and recognized by the Central Government). In this process, the summons is routed through the Ministry to the designated officer abroad. If the officer endorses the summons as served, such endorsement is treated as conclusive proof of service.

 

In conclusion, the issuance of summons abroad from India becomes complex because of the multiplicity of legal frameworks surrounding summons. The provisions of CPC coupled with the distinct HSC routes and the foundational mechanism of MLAT and letters rogatory significantly muddies the water.

 

Dissecting Service – Three Connected Principles

 

Understanding the various legal routes for service is only the first layer of the issue. To fully understand why the procedure of service matters, it remains essential to look deeper into three distinct, but interconnected principles related to service. The three principles are: the act of service, the court’s recognition of service and the consequences flowing from such recognition. These principles are foundational to any well-functioning legal system’s procedural laws concerning service. And they are present in both HSC and CPC. These three principles are crucial to understand the judicial debate that unfolded in Mollykutty and later in Charuvila Phillipose.

 

 

No. General Process Hague Service Convention

  Indian CPC 1. The specific process of service by the court i.e., modality of service (e.g.: postal, email etc.)

  HSC Article 2-5, Article 8 or Article 10 Order V Rule 9(1) and 9(3) [for domestic service]

 

Order V Rule 25, 26 and 26A [for service abroad] 2. Once service of summons is done, there is a declaration of service. This is important as it recognizes that service of summons to the defendant has been accomplished. i.e., the defendant has been provided sufficient notice of the case against them.

  Expressly: In the form of acknowledgement certificates or endorsements that prove delivery of summons. This is vital as it indicates that the defendant had the opportunity to understand the case made against them.

   

 

HSC Article 6  

 

Order V Rule 9(5) Implicitly: In case there are no acknowledgement certificates or endorsements to prove delivery of summons. The court is occasionally permitted to assume that summons was served (“deemed service”).

   

 

 

HSC Article 15 Paragraph 2  

 

 

Order V Rule 9(5) Proviso 3. Issuing decrees – once declaration of service is done, the parties are given time to respond and make their case before the court. If the defendant does not appear, then an ex-parte decree is issued.

 

This is done on the assumption that despite proper service or best efforts to undertake proper service, the defendant did not appear.

   

 

 

 

HSC Article 15 Paragraph 1

 

 

   

 

 

 

Order IX Rule 6

 

 

Background of the Mollykutty Dispute

 

Although India has ratified HSC and issued multiple notifications appointing the Ministry of Law and Justice as the Central Authority under Article 2 of HSC. The HSC provisions have not been legislatively incorporated into CPC. This has resulted in a fragmented legal framework where both HSC and CPC had overlapping legal regimes which diverged on the three connected principles of service – modality of service, declaration of service and issuing of decrees.

 

The coexistence of this diverging regimes came to a head in the Mollykutty case, a seminal decision of the Kerala High Court. The case concerned a suit in which the defendant resided in the United States. The trial court issued summons directly via registered post to the US defendant – a method permitted under Order V Rule 25 of CPC. However, it failed to obtain any acknowledgement of service. Due to this, the court invoked proviso to Rule 9(5) which allows court to declare deemed service if summons was “properly addressed, pre-paid and duly sent by registered post”. This raised concerns across all three foundational principles connected to service.

 

Act/Modality of Service – the trial court’s reliance on registered post conflicted with the procedure set out in HSC which mandates transmission of service through the Central Authority as the main route. The Mollykutty judgement held that in cases involving service abroad to a HSC signatory country, compliance with the HSC’s Central Authority route was mandatory.

 

Declaration of Service – the trial court declared deemed service based on the Proviso to Rule 9(5) which permits assumption of service if the summons was “properly addressed, pre-paid and duly sent by registered post”. The High Court in Mollykutty held that deemed service can be declared only as per the conditions stipulated in Article 15 of HSC.

 

Issuance of Decree – the High Court set aside the trial court’s ex parte decree since the method of service and the declaration of deemed service was improper.

 

The Mollykutty judgment mandated strict compliance with the HSC’s Central Authority for sending summons abroad. However, this strict interpretation of HSC, in the absence of legislative incorporation into CPC was concerning. Several High Court benches found the Mollykutty judgement to be overtly rigid and referred the issue to a larger bench in Charuvila Phillipose. The central question before the larger bench was whether, despite the lack of amendment to CPC, will HSC provisions concerning international service override the corresponding provisions in CPC? Or will CPC based routes for international service remain as valid alternatives?

 

The Charuvila Philippose Case

Arguments Raised

 

The parties primarily debated whether legislative amendment to the CPC is necessary when implementing an international instrument like the Hague Service Convention (HSC). The Amicus Curiae submitted that no such amendment is required unless the treaty affects the rights of citizens or conflicts with municipal law. Given that CPC is procedural in nature, the Amicus argued that litigants do not possess vested rights over specific modes of service and therefore, no individual rights are compromised. Furthermore, the Amicus contended there is no inconsistency between the CPC and the HSC: Order V Rule 25 fails to ensure proof of service; Rule 26 is largely ineffective; and Rule 26A is neutral, aligning with Mutual Legal Assistance Treaties. The Amicus also pointed to various memorandums and notifications to demonstrate the widespread administrative implementation of the HSC across India.

 

In response, the respondents emphasized that Article 253 of the Indian Constitution mandates parliamentary legislation to implement international treaties domestically. They argued that the CPC does confer substantive rights—such as appeals—and that certain HSC provisions, including Articles 15 and 16, impact citizens by altering domestic rules on ex parte decrees and limitation periods. Addressing criticisms of Order V Rule 25, the respondents asserted that uncertainties in proof of service also exist under the HSC, as enforcement depends on mechanisms in the receiving country, beyond India’s control. The respondents further maintained that India’s ratification of the HSC does not render Rule 25 obsolete and stressed that mere executive notifications cannot amend statutory provisions. Citing Article 73 of the Constitution, they concluded that executive action cannot override areas governed by existing laws.

 

Court’s Analysis

 

1. Regarding International Law and its Application in India

 

The court’s analysis centered around whether the Parliament needs to legislatively amend CPC for implementing an international convention like HSC. Since this concerns the question of application of international law to a domestic legal system. The court contrasted monistic and dualistic approaches to international law in the Indian legal system. Article 253 of the Indian Constitution states that “…Parliament has the power to make any law…for implementing a treaty or international convention….”. This article provides support for a dualistic approach as it empowers the Parliament to make laws for implementing treaties or international conventions. Conversely, monism is supported by Article 51(c) of the Indian Constitution, a directive principle, which encourages respect for international law and treaty obligations. In this case, the court balances dualism and monism by stating that Article 253 is “enabling” or provides the Parliament with the power to make laws for implementing treaties/conventions, only if necessary.

 

According to the court, Article 253 of the Constitution is by no means mandating the Parliament to make laws, for implementing every treaty or convention.

 

To support this balanced position, the court then proceeded to examine several precedents including Maganbhai Ishwarbhai Patel etc. v Union of India and Anr.[3] and Karan Dileep Nevatia v Union of India, through Commerce Secretary & Ors[4]. The position that emerges is as follows: –

 

“…(iv) The Parliament needs to make laws in respect of a treaty/agreement/convention when the treaty or agreement restricts or affects the rights of citizens or others or modifies the law of India. (v) If the rights of citizens or others are not affected or the laws of India are not modified, then no legislative measure is needed to give effect to such treaties/agreement/conventions.”

 

Since the Parliament is only required to legislatively implement those treaties/agreements/conventions that are either – (i) restricting or affecting the rights of citizens or others, (ii) or modifies the law of India; the court’s subsequent analysis examines these exceptions in detail.

 

• Whether Rights of Citizens or Others are Restricted or Affected? No, They Are Not!

 

The court held that parties to a litigation have no vested right in procedural mechanism as settled in BCCI v Kochi Cricket Pvt. Ltd.[5] And through Sangram Singh v Election Tribunal and Anr[6], it emphasized that Hague Service Convention merely addresses procedural aspects of CPC without affecting any substantive rights of parties.  On this basis, the court concluded that the HSC does not affect or restrict the rights of citizens or others.

 

• Whether the HSC Modifies the Law of India? The Answer is a Little Complex!

 

If the court found that HSC “modifies” the existing laws of India, then it would be forced to hold that the Parliament needs to legislatively amend CPC to incorporate HSC into the Indian legal system. However, relying on Gramophone Company of India v Birendra Bahadur Pandey and Ors[7], the court held that the standard of “modifies” the laws of India has been significantly tightened. The Gramophone case established that Parliamentary intervention is required only where an international convention is “in conflict with” domestic law, not merely if it “modifies” existing provisions.

 

Moreover, courts are under an obligation to interpret municipal statutes in a way that avoids confrontation with international law. A harmonious approach to interpreting international law and domestic law is encouraged in the Gramophone case. Since the focus is on procedural law rather than any substantive law, the court held that it will not readily infer a conflict between HSC and CPC.

 

Due to the new higher threshold, the court then proceeded to examine if HSC covenants are “in conflict with” the CPC provisions.

 

2. Whether HSC covenants are “in conflict with” CPC provisions regarding service abroad?

 

The rigor when examining the standard of “in conflict with”, is less for procedural law as compared to substantive law. Since the case hinges on whether the HSC methods for international service are in conflict with the CPC methods. The court examined each of the CPC methods – Order V Rule 25, 26 and 26A with HSC.

 

To recap, Rule 25 allows summons to be issued to the defendant by post or courier or email if the defendant does not have an agent empowered in India to receive service. Rule 26 pertains to service through a political agent or court in a foreign country. Rule 26A provides for service of summons through an officer appointed by the foreign country as specified by the Central Government.

 

• Are HSC covenants “in conflict with” Order V Rule 26A?

 

Article 2 and 3 HSC concerns the appointment of a Central Authority by each signatory state for enabling cross-border service. Under this route, service is sent to the requisite authority of the originating state which then forwards the service to the Central Authority of the destination state.

 

According to the court, the only difference between HSC and Rule 26A is that there is a Central Authority rather than a judicial officer (as laid down in CPC) through which service is to be sent abroad. Since this was the only difference, the court held the Central Authority route in HSC to be close and proximate to Rule 26A. And HSC was not “in conflict with” Rule 26A of CPC.

 

• Are HSC covenants “in conflict with” Order V Rule 26?

 

The court did not examine this provision in detail as the Government has not appointed any political agent or courts in any foreign country. Due to this, the question of whether HSC is in conflict with Rule 26 does not arise in the first place.

 

• Are HSC covenants “in conflict with” Order V Rule 25?

 

Article 10 of the Hague Service Convention (HSC) permits alternate methods of serving summons abroad, including through postal channels, subject to the receiving state’s acceptance. India, however, has expressly reserved against these methods, declaring its opposition to the provisions of Article 10. The court clarified that India’s reservation applies specifically to incoming service—i.e., documents sent from other HSC contracting states to India—not to outbound service, from India to states that do not object to direct postal channels.

 

Based on this, the court held that Order V Rule 25 CPC, which governs service of summons abroad, remains unaffected by the HSC. Article 10 HSC and Rule 25 CPC are not in conflict, as the former itself legitimizes postal service to foreign states that permit such service under HSC.

 

Nevertheless, the court noted practical challenges with ensuring effective service under Rule 25, particularly when using post or email, as there is often no reliable mechanism to confirm service, which is an essential safeguard to protect the defendant’s right to a fair hearing. Recognizing this, the court stressed that all courts must endeavor to attempt to secure effective service on the defendant.

 

To reconcile the CPC and HSC, the court endorsed a harmonious interpretation. Courts may proceed under Rule 25 for service abroad – if confirmation of service is received or the defendant appears in response. If so, service under Rule 25 is valid. However, if no confirmation is obtained or the defendant fails to appear within a reasonable period, courts must resort to the Central Authority mechanism prescribed under the HSC.

 

Reference Questions and their Answers

 

The court based on its analysis, concluded that: firstly, HSC is enforceable without a corresponding legislation since it is neither in conflict with provisions of CPC nor affecting the rights of citizens or others. Secondly, HSC does not foreclose CPC Order V Rule 25 route for service, as Article 10 HSC itself contemplates service through postal channels. Thirdly, the law laid down in Mollykutty, which prescribes strict adherence to the procedure prescribed in HSC (Central Authority route) to the exclusion of alternate methods of serving summons, is overruled.

 

Case Analysis

The Change in Jurisprudence

In addition to the factors identified by the court in Charuvila Phillipose, the decision in Mollykutty suffers from a significant omission. The judgment failed to account for the fact that Article 10 of the Hague Service Convention (HSC) permits service through postal channels, and the United States (the destination state in the Mollykutty case) does not object to inbound service via this route. This is a glaring oversight since none of the government memorandums/notifications specifically address the use of Article 10 for service abroad. A detailed judicial consideration of this aspect was required.

 

Despite these limitations, prior to Charuvila Phillipose, several High Courts had blindly relied on the reasoning in Mollykutty to broadly hold that the HSC provides the exclusive mechanism for serving summons outside India. With Charuvila Phillipose now having expressly overruled Mollykutty, courts are presented with two possible approaches: either to adopt the updated and nuanced reasoning in Charuvila Phillipose, which permits the coexistence of the HSC and CPC procedures for service abroad; or to adhere to the dated and restrictive reasoning in Mollykutty, which confines service exclusively to the Central Authority route prescribed under the HSC.

 

This divergence creates the possibility of conflicting High Court judgments on the issue of service abroad—an inconsistency that can ultimately only be resolved through authoritative pronouncement by the Supreme Court, unless the other High Courts also adopt the approach in Charuvila Phillipose.

 

Potential Legal Challenges Following Charuvila Phillipose

 

The Charuvila Phillipose decision may give rise to further litigation on two unresolved legal questions. First, whether the use of methods under Order V Rule 25—such as service by email—would be inconsistent with a destination state’s objection under Article 10 of the Hague Service Convention (HSC). Second, whether Articles 15 and 16 of the HSC, which pertain to ex parte decrees and limitation periods, are “in conflict with” existing provisions of the Civil Procedure Code (CPC).

 

• Compatibility of email service under CPC Rule 25 and HSC Article 10 objection.

 

Article 10 of HSC permits the use of “postal channels” to send summons to persons directly abroad, unless the destination state objects to it. Suppose a destination state has made an objection under Article 10 HSC. In such cases, courts are free to take either a broad or a narrow approach to interpret the scope of “postal channels”.

 

The broad approach to interpretation would entail construing “postal channels” to encompass modern means of communication including social media and email. This approach relies on Article 31 of the Vienna Convention on the Law of Treaties (VCLT), which requires treaty terms to be interpreted in terms of their object and purpose.[8] Under this approach, if a state objects to Article 10 of HSC, it is understood to oppose all alternate channels including email/social media, for direct service abroad.

 

Conversely, the narrow approach construes “postal channels” restrictively – to include direct post only. It excludes modern means of communication such as email and social media. This view draws from the fact that the HSC was concluded in 1965, prior to the advent of electronic communication. This interpretation considers an Article 10 HSC objection by a state, as a bar, only on postal service. It perceives a state objection under Article 10, to not bar service by email/social media, thus validating electronic service under Order V Rule 25.[9]

 

In Charuvila Phillipose, the Kerala High Court endorses a narrow interpretation of Article 10 postal methods by stating “…we take the call to limit the same…” in reference to postal channels. This allows litigants in India to send service abroad via email. However, this interpretation carries significant legal risks.

 

Countries oppose direct “postal channels” under Article 10 HSC for various reasons such as due process concerns, desire for reciprocity or efficiency of Central Authorities. However, certain civil law jurisdictions such as Japan, China and Germany consider service of process as an exercise of judicial sovereignty. They oppose Article 10 HSC on the basis that service is a function exclusively belonging to the state by virtue of its sovereignty.[10] Proceeding with electronic service (through the narrow approach), despite a specific objection, might be perceived as a challenge to a nation’s judicial sovereignty.

 

A further challenge may arise at the enforcement stage. A foreign court may refuse to recognize or enforce an Indian judgment on the ground that service by email was not compliant with proper service under HSC.[11] While such email service might serve the purpose of adequate notice to the defendant, its legality remains contested. For instance, in Lancray v Peters, the Court of Justice of the European Union (CJEU) refused to recognize a foreign judgment due to improper service, even though the defendant had actual notice.[12]

 

• Whether Article 15 and 16 of HSC is “in conflict with” CPC?

 

One of the arguments canvassed to argue that HSC provisions were in conflict with CPC were Article 15 and 16 of HSC. These provisions concern the setting aside of ex-parte judgements and the extension of limitation periods, areas already governed by CPC. It was argued that these provisions significantly alter the existing procedures under CPC

 

The court however, sidestepped the issue, noting that this was not one of the questions referred for determination. Nevertheless, the court, recognizing the possibility of a conflict, clarified that its harmonious construction between CPC and HSC was limited to provisions concerning service of summons and cannot automatically result in compatibility between HSC and Indian law for all the other provisions. Since this question remains unresolved, it is likely to be subject to future litigation. The court’s avoidance of this issue is particularly notable given that Mollykutty held that a deemed declaration of international service to an HSC signatory state could be made only upon satisfaction of the conditions under Article 15 of the Convention. This however went unaddressed in Charuvila Philippose.

 

• Recognition of Problems with HSC Route

 

The judgment implicitly acknowledged the practical difficulties associated with serving summons abroad via the Central Authority route under HSC. These include significant delays, often ranging from six to eight months and the risk of non-service. Additionally, the costs associated with the Central Authority route impose a heavy financial burden, particularly on individual litigants and smaller entities. In light of these challenges, the court’s harmonized approach serves a dual purpose – it resolves an inconsistency between HSC and CPC and, simultaneously offers an alternate route for service of summons that eases the burden on litigants.

 

One hurdle that prevents reliance on Rule 25 is the absence of an express mechanism to prove summons was served abroad. The court adopts a practical approach where service is deemed valid under Rule 25 – if the postal authorities of the destination state provide acknowledgement of successful service, or if the defendant voluntarily appears before the court. This is only a temporary fix to address a procedural lacuna in CPC. However, modern technology can prove to be an effective fix. While regular email offers speed, efficiency and accessibility compared to service by post, it is difficult to conclusively prove whether the email was received, opened or read by the defendant. To address these limitations, “certified email” platforms offer an alternative. Such platforms provide encryption, verifiable delivery tracking, time-stamped acknowledgements along with confirmation of when and whether the recipient opened the message. It provides a comprehensive digital trail similar to postal service, while providing a higher evidentiary value. Incorporation of such tools could significantly improve reliability of international service under Order V Rule 25 of CPC.

 

In conclusion, the Charuvila Philippose judgement is a progressive shift in the law concerning service. The judgement performs a dual function. It overrules the faulty reasoning in Mollykutty while simultaneously harmonizing the HSC and CPC provisions for international service. The judgement provides litigants with alternate channels for international service that is less cumbersome than the Central Authority mechanism. However, there are a set of hurdles that the judgement unfortunately does not resolve. This includes whether email service is compatible under Article 10 HSC with a destination state’s objective, the potential conflict between Article 15 and 16 HSC with Indian procedural law and the likelihood of divergent interpretations by other High Courts. These issues remain ripe for further litigation. While the judgement is clearly a step in the right direction, there is a need to further simplify and clarify the law concerning international service in India.

 

[1] Charuvila Philippose Sundaran Pillai and Ors v. P.N Sivadasan and James W Thomas v. Fr. Jose Thomas S.J and Ors., 2024/KER/84933

[2] Mollykutty v Nicey Jacob and Ors, 2018/KER/67412

[3] (1970) 3 SCC 400

[4] (2010) SCC OnLine Bom 23

[5] (2018) 6 SCC 287

[6] AIR 1955 SC 425

[7] (1984) 2 SCC 534

[8] Nicolás Lozada Pimiento, “From Physical Location to Electronic Address: Omnipresence in the era of the Internet” in The HCCH Service Convention in the Era of Electronic and Information Technology, Page 90-93. Available at: https://assets.hcch.net/docs/24788478-fa78-426e-a004-0bbd8fe63607.pdf.

[9] See the following US case laws – Gurung v. Malhotra [279 F.R.D. 215] and Philip Morris USA Inc. v. Veles Ltd. [2007 WL 725412].

[10] Huang, Jie (Jeanne), Can Private Parties Contract Out of The Hague Service Convention? (July 01, 2024). Journal of Private International Law, volume 20, issue 2, 2024[10.1080/17441048.2024.2369366], Available at SSRN: https://ssrn.com/abstract=5157959.

[11] Id.

[12] Case C-305/88 Lancray v Peters 1990 E.C.R. I-2742, at § 22-31

 

Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine was from the very beginning doomed to undergo frequent amendment. The first text contained only 14 articles. After the last modification in February 2025 (the thirty-fifth in a row), the number has more […]

On 11–12 June 2025, a conference organized by the Nordic Group for Private International Law (NGPIL) will take place at the Stockholm University. The topic is the politicization of private international law. NGPIL is a network that brings together the shared legal traditions of the Nordic countries, while also embracing the mutual intelligibility of the […]

I. Introduction:

In 2024, the Dubai Supreme Court rendered a significant decision concerning the issue of indirect jurisdiction under UAE law (see my comments here). In that comment, I noted that the decision offered “a welcomed, and a much-awaited clarification regarding what can be considered one of the most controversial requirements in the UAE enforcement system” (italic in the original).

The decision commented on here touches on the same issue. Yet rather than confirming the direction suggested in the above-mentioned decision, the Court regrettably reverted to its prior, more restrictive approach. This shift raises doubts about whether a consistent jurisprudence on indirect jurisdiction is taking shape, or whether the legal framework remains fragmented and unpredictable.

 

II. The Case

 

1. Facts

The facts of the case can be summarized as follows:

The appellants (X) filed a petition before the Enforcement Judge seeking the enforcement (exequatur) of a judgment rendered by the Business and Property Courts in Manchester, UK. The judgment, issued against the respondent (Y), ordered the seizure of a luxury penthouse located in Dubai.

The Enforcement Judge declared the English judgment enforceable. However, this decision was overturned on appeal, on the grounds, among others, that UAE courts have jurisdiction over the matter, given that the immovable property in question was located in Dubai.[1]

Dissatisfied with the appellate ruling, X challenged the Court of Appeal’s decision before the Supreme Court of Dubai.

Before the Supreme Court, X argued that provision relied on by the Court of Appeal (Art. 21 of the 2022 Federal Civil Procedure Act) does not confer exclusive jurisdiction in matters of provisional measures. They also argued the enforcement of such orders is permissible under international and bilateral treaties concluded by the UAE, and the Letter addressed by UAE Minister of Justice authorizing Dubai courts to enforce English judgments under the principle of reciprocity.[2]

 

2. The Ruling: Dubai Supreme Court, Appel No. 156/2025 of 24 April 2025

After referring to the relevant provisions governing the enforcement of foreign judgments in the UAE (article 222, article 225 of the 2022 Federal Civil Procedure Act), the Supreme Court rejected the appeal on the following grounds (with slight modifications; underline added):

“As consistently held by this Court, when the UAE has neither acceded to an international convention nor concluded a treaty with a foreign state concerning the enforcement of judgments, UAE courts must ensure that all the conditions set out in article 222 of the Federal Civil Procedure Act are met before ordering enforcement. Among these conditions is the requirement that UAE courts should not have jurisdiction over the dispute on which the foreign judgment was passed, in accordance with the rules of jurisdiction set forth in the Civil Procedure Act.

Under the applicable provisions on international jurisdiction (articles 19, 20, 21, and 24[3] of the 2022 Federal Civil Procedure Act), as consistently held by this Court, procedural matters, including questions of jurisdiction, are governed by the law of the forum before which the proceedings are initiated.[4] [In this regard], Dubai courts have jurisdiction to hear the disputes brought before them if the defendant is a foreign national residing or domiciled in Dubai, except for actions in rem concerning immovables located abroad.[5] Dubai courts also have jurisdiction to issue protective and provisional measures to be executed in the UAE, even if they do not have jurisdiction over the main claim.[6] Any agreement to the contrary shall be deemed null and void.[7] Where any of the grounds for jurisdiction as defined by the law are satisfied, UAE courts cannot decline jurisdiction, as matters of jurisdiction concern public policy (al-nizam al-’âm).[8]

That said, given the absence of any treaty between the UAE and the United Kingdom regarding the enforcement of judgments, and considering that the bilateral agreement with the UK on extradition and mutual legal assistance does not address the enforcement of judgments,[9] it is therefore necessary to refer to the conditions stipulated in Article 222 of the 2022 Federal Civil Procedure Act.

In the present case, X filed a petition seeking the enforcement of an English judgment ordering the seizure of an immovable located in Dubai. Accordingly, under the above-stated applicable legal provisions, the Dubai courts have jurisdiction over the case. In this respect, the ruling under appeal correctly applied the law when it rejected the enforcement of the foreign of the foreign judgment.

This conclusion is not affected by X’s argument that the enforcement order should have been issued based on the principle of reciprocity. This is because the applicability of the reciprocity principle depends on whether UAE courts lack jurisdiction over the dispute and the foreign court properly assumes jurisdiction. As previously stated, this issue concerns public policy.

Accordingly, the grounds of appeal are without merit, and the appeal must be dismissed.

 

III. Comments

The decision comment on here is another illustration of the significance of indirect jurisdiction, which I previously described as “one of the most controversial requirements in the UAE enforcement system.” On this point, the Court’s reasoning and choice of formulation are somewhat disappointing, particularly in comparison with its previous decision on the same issue (Dubai Supreme Appeal No. 339/2023 of 15 August 2024).

In that earlier case, the Court clearly held that “unless UAE courts do not have exclusive jurisdiction over the dispute in which the foreign judgment to be declared enforceable was rendered. Therefore, in case of concurrent jurisdiction between UAE courts and the foreign rendering court, and both courts are competent to hear the dispute, this does not, by itself, prevent the granting of the enforcement order.”

In contrast, in case commented on here, the Court reverted to its traditional, more stringent approach,[10 holding that the jurisdiction of the foreign court should be denied whenever UAE courts have jurisdiction under UAE law, without distinguishing, as the new wording of the applicable provisions adopted since 2018 requires,[11] between cases falling under the exclusive jurisdiction of UAE courts and those that do not.

Instead of reverting to its old, questionable position, the Court could have approached the issue in one of two possible ways:

First, the Court could have considered that the English judgment ordering the seizure of a property located in Dubai constituted in fact an order of “protective measures”, which by nature is temporary and therefore not final and conclusive in the meaning of article 222(2)(c) of the 2022 Federal Civil Procedure Act.

Second, the Court could have found that ordering “protective measures” relating to the seizure of property in Dubai falls within the exclusive jurisdiction of Dubai court.[12] On this basis and applying the same reasoning it adopted in its abovementioned decision of 15 August 2024, the Court could have denied the indirect jurisdiction of English courts.

Such an approach is preferable, as it clearly defines the impact of UAE jurisdictional rules on the indirect jurisdiction of foreign courts, rather than suggesting (imprecisely or overbroadly) that the mere taking of jurisdiction by the UAE courts would automatically exclude the jurisdiction of foreign courts.[13]

In any case, the way the Court framed its reasoning reflects the continuing influence of its long-standing approach to jurisdiction. It also suggests that the more flexible view adopted in the 15 August 2024 decision may still take time to gain a firm footing in judicial practice.

That said, given the lack of clarity in the law itself about what exactly falls within the exclusive jurisdiction of UAE courts, it is perhaps not surprising that judges sometimes fall back on familiar ground when deciding whether to refuse enforcement of foreign judgments.

Still, even if the outcome can be understood, the reasoning remains open to criticism. It risks adding further uncertainty to an area where greater consistency and predictability are badly needed, especially if the UAE seeks to consolidate its position as a global center for international dispute resolution.

 

———————————————

[1] Various issues were raised in this case, notably the question of the notification of the decision, the validity of which was examined by the courts. However, these aspects will not be discussed here.

[2] On this Letter, see my comments here and here.

[3] The Court erroneously cited Article 24; it is likely that Article 23 was meant instead.

[4] This rule is actually found in the 1985 Federal Act on Civil Transactions (article 21) and not the provisions cited in the decision.

[5] See Article 19 of the 2022 Federal Civil Procedure Act. For an example of a case in which the UAE courts declined jurisdiction on the ground that the case concerned an in rem right over an immovable located abroad, see the Abu Dhabi Supreme Court, Appeal No. 238/2017 of 25 March 2018.

[6] In one case, it was declared that “the jurisdiction of national courts to order protective or provisional measures is not contingent upon the court’s jurisdiction over the merits of the case, nor is it linked to the nationality of the parties or the existence of a domicile or residence within the country, but it is due, in addition to the general principle of territoriality of judicial jurisdiction, to the fact that requiring parties to await the outcome of proceedings before a foreign court may be detrimental to their interests”. See Federal Supreme Court, Appeal No. 693/24 of 9 October 2005.

[7] Therefore, choice-of-court agreements are deemed null and void in the UAE. For a very recent application of this rule, see Dubai Supreme Court, Appeal No. 875/2024 of 24 September 2024. The rule applies even to choice-of-court agreements between different Emirates within the UAE. See, e.g., Dubai Supreme Court, Appeal No. 21/2010 of 31 May 2010, in which the Court held that jurisdictional rules cannot be derogated from by agreeing to the courts of another Emirate. The rule also applies when the parties agree to submit to the jurisdiction of a UAE court. See, e.g., Dubai Court of Appeal, Appeals Nos. 162 and 623/2022 of 8 June 2022. This principle has implications for the indirect jurisdiction of foreign courts, particularly where the foreign court assumes jurisdiction on the basis of a choice-of-court agreement between the parties. See, e.g., Dubai Supreme Court, Appeal No. 52/2019 of 18 April 2019, where the Court refused to enforce an English judgment on the grounds that the English court had assumed jurisdiction pursuant to the parties’ choice-of-court agreement.

[8] For examples of cases in which the courts refused to decline jurisdiction, particularly on the grounds that the parties had agreed to the jurisdiction of a foreign court, see Dubai Supreme Court, Appeal No. 86/1996 of 6 April 1997. For a more recent case, see Dubai Supreme Court, Appeal No. 1176/2024 of 4 March 2025.

[9] Courts have ruled in the same manner in the past. See, e.g., the decision of the Dubai Court of First Instance, Case No. 574/2017 of 28 November 2017, cited here.

[10] On this approach with some examples, see the brief overview outlined here.

[11] On the legislative evolution of the applicable rules, see here and here.

[12] Comp. with Article 8(4) of the Tunisian Code of Private International Law of 1998, according to which “Tunisian courts shall have exclusive jurisdiction: (4) If the action concerns a request for protective or enforcement measures against properties situated in Tunisia”. For a translation of the relevant provisions, see Béligh Elbalti, “The Jurisdiction of Foreign Courts and the Enforcement of Their Judgments in Tunisia: A Need for Reconsideration” (2012) 8(2) Journal of Private International Law 221-224.

[13] For some examples on this approach, see my previous comment here and here.

In Litasco SA v Banque El Amana SA [2025] EWHC 312 (Comm) Hutton DJ engaged (on an application for summary judgment) ia with an issue that one does not see all too often in litigation: a change in governing law under Article 3(2) Rome I; and with the application of Article 9 Rome I’s overriding mandatory law aka lois de police provision.

On the first issue, Litasco as claimant argue that the effect of a SWIFT message (SWIFT being an inter-bank electronic messages platform) was to change the applicable law for the relevant StandBy Letter of Credit – SBLC, into English law, pursuant to A3(2) Rome I, which permits the parties to “agree to subject the contract to a law other than that which previously governed it”.

[15] both parties seemingly agreed that “whether the SWIFT message was effective to make that change should be resolved as a matter of English law (whether as the putative applicable law, by reference to Article 10 of Rome I, or as the lex fori, which it said was supported by the Supreme Court’s analysis in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] 1 WLR 4117 at [33]).” In that para the SC held

In our view, it is both consistent with authority and sound in principle to apply English law as the law of the forum to ascertain whether the parties have agreed on the law which is to govern their contract (and, if not, what law governs it in the absence of agreement). To apply any other law for this purpose would introduce an additional layer of complexity into the conflict of laws analysis without any clear justification and could produce odd or inconsistent results. As the authors of Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012) observe, at para 32-036 , by reference to a case in which subsequent conduct was taken into account to construe a contract found to be governed by Chilean law because it was admissible under that law:

Under a proper Rome I analysis however (reminder that Rome I is assimilated UK law) in my opinion there is CJEU authority for neither the lex fori approach nor the putative law approach (clearly post Brexit [Enka was a pre-Brexit case] there binding character of the CJEU is more complicated). In Nikiforidis a role for A10’s putative law was discussed viz the question of temporal application of Rome I and a role for said putative law on that issue was not the outcome.

For the specific claim at issue the question is arguably less relevant seeing as parties agree, therefore the determination of the lex causae to settle the effectiveness of the change arguable may a considered as having been done per Article 3(1) Rome I.

On the facts at issue, [22] the judge holds that advancing an argument that the lex contractus was not amended by the relevant SWIFT message, would not have a real prospect of success.

[23] ff deal with the issue whether Mauritian civil proceedings may be recognisable in England and have an impact on current claim. However [28] it is held that claimant in current claim did not submit to those proceedings and that as such they are clearly not recognisable for current purposes. [29] ff ff hold the same viz relevant criminal proceedings.

[43] ff then discuss the application of the Ralli Bros principle and lois de police. I have discussed in my review of Banco San Juan Internacional Inc v Petroleos De Venezuela SA why in my opinion the application of lois de police may be considered to have been exhaustively regulated by Rome I, hence displacing any application of Ralli Bros. The alternative view is that Ralli Bros continues to apply as a principle of the applicable lex contractus, English law.

In current case, the judge fully conflates Article 9 Rome I with Ralli Bros, taking [6] it seems defendant’s counsel cue:

BEA instead relies on orders made by the Mauritanian courts as providing a defence to Litasco’s claim, originally pursuant to the rule in Ralli Brothers v Compania Naviera Sota y Aznar [1920] 2 KB 287 (CA) and also pursuant to Article 9(3) of the Rome I Regulation but in the skeleton for this hearing, Mr Power (counsel for BEA) indicated that BEA was content to proceed on the basis that Article 9(3) adds nothing to the Ralli Bros principle (which he noted was the view taken by Cockerill J in Banco San Juan Internacional Inc v Petroleos de Venezuela SA [2021] 2 All ER (Comm) 590 at [118]).

– this is a similar route as the one taken in Celestial Aviation Services, and while the substantive outcome may be the same as if one had pursued an Article 9 Rome I analysis, the shortcut still does not convince me.

[84] the conclusion is that a Ralli Bros defence has no reasonable prospect of success and summary judgment is granted.

An interesting judgment.

Geert.

European Private International Law, 4th ed. 2024, 3.90.

 

https://x.com/GAVClaw/status/1891417588841750955

Issue 2 of RabelsZ 89 (2025) is out. All content is Open Access: CC BY 4.0 and more articles are available Online First. The full table of contents is available here.

 

ESSAYS

Urs Peter Gruber, Ein europäisches »Full Faith and Credit« für Rechtsgeschäfte? – Über die (partielle) Ersetzung des IPR durch ein Anerkennungssystem, [European »Full Faith and Credit« for Private Acts? – On the (Partial) Replacement of PIL with a System of Recognition], pp 195–213, https://doi.org/10.1628/rabelsz-2025-0010

In EU law, there are increasing signs of a fundamental change in methodology: Step by step, the EU legislature could be moving towards extending the rules on the recognition of judgments to private acts. Taken to its logical conclusion, the (quasi-)procedural recognition of private acts means that there is no need for an ex post review of the validity of these acts in the Member State of recognition. Therefore, in the Member State of recognition, the application of conflict-of-law or substantive law rules is no longer admissible. At first glance, the (quasi-)procedural recognition of private acts appears to be incompatible with the established principles of private international law. It is therefore likely to meet with considerable resistance. However, upon closer look, it could prove to be an effective tool in the creation of a single European judicial area.

 

Frederick Rieländer, Digitalisierung des grenzüberschreitenden Zivilprozesses – Entwicklungsstufen und Entwicklungsperspektiven im europäischen Rechtsraum [Digitalization of Cross-Border Civil Procedure – Current Developments and Prospects for Reform Within the European Judicial Area], pp 214–261, https://doi.org/10.1628/rabelsz-2025-0011

Regulation (EU) 2023/2844 plays a key role in the European Union’s efforts to improve the efficiency and effectiveness of judicial proceedings in cross-border civil, commercial, and criminal matters and to utilize digital technology to improve access to justice in civil and commercial matters. It establishes a new frame-work for exchanging data in cross-border judicial procedures, introduces a central platform for communication between the parties and the authorities in cross-border civil cases, regulates the formal requirements for and legal effects of electronic documents, and provides for the optional use of videoconferencing or other remote communications in oral hearings in civil and criminal matters with cross-border implications. The article critically examines the reform package, arguing that while the EUs initiatives are an important step in the right direction, they are insufficient and not well coordinated. In particular, the article calls for the EU Service Regulation and the EU Evidence Regulation to be revised, and soon, to address these shortcomings.

 

Patrick Ostendorf, Auslegung und Wirksamkeit von Freizeichnungsklauseln im unternehmerischen Geschäftsverkehr im deutschen, Schweizer und englischen Recht [The Interpretation and Applicability of Exemption Clauses in Commercial Transactions under German, Swiss, and English Law], pp 262–310, https://doi.org/10.1628/rabelsz-2025-0015

Given the unlimited liability that most jurisdictions provide for breach of contract, exemption clauses are, due to the lack of adequate alternatives, an essential tool for contractual risk management in commercial transactions. At the same time, broad application of the law regulating general terms and conditions, in conjunction with the »cardinal obligation doctrine« of the German Federal Court of Justice (Bundesgerichtshof), has made it virtually impossible to draft enforceable limitation of liability clauses under German law. English and Swiss law, by contrast, are among the most frequently chosen laws for international commercial transactions and give the parties far more leeway to conclude exemption clauses. Against this background, the article examines principles of interpretation and applicable legal restrictions regarding exemption clauses in these legal systems, also with a view to the potential reform of German law.

 

Mika Sharei, Rechtsbegriffe in internationalen Wirtschaftsverträgen [Legal Terms of Art in International Commercial Contracts], pp 311–344, https://doi.org/10.1628/rabelsz-2025-0018

Rarely will a contract be free of terms that have specific meanings in legal contexts. This is especially true in the highly professionalized realm of cross-border commercial transactions. Some of the transactional attorney’s lexicon could even be considered to constitute a standard terminology. However, the exact recognized usage of a specific term will often differ from one jurisdiction to the next, and this can lead to considerable uncertainty in the practice of international business law. So it is no surprise that case law and scholarship perennially devote a great deal of attention to this kind of issue at the national level. This article critically examines different jurisdictions’ approaches to these issues, some of which appear to be marred by serious mis-understandings. Where this is so, this study aims to introduce clarity by suggesting viable principles instead.

 

BOOK REVIEWS

This issue also contains several reviews of literature in the fields of comparative private and private international law and on related topics (pp. 345–407).

The 3rd Postgraduate Law Conference of the Centre for Private International Law is now open for registration.

The theme is “New Dimensions in Private International Law” and the conference will take place online on 6 June 2025 in the morning. Topics include commercial, family and maritime law, as well as law in the digital age and sustainability and corporate responsibility.

The European Association of Private International Law calls for expressions of interest from its members in participating in a Working Group on Anti-SLAPP Directive Transpositions (hereinafter, ‘WG’). The WG, co-chaired by Birgit van Houtert (Netherlands) and Marco Pasqua (Italy), seeks to contribute to the study and development of private international law (PIL) by identifying challenges […]

Written by Tarasha Gupta, BBALLB (Hons), Jindal Global Law School, and Saloni Khanderia, Professor, Jindal Global Law School

 

The Singapore International Commercial Court (“SICC”) has become a preferred hub for hearing litigation and arbitration of international commercial disputes. Accordingly, many decisions from the SICC require recognition and enforcement in India.

In this light, a recent judgment from the Delhi High Court (“HC”) is a significant development providing relief to those wishing to enforce the SICC’s judgments in India. In Discovery Drilling Pte Ltd v. Parmod Kumar & Anr,[1] the HC has held that the SICC is a superior court under Section 44A of the Code of Civil Procedure, 1908 (“CPC”). As a result, its judgments can be directly executed in India. That said, the HC ultimately held the judgment in question to be unenforceable, as it failed to meet the tests in Section 13 of the CPC.

This article breaks down the arguments and legal context behind the HC’s judgment. It also highlights how the case demonstrates flaws in India’s regime, which create difficulties not just for creditors trying to enforce foreign judgments in India, but also in enforcing India’s judgments abroad.

Legal Background

The procedure for execution of foreign judgments is prescribed under Sections 13, 14, and 44A of the CPC. Recognition and enforcement of foreign judgments is based on the doctrine of obligation. Accordingly, no foreign judgment can be recognised in India unless the judgment-creditor proves to the Court that the judgment-debtor owes it an obligation to pay a sum of money under the law of the foreign state where the judgment was pronounced. This obligation is given effect in India among the creditor’s initiation of fresh legal proceedings before the Indian court through an action in debt.

However, Section 44A of the CPC limits the application of the theory of reciprocity to the execution of judgments of “superior courts” from 12 notified jurisdictions, including Singapore. Such judgments benefit from direct execution simply on the production of a certified copy of the decision. However, they must still comply with the remaining conditions under Sections 13 and 14 of the CPC. Namely, the judgment must be ‘conclusive’ as per Section 13.

Section 13 provides multiple grounds for determining whether a judgment is conclusive, including considering the merits of the case.[2] However, the key pillar is considering whether the court had the competency to rule on the case. A court is considered competent if it is entitled to summon a defendant and subject it to its jurisdiction. This is decided by considering inter alia whether the judgment-debtor was a subject or resident of the country at the time of the proceedings, whether they submitted to the jurisdiction of the court, or owned immovable property in the territory of the forum.

Factual Background in Discovery Drilling

The petitioner is a joint venture between a company incorporated under Singaporean law, and Jindal Drilling & Industries Limited (“JDIL”), a company incorporated under Indian law. The respondents were employees of JDIL who acted as representatives of the petitioner for an agreement with ARKO Group DMCC (“ARKO”) to repair a rig.

Certain disputes and differences arose between the petitioner and ARKO, leading ARKO to initiate recovery proceedings against the petitioner in the High Court of Singapore. The case was subsequently transferred to the SICC, before which the petitioner filed its counterclaim. The second amendment to this counterclaim arrayed the respondents as defendants, alleging breach of contract, breach of fiduciary duties, and fraud. The petitioners claimed it served the respondents with all notices issued by the SICC and subsequent proceedings. However, the respondents never entered appearance before the SICC.

Finally, the SICC passed the subject judgment in favour of the petitioner. Therefore, the petitioner filed the present petition seeking enforcement of the judgment against the respondents.

Applicability of Section 44A of the CPC

The Delhi HC considered three things in deciding if Section 44A of the CPC applies to judgments from the SICC.

First, the HC considered whether the SICC is a “superior court” under Section 44A. The Court noted that by a Gazette Notification, the Central Government had declared the High Court of Singapore as a “superior court”. Since the SICC was created as a Division of the High Court of Singapore, the jurisdiction of the SICC is only a subset of the jurisdiction of the High Court and did not take up a new jurisdiction. Therefore, SICC can equally be treated as a superior court.

Second, the HC considered the respondents’ contention that the SICC was not a “court”. The respondents argued that the SICC does not have the trappings of a court, inter alia because it is not dependent on the concept of territorial jurisdiction, the normal rules are not applicable to it, and foreign judges can serve as judges. The HC rejected this argument, noting that the SICC cannot be denuded of its status as a “court” merely because it follows a different procedure.

Third, it was contended that for an application to be maintainable under Section 44A, it must be accompanied by a certified copy of the decree with a certificate from the superior court that passed the decree stating the extent to which the decree has been satisfied or adjusted. The petitioner in this case had not submitted such a certificate. Instead, they submitted an email issued by the SICC stating that the Rules of the Court do not provide for issuance of a certificate of non-satisfaction of a decree. It further confirmed that the subject judgment had not been appealed. The HC noted that the CPC does not provide a form in which the certificate under Section 44A(2) has to be framed, and therefore the email could be considered a ‘certificate’.

Tests Under Section 13 of the CPC

Despite holding that judgments of the SICC may be enforced as judgments of a “superior court” under Section 44A of the CPC, the Delhi HC ultimately held the subject judgment as unenforceable as it failed to pass the tests under Section 13 of the CPC. Specifically, the court held that the SICC did not have jurisdiction (as required by Section 13(a)) to hear the case at hand, for two reasons.

First, the respondents alleged that their consent to the SICC’s jurisdiction was not taken. They contended this was a pre-requisite for the SICC to take up jurisdiction. The Delhi HC considered the Supreme Court of Judicature Act, 1969 and Rules of the Court, to conclude that the SICC requires the parties to submit to its jurisdictions. The respondents did not accede to the SICC’s jurisdiction (as they were not parties to the original proceedings by ARKO against the petitioners) and also were not subjected to the jurisdiction of the High Court or Supreme Court as they were not residents of Singapore. The SICC could not have assumed jurisdiction against them without their consent.

Second, the SICC has jurisdiction to hear only commercial disputes. Section 18D of Singapore’s Supreme Court of Judicature Act, 1969 vests the SICC with jurisdiction to adjudicate disputes that are “international and commercial in nature”. Rule 1(2)(b) of Order 110 of the Rules of the Court define a claim to be “commercial in nature” when the subject matter of the claim arises from a relationship of a commercial nature. This includes transactions for the supply of goods, distribution agreements, joint ventures, etc.

The HC held that the subject matter of the claim at hand was the respondents’ breach of alleged fiduciary duties, which is an action in tort, based on fraud. Therefore, it deemed the petitioners and respondents to not have a commercial relationship, and consequently, the dispute was not “commercial in nature” and the SICC had no jurisdiction to adjudicate it.

Hence, the respondents met the exception under Section 13(a) of the CPC. The judgment was held to not be conclusive, as the SICC did not have jurisdiction over the matter. Apart from contesting the SICC’s jurisdiction, the respondents made two other arguments that the subject judgment failed the various tests under Section 13, both of which were dismissed.

First, a judgment must be given on the merits of the case as a condition under Section 13(b). Relying on this, the respondents alleged that the subject judgment was not passed on the merits of the case, especially considering it was passed ex parte. The HC dismissed this argument, observing that the SICC did not merely pass a formal order by way of the respondent’s absence, but instead had examined the evidence and considered the truth of the plaintiff’s claims before making its decision.

While the argument under Section 13(b) was not accepted, generally, the requirement of a merits review has had the unfortunate implication of making Indian judgments unenforceable in many parts of the world, as India is seen as imposing harsher conditions for enforcement. This means countries that rely on reciprocity and equality of treatment for enforcement, including many of India’s leading trade partners such as Germany, Japan, South Korea, and the US, do not recognise or enforce Indian judgments. This has adverse implications on the internationalisation of India’s judicial system, as it compels litigants to resolve their disputes before other countries’ courts to ensure enforcement, or to rely on arbitration.[3]

The second argument raised in this case was rooted in the requirement that the proceedings in which the judgment was obtained must not have been opposed to natural justice, per Section 13(d). The respondents alleged that they were denied their right to natural justice as they were not served with notice of the counterclaim in accordance with the laws of India. The HC considered that a mere procedural irregularity in the service of summons would not detract from a foreign judgment’s conclusiveness under Section 13, as procedural law cannot trump substantive rights.

Conclusion and Implications

With the creation of many special courts for international commercial disputes around the world, the case is an important precedent for the value of these court’s judgements and their recognition in India. Though the HC finally held the subject judgment unenforceable, the recognition of the SICC as a “superior court” under Section 44A has crucial implications for the ease of enforcing the court’s judgments in India in the future. The HC’s clarification on the nature of the certificate requirement under Section 44A(2) is equally significant for foreign courts which do not have provisions for such certificates in their rules. This is significant, considering District Courts all around India can hear cases of enforcement of foreign judgments under Section 44A. Notably, just last week, a District & Sessions Court in Haryana applied Section 44A to recognise a judgment from a Bangladeshi court.[4]

Simultaneously, the HC’s observations on the tests of Section 13 highlight the lingering difficulties with enforcing judgments even from reciprocating territories, as there are several exceptions the Indian court may consider. Specifically, the judgment highlights the importance of the foreign court having jurisdiction over the matter, to be ascertained as “competent” under Section 13(a). However, this section should ideally specify the grounds on which foreign courts will be construed as internationally competent, to ensure predictability and reduce the unnecessary anxieties that creditors currently experience while seeking execution of foreign judgments in India.

The Court’s findings on Section 13(b) are equally demonstrative of how the provision makes enforceability of Indian judgments difficult in other jurisdictions. The language of Section 13(b) suggests that Indian courts conduct a merits review of foreign judgments for their enforcement. However, as this case demonstrates, in reality, Section 13(b) is only used to ascertain whether the foreign judgment is procedurally sound under the requirements of Indian law. However, the use of incorrect terminology in the statute causes it to be misunderstood in foreign jurisdictions as imposing harsher conditions of enforcement than their own laws. This leads to problems in enforcing Indian judgments in jurisdictions that rely on reciprocity or equality of treatment.[5] Therefore, an amendment rewording Section 13(b) is necessary, to better encapsulate India’s practices in the recognition and enforcement of foreign judgments.

 

 

[1] 2025 SCC OnLine Del 1075.

[2] Namely, the judgment (a) must be pronounced by a Court of competent jurisdiction; (b) must be given on the merits of the case; (c) must not be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; (d) the proceedings in which it was obtained must not be opposed to natural justice; (e) must not be obtained by fraud; and (f) must not sustain a claim founded on a breach of any law in force in India.

[3] Saloni Khanderia, ‘Thorn in the Lion’s Paw: Révision au fond as India’s Self-Inflicted Injury in the Recognition and Enforcement of Foreign Judgments’ (forthcoming, 2025) Asian Journal of Comparative Law.

[4] Shahriar Noor Tutul & Ors. v. Rajvir Singh & Ors., Execution Case No. RBT-86-2020.

 

[5] Saloni Khanderia, ‘Thorn in the Lion’s Paw: Révision au fond as India’s Self-Inflicted Injury in the Recognition and Enforcement of Foreign Judgments’ (forthcoming, 2025) Asian Journal of Comparative Law.

On Wednesday, 11 June 2025, the Australasian Association of Private International Law (AAPrIL) will hold its latest instalment of its online Seminar Series, as Timothy Lindsay of Lindsay Francis & Mangan presents on ‘The Law of the Arbitration Agreement – Australasian Perspectives’.

The topic:

Contracts with international arbitration agreements can engage a complex interaction of different laws: the governing law of the contract, the law of the seat, and the law of the arbitration agreement itself. Parties to international commercial contracts usually address the first two of these issues, but are often silent as to the law of the arbitration agreement. A light has recently shone on this well-known issue by the United Kingdom’s Arbitration Act 2025, which includes a new default rule for determining the law of the arbitration agreement, and similar changes to the Rules of the Singapore International Arbitration Centre, as well as developing case law in other jurisdictions. How might Australian and New Zealand courts react?

The Chair:

Jack Wass is a barrister admitted to the bar in New Zealand and Victoria. He practisesin civil and commercial litigation, with a focus on cross-border
disputes. He is co-author of the text The Conflict of Laws in New Zealand (LexisNexis, 2020). Jack is New Zealand Vice-President of AAPrIL.

The Presenter:

Timothy Lindsay is a partner and founder of Lindsay Francis & Mangan, a specialist business disputes law firm with offices in Auckland, Singapore and Sydney. He is recognised as a leading litigation and arbitration lawyer. As arbitration counsel, Tim has appeared in international commercial, investor state and public international law arbitrations under all of the major rules. Tim is currently the chair of the arbitration committee for ICC New Zealand, previously a member of the ICC Court of Arbitration, a member of the ICC Commission on Arbitration, a member of the ISDA Arbitration Committee, and a drafter of the inaugural AMINZ Arbitration Rules. Tim was previously a partner in the London office of US law firm Dechert LLP, where he led the international arbitration practice.

Details

Date and Time: Wednesday 11 June 2025, 5:00pm to 6:00pm (AEST)*

Online only: Zoom Link

Zoom ID: 839 4662 2158

RSVP: Please register via this link by COB Tuesday 10 June 2025

Anyone is welcome to attend this seminar. There is no cost.

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

The author of this post is Jonathan Schenk (University of Antwerp). The EAPIL Working Group on International Property Law will hold its seventh in-person meeting in Antwerp from 22 to 24 May 2025. The University of Antwerp will warmly receive the participants as host of the meeting. Since its establishment nearly four years ago, the […]

Written by Samhith Malladi, Dual-qualified lawyer (India and England & Wales), and Senior Associate, Shardul Amarchand Mangaldas [Bombay office]; and Niyati Gandhi, Partner, Dispute Resolution, Shardul Amarchand Mangaldas [Bombay office]

 

The Recalibration of Enforcement Doctrine

The global campaign to enforce arbitral awards against the Republic of India arising from its long-running dispute with Devas Multimedia has witnessed a significant doctrinal shift in the treatment of sovereign immunity within the enforcement of investor–state dispute settlement (ISDS) awards.

To recall, the dispute arises from a contract entered in 2005 between Devas Multimedia Private Limited (Devas) and the Indian state-owned Antrix Corporation (Antrix), which was the commercial arm of the Indian Space Research Organisation. Antrix had agreed to lease S-band spectrum to Devas to broadcast its multimedia services in India. Antrix terminated this contract in 2011 citing national security concerns. In a nutshell, the dispute spawned three concluded arbitrations – a commercial ICC arbitration between Devas and Antrix and two investor-state arbitrations between Devas’ shareholders and India under the India-Mauritius Bilateral Investment Treaty (BIT) 1998 and the India-Germany BIT 1995. In 2022, Devas’ Mauritian shareholders commenced another investor-state arbitration against India under the India-Mauritius BIT in relation to India’s efforts to thwart the award against Antrix in the ICC arbitration, which currently remains pending before the Permanent Court of Arbitration. An overview of the various proceedings arising from this dispute has been previously discussed on this blog here.

Devas and its shareholders won favourable awards in all three concluded arbitrations. Since then, Devas and its shareholders have commenced enforcement proceedings in several jurisdictions across the world. Recent judgments from courts in the United Kingdom and Australia – arising from the Mauritian shareholders’ attempts to enforce the favourable ISDS award in various jurisdictions – have not only reaffirmed the centrality of sovereign immunity in enforcement proceedings but have also echoed the analytical approach to assessing the enforceability of ISDS awards adopted by Indian courts. This post situates the UK and Australian judgments within the broader trajectory of Indian jurisprudence and considers the implications for the future of ISDS enforcement.

Early Presumption in Favour of Enforcement of Arbitral Awards

The early efforts by Devas’ investors to enforce an ISDS award against India were successful in overcoming India’s defence based on sovereign immunity. In Deutsche Telekom v. India, German investors in Devas won a favourable ISDS award in a Geneva-seated UNCITRAL arbitration against India for compensation in 2020. Thereafter, aside from successfully resisting India’s efforts to set aside the award in the seat courts in Switzerland, the investors have been successful in having the award recognised as enforceable in the US, Singapore and Germany under the New York Convention 1958 (NYC).

The observations of a US Court in 2024 while enforcing the award are illustrative of a presumption in favour of the enforcement of ISDS awards. The US Court rejected India’s claim to sovereign immunity under the Foreign Sovereign Immunities Act 1976 (FSIA) on the basis of the “arbitration exception” in the FSIA. The court held that India could not claim immunity given that it had agreed to arbitrate under the India-Germany BIT in accordance with the UNCITRAL Rules. Tellingly, the US Court proclaimed “Enough is Enough!”. The approach of the US court, enforcing the award under the New York Convention, is reflective of the restrictive theory of sovereign immunity, which limits a state’s immunity from lawsuits in foreign courts to acts of a private nature, such as commercial activities, while preserving immunity for acts performed in its sovereign capacity. This theory acknowledges that states often engage in commercial activities and should be held accountable like private entities in those contexts.

At the time of these enforcement efforts, there was no discussion of India’s commercial reservation to the NYC and whether the dispute before an ISDS tribunal is considered “commercial” under Indian law. India’s reservation to the NYC states: “India will apply the Convention only to differences arising out of legal relationships, whether contractual or not, that are considered commercial under the national law.” India is not the only state to have made such a reservation to NYC, and not the only State refused this defence. In Zhongshan Fucheng Industrial Investment Co. Ltd v Nigeria 112 F.4th 1054 (D.C. Cir. 2024), a Chinese investor sought to enforce an award against Nigeria under the China-Nigeria BIT before a US court. The US has adopted a commercial reservation under the NYC. Nigeria sought to resist enforcement of the award on the ground that the dispute arose out of a relationship that was not commercial in nature. The court disagreed and adopted a broad interpretation of the word “commercial”, observing that the BIT itself was signed to promote commerce and the dispute did not need to arise from a contract in order to be commercial.

However, as discussed below, in recent enforcement attempts against India, India’s arguments on the question of whether ISDS awards were “commercial” in nature and fell within the scope of this reservation have been assessed in new light. Courts in Australia and the UK have in recent judgments accepted the renvoi to Indian law’s characterisation of enforceable “commercial” awards as not including ISDS awards.

Australia: Treaty Reservations and Domestic Legal Classification

As discussed here, the Full Federal Court of Australia’s decision in Republic of India v. CCDM Holdings, LLC  [2025] FCAFC 2 illustrates the growing judicial circumspection in enforcement proceedings against sovereign states. The court reversed the prior decision in the first instance by the Federal Court, where the court had enforced the award against India. The court of first instance had concluded that India was not immune under the Australian Foreign States Immunities Act 1985 (Australian FSIA) as it had waived its sovereign immunity by ratifying the NYC. The court had not been convinced of the impact of India’s commercial reservation to the NYC, noting that enforcement was sought in Australia and Australia had not made any such commercial reservation.

The Full Federal Court disagreed with the reasoning of the court of first instance. Applying the Vienna Convention on the Law of Treaties, 1969, the court noted that the commercial reservation had modified the relationship between India and other NYC contracting states as regards the obligation to enforce foreign awards in Article III of the NYC. Given that it applied, the court concluded that the arbitral award related to a dispute as to rights under public international law – which was different from a “commercial” dispute. This was reinforced by the fact that the termination of the contract with Devas had arisen from “public policy” concerns, which were again not commercial in nature.

The Australian court’s willingness to defer to India’s own legal characterisation of the transaction underscores the significance of domestic law in the enforcement calculus. The decision demonstrates that, even in the presence of an otherwise valid arbitral award, the classification of the underlying relationship and the scope of the respondent state’s reservations can decisively shape the outcome of enforcement proceedings under the NYC.

United Kingdom: Consent to Arbitrate Is Not Consent to Enforce

The English Commercial Court’s decision in CC/Devas et al. v Republic of India [2025] EWHC 964 (Comm) continued the trend of upholding sovereign immunity as a bar to enforcement of ISDS awards against a country that has made a commercial reservation under the NYC. Devas argued that India’s ratification of the NYC constituted a waiver of sovereign immunity under the UK’s State Immunity Act 1978 (SIA). India took the position that there was no such waiver because of the limited scope of the NYC and the commercial reservation that India made when ratifying the NYC.

The court was not convinced that India’s ratification of the NYC was sufficient evidence of a “prior written agreement” under Section 2(2) of the SIA. The court observed that the drafters of the NYC had not intended to preclude the ability of states to assert their sovereign immunity in enforcement proceedings. A crucial cog in his analysis was that Article III of the NYC directs contracting states to recognise foreign arbitral awards as binding and “enforce them in accordance in accordance with the rules of procedure of the territory where the award is relied upon …”, which preserved states’ sovereign immunity “in its own terms”. He concluded that the ratification of the NYC was in and of itself insufficient to constitute waiver in accordance with English law. Finally, on India’s commercial reservation to the NYC, the court accepted that while under English law the dispute could be termed “commercial”, it could not be assumed that this was necessarily the case under Indian law. The court did not go much further except for noting that the claimants had not advanced a case under Indian law on what constituted a “commercial” dispute. The court simply concluded that “on appeal, the Full Federal Court of Australia has decided this issue in favour of India, which must carry considerable weight in this jurisdiction” (para 98).

At the end of the judgment, the court clarified that its conclusion was “not intended to contradict in any way the enforcement friendly aspect of the NYC, which is its purpose, and the reason for its success, and which has been consistently upheld in the English courts … It simply recognises that international jurisprudence, which holds that ‘… state immunity occupies an important place in international law and international relations’, also has to be taken into account in deciding the narrow, but important, issue of whether a state has by treaty given its consent to waive that immunity” (para 108). The Court’s closing remark suggests that while the enforcement of foreign arbitral awards continued to be the guiding principle of the NYC, it must co-exist with the domestic procedural law of the enforcing state, particularly on an issue as fundamental as sovereign immunity.

This judgment reinforces the principle that sovereign immunity is not a mere procedural hurdle but a fundamental organising principle of enforcement. The NYC, while facilitating recognition of arbitral awards, does not itself override the statutory requirements for waiver of immunity under domestic law. The English court’s insistence on explicit and unambiguous consent places the burden squarely on investors to secure such waivers at the outset.

Comparative Analysis: Convergence and Doctrinal Resonance

The recent UK and Australian judgments represent a deference to domestic law treatment of awards and the fundamental nature of sovereign immunity as a boundary as central pillars of judicial reasoning. The judgments have the potential to be the inflection points towards a global trend in which the enforceability of investor–state awards is increasingly contingent upon the precise contours of state consent, both at the treaty-drafting stage and in domestic statutory frameworks.

Historical Approach of Indian Courts

The analytical approach now being adopted in the UK and Australia seems to mirror the jurisprudence of Indian courts, which have not treated ISDS awards as enforceable under the New York Convention, and thus the Indian Arbitration and Conciliation Act, 1996.

Section 44 of the Indian Arbitration and Conciliation Act, 1996 is a unique statutory expression of India’s emphasis on sovereign choice when enforcing arbitral awards. Section 44 enforces only those awards that are considered as “commercial under the law in force in India”, rendered pursuant to the NYC and are made in a territory notified by the Central Government. Indian courts have scrutinized when an international arbitration award can be considered “commercial” in nature. In Union of India v. Khaitan Holdings (Mauritius) Limited & Ors. [CS (OS) 46/2019 I.As. 1235/2019 & 1238/2019 dated January 29, 2019] (Khaitan Holdings), India requested the Delhi High Court to issue an anti-arbitration injunction against a BIT arbitration commenced against India by Khaitan Holdings under the India-Mauritius BIT 1998. The court observed that the Arbitration and Conciliation Act (Part II of which incorporates the New York Convention and the Model Law) did not apply to BIT arbitrations, which were different in nature from “commercial” arbitrations given they also involved questions of public international law. The Delhi High Court’s decision in Khaitan Holdings echoed its previous decision along similar lines in Union of India v. Vodafone Group Plc [AIR Online 2018 Del 1656].

To be clear, neither the US nor the Australian courts have considered or relied on these decisions.

India’s Recent Treaty Practice

Recognising the limitations of the existing enforcement paradigm, India has begun to address these concerns proactively in its treaty practice. The India–UAE Bilateral Investment Treaty (2023) includes an express waiver of immunity from both jurisdiction and execution in respect of disputes submitted to arbitration under the treaty. In a chapter aptly titled “Finality and enforcement of awards”, the India-UAE BIT’s Article 28.4 states that: “Each Party shall provide for the enforcement of an award in its Territory in accordance with its Law. For the avoidance of doubt, this Article 28.4 shall not prevent the enforcement of an award in accordance with [the] New York Convention.” Following Article 27.5 of the India’s Model BIT (2016), Article 28.5 clarifies that: “A claim that is submitted to arbitration … shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention.” Similar language inspired by the Model BIT has been incorporated into Article 29.5 of the recently ratified India-Uzbekistan BIT 2024.

As such, if an ISDS dispute were to arise from an investment made pursuant to these BITs, India has committed to not resist an eventual award’s enforcement as it has done in the various Devas award enforcement actions around the world. This development marks a significant departure from India’s historical approach and signals an emerging consensus that enforcement concerns must be resolved at the outset, rather than left to the uncertainties of enforcement litigation.

Conclusion: Sovereignty as the Organising Principle of Enforcement

The Devas enforcement saga has brought into sharp relief the centrality of sovereign immunity in the enforcement of investor–state arbitral awards. The doctrinal evolution witnessed in the UK and Australia is not a departure from established principles but a reaffirmation of the analytical approach long adopted by Indian courts. As the global legal community grapples with the challenges of ISDS enforcement, the future effectiveness of arbitral awards will depend less on the reasoning of arbitral tribunals and more on the clarity with which states define—and limit—their consent to enforcement, both in domestic law and in treaty practice. It will be important to watch this trend closely as courts interpret the interplay between sovereignty and the enforcement of international arbitral awards.

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On 19 May 2025, the leaders of the European Union (António Costa, President of the European Council, Ursula von der Leyen, President of the European Commission) and the United Kingdom (Keir Starmer, Prime Minister of the United Kingdom) met in London for the first EU-UK summit since the UK withdrew from the EU. At the […]

If you do use the blog for research 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.

In X v Amstelveen Equity Trust BV et al, ECLI:NL:RBAMS:2025:2975 (anonymised presumable because of the family issues in the litigation; not a convincing reason to anonymise imo) claimant seeks damages in excess of 1.3 billion $ from two of his uncles and a series of corporations associated with them. The nephew (a similar claim by his ssiter was settled earlier, In Turkey) claims that the uncles mismanaged the shares which were held by his father in the two defendant Turkish companies, a shareholding in which he claims he has succeeded his father.

The claim alleges that the two Turkish corporations transferred the shares to their own ownership and subsequently transferred them to the two Dutch corporations who are also defendants, without paying the proper value to the nephew. Claimant has also seized a Turkish court, with a claim to value the shares, and to annul the decisions of the Turkish corporations to transfer the shares first into their own names and subsequently to the Dutch corporations.  The transfer of the shares is based on relevant article in the Turkish Corporations Act which reads

“if the shares have been acquired by inheritance, division of inheritance, provisions of the property regime between spouses or by compulsory execution, the company may refuse to give approval to the person acquiring the shares only if he proposes to take over the shares at their real value”

Current judgment deals only with the defendant’s request, which it grants, to stay the Dutch proceedings, pending the decision by the Turkish court. [3.14] the shares meanwhile have been sequestered by earlier decision of the Dutch courts.

[5.2] and [5.3] the Court holds that Article 26 Brussels Ia (voluntary appearance aka prorogation aka submission) applies equally to non-EU domiciled defendants, with reference to CJEU C-412/98 Group Josi [44]:

Admittedly, under Article 18 of the Convention, the voluntary appearance of the defendant establishes the jurisdiction of a court of a Contracting State before which the plaintiff has brought proceedings, without the place of the defendant’s domicile being relevant.

As I explain in my critical review of X v Trustees of Max Stern, I do not think that section of Group Josi relates to the non-EU element of the defendant’s domicile, rather its domicile full stop (within the EU). Neither the German Supreme Court nor the Amsterdam court here are right, in my view, and the issue is most certainly not acte claire, particularly given the language of Article 6 Brussels Ia.

[5.4] ff then discusses the call of both the Dutch and the Turkish defendants upon either Article 33 lis pendens or Article 34 related cases, or their residual Dutch equivalent.

The court [5.6] swiftly decides that the Turkish defendants’ call upon Articles 33-34 does not go anywhere seeing as Article 6 (which it, imo wrongly, held grounds its jurisdiction) is not listed as one of the jurisdictional anchors which may be corrected by Articles 33-34. Yet [5.41] the court holds that the (Dutch) ‘sound administration of justice’ justifies a stay ‘on the same considerations’ which led to its granting  a stay on A33-34 grounds viz the Dutch defendants. This is cakeism. Either you hold that Brussels Ia applies and then you apply all of Brussels Ia, including the consequences of the A33-34 limits. Here: if an A33-34 stay is not possible, then neither is a case-management stay or a ‘sound administration of justice’ stay if these merely recycle the, by definition inapplicable, A33-34 analysis (see also my earlier posts echoing ‘circumventing Owusu via the back door’, ia viz de Jong and Municipio): for that is just a ‘me too’ A33-34 stay in circumstances where these Articles clearly do not apply.

Viz the Dutch defendants, the court first of all holds that A33 does not apply for the lis pendens conditions are not met: [5.12] while the Turkish proceedings only concern the Turkish corporations, the Dutch concern both the Dutch and the Turkish ones, and a number of directors; both materially and from the point of view of procedures, the defendants in the Dutch proceedings have a very different position both among themselves and, for the Turkish defendants, viz their position in the Turkish proceedings. [5.13] neither do the proceedings concern the same matters of law, seeing as the Dutch one relates to tort and unjust enrichment, while the Turkish one concerns corporate law as well as economic law.

However the call upon A34 forum connexitatis /related action is successful. I discuss all conditions here and will not repeat them all at length in this post.

[5.19] the court matter of factly posits that for the condition of ‘relatedness’, A30 Brussels Ia’s approach (A30 applies in case of lis pendens between EU Courts) equally applies to A34. It holds that [5.25] the ownership question over the shares is core to, at the least very relevant in, both the Turkish and the Dutch procedures, as is [5.26] the valuation of the shares. [5.27] diverging answers to these questions by the Turkish cq Dutch courts would lead to a risk of irreconcilable judgments. [5.28] that the pending cases in Turkey concern more than just one procedure is held to be irrelevant for the purposes of A34.

Further, applying an Anerkennungsprognose, any future Turkish judgment is likely to be recognisable in The Netherlands following the criteria of the Dutch Supreme Court in Gazprom.

As for the ‘proper administration of justice’, [5.35] the court holds that the Turkish proceedings are likely to be completed within a reasonable period (reference here is made to the Dutch courts likely not deciding such a complex case in a shorter timeframe); the Turkish proceedings already having been underway for quite a while (and for some of them, under an exclusive ground of jurisdiction); and the close link with Turkey even in the Dutch proceedings. [5.40] the court reminds the parties that if circumstances change the balance of competing interests (one would imagine, excessive delay in the Turkish procedures, perceived bias, etc), an application to lift the stay may be made.

Both the A6 decision and the effective application of A33-34 to the Turkish defendants despite these Articles not applying to relevant claim, are a weak link in my view in current judgment. The A33-34 analysis is a touch on the concise size with a view to proper administration of justice.

At any rate, a judgment of note, seeing the extensive engagement with A33-34.

Geert.

European Private International Law, 2.572 ff.

 

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

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

• Anspruchsverjährung im deutsch-spanischen Rechtsverkehr
  David Cuenca Pinkert and Alexander Kronenberg on the statute of limitation in cross-border situations involving Germany and Spain: Against the background of the relevance of the application of foreign law in practice, the article analyses the institute of the statute of limitations under Spanish substantive law and also deals with similarities and differences to German law as well as selective references to conflict of laws and particularities. Due to its practical relevance, the article focuses on the treatment of the limitation period for tortious claims for damages, especially as a result of road traffic accidents.
• EGMR „Klimaseniorinnen“ – Konsequenzen für private Klimaklagen?
  Marc-Philippe Weller and Franka Weckner comments on the decision by the ECtHR in Klimaseniorinnen and discuss the consequences of this decision for climate litigation brought before civil courts.