Conflictoflaws

By Guillaume Croisant (Linklaters LLP)

The United Kingdom deposited an instrument of accession to the Hague Convention of 30 June 2005 on Choice of Court Agreements (the “Convention”) on 28 September 2020. This instrument of accession became effective after the Brexit’s transition period, on 1 January 2021, and gained binding force within the UK legal order following the adoption of the Private International Law (Implementation of Agreements) Act 2020.

As many readers will be aware, a controversy exists regarding the temporal scope of the Convention. It applies to exclusive choice of court agreements concluded after its entry into force for the State of the chosen court and to disputes initiated after its entry into force for the State of the seized court. EU Member States have been bound by the Hague Convention since its approval by the European Union on 1 October 2015, but what about the UK after its withdrawal from the EU?

According to a first viewpoint, reflected in the UK’s instrument of accession, ” In accordance with Article 30 of the 2005 Hague Convention, the United Kingdom became bound by the Convention on 1 October 2015 by virtue of its membership of the European Union, which approved the Convention on that date.”

Conversely, under a second viewpoint (apparently shared by the European Commission in its ‘Notice to stakeholders – Withdrawal of the United Kingdom and EU rules in the field of civil justice and private international law’ dated 27 August 2020, p. 9), the Convention could only apply after the United Kingdom’s ‘independent’ ratification, which occurred on 1 January 2021. If this second perspective were accepted, jurisdiction agreements concluded before this date would not benefit from the mutual recognition system established by the Convention.

In a judgment (in French) dated 27 March 2025 (C.24.0012.F), the Belgian Supreme Court (Court de Cassation/Hof van Cassatie) ruled in favour of the first viewpoint, holding that “The Hague Convention of 30 June 2005 has been applicable to the United Kingdom as a bound State, owing to the European Union’s approval of the Convention, from 1 October 2015 until 31 December 2020, and as a contracting party from 1 January 2021. The argument, in this regard, that the United Kingdom ceased to be bound by the Convention following its withdrawal from the European Union on 1 February 2020, is without legal basis.”

Registration has now opened to participate in the XVIII ASADIP Conference – Regional Imaginaries, Global Resonance: Inter-American Private International Law and the World Stage, to be held in the city of Rio de Janeiro, Brazil from 7 to 9 August 2025. This year, ASADIP is organising the Conference in collaboration with the Organisation of American States, on the occasion of the 50th anniversary of the Inter-American Conference on Private International Law and the OAS Course on International Law. Preliminary programme, registration link and further info.

By Livia Solaro, PhD candidate at Maastricht University, working on the transnational restitution of Nazi-looted art

On 21 February 2025, the US Supreme Court issued a ruling in Republic of Hungary v. Simon,[1] a Holocaust restitution case with a lengthy procedural history. Delivering this unanimous decision, Justice Sotomayor confirmed the restrictive approach to cases involving foreign states inaugurated in 2021 by Federal Republic of Germany v. Philipp.[2] In light of the importance of US practice for the development of customary law around sovereign immunity,[3] and its impact on questions of historical justice and transnational accountability, the Simon development deserves  particular attention.

The Jurisdictional Treatment of Foreign States as an “American Anomaly”[4]

In 2010, a group of Holocaust survivors filed a suit before the US District Court for the District of Columbia against the Republic of Hungary, the Hungarian State-owned national railway (Magyar Államvasutak Zrt., or MÁV) and its successor-in-interest Rail Cargo Hungaria Zrt. (RCH), seeking compensation for the Hungarian government’s treatment of its Jewish population during World War II.[5] The survivors claimed that, in connection to their deportation, their properties had been expropriated and subsequently liquidated by defendants.

As the case repeatedly moved through federal courts (in fact, this was not the first time it reached the Supreme Court),[6] the possibility for the US judge to extend its adjudicative jurisdiction over the Hungarian State remained controversial. Claimants based their action on the so-called “expropriation exception” to sovereign immunity, codified by §1605(a)(3) of the 1976 Foreign Sovereign Immunities Act (FSIA).[7] This provision  excludes immunity in all cases revolving around rights in property taken in violation of international law, at the condition that  that property, or any property exchanged for such property: 1) is present in the US in connection with a commercial activity carried on in the US by the foreign state, or 2) is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the US.

This exception represents an unicum within the law of sovereign immunity, as it allows courts to extend their jurisdiction over a state’s acta iure imperii (expropriations are indeed quintessential sovereign acts).[8] In recent years, this provision has often been invoked in claims of restitution of Nazi-looted art owned by European states (see, for example, Altmann v. Republic of Austria,[9] Toren v. Federal Republic of Germany,[10] Berg v. Kingdom of Netherlands,[11] Cassirer v. Kingdom of Spain).[12] Crucially, this exception also requires a commercial nexus between the initial expropriation and the US. In its Simon decision, the US Supreme Court addressed the standard that plaintiffs need to meet to establish this commercial nexus in cases where the expropriated property was subsequently liquidated. The Court read a “tracing requirement” in the text of the provision, thus establishing a very high threshold.

Property Taken in Violation of International Law

The Court had recently addressed the interpretation of §1605(a)(3 in Federal Republic of Germany v. Philipp, where the heirs of German Jewish art dealers sought the restitution of a collection of medieval reliquaries known as the Guelph Treasure (Welfenschatz), In that case, the Supreme Court focused on the opening line of the expropriation exception, which requires that the rights in property at issue were “taken in violation of international law”. By explicitly recognizing that this language incorporates the domestic takings rule,[13] the Court set in motion a trend of increasingly restrictive interpretations of the expropriation exception that is still developing today.

To reach this result, the Supreme Court interpreted the expropriation exception as referring specifically to the international law of expropriation. This narrow reading of §1605(a)(3) allowed the Court to assert that the domestic takings rule had “survived the advent of modern human rights law”, as the two remained insulated from one another. Accordingly, even if the Nazi plunder were considered as an act of genocide, in violation of human rights law and the Genocide Convention,[14] it would not fall under §1605(a)(3), as this provision only applies to property takings against aliens (reflecting the traditional opinion that international law is concerned solely with the relations between states). From this perspective, the Philipp decision adhered to the International Court of Justice’s highly criticized conclusion in Jurisdictional Immunities of the State (Germany v.  Italy) that immunity is not excluded by serious violations of ius cogens.[15]

The impact of this restrictive turn has already emerged in a couple of cases adjudicated after Philipp. In order to circumvent the domestic takings rule, claimants have tried to argue that the persecutory treatment of Jewish individuals by several states during the Holocaust deprived them of their nationality, rendering them either de iure or de facto stateless. In the wake of Philipp, courts have been sceptical of this statelessness theory – although they appear to have left the door ajar for stronger arguments in its support.[16] A recent decision by the District Court for the District of Columbia  has gone so far as to exclude the expropriation exception in cases involving a states’ taking of property from nationals of an enemy state in times of war.[17] The District Court followed the same reasoning as in Philipp: if §1605(a)(3) refers to the international law of expropriation, not only human rights law but also international humanitarian law are excluded by its scope of application. As I noted elsewhere,[18] post-Philipp court practice now excludes the expropriation exception in the vast majority of takings by sovereign actors, regardless of whether they targeted their own nationals, the nationals of an enemy state or stateless individuals.

The Commercial Nexus and the Commingling Theory

The recent Simon decision adopts the same restrictive approach as Philipp, but shifts focus to the expropriation exception’s second requirement: the commercial nexus with the US. Under §1605(a)(3), the property that was taken in violation of international law, or any property exchanged for such property (emphasis added), needs to have a connection with a commercial activity carried by the foreign state, or one of its agencies or instrumentalities, in the US. Crucially, the Hungarian government liquidated the assets allegedly expropriated from defendants. The Supreme Court was asked to decide whether the claimants’ allegation that Hungary used the proceedings to issue bonds in the US met the commercial nexus requirement. Complicating matters further, the proceeds were absorbed into the national treasury where, over the years, they had mingled with billions in other revenues.

The Simon question concerns an important portion of expropriation cases, since property is often taken for its monetary rather than intrinsic value. Therefore, with some specific exceptions (such as takings of artworks or land), expropriated properties are likely going to be liquidated, and the proceeds are bound to be commingled with other funds. Years after the initial liquidation, proving the location of the money originally exchanged for those properties is extremely challenging, if not impossible. In 2023, the Circuit Court had indeed concluded that “[r]equiring plaintiffs whose property was liquidated to allege and prove that they have traced funds in the foreign state’s or instrumentality’s possession to proceeds of the sale of their property would render the FSIA’s expropriation exception a nullity for virtually all claims involving liquidation”.[19]

The Simon claimants thus proposed a “commingling theory”, arguing that instead of tracing the initial proceeds, it is enough to show that they eventually mixed with funds later used in commercial activity in the US. Delivering the opinion of the Court, Justice Sotomayor rejected this theory, reading a specific tracing requirement into the wording of the expropriation exception. In order to meet this requirement, claimants can identify a US account holding proceeds from expropriated property, or allege that a foreign sovereign spent all funds from a commingled account in the United States. As clarified by the Justice, these are but some examples of how a claimant might chose to proceed. Rather than examining various common law tracing principles, however, the Court here simply ruled that alleging that a foreign sovereign liquidated the expropriated property, commingled the proceeds with general funds, and later used some portion of those funds for commercial activities in the US does not establish a plausible commercial nexus. Although this ruling imposes a high bar for claimants seeking to invoke the expropriation exception, the Court found this outcome less detrimental to the FSIA’s rationale than accepting the “attenuated fiction” that commingled accounts still contain funds from the original property’s liquidation. In Simon, for example, while the initial commingling of funds occurred in the 1940s, the suit was only brought in the 2010s, after “several institutional collapses and regime changes”.

A Restrictive Parable

The Supreme Court based its Simon decision on a textual interpretation of the expropriation exception, which identifies “that property or any property exchanged for such property”, without providing a specific alternative criterion for property exchanged for money. The Court also looked at the legislative history of the FSIA, rooted in the 1964 Banco Nacional de Cuba v. Sabbatino decision.[20] The Sabbatino case prompted US Congress to pass the FSIA’s predecessor, the Second Hickenlooper Amendment to the Foreign Assistance Act of 1964,  “to permit adjudication of claims the Sabbatino decision had avoided”.[21] In Simon, the Court read its Sabbatino precedent as part of the FSIA’s history, and as such relevant to its interpretation – especially considering that Sabbatino also revolved around property that had been liquidated. Crucially in Sabbatino “the proceeds . . . in controversy” could be clearly traced to a New York account, aligning the case with the tracing requirement identified in Simon.

The Simon Court also echoed the foreign relations concerns that it already discussed in Philipp, justifying its restrictive interpretation of the FSIA on the Act’s potential to cause international friction, and trigger reciprocity among other states’ courts. In this regard, the Philipp and Simon decisions seem particularly keen to do some “damage control” on the effects of the expropriation exception, reducing its scope from a “radical” to a “limited” departure from the restrictive theory of foreign sovereign immunity.

This restrictive turn mirrors the trajectory of human rights litigation under the Alien Tort Statute (ATS).[22] Starting with the Second Circuit’s decision in Filártiga v. Peña-Irala,[23] the 1789 ATS was used by US courts to extend their jurisdiction on human rights claims brought by aliens. In 2004 (the same year as the seminal Altmann decision on the FSIA’s retroactive application),[24] the Supreme Court rejected the interpretation of the ATS as a gateway for “foreign-cubed” human rights cases.[25] Warning against the risk of “adverse foreign policy consequences”, the Court provided a narrow interpretation of the ATS. This conservative approach has been framed as part of the shift in attitudes that marked the passage from the Third to the Fourth Restatement of the Foreign Relations Law of the United States.[26] The decision to restrict the reach of the ATS was in fact rooted in political considerations, as testified by the pressure exercised by the Bush administration to hear the case.[27] The new geopolitical landscape had diminished the strategic importance of vindicating international human rights law, and the use of domestic courts to advance public rights agendas had faced severe criticism, with US courts being accused of acting as judges of world history.[28] The Philipp and Simon interpretations of the FSIA reproduce this passage from an offensive to a defensive approach within the law of foreign sovereign immunity.

Conclusion

Since Philipp, the expropriation exception has been limited to property takings by foreign sovereigns against aliens during peacetime. This development has arguably returned the FSIA to its original intent: to protect the property of US citizens abroad, as an expression of “America’s free enterprise system”. With Simon, this provision’s application has been further restricted where the expropriated property was liquidated. This approach explicitly aims at aligning US law with international law. In this process, however, the US judiciary’s controversial yet proactive contribution to human rights litigation, with its potential to influence the development of customary law, is taking a more conservative and isolationist stance.

[1] Republic of Hungary v. Simon, 604 U. S. ___ (2025).

[2] Federal Republic of Germany v. Philipp, 592 U. S. 169 (2021).

[3] Thomas Giegerich, ‘The Holy See, a Former Somalian Prime Minister, and a Confiscated Pissarro Painting: Recent Us Case Law on Foreign Sovereign Immunity’ in Anne Peters and others (eds), Immunities in the Age of Global Constitutionalism (Brill | Nijhoff 2014) 52. <https://brill.com/view/book/edcoll/9789004251632/B9789004251632_006.xml> accessed 11 December 2024. An important conference on the state of the art on the international law of foreign sovereign immunity recently took place at Villa Vigoni (Italy), under the auspices of the Max Planck Institute for Comparative Public Law and International Law. The full program of the event can be found here: https://www.mpil.de/en/pub/news/conferences-workshops/the-future-of-remedies-against.cfm.

[4] As described by Riccardo Pavoni, ‘An American Anomaly? On the ICJ’s Selective Reading of United States Practice in Jurisdictional Immunities of the State’ (2011) 21 The Italian Yearbook of International Law Online 143.

[5] For an historical contextualization, see Szabolcs Szita, ‘It Happened Seventy Years Ago, in Hungary’ [2014] Témoigner. Entre histoire et mémoire. Revue pluridisciplinaire de la Fondation Auschwitz 146.

[6] See Republic of Hungary v. Simon, 592 U. S. 207 (2021) (per curiam) (Supreme Court of the United States).

[7] The FSIA, enacted through Public Law 94-583 on October 21 on 1976, is codified in Title 28 of the U.S. Code, Chapter 97, Part IV – Jurisdictional Immunities of Foreign States.

[8] Charlene Sun and Aloysius Llamzon, ‘Acta Iure Gestionis and Acta Iure Imperii’ (Oxford Constitutions – Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]) <https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpeccol-e188> accessed 30 April 2025.

[9] Altmann v Republic of Austria [2001] 142 F. Supp. 2d 1187 (United States District Court, CD California).

[10] Toren v Federal Republic of Germany 2023 WL 7103263 (United States Court of Appeals, District of Columbia Circuit) (unreported).

[11] Berg v Kingdom of the Netherlands 2020 WL 2829757 (United States District Court, D. South Carolina, Charleston Division) (unreported).

[12] Cassirer v Kingdom of Spain [2006] 461 F.Supp.2d 1157 (United States District Court, CD California).

[13] Mayer Brown, ‘“Domestic Takings” Rule Bars Suit Against Foreign Nations in U.S. Court’ (Lexology, 3 February 2021) <https://www.lexology.com/library/detail.aspx?g=1d4af991-a497-47be-80f2-dd78c184baa1> accessed 30 April 2025.

[14] UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, United Nations, Treaty Series, vol. 78, p. 277, 9 December 1948, https://www.refworld.org/legal/agreements/unga/1948/en/13495 [accessed 29 April 2025].

[15] Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgment,  I.C.J. Reports 2012. For a critical discussion of this judgment, see Benedetto Conforti, ‘The Judgment of the International Court of Justice on the Immunity of Foreign States: A Missed Opportunity’ (2011) 21 The Italian Yearbook of International Law Online 133.

[16] See Simon v Republic of Hungary [2023] 77 F4th 1077 (United States Court of Appeals, District of Columbia Circuit). The court here clarified that its decision did not “foreclose the possibility that such support exists in sources of international law not before us in this case or based on arguments not advanced here”> Ibid,  para 1098.

[17] de Csepel v Republic of Hungary 2024 WL 4345811 (United States District Court, District of Columbia).

[18] Livia Solaro, ‘US Case Further Restricts Holocaust-Related Art Claims’ (The Institute of Art & Law, 11 November 2024) <https://ial.uk.com/author/livia-solaro/> accessed 30 April 2025.

[19] Simon v Republic of Hungary (n 16) para 1118.

[20]  Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 (1964) (Supreme Court of the United States).This case revolved around the expropriation of sugar by Cuba against a private company in protest for the reduction of the US sugar quota for this country. After the sugar in question was delivered to a customer in Morocco, both the Cuban state and the private company claimed the payment of the price, which in the meantime had been transferred to a New York commodity broker. The case eventually was adjudicated in favour of the National Bank of Cuba, based on the Act of State doctrine.

[21] As noted by the Court in  Republic of Hungary v. Simon, 604 U. S. ___ (2025) (Supreme Court of the United States) 15–16.

[22] 28 U.S. Code § 1350.

[23] Filartiga v Pena-Irala [1980] 630 F.2d 876 (United States Court of Appeals, Second Circuit).

[24]  Republic of Austria v. Altmann, 541 U. S. 677 (2004) (Supreme Court of the United States).

[25]  Sosa v. Alvarez-Machain, 542 U. S. 692 (2004) (Supreme Court of the United States); for a definition of ‘foreign-cubed’ claims, see Robert S Wiener, ‘Foreign Jurisdictional Algebra and Kiobel v. Royal Dutch Petroleum: Foreign Cubed And Foreign Squared Cases’ (2014) 32 North East Journal of Legal Studies 156, 157.

[26] See Thomas H Lee, ‘Customary International Law and U.S. Judicial Power: From the Third to the Fourth Restatements’, SSRN Electronic Journal (2020) <https://www.ssrn.com/abstract=3629791> accessed 14 March 2025.

[27] Naomi Norberg, ‘The US Supreme Court Affirms the Filartiga Paradigm’ (2006) 4 Journal of International Criminal Justice 387, 390.

[28] Ugo Mattei, ‘A Theory of Imperial Law: A Study on U.S. Hegemony and the Latin Resistance’ (2003) 10 Indiana Journal of Global Legal Indiana Journal of Global Legal Studies 67, 420.

This post was written by Rose Wijeyesekera, Professor of Private and Comparative Law, Chair / Department of Private and Comparative Law – Faculty of Law, University of Colombo

Introduction

Sri Lanka (formerly known as ‘Ceylon’) is an island in the Indian Ocean, and is home to a total population of 21,763,170, consisting of Sinhalese 74.9%, Tamils 15.4%, Muslims 9.3%, and 0.5% consisting of others such as Veddhas, Burghers, and gypsies.The legal system of this island nation is a unique blend of native laws and the laws that were placed by the colonial powers from 1505 to 1947, when the country gained independence. Since then, Sri Lanka has been a democratic republic and a Unitary State governed by a constitution. The Sri Lankan legal system is primarily based on Roman-Dutch law, inherited from its colonial past under the Dutch, and English common law introduced by the British colonial rulers. Apart from these two, the legal system incorporates elements of Kandyan law (representing indigenous customs of the Sinhalese), Tesawalamai(customary laws of the Tamils of the Northern province of the country) and Muslim law. These personal laws apply in matters of personal law, such as marriage, divorce, and inheritance, depending on the community to which an individual belongs. All Muslims including the sub-categories such as Moors and Malays, are governed by Muslim Law in their personal matters, while Kandyan Sinhalese (a minority of the Sinhalese who hail from “Kandyan Provinces” / the hill country, are governed by Kandyan Law. These customary laws bear a territorial and/or a religious nature. Most of these laws are enacted, but some remain open leaving room for judicial interpretation. The court system in Sri Lanka is structured hierarchically and is designed to ensure justice through a combination of traditional and modern legal principles. The system comprises the Supreme Court at the apex, the Court of Appeal, Provincial High Courts, District Courts, Magistrate Courts, and tribunals such as Labour Tribunals, Quazi Courts, and Mediation Boards.

The legislative sources of private international law are derived from multiple frameworks in Sri Lanka including the Civil Procedure Code (1889), Companies Act, No. 7 of 2007, Arbitration Act No. 11 of 1995 and Intellectual Property Act, No. 36 of 2003. The Reciprocal Enforcement of Foreign Judgments Ordinance No. 41 of 1921 (REJO) and the Enforcement of Foreign Judgements Ordinance No. 3 of 1937 (EFJO) were the most relevant in the sphere of reciprocal recognition, registration and enforcement of foreign judgments. Yet, these statutes, which were enacted during the British colonial era, were limited in their application as they applied only in judgments relating to commercial matters. The lacunae created by the absence of legal direction with regard to the recognition of foreign judgments in matters relating to divorce, annulment and separation of spouses, was huge in a socio-economic context where outward migration has become unprecedently large in recent times.

 

Pre-legislative judicial activism  

In December 2023, the Court of Appeal had to face this lacuna, where Champika Harendra Silva v. M.B. Weerasekara Registrar General and Others. The case concerned a Sri Lankan-born couple who had registered their marriage in Sri Lanka and migrated thereafter to England, had obtained a divorce decree from a competent court in England. The divorcee man applied to the Registrar General (RG) of Sri Lanka to register the divorce, but it was rejected on the basis that the divorce was obtained from a British court, which according to the RG, was not a ‘competent court’ under the Marriage Registration Ordinance of Sri Lanka. Upon rejection by the RG, the divorcee filed for a writ of certiorari pleading the court to quash the RG’s rejection, and a writ of Mandamus recognizing the decree of divorce granted by the English court. The court made headlines when, through judicial interpretation, it granted both writs declaring that a foreign decree of dissolution of a marriage contracted in Sri Lanka is valid and effectual in Sri Lanka subject to three guidelines. (a) Such Court must be in law vested with the jurisdiction in respect of the dissolution of a marriage and be the ‘Competent Court’ in the foreign country; (b) the Parties must have been residents of the foreign country for a reasonable period of time; and (c) the parties must have been properly represented and participated in the legal proceedings according to the laws and procedures of the foreign country. The decision was progressive and timely, and reiterated the necessity and urgency of legislative intervention in addressing this issue of recognizing foreign judgments especially with regard to matrimonial matters.

The legislature intervened promptly to address this legal lacuna by introducing the Reciprocal Recognition, Registration, and Enforcement of Foreign Judgments Act, No. 49 of 2024 (RRREFJ). The Act is effective from March 26, 2025, in respect of 53 countries listed in the Schedule. It repeals both REJO and EFJO.

 

Limited application of Private International law through REJO, EFJO, and Hague Conventions

REJO and EFJO, which were introduced to facilitate the cross-enforcement of foreign and Ceylonese (Sri Lanka as it was known then) judgments, had proved woefully inadequate to cater to the country’s ever increasing cross-border transactions in both commercial and personal matters. One of the main reasons was REJO’s limited scope, as it catered to rather uncomplicated monetary matters arose during the colonial times. It did not address matrimonial matters, perhaps because of limited overseas travel and limited marriages between Sri Lankans and foreigners. It has also been subjected to criticism due to stringent rules and procedural complexities, and understandably, they catered to procedural requirements of a far-less technologically facilitated financial world. Another deficiency was the absence of clear provisions for appeals. This hindered the enforcement process, and created legal uncertainty.

 

The RRREFJ Act of 2024

The 2024 Act comes in to bridge the gap between global realities and the local legal framework. Its scope is much wider than REJO, as it applies to the reciprocal recognition, registration and enforcement of foreign judgments regarding matrimonial matters, i.e. divorce, annulment and separation, as well as monetary obligations. It recognizes final and conclusive judgments of Scheduled jurisdictions. As at present, they are the 53 Commonwealth countries. An application for recognition, registration and enforcement of a foreign judgment can be made within a period of ten years from the final judgment, and by way of summary procedure as provided for in the Civil Procedure Code.

In terms of commercial transactions, its application extends to natural persons as well as companies, including Business Process Outsourcing (BPO) companies, which are increasing in the country. The Act does not apply to tax, charge, fine or other penalty payable under a judgment of a foreign court.

However, the Act is restrictive in terms of the application of matrimonial matters of persons whose marriages have been contracted under special personal laws, which are very much a part of the Sri Lankan law relating to marriage and family.

Section 3(1)(b) of the new Act of 2024 states that the Act applies to a foreign judgment for the dissolution or annulment of a marriage or separation of the parties to a marriage only if such judgment is obtained in respect of marriages entered under the General Marriages Ordinance No. 19 of 1907 (GMO) and where such judgment shall be deemed final and conclusive as long as either party to the marriage was domiciled in such country at the date of the judgement; habitual resident in such country for a period not less than one year before the date of  the judgment; was a national of such country at the time of the judgment; or both parties have submitted to the jurisdiction of such country. This leaves out Muslims who, under Sri Lankan law, are compelled to marry under the Muslim Marriage and Divorce Act 13 of 1951 (MMDA), and the Knadyan Sinhalese who may choose to register their marriages under the Kandyan Marriage and Divorce Act 44 of 1952 (KMDA). While the majority of the population are governed by the General Law and are required to follow the GMO in matters relating to their marriages, a considerable percentage of the Sinhalese population who are recognized as ‘Kandyans’ still opt to marry under the KMDA. The Muslims who constitute 9.7% of the total population of the country have no choice but to contract their marriages under the MMDA. The exclusion of their marriages from the 2024 Act raises multiple concerns including their right to equality before the law, which is a fundamental right guaranteed under the national constitution.

 

Way forward

The RRREFJ of 2024 is a timely legislative intervention in the sphere of private international law in Sri Lanka as it addresses a socially relevant legal lacuna in the country. The legislative effort was well-recognized by the apex court of the country when the constitutionality of the RRREFJ Bill was challenged in S.C.(SD) No.80/2024 and S.C.(SD) 81/2024. However, the Act has room to be more democratic in terms of its application, especially in the current social context in which the nation is struggling to overcome socio-economic devastations caused by multiple reasons including ethnicity, race, and religion. With necessary amendments to avoid these obvious racial and religious exclusions, the Act can strengthen the countries ties with the global village more fully.

HCCH Monthly Update: April 2025

 

Membership

On 10 April 2025, Qatar applied to become a Member of the HCCH. On the same day, the Secretary General of the HCCH opened the six-month voting period during which all current Members of the HCCH may cast their vote on the proposal. Following this voting period, and provided a majority of votes are cast in favour, Qatar will be invited to become a Member by depositing an instrument of acceptance of the Statute of the HCCH. More information is available here.

 

Meetings & Events

From 2 to 4 April 2025, the conference “15 Years of the HCCH Washington Declaration: Progress and Perspectives on International Family Relocation” was held at the Embassy of Canada in Washington, D.C., United States of America. The conference was jointly organised by the Embassy of Canada, the International Academy of Family Lawyers (IAFL), and the HCCH. More information is available here.

From 7 to 11 April 2025, the Working Group on Parentage / Surrogacy met for the fourth time. Pursuant to its mandate, the Working Group continued its consideration of draft provisions for one new instrument on legal parentage generally, including legal parentage resulting from an international surrogacy agreement. More information is available here.

On 30 April 2025, the seventh meeting of the Working Group established to complete the Country Profile and work on the draft Cooperation Request Recommended Model Form for the 1996 Child Protection Convention was held online, hosted by the Permanent Bureau. More information is available here.

 

Upcoming Events

The webinar “HCCH 2019 Judgments Convention: Bridging Global Justice” will be held via Zoom on Tuesday 6 May 2025 from 4.00 p.m. to 5.30 p.m. (Hong Kong time), hosted by the HCCH’s Regional Office for Asia and the Pacific. Interested persons should register no later than this Friday, 2 May 2025, at 5.00 p.m. (Hong Kong time). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

By Jason Mitchell, barrister at Maitland Chambers in London and at Group 621 in Johannesburg.

The Supreme Court of Appeal delivered judgment today in East Asian Consortium v MTN Group. The judgment is available here.

East Asian Consortium, a Dutch company, was part of the Turkcell consortium. The consortium bid on an Iranian telecommunications licence. The consortium won the bid. East Asian Consortium alleged that it was later ousted as a shareholder of the ultimate license holder, the Irancell Telecommunications Services Company. East Asian Consortium sued, amongst others, several subsidiaries of the MTN Group, a South African telecommunications company, in South Africa. East Asian Consortium alleged that the defendants unlawfully induced the Iranian government to replace East Asian Consortium with one of the MTN subsidiaries.

In 2022, the South African High Court held that Iranian law applies to East Asian Consortium’s claims. But the Court declined to exercise jurisdiction based on, amongst other things, state immunity and the act of state doctrine. East Asian Consortium appealed to the Supreme Court of Appeal.

The Supreme Court of Appeal reversed the High Court on state immunity and on the act of state doctrine. It reached the same conclusion as the High Court on the applicability of Iranian law, but for different reasons—and clarified that South African law uses the lex loci delicti as its general rule for choice of law in delict (or tort).

There are two immediate takeaways from the judgment:

South Africa’s act of state doctrine differs from the doctrine in English law

“…while we owe much to the English common law, and have much to learn from it, our common law is not a supplicant species.”

• English law (Belhaj, Deutche Bank) articulates the act of state doctrine as an exclusionary rule with limits and exceptions. The Supreme Court of Appeal rejects that approach, critiquing it as a doctrine “principally comprehended by what it is not.”
• Instead, the Supreme Court of Appeal adopts a broader balancing of interests: a “doctrine composed not of rules but of reasons that count for and against the court’s adjudication of a foreign state’s acts.”
• This interest-balancing version of the doctrine applies even when the lawfulness of the executive acts of a foreign country, taken within its territory, will have to be adjudicated by the South African court.
• The act of state doctrine is a common law doctrine, and the common law is subject to the Constitution. This means that the basis for the doctrine cannot be the separation of powers because, under the Constitution, foreign policy decisions are not beyond judicial scrutiny.
• Comity justifies the doctrine, but comity requires judicial pause not judicial abdication.
• Interest balancing considers, for example, the plaintiff’s constitutional rights (and, in particular, its right to have its dispute resolved in court), and the constitutional nature and implications of the claim (here, allegations of public corruption).

South Africa uses the lex loci delicti, but it can be displaced

• In 2010, the High Court in Burchell held that South Africa’s choice of law rule for delict is the legal system that has the most real or significant relationship to the dispute, with the lex loci delicti merely being one factor in that analysis.
• The Supreme Court of Appeal held that Burchell is wrong: the general rule is lex loci delicti. The lex loci delicti can be displaced if another legal system has a “manifestly closer connection”.
• The Supreme Court of Appeal also held that for transnational delicts (that is, when the relevant conduct or events do not happen in one country), a plurality approach should be taken to determine the lex loci delicti: the country in which the greater part of the events or conduct making up the elements of the delict took place.
• The Supreme Court of Appeal rejected an approach of subsidiary rules for particular delicts. This approach causes uncertainty about which elements should be given primacy for certain delicts. More fundamentally, it is based on the “doctrinal heresy” that South Africa has a law of delicts (like the English law of torts); South Africa instead has a “unified scheme of liability”. Subsidiary rules for each type of delict does not rhyme with that unified scheme.

The judgment was a relatively rare 3-2 split. A further appeal to the Constitutional Court is possible.

This post was written by Hannah Buxbaum, the John E. Schiller Chair in Legal Ethics and Professor of Law at the Indiana University Maurer School of Law in the United States.

Last month, Judge Edward Davila, a federal judge sitting in the Northern District of California in the United States, granted a motion by Google for a rare type of equitable relief: a worldwide anti-enforcement injunction. In Google v. Nao Tsargrad Media, a Russian media company obtained a judgment against Google in Russia and then began proceedings to enforce it in nine different countries. Arguing that the judgment was obtained in violation of an exclusive forum selection clause, Google petitioned the court in California for an order to block Tsargrad from enforcing it.

As Ralf Michaels and I found in a recent analysis, the anti-enforcement injunction is an unusual but important device in transnational litigation. There aren’t many U.S. cases involving these orders, and one of the leading decisions arose in the context of the wildly complicated and somewhat anomalous Chevron Ecuador litigation. As a result, there is little U.S. authority on a number of important questions, including the legal standard that applies to this form of relief and the mix of factors that courts should assess in considering its availability. Judge Davila’s decision in the Google case addresses some of these questions.

Background

In 2020, Google terminated Tsargrad’s Google account in order to comply with U.S. sanctions law. Tsargrad sued, alleging that Google violated its terms of service in terminating the account. Although those same terms included an exclusive forum selection clause choosing California courts, Tsargrad initiated the litigation in Russia. It cited a Russian procedural law that vested Russian arbitrazh courts with “exclusive jurisdiction” over disputes involving sanctioned parties, arguing that this rule prevented it from bringing suit in California.

Tsargrad prevailed on the merits in that case. The court ordered Google to restore Tsargrad’s account or suffer a compounding monetary penalty. Google did not restore access, and the penalty mounted to more than twenty decillion dollars (in Judge Davila’s words, “a number equal to two followed by thirty-four zeroes”). Tsargrad then started filing actions to enforce its judgment in a number of foreign courts. This prompted Google to seek an anti-enforcement injunction in the Northern District of California.

What Legal Standard Applies to Anti-Enforcement Injunctions?

An anti-enforcement injunction orders a party not to initiate or continue legal proceedings to enforce a judgment. It looks like a species of anti-suit injunction and might therefore be subject to the test used to decide those. As Judge Davila correctly recognized, though, the two contexts are quite different.

An anti-suit injunction aims to prevent parallel litigation from developing in the first place, avoiding a race to judgment and the possibility of inconsistent judgments on a single matter. Those risks aren’t relevant to anti-enforcement injunctions, where the foreign court has already entered a judgment. In such cases, the policy of res judicata also comes into play. Anti-enforcement injunctions are also potentially much more intrusive into other legal systems than anti-suit injunctions. The type of injunction that Google sought would have worldwide effect, blocking legal proceedings not only in courts with concurrent jurisdiction over the underlying dispute but in any court, anywhere, in which an enforcement proceeding might be brought. For these reasons, Judge Davila chose instead to apply the normal test for preliminary injunctions, requiring Google to demonstrate: (1) likely success on the merits, (2) irreparable harm, (3) a balance of equities favoring injunction, and (4) public interest favoring injunction.

Does Breach of a Forum Selection Clause Justify an Anti-Enforcement Order?

Once a foreign court has entered a judgment, it is (and should be) very difficult for the judgment debtor to obtain an order from a U.S. court completely blocking any enforcement efforts. In this case, there were two possible grounds for granting that relief. First, as in the Chevron case, it appeared that Tsargrad’s enforcement campaign was vexatious and oppressive. Apparently, Tsargrad had itself described its strategy as a “global legal war”—and may have viewed the twenty-decillion-dollar penalty as leverage to extort a settlement or force Google to defend itself in multiple forums. Second, it appeared that Tsargrad had procured the Russian judgment in breach of an exclusive forum selection clause. As Google argued, issuing an anti-enforcement injunction under those circumstances would both preserve the jurisdiction of the chosen courts and vindicate Google’s contractual rights.

The case proceeded on the second theory. This raised two interesting questions regarding a post-judgment injunction. First, because the breach of the forum selection clause had already happened, was there any ongoing or future harm to justify injunctive relief? Judge Davila concluded that there was—not based on the forum selection clause itself, but based on an additional implied term “bar[ring] parties from enforcing judgments obtained in violation of [a] forum selection clause.”

Second, wouldn’t the balance of equities here suggest that Google was far too late in seeking injunctive relief? It could have filed an ordinary anti-suit injunction based on the exclusive forum selection clause when Tsargrad initiated the litigation in Russia, rather than waiting until that action proceeded to judgment. (In Ralf’s and my study, this kind of delay surfaced as one of the most common reasons to deny anti-enforcement injunctions.) Judge Davila maneuvered around this issue. The basis for injunctive relief, he said, wasn’t the breach of the forum selection clause but rather the breach of the implied promise not to enforce judgments procured in violation of the clause. And Google couldn’t have sought relief for that breach until Tsargrad actually began its enforcement efforts.

What About Comity?

Every country has its own rules regarding the recognition and enforcement of foreign judgments. It’s one thing for a U.S. court to deny enforcement of a foreign judgment in the United States, under U.S. rules. But by barring a judgment holder from taking steps to enforce its judgment anywhere, a worldwide anti-enforcement injunction indirectly prevents other countries from considering the enforceability of that judgment under their rules. Judge Davila appreciated the serious comity concerns this raises. He concluded, however, that those concerns were outweighed in this case, citing the “grossly excessive” penalty imposed on Google and the vexatious nature of Tsargrad’s enforcement campaign. With the exception of Russia, then (“it is simply a bridge too far to enjoin a Russian citizen from enforcing a Russian judgment in Russian court”), he gave the order worldwide scope.

Conclusion

Pending a final decision on the merits, the court here did everything it could to block Tsargrad from enforcing the Russian judgment. In addition to entering the anti-enforcement injunction, the court entered an “anti-anti-suit injunction” barring Tsargrad from going back to Russia to seek an anti-suit injunction against the proceedings in California. The open question, as always, is what courts in other countries will do if Tsargard disregards the injunction and continues its efforts to enforce the Russian judgment.

This post is cross-posted at Transnational Litigation Blog.

On 16 and 17 April 2025, the Australasian Association of Private International Law (AAPrIL) held its inaugural conference in Brisbane, Australia. Hosted by Griffith University—the home of AAPrIL President Mary Keyes—the conference featured stimulating panel presentations from speakers from around Australia and abroad.

The conference started with a panel on jurisdiction and judgments, chaired by Richard Garnett of Melbourne Law School. Reid Mortensen of USQ kicked things off with a presentation on Australia’s cross-vesting scheme. Priskila Penasthika of the Universitas Indonesia then spoke on ‘The Indonesian Language Contract Requirements versus Arbitration as a Choice of Forum’.

The second panel was on private international law and climate change, chaired by Lemuel Lopez of RMIT. Yao-Ming Hsu of the National Cheng-Chi University, Taiwan, spoke on ‘Cross-border/Transnational Climate Change Litigation and Private International Law’, then Ekaterina Aristova of Oxford presented on ‘Private International Law and Climate Change: Trends in Transnational Litigation’.

In the afternoon, Reid chaired a panel on Private International Law and Technology. Richard spoke on ‘Private International Law Aspects of Blockchain Contracts’, followed by Nargiza Abdurakhmonova of Griffith University who covered ‘Private international law and data protection in the Eurasian Economic Union’.

The first day was capped off with drinks and dinner overlooking the Brisbane River at South Bank. I had fish and beers. They were delicious.

Sore heads backed up well for the morning session on day 2, chaired by Mary, which considered ‘Prenuptial Agreements: Comparative Perspectives from France, Australia and Hong Kong’. Susannah Quinn of Mills Oakley provided an ‘Australian perspective, examining how Australian law handles foreign prenuptial agreements’, then Shu Mei Hoon of Drew Napier, Singapore spoke to ‘Exploring the treatment of prenuptial agreements in Singapore’. Emmanuelle Bonboire-Barthélémy of Chauveau Mulon & Associés provided a ‘French perspective, addressing the recognition and application of foreign prenuptial agreements in France and the international circulation of French marriage contracts in cross-border scenarios’.

After snacks, I chaired a session where Lemuel spoke on ‘Islamic Law in Non-Muslim Majority Jurisdictions: Lessons from the Philippines and Australia’, followed by Inma Conde of the University of Sydney and the Office of International Law (Australia), who spoke on ‘Ernst Rabel and the PIL Framework for International Sales’.

In the final session, Brody Warren, Assistant Director of the Private International & Commercial Law Section, Attorney-General’s Department (Australia), and formerly of HCCH fame, chaired a session where I defamed him and also spoke on ‘Extraterritorial enforcement of Australia’s eSafety regulation’. Paul Abraham of the University of Newcastle then presented on ‘Anti-enforcement Injunctions: A Discussion of Principles and Trends’. Last but not least, Mary spoke on ‘ Anti-suit Injunctions and Choices of Court’.

The first AAPrIL Conference was a great event and a credit to the organisational skills of Mary Keyes and Mel Davies of Griffith University. I will remember it for the collegiality as much as the educational content. Please join us for the next one! You can follow us at https://aapril.org/ and on LinkedIn.

UN/CEFACT would like to invite you to attend:

The United Nations Centre for Trade Facilitation and E-business (UN/CEFACT) under the United Nations Economic Commission for Europe (UNECE)

The 7th and 8th Working Group Meetings:

• -30 Apr 9-10:00 am (CET-Geneva) and 5-6:00 pm (AEST) Dr. Susanne Guth-Orlowski, CEO 4TheRecord, Germany: The battery passport and value chain transparency at scale (Zoom)
• –14 May 9-10:00 am (CET-Geneva) and 5-6:00 pm (AEST), Dr. Sagi Peari, the University of Western Australia Law School: ‘The UK’s Digital Assets Project and Conflict of Laws: Implications for the data transfer in the CRM value chains’ (zoom)
• For the zoom link and previous meeting minutes, please refer to the project webpage Critical Minerals Traceability and Sustainability
• For the work-in-progress UN/CEFACT white paper: https://docs.google.com/document/d/1sIT01KuoPFfQ9gMGVSLJxYBvXTzccjETWugflWs-6sY/edit?tab=t.0

The 6th Working Group Meeting

• –16 Apr 9-10:00 am (CET-Geneva) and 5-6:00 pm (AEST) , Dr.  Naeem AllahRakha, Tashkent State University of Law, Advocate High Court, Uzbekistan: Cross-border data protection and sharing in CRM-EV value chains (zoom)
• For the zoom link and previous meeting minutes, please refer to the project webpage Critical Minerals Traceability and Sustainability.

The 5th Working Group Meeting on Addressing Conflict of Laws and Facilitating Digital Product Passports in Cross-Border Value Chain:

–19 Mar 7-8:00 pm (Sydney Time), Dr. Fabian Sack, Sydney University (Zoom): Life cycle assessment

For the zoom link and previous meeting minutes, please refer to the project webpage Critical Minerals Traceability and Sustainability.

The 4th Working Group Meeting on Addressing Conflict of Laws and Facilitating Digital Product Passports in Cross-Border Value Chain:

–5 Mar 12-2:00 pm (Sydney Time), Dr. Yuhong Zhao, Chinese University of Hong Kong: ‘The Environmental Damage of Rare Earth Mining: Regulatory Challenges in China.’ (Hybrid)

For the zoom link and previous meeting minutes, please refer to the project webpage Critical Minerals Traceability and Sustainability.

For the whitepaper working outline, please refer to here. All comments are welcome. Please contact jeanne.huang@sydney.edu.au.

The 3rd Working Group Meeting on Addressing Conflict of Laws and Facilitating Digital Product Passports in Cross-Border Value Chain, 12-1:00 pm Wednesday, 19 Feb 2025 (Sydney Time) Prof. Leslie López Arias, Academia de Humanismo Cristiano University, Chile: Mining regulations in Peru/Chile 

For the zoom link and previous meeting minutes, please refer to the project webpage Critical Minerals Traceability and Sustainability.

The 2nd Working Group Meeting on Addressing Conflict of Laws and Facilitating Digital Product Passports in Cross-Border Value Chain, 7:00-8:00 pm Wednesday, 5 February 2025 (Sydney Time)

Keynote Speaker: Mrs. Kamola Khusnutdinova, Economic Affairs Officer and Secretary to UN/CEFACT. For Zoom Link, please contact Associate Professor Jeanne Huang: jeanne.huang@sydney.edu.au. We will continue working on the white paper outline. All comments are welcome. Please review the first meeting minute including the proposed white paper outline posted on the project page: Critical Minerals Traceability and Sustainability.

First Working Group Meeting Agenda

21 January 2025 (Sydney Time)

10:00 am – 11:00 am AEDT: The UN/CEFACT working group on ‘conflict of laws in the critical raw material (CRM) value chains’ meeting: Introduction and discussion of the UN/CEFACT White Paper draft outline

Moderator: Associate Professor Jie (Jeanne) Huang, Sydney University School of Law.

This is a hybrid event. Please contact jeanne.huang@sydney.edu.au for zoom details.

11:00 am – 12:00 pm AEDT: Research interview with Dr. David Brown who is a researcher with Mighty Earth and has done a lot of research on deforestation in CRM value chains in Indonesia.  For his recent publication, “From Forests to EVs,” which he co-authored with Mighty Earth.  Kindly refer to https://mightyearth.org/article/from-forests-to-electric-vehicles/. (The interview is not open to the public due to the research ethics requirement)

12:00 pm – 13:00 pm AEST: Lunch

13:00 pm- 14:00 pm AEDT: Professor Philip M. Nichols keynote:

Does Compliance with the Global Anticorruption Regime Require the Use of Artificial Intelligence?: The Case of Managing Global Critical Raw Material Value Chains

Background

Business firms constantly hear that artificial intelligence has changed the world and that they must either utilize artificial intelligence or fall behind. By extension, this would be true of regulatory compliance as well as operations. This article challenges the mantra of artificial intelligence as a ubiquitous agent of change. It does so through the lens of the global anticorruption regime, a transnational web of laws, regulations and norms that work together to reign in corruption. As this article demonstrates, the global anticorruption regime imposes on business firms a requirement to implement effective and up-to-date antibribery programs. Given the prevailing conception of artificial intelligence as the newly-critical tool for business, it would be easy to interpret “effective” and “up-to-date” as requiring the use of artificial intelligence. To determine whether in fact the global anticorruption regime does, this article undertakes two analyses. First, it carefully determines the systems requirements of the type of artificial intelligence most applicable to antibribery programs – systems that can distinguish between honest and corrupt actors and transactions – and determines the regulatory constraints on the use of artificial intelligence in that way. This article then asks specifically what tasks artificial intelligence would be asked to do as part of an antibribery program, and evaluates the capacity of artificial intelligence to perform those tasks given the already determined system requirements and constraints. These analyses yield a surprising conclusion: in some instances the use of artificial intelligence would be helpful, but for most business firms, particularly for smaller firms or firms that have not experienced bribery, the use of artificial intelligence would not be helpful and could be harmful. Regulators and legal scholars must not think of artificial intelligence as a panacea; its potential use must be analyzed in the context of objectives and the capacities, needs, and limits of artificial intelligence.

Dr. Philip M. Nichols is the Joseph S. Kolodny Professor of Social Responsibility in Business and Professor of Legal Studies and Business Ethics at the Wharton School of the University of Pennsylvania. He was Co-Chair, UN/CEFACT Law Group (United Nations experts committee on electronic commerce and trade facilitation), 1998 to 2005.

Event page: https://law-events.sydney.edu.au/event/globalanticorruptionregime_ai/

Registration: https://www.eventbrite.com.au/e/does-compliance-with-the-global-anticorruption-regime-require-the-use-of-ai-tickets-1143595548069?aff=oddtdtcreator UN/CEFACT would also like to call for participation:

White Paper on Addressing Conflict of Laws and Facilitating Digital Product Passports in Cross-border Value Chains 

Help draft the white paper on Addressing Conflict of Laws and Facilitating Digital Product Passports (DPPs) in Cross-border Value Chains to achieve legal coordination and establish traceability in global trade law. Aligned with regional and global initiatives, the White Paper seeks to address conflicts of law and foster the legal harmonization essential for the DPPs implementation across borders. The white paper will also ensure that DPPs comply with international standards, promoting interoperability and supporting a globally consistent approach. It will focus on the critical raw materials-the EV batteries value chain but will have broad implications for other industries.

The proposed White Paper will (1) present the status quo of conflict of laws in existing national and international laws relating to the implementation of DPPs, and (2) propose solutions for legal coordination and facilitate trade, especially:

1. Analyzing initial uptake of DPPs by industry stakeholders and anticipated impact;
2. Coordinating diversified national laws for cross-border data transfer involved in DPPs;
3. Obtaining mutual recognition of ESG certificates whose data are required by DPPs;
4. Promoting Interoperability between different DPPs; and
5. Incorporating UNTP and other UN/CEFACT industry standards/good practices into international and national trade laws to address legal conflicts in the adoption of DPPs.

Please provide your name/position/associations/email contacts;

Please indicate your expertise;

Please choose the ways to participate (multiple choice):

1. Participate as an active contributor in the working group to draft the White Paper (The group will typically have a one-hour meeting every two weeks from January to May 2025),
2. Participate as an observer in the working group to draft the White Paper,
3. Participate in research interviews, and
4. Any other ways that you think you can contribute.

Deadline to express your EOI is Friday 17 January 2025. Please contact the project lead Dr. Jie (Jeanne) Huang (Jeanne.huang@sydney.edu.au) and forward your email to her research assistant Raven Yang (raven.yang@sydney.edu.au).

 

 

In every private international law system, the forum state reserves the right to reject the application of a foreign rule that deeply offends the forum’s fundamental sense of justice and fairness. In all systems, this “public policy reservation” (ordre public) operates as an exception to the forum’s choice-of-law rules, not its rules on jurisdiction or access to courts. Surprisingly, the First and Second Conflicts Restatements in the United States deviate from this international consensus by narrowly phrasing the exception as a ground for denying a forum to foreign causes of action rather than as a ground for refusing to apply other foreign rules, including those raised as defenses.

A forthcoming article by Symeon Symeonides titled The Public Policy Exception in Choice of Law: The American Version discusses the origins of this unique formulation in Judge Cardozo’s classic but misinterpreted decision in Loucks v. Standard Oil Co. of New York, the problems it creates, its tacit rejection by most American courts, and the new flexible formulation of the exception in the proposed Third Conflicts Restatement.

The article will be published in Praxis des Internationalen Privat- und Verfahrensrechts (IPRax), as well as in a special issue of the Emory Journal of International Law dedicated to the renowned conflicts scholar Peter Hay.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

 

M. F. Müller-Berg: The effects of the new product liability directive on international product liability

The Swiss Federal Court had to decide on the international jurisdiction for a negative declaratory action in a product liability dispute in the case of cross-border manufacturing involving a division of labour. On the one hand, it affirmed the possibility of bringing a negative declaratory action in a product liability dispute at the place of action within the meaning of Art. 5 No. 3 Lugano Convention. On the other hand, in the case of cross-border manufacturing involving a division of labour, it considered the place of development to be the sole place of action for the product developer. This not only represents a rejection of a mutual attribution of the place of action in relation to other addressees under product liability law, but also an opening of the place of action in product liability to an interpretation specific to the addressee of liability.

 

N. C. Kranzhöfer: Third-party effect of a jurisdiction clause in a bill of lading by virtue of the consignee’s succession into the rights and obligations of the carrier

The ECJ had to decide whether a jurisdiction clause included in a bill of lading may be invoked against the consignee of the goods who has, pursuant to the applicable national law, succeeded in the carrier’s rights and obligations upon reception of the bill of lading. The Court drew on its case law beginning with the Tilly Russ case but was also required to answer questions that had been raised by inconsistencies in its more recent case law, in particular its judgment in the DelayFix case. The Court now rejects the choice-of-law rule formulated in the operative part of the DelayFix judgment pursuant to which the succession of the third party into the substantive rights and obligations of the original party to the jurisdiction clause is governed by the lex fori prorogati. Instead, the ECJ reaffirms its previous case law according to which the applicable law is to be determined pursuant to the private international law of the forum state. Moreover, the Court declares that national legal provisions are contrary to EU law if they make the third-party effect of a jurisdiction clause included in a bill of lading dependent on further conditions beyond the recipient’s full succession into the carrier’s substantive rights and obligations.

 

R. A. Schütze: Security for costs under the HCCH for Singapore residents in German courts

The Regional Court of Appeal (Oberlandesgericht) Köln has decided that a claimant residing in Singapore is obliged to provide security for cost under sec. 110 German Code of Civil Procedure (ZPO) despite the fact that the Hague Convention on Choice of Court Agreements is already in force between Germany and Singapore. The Court thus dissented from an earlier decision of the Austrian Supreme Court (OGH). The Regional Court of Appeal Cologne erroneously did not apply the Hague Convention on Choice of Court Agreements because it interpreted terms of the convention from the point of view of German Civil Procedure instead of applying an autonomous interpretation.

 

F. Hess: No anti-suit injunction to prevent enforcement of an ICSID award in third States

Investors cannot enforce intra-EU-investment treaty awards within the European Union. Against this background, investors seek to enforce awards abroad. To prevent an investor from enforcing an arbitral award issued by an ICSID tribunal in the United States or in other countries, Spain applied for an anti-enforcement injunction. The Regional Court of Essen refused to grant the injunction. It held that the claim was inadmissible because such an order would violate state sovereignty and was therefore incompatible with German and EU law. The article examines the interface between the Brussels Ibis Regulation and arbitration, noting that anti-arbitration and anti-enforcement injunction proceedings fall within the scope of the Regulation. It then argues that anti-suit and anti-enforcement injunctions are in principle incompatible with German law and that, unlike in disputes over standard essential patents where German courts have granted anti-anti-suit injunctions, there is no reason for an exception to this principle.

 

A. Schulz: One-year time limit and settling in under the Hague Child Abduction Convention

The Higher Regional Court of Stuttgart ruled that if a child is first wrongfully retained in one state and then taken to several other states without the consent of the left-behind parent, the first wrongful act – in this case the retention – remains decisive for the start of the one-year period under Art. 12 para. 2 Hague Child Abduction Convention, also in the state in which the child is present at the end. However, in line with a more recent opinion in legal literature, the Higher Regional Court of Stuttgart affirmed its discretion to order the child’s return even if the one-year period has expired and the child has settled in their current state of residence. It based this on an argumentum a fortiori in comparison with Art. 13 para. 1 lit. b) of the Convention and on the behaviour of the abducting mother, who had already ignored a Romanian return decision and declared that she would not allow the courts to dictate her country of residence and that of the child.

 

C. Uhlmann: The untraceable plaintiff in International Civil Litigation – possibilities and limitations of European Union law

In Credit Agricole Bank Polska, the ECJ decided upon the question which law governs international jurisdiction in a potential cross border case if defendant’s current residence cannot be localized: the Brussels Ia Regulation or national procedural law. The ECJ came to the conclusion that even in cases where the defendant is a national of a third state and a consumer, international jurisdiction under Art. 18(2) Brussels Ia Regulation is to be determined at the defendant’s last known residence as long as there is no firm evidence that the defendant’s residence is in another Member State or a third country. In „Toplofikatsia Sofia“ EAD, the ECJ dealt with national legislation with respect to Member State’s own nationals aiming to ensure a permanent domestic residence. Holding such national legislation contrary to EU law, the ECJ further articulated that international jurisdiction is governed exclusively by the Brussels Ia Regulation as soon as there are reasonable grounds for believing that the defendant resides in another Member State. The author agrees with the ECJ with respect to the result, but criticizes that its reasoning is not always conclusive.

 

J. Samtleben: International Procedure Law in the National Civil and Family Procedure Code of Mexico.

On 7 June 2023, a uniform Civil and Family Procedure Code for the entire Mexican state was promulgated in the Mexican Official Gazette. The legislatures of the federal area and the individual states have until 1 April 2027 to enact the Code and replace the corresponding procedural laws. In its Tenth Book, the Code contains a detailed catalogue of international procedural law that is partly based on traditional regulations, but which creates a new and detailed legal basis for many areas. For the first time, it expressly regulates the international jurisdiction of Mexican courts. The application of foreign law has also been regulated in detail. Among the provisions on international procedural cooperation, the enforcement of foreign protective measures and the use of videoconferencing are particularly noteworthy. As before, the enforcement of foreign judgments requires a request for legal assistance from the foreign court.

On Tuesday, May 6, 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 Konrad Duden (University of Hamburg) will speak, in English, about the topic

“Squaring the Circle – Recognising Rare Family Forms and Gender Identities Within the EU”

 

The principle of recognition has long been a feature of European private international law – increasingly also in matters of family law and the law of personal status. Recent case law has focused on so-called rainbow families – same-sex marriages and parenthood – and changes in legal gender markers. These are issues that are treated very differently across the EU, with extensive protection and equal treatment in some Member States, and clear and in some cases constitutional rejection in others. The CJEU is therefore trying to reconcile two contradictory principles: The exclusive competence of Member States in substantive family and civil status law on the one hand and the Union-wide recognition of families and gender identities registered in one Member State on the other. This presentation will examine how the CJEU attempts to resolve this conflict and what conclusions can be drawn from the case law on the nature and scope of the principle of recognition.

 

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.

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

A Maltese court has refused to enforce a $740 million default judgment issued by the 15th Judicial Circuit Court of Florida (Palm Beach County) in a defamation suit brought by Applicant Mehmet Tatlici against his half-brother, Defendant Ugur Tatlici. [1] The Florida court’s award—issued on 8 January 2020 in a defamation suit filed by Mehmet Tatlici against his half-brother—was deemed procedurally deficient and substantively incompatible with Malta’s public policy, particularly due to its lack of reasoning and its chilling effect on free expression.[2]

The Maltese court found that the Florida default judgment—submitted as a redacted, one-page certification—could not be meaningfully reviewed, as the complete, reasoned version was essential to assess whether any part of the judgment violated Maltese ordre public.[3] The court emphasized that it is not for the issuing court’s clerk to determine what may be withheld, and that the absence of judicial reasoning in a claim involving hundreds of millions in damages was, in itself, contrary to Malta’s fundamental procedural standards and ordre public.[4] Notably, the court flagged the stratospheric scale of the damages—€659,932,000—as irreconcilable with Malta’s defamation laws, viewing enforcement as a potential threat to freedom of speech and contrary to Malta’s ordre public.[5]

At the same time, parallel enforcement proceedings remain ongoing in Turkey, where Applicant Mehmet Tatlici is seeking recognition and enforcement of the same Florida judgment.[6] Simultaneously, a criminal investigation is underway in Turkey, concerning felonies of fraud, aggravated fraud, and document forgery in relation to how the Florida judgment was procured.[7]

Background and Procedural History

The proceedings stem from a protracted intra-family dispute between Mehmet Tatlici and his half-brother Ugur Tatlici, heirs to the late Turkish billionaire Salih Tatlici. On 8 January 2020, the 15th Judicial Circuit Court for Palm Beach County, Florida entered a default judgment in favour of Mehmet Tatlici in Mehmet Tatlici v. Ugur Tatlici, Case No. 50-2018-CA-002361-XXXX-MB, awarding him $740 million in damages for alleged defamation. The judgment was based on Mehmet Tatlici’s allegations that online publications on websites and social media had harmed his reputation and caused the collapse of a real estate project in Istanbul, the legitimacy of which is now disputed and appears to be addressed before a Turkish heavy penal court in Turkey for alleged fraud.[8]

Mehmet Tatlici claimed that the online publications led to the termination of a real estate development project in Istanbul, allegedly abandoned by a Romanian investor due to reputational concerns.[9]

Defendant U?ur Tatlici, however, denies any involvement in the publications and maintains that the defamatory material was fabricated by Applicant Mehmet Tatlici and his Florida lawyers to manufacture a basis for litigation.[10] According to his filings and expert submissions, the alleged project was never viable to begin with. The same materials state that the project was legally impossible under Istanbul’s zoning laws, relied on fictitious contractual arrangements, and was tied to a Romanian company with only $50 in registered capital, two offshore shareholders, and a concealed ultimate beneficial owner (UBO), lacking any credible financial capacity to support a development of that scale.[11] Defendant Ugur Tatlici also states that he was not made aware of the Florida proceedings at the time and therefore had no opportunity to contest the allegations or raise these objections in the original action.[12] He argues that the judgment was obtained by default through fraud and misrepresentation.[13]

Following the Florida judgment, Mehmet Tatlici launched recognition and enforcement proceedings in Malta and Turkey. In Malta, he filed Application No. 719/2020TA before the Civil Court (First Hall), which dismissed the application on 13 February 2025, citing several grounds, including the absence of a reasoned judgment, the gross disproportionality of damages, and the judgment’s incompatibility with Maltese public policy.

Meanwhile, enforcement efforts are ongoing in Turkey, where the case is before the Istanbul 13th Civil Court of First Instance presided over by Judge Hakan Kabalci. In parallel, Turkish prosecutors have opened a criminal investigation into the circumstances surrounding the Florida judgment, focusing on felonies of fraud, aggravated fraud, and document forgery. The matter is expected to be brought before a Turkish heavy penal court for further proceedings.

The Maltese Court’s Decision

In its judgment dated 13 February 2025 (Application No. 719/2020TA), the Civil Court (First Hall) of Malta, presided by Judge Toni Abela LL.D., denied enforcement of the $740 million (€659 million) Florida defamation judgment obtained by Mehmet Tatlici. The court grounded its refusal on unreasoned and incomplete nature of the Florida judgment, violations of Maltese ordre public, lack of jurisdiction, and broader free expression principles under Maltese and EU law.[14]

First, a critical basis for refusal was the failure to submit a full, reasoned version of the Florida judgment. The 740-million-dollar default judgment was a product of a single-page handwritten jury verdict form, devoid of any accompanying judicial opinion explaining the basis for the award.[15] The court highlighted that such a submission made it impossible to evaluate whether the judgment was consistent with Maltese public order and emphasized that reasoned judgments are not merely technical requirements but essential to meaningful judicial review.[16] Procedural formalities, the court stated, are part of ordre public in Malta and cannot be waived, even with party consent. [17]This alone rendered the application unenforceable.

Significantly, this procedural deficiency mirrors difficulties Applicant Mehmet Tatlici is encountering in ongoing Turkish enforcement proceedings, where the Applicant has also been requested to provide a complete, authenticated copy of the Florida judgment.

Second, beyond procedural failings, the court strongly objected to the scale of damages—€659,932,000—awarded for defamation. It observed that such “stratospheric” sums are entirely incompatible with the way defamation is treated under Maltese law.[18] The court emphasized that while monetary penalties for defamation are permissible, they must not have a chilling effect on individual expression or public discourse.[19]

The court explicitly referenced the applicant’s own anticipation that the respondent might invoke a SLAPP (Strategic Lawsuit Against Public Participation) defence.[20] While Malta does not directly adjudicate the merits of U.S. legal standards, it emphasized that the chilling effect of such judgments—especially when arising from online speech—raises serious concerns under Maltese and European principles of democratic discourse. Crucially, the court did not make any finding as to whether Defendant Ugur Tatlici authored the allegedly defamatory material. It declined to engage with the underlying merits of the Florida judgment and limited itself to the enforceability of that decision under Maltese law.

Third, the court further held that it lacked jurisdiction under Article 742 of the Maltese Code of Organization and Civil Procedure[21]. The application failed to establish any sufficient nexus with Malta—either through residence, assets, or subject matter.[22]

Broader Analysis

The Tatlici decision highlights how courts in recognition proceedings are increasingly attentive to the substantive and procedural legitimacy of foreign default judgments—particularly in cases involving defamation, extraordinary damages, and minimal jurisdictional connection to the forum of origin. Rather than approaching enforcement as a purely formal exercise in judicial comity, the Maltese court subjected the Florida judgment to a rigorous public policy review, grounded in Maltese constitutional values and European legal standards.

This cautious approach is especially warranted in defamation matters, which remain a notoriously unsettled area of private international law. The Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, which aims to promote the mutual recognition and enforcement of civil and commercial judgments across borders, expressly excludes defamation claims from its scope under Article 2(1)(k). This exclusion is not incidental—it reflects the deep and enduring divergences between legal systems in balancing reputation and freedom of expression, and in regulating media liability, damage awards, and procedural safeguards.

As a result, defamation judgments—especially when obtained by default and accompanied by disproportionate damages—remain subject to domestic standards in the enforcing forum. The Tatlici ruling exemplifies how national courts can, and must, use that discretion to filter out foreign judgments that fail to meet local thresholds of proportionality and constitutional legitimacy.

In this respect, the case underlines a growing transatlantic divergence. Although the United States offers strong First Amendment protections in theory, its procedural system permits extraordinary libel damages, especially through default, without requiring the detailed judicial reasoning expected in civil-law jurisdictions. In Europe, by contrast, the enforcement of such awards is viewed not only as a matter of technical admissibility, but as a question of whether the judgment itself comports with core constitutional commitments—particularly the protection of democratic discourse and media freedom.

The Tatlici judgment sits comfortably alongside other recent European decisions—such as Real Madrid v. Le Monde[23] in France and ZDF[24] in Germany—which have refused to enforce even intra-EU defamation rulings where the outcome would infringe national free expression standards. These cases reflect the principle that domestic free expression standards must not be undermined by “importing” judgments from systems with differing legal thresholds.

The question of jurisdiction further reinforces the court’s reasoning. In both Tatlici and the New Zealand case Kea Investments Ltd v. Wikeley Family Trustee Ltd[25], the enforcing courts questioned the legitimacy of default judgments rendered in forums with no meaningful connection to the underlying dispute. In Tatlici, the Florida judgment was entered by default, despite both parties being Turkish nationals, with no substantial ties to Florida, and the disputed real estate project located in Istanbul. Similarly, in Kea, the Kentucky default judgment was obtained without adversarial process. Notably, while the New Zealand Court of Appeal ultimately lifted an anti-enforcement injunction on procedural grounds, it upheld the High Court’s finding that the judgment had been fraudulently procured and was not entitled to recognition.[26]

The Kea case offers a compelling comparative example, where the courts found a U.S. default judgment to be fraudulently obtained and not entitled to recognition, despite ultimately reversing an anti-enforcement injunction on procedural grounds.[27] Though the injunction was lifted, the underlying concerns remained and reinforced the principle that fraudulently and strategically engineered default judgments cannot be presumed enforceable.[28]

In both cases, the core issue is not hostility to foreign law, but resistance to opportunistic use of foreign legal systems to generate leverage in unrelated or parallel disputes. The Tatlici decision affirms that enforcement forums are not neutral venues for rubber-stamping foreign awards. They are guardians of legal coherence and public policy, tasked with ensuring that enforcement respects the procedural and constitutional identity of the local legal order.

Taken together, these themes point toward a developing global norm that recognition and enforcement of defamation judgments will continue to operate outside the harmonized legal frameworks of instruments like the Hague Judgements Convention—and rightly so. The reasons are structural, not incidental. As long as national systems take various positions on how to balance speech, reputation, and remedies, enforcement will remain subject to localized scrutiny, particularly when judgments are opaque, exorbitant, or jurisdictionally artificial.

Conclusion

While Malta has now delivered a clear repudiation of the Florida judgment on procedural and public policy grounds, the spotlight now shifts to Turkey, where enforcement proceedings remain ongoing, and a parallel criminal investigation is actively examining whether the judgment was procured through fraud. As the jurisdiction most closely connected to both parties and to the disputed commercial project at the heart of the defamation claim, Turkey is uniquely positioned to conduct a fuller legal inquiry—assuming the proceedings unfold independently and free from undue influence, unlike concerns raised in the Florida case.

The outcome of the Turkish proceedings may prove decisive—not only for the parties involved but also for evolving standards of cross-border enforceability. In this sense, Tatlici is a test of how national courts respond to foreign default judgments used strategically— and whether such judgments can withstand scrutiny in jurisdictions with stronger procedural safeguards and a more immediate interest in the truth.

[1] Mifsud Av. Malcolm Noe v. Ugor Tatlici, Civil Court (First Hall), Judgment of 13 February 2025, Application No. 719/2020TA. Available at: https://ecourts.gov.mt/onlineservices/Judgements/PrintPdf?JudgementId=0&CaseJudgementId=151468 (“Judgement”)

[2] ibid, at pp. 2–8.

[3] ibid, at p. 3.

[4] ibid, at p. 5.

[5] ibid.

[6] Istanbul 13th Civil Court of First Instance (File No. 2024/416 E.)

[7] Beykoz Chief Public Prosecutor’s Office, Case No. 2025/720 Sor.

[8] Istanbul Anadolu 8th Criminal Judgeship of Peace, File No. 2024/9316 Misc.

[9] Docket Entry no. 183, 184 and 185, Mehmet Tatlici v. Ugur Tatlici (Case No. 50-2018-CA-002361-XXXX-MB) (“Original Action”) available at: https://appsgp.mypalmbeachclerk.com/eCaseView/search.aspx

[10] ibid. Docket Entry no. 105.

[11] ibid.

[12] ibid.

[13] ibid.

[14] Judgement, at pp. 2–8.

[15] Original Action, Docket Entry no. 38.

[16] Judgement, at p.4.

[17] ibid.

[18] ibid. at p.5.

[19] ibid.

[20] ibid.

[21] ibid. at p.8.

[22] ibid.

[23] Real Madrid Club de Fútbol v. Le Monde, Case C-633/22, ECLI:EU:C:2024:843 (CJEU, 4 October 2024)

[24] Bundesgerichtshof (BGH) [Federal Court of Justice], Case IX ZB 10/18, Judgment of 19 July 2018.

[25] Wikeley v Kea Investments Ltd [2024] NZCA 609.

[26] ibid.

[27] ibid.

[28] ibid.

Written by Victoria Hélène Dintelmann (Heidelberg University)

On February 14th and 15th, 2025, more than one hundred young academics gathered at Heidelberg University for the 5th German Conference for Young Researchers in Private International Law to discuss the topic “Digital Transformation and Private International Law – Local Connections in Boundless Spaces”. The conference was organized by Andreas Engel, Sophia Schwemmer, Felix Berner, Aron Johanson, Markus Lieberknecht, Ann-Kathrin Voß, Charlotte Wendland and Anton Zimmermann.

The first day started with Professor Marc-Philippe Weller (Heidelberg University), director of the Institute for Comparative Law, Conflict of Laws and International Business Law, illustrating Heidelberg University’s Private International Law tradition. For instance, Max Gutzwiller, who rejected renvoi as well as party autonomy in Private International Law, was the director of the Institute from 1929 until he was forced to emigrate to Switzerland in 1935. Weller ended his remarks with special emphasis on the late Erik Jayme, whose impact on Private International Law was vast. For example, Jayme advanced the “two-stage theory of Private International Law”. Further, he introduced postmodern thoughts of mobility, multiculturalism and openness to Private International Law, arguing for every human to have a “droit à la difference”.

Professor Christiane Wendehorst (University of Vienna) gave the keynote lecture on digital goods in Private International Law. She focused on the Private International Law treatment of digital goods regarding rights with third-party effects. In her introduction, she differentiated between digital goods based on their level of exclusivity and the ability to duplicate them. Within crypto assets in particular, Wendehorst differentiated between tokens with an internal value such as bitcoin (“intrinsic tokens”) and tokens that represent an asset outside the crypto system (“extrinsic tokens”). She deemed this differentiation to be of great importance to assess the applicable law: for extrinsic tokens, the statute of the represented asset must be considered. While some tokens are regulated, e.g. by Sec. 32 of the German Electronic Securities Act, Wendehorst expressed criticism towards an analogous application of such provisions, doubting the tokens’ functional comparability. She then continued with a comparative approach and illustrated different national laws as well as international attempts at a more uniform Private International Law approach to rights in rem to digital assets. She emphasized rules under which a choice of law regarding rights with third-party effects is possible. For instance, the rules of the United States’ UCC refer to the lex fori of the District of Columbia in absence of a choice of law as a fallback. A similar approach, looking first at a choice of law and last at the law of the forum state, was adopted under Principle 5 of the UNIDROIT Principles on Digital Assets and Private Law. Wendehorst concluded by explaining the purposes of the different approaches. In the end, Wendehorst made the plea for a more comprehensive solution and ideally more uniform conflict of laws rules to solve what she called a “crisis in International Property Law”.

Johannes Weigl (LMU Munich) presented on data-related European conflict of laws questions. He first showed that the decades-old “libertarian dream” of a boundless internet did not come to fruition: data is regulated by states. Still, digital and analogous goods cannot be equated, leading to a call for a harmonized digital property law. Such a uniform law would cause the “silent death” of conflict of laws provisions regarding digital property. Still, Weigl identified four categories in which questions of conflict of laws might nonetheless arise. As to territorial limits of harmonization, he identified as a first category the territorial scope of EU digital regulation and as a second category data protection through the limitation of the free flow of data beyond the EU’s borders. Regarding the substantive limits of harmonization, he considered a third category of potential conflict of laws challenges to be explicit references to national law and, as a fourth, substantive gaps of uniform law. Weigl went on to discuss limits of boundlessness using the examples of his first and third category. Regarding the territorial scope of EU digital regulations, many do not depend on the provider’s place of establishment but on whether the services are offered to persons in the EU. While Weigl classified those as one-sided conflict norms undoubtedly belonging to public law, he argued for their parallel application as public and private law conflicts rules. Weigl explained this approach to be – above all – teleologically convincing, securing the effet utile of EU law as well as international decisional harmony between public and private law. Further, Weigl illustrated the substantive limits of unification using the example of the third category, i.e. rules explicitly referring to national law. While some see such referential norms as conflict of laws rules, he argued against this classification, maintaining that referential norms are not conflict of laws rules but leave room for general conflicts rules. As this approach leads to the application of general conflict of laws rules, he identified some room for a more general legal policy discussion, e.g. about further harmonization of conflict of laws rules or the creation of internet specific conflicts rules.

Loïc Bréhin (Université Panthéon-Assas) addressed the law applicable to determine the illegality of digital content. Pursuant to Art. 3(h) DSA, content is illegal if it is not in compliance with EU law or the law of Member States. Bréhin criticized this provision as too generic; it does not determine the applicable law. He identified the root of the problem to be the diversity of legal relationships one could assess: there is a relationship between victim and publisher, victim and platform, as well as publisher and platform. Bréhin explained that to all relationships, different rules may apply and thereby cause inconsistencies. Bréhin acknowledged that the problem could be mitigated by solutions at the edge of conflict of laws theory such as internal market clauses or through fundamental rights. However, he found the most promising solution to lie at the heart of conflict of laws theory: substantive law consideration. He proposed to assess the legality of content under the law designated by the conflicts rule for torts invokable by the victim, either as applicable law or as law to be taken into consideration at the level of substantive law. Bréhin based this proposal on the rationale of Art. 3(h) DSA and Art. 14(4) DSA, maintaining that although digital platforms are often classified as private, they are in fact collective phenomena. He concluded that there is great potential in allowing for adjustments – in particular, when considering the platform’s nature as a collective phenomenon.

Christina Lemke (University of Hamburg, Max Planck Institute for Comparative and International Private Law Hamburg) tackled questions regarding the implementation of the digital euro as a European digital currency from a Private International Law perspective. Lemke introduced the topic by differentiating between cash, electronic money and the digital euro. She classified cash, on the one hand, to be a central bank liability to which individuals have property rights. Electronic money, on the other hand, is a means of payment that derives its value from a claim against a private institution. Lemke explained that in contrast, the digital euro is to be a central bank liability, aimed at supplementing cash payment. Neither the technological details nor the digital euro’s legal nature are certain. Lemke maintained that the digital euro should not be classified as a mere claim, since it can be allocated to an individual. Lemke determined the most important question in relation to the digital euro to be the function of payment, i.e. the evaluation of the satisfaction of payment obligations. The first step in answering this question is the determination of the applicable law. To assess payment, one could look at the lex causae. Lemke emphasized the importance of the lex monetae principle for monetary units: Anchored in sovereignty, every state is entitled to its own currency. Hence, a monetary unit is governed by the sovereign that issued the unit. However, the digital euro is not a monetary unit, but a monetary medium. Lemke argued for the extension of the lex monetae principle to the monetary medium. Lemke concluded by raising the delicate questions on the EU’s competence to develop private law regulations on the digital euro and the conflicts between EU institutions possibly involved.

Naivi Chikoc Barreda (University of Ottawa) elaborated on the rise of remote authentic instruments when notarizing beyond borders through online appearance. While notarial practice is increasingly shaped by digitization, there is potential for conflict when a party is in a different country than the notary. Chikoc Barreda started by giving a comparative overview of the three main approaches to deal with remote authentication: first the liberal approach, which allows all relations to be handled remotely, second the intermediate approach, which allows for exceptions in very protected fields of law (e.g. wills, divorces) and third the restrictive approach, which generally prohibits remote authentication with few exceptions (e.g. the incorporation of companies). Chikoc Barreda explained that this fragmentation leads to challenges for Private International Law. One of these challenges is to assess whether the locus actus is the state where the notary is located or the state from which the parties appear. While jurisdictions following the liberal approach view the location of the notary as decisive, restrictive jurisdictions tend to prioritize the state from which the parties appear. This leads to the risk of limping legal relationships. Further, Chikoc Barreda showed that questions of equivalence of acts arise. Authenticity relies on a person’s assessment by the notary. The classic notion was to reach such an assessment through physical presence. Under a more modern approach, in some jurisdictions, virtual presence suffices. In light of this, Chikoc Barreda elaborated on the assessment of the equivalence of notarial acts: while the state of origin will regularly apply the lex auctoris to determine equivalence, the receiving state might apply another law to the form. Last, Chikoc Barreda addressed the notary’s international competence: some view a foreign notary as having unrestricted competence in line with the principle of free choice, while others only accept a restricted competence of the notary, demanding for a significant connection to the notary’s state of origin. Chikoc Barreda concluded that the rise of remote authentication calls into question the lex loci actus rule, authenticity, and the notary’s international competence.

Piotr Wilinski (Erasmus University Rotterdam) and Marciej Durbas (KKG Legal, Kraków) discussed the consequences of the use of AI by arbitral tribunals – in particular, potential challenges of arbitrators and awards. Wilinski and Durbas first introduced the legal framework, stating that there is no significant transnational law governing the use of AI in arbitration. However, there are emerging legal instruments, e.g. in the EU and the US. The EU AI Act governs individuals who rely on AI as deployers. A deployer status causes a duty to disclose. Wilinski and Durbas argued that arbitrators can be classified as deployers within the meaning of the EU AI Act, causing potential disclosure obligations. At the same time, there is only nascent soft law, namely the Silicon Valley AI guidelines and the SCC guidelines. These rules are quite rudimental. Wilinski and Durbas agreed that under the guidelines, decision-making may not be delegated to AI. Second, Wilinski and Durbas turned to potential challenges of arbitrators. They found that AI can be used to assist decision-making. Although most tasks one might delegate to AI do not directly affect decision-making, it does seem possible that steps such as AI-generated summaries of cases indirectly affect the decision. Wilinski and Durbas proposed that an improper use of AI could lead to challenges of the tribunal. Third, Wilinski and Durbas assessed the enforceability of awards rendered with the use of AI. Although AI is a new phenomenon, Wilinski and Durbas argued that the core of the problem is not. They drew a comparison of the use of AI on the one hand with the use of tribunal secretaries and independent legal research by arbitrators on the other hand. Based on this comparison, they deduced that as long as AI is merely used for assistance with the award’s drafting (even if its use was undisclosed), the award will likely stand. When it comes to decision-making, AI may be used for support in reasoning, but they found that to secure enforcement, the decision itself must stay with the tribunal. Wilinski and Durbas concluded that for now, as long as AI does not render the final decision, arbitrators can “sleep safely”. However, they found a common standard to be preferrable, perhaps in the form of a traffic light approach.

The last speaker of the first day was Agatha Brandão (University of Luzern), who presented on the development of a large language model for Swiss cases on choice of law (available at https://www.choiceoflawdataverse.com). The project’s goal was to use an open AI GPT to generate high-quality case law analysis comparable to Private International Law experts. Using a data set of 33 cases, the AI was to perform six tasks: to extract an abstract, to extract and summarize relevant facts, to extract the relevant Private International Law provisions, to classify and interpret the choice of law issue and to extract and interpret the court’s position. Brandão maintained that the AI case analyzer succeeded in the extraction and classification of information. However, challenges arose when the AI case analyzer provided information that was secondary or irrelevant and when it produced lengthy responses. Brandão explained that in working on fixing these problems, the research team focused on phrasing prompts as precisely as possible: if the output did not match the researchers’ expectations, the instructions were most likely not sufficiently comprehensive. At the end of the experiment, each category of tasks was evaluated based on specific criteria in a peer-reviewed process. Overall, the AI case analyzer had a success rate of 92 %. While there were still roughly 10 % of outcomes one might want to modify, Brandão emphasized that the AI case analyzer saves valuable time – in particular, for the extraction and classification of information and when given sufficiently precise instructions. Brandão concluded that large language models can indeed be a valuable support – not unlike real-life Private International Law experts.

The second day of the conference started with parallel panel discussions. In the first panel, Christoph König (BSP Berlin) gave an impulse rooted in legal history on the decentralization of blockchain technology and delegalization. König drew parallels from discussions surrounding the creation of a lex mercatoria in the past century. The second panel focused on the pioneering role of arbitration in the use of digital tools in contrast to the use of digital means in German and Swiss courts. First, Cedric Schad (University of St. Gallen) gave an overview over the advanced, but not boundless use of digital instruments in arbitration. In particular, he illustrated the option of conducting proceedings via video conference and the use of case management platforms. Second, Marco Andjic (Osnabrück University) presented on attempts at digitization in German courts: he found that the main obstacle of remote proceedings is not German law, but the equipment of courts. Third, Nadine Boss (University of St. Gallen) elaborated on the Swiss approach. While there is no option of virtual court proceedings yet, there are attempts at reform. It is possible to use digital tools such as e-mail, but uncommon due to perceived risks regarding service. In the third panel, Raffael Müller (Heidelberg University) presented on international product liability and AI. Müller considered the applicability of Art. 5 of the Rome II Regulation to Artificial Intelligence. He emphasized the importance of placing AI on the market and its interplay with the AI Act, in particular regarding the AI Act’s territorial scope. Fourth, Peter Moser (LMU Munich) addressed connecting factors for declarations of intent made by AI. Moser differentiated between an “ePerson” and an “AI agent”. An “ePerson”, on the one hand, can be legally competent and capable. As Art. 7 of the Introductory Act to the German Civil Code concerns natural persons, Moser found that a corporate law connecting factor might be more appropriate. An “AI agent”, on the other hand, is no proper legal entity. Hence, the attribution of its actions is critical. Moser found it most appropriate to apply Art. 10 Rome I Regulation, as the exclusion in Art. 1(2)(g) Rome I Regulation concerns natural persons – not an “AI agent”. In the fifth panel, Leon Marcel Kahl (University of Vienna) illustrated how the special construction of the Unified Patent Court leads to conflict of laws questions. Which conflict of laws rules the Unified Patent Court applies is determined by a “ladder” in Art. 24(2) UPCA. According to its lit. c, the applicable national conflicts rules are to be determined by the court. However, since the Court of First Instance comprises a central chamber as well as local and regional chambers, it is not clear which national provisions are to be applied.

After the panel discussions, Linda Kuschel (Bucerius Law School) elaborated on whether cross-border electronic service is a sovereign act on foreign territory. In Germany, regular e-mails do not suffice for proper service, but the use of a special electronic attorney mailbox (“beA”) does. Internationally, there are cases of service through e-mail and even social media platforms. First, Kuschel identified the European Service Regulation and the Hague Service Convention as the relevant rules for cross-border service. Next, she discussed the Public International Law qualification of service. The prevailing opinion considers the service of court documents to be an exercise of state authority. This is where Kuschel differentiated: while she qualified the legal consequences of service as an exercise of state authority, she did not find the same to apply to the mere act of gaining knowledge of a document and its content, e.g. through service by private means. She then tackled the question of localization of electronic service. First, one could see electronic service as a type of fictional service. But while fictional service is a mere last resort, electronic service could become the norm – therefore, Kuschel negated a comparability. Second, one could view the internet as an exterritorial space that cannot be attributed to any sovereign state, but the internet is not truly boundless. Third, one could draw an analogy to analogous life and treat electronic service parallel to analogous service, as territorial borders are emulated in the digital space. However, equating analogous and electronic service would lead to a fiction. Kuschel assessed this to be particularly problematic if one – in line with the prevailing opinion – classifies service in a foreign state as an act of sovereignty on foreign territory. In light of these shortcomings, Kuschel deemed it necessary to assess electronic service by its own metrics. She concluded that only service on foreign territory through means of sovereign power leads to a violation of the principle of territoriality while in contrast, service by means of communication accessible to private persons should not violate Public International Law.

The last presentation was delivered by Adrian Hemler (University of Konstanz), who illustrated options and boundaries of a fully digital judicial activity from abroad. Hemler reported a trend towards virtual and digital proceedings, asserting that these developments can only be expected to accelerate. The advantages in virtual proceedings lie in more efficiency, lower costs as well as in making the profession of judge more flexible and, hence, more attractive. While Hemler found possibly affected principles of German procedural law to be publicity, immediacy and orality, he assessed that their violation can be avoided. However, Hemler explained the currently prevailing opinion to be that working from abroad as a judge violates the foreign country’s sovereignty. Hemler went on to reference Kelsen, who understood what ought to be at the core of law – not what is. Building on this, Hemler differentiated between on the one hand the scope of application of legal norms, which operates on the level of what ought to be. This category does not violate foreign sovereignty, even when it extends beyond a state’s territorial borders. On the other hand, Hemler allocated the practical implementation and enforcement of legal rules on the level of what is. Hemler argued that this latter category should only be allowed with the other country’s permission – otherwise, Public International Law violations can arise. Within this grid, according to Hemler, rendering judgements from abroad does not interfere in the foreign state’s sovereignty.

A conference volume will be published by Mohr Siebeck later this year. The 6th German Conference for Young Researchers in Private International Law will take place at LMU Munich in 2027.

University of Ljubljana is organising Private International Law Conference with sessions in Slovenian and English. The conference, which will take place in Ljubljana (Slovenia) on 18 September 2025, will gather reknown academics and practitioners who will address current topics in European and international PIL.

The programme is available by clicking here: PIL-Ljubljana2025 and for more infromation you are welcome to contact the organisers at: ipp.pf@pf.uni-lj.si.

Recently, the Hague Academy of International Law published the 2026 programme of its renowned Winter Courses in International Law (12-30 January 2026). Unlike the Summer Courses, this program presents lectures on both Public and Private International Law and therefore provides for a particularly holistic academic experience. Once again, the Academy has spared no effort in inviting legal scholars from around the world to The Hague, including speakers from countries as diverse as Argentina, Belgium, China, France, Japan, the United Kingdom, and the United States, offering its audience a truly global perspective on the topic.

Following the Inauguaral Lecture by Silvia Fernández de Gurmendi (Former President of the International Criminal Court), this year’s General Course will focus on “The Contemporary International Legal Order” and will be delivered by Bing Bing Jia (Tsinghua University). Furthermore, Special Courses will be offered in English by Catherine Amirfar (Debevoise & Plimpton LLP), Caroline Foster (University of Auckland), Schuichi Furuya (Waseda University) and Antonios Tzanakopoulos (University of Oxford), while Xavier Boucobza (University of Paris-Saclay) and Yannick Radi (Université Catholique de Louvain) will deliver their presentations in French. As always, all lectures will be simultaneously interpreted into English or French and vice versa.

Advanced Students, especially those who are ambitious to sit for the prestigious Diploma Exam, are highly encouraged to apply for the Academy’s Directed Studies as well. The French edition of these interactive afternoon seminars will be directed by Vaios Koutroulis (Université libre de Bruxelles), while English-speaking candidates are taught by Guy Fiti Sinclair (University of Auckland).

Registration will be open from  1 May to 1 October 2025 via the institution’s own Online Registration Form . Students who whish to apply for the Academy’s scholarship opportunities need to submit their application by 1 May to 31 July 2025. For further information on the HAIL 2026 Winter Courses and the Hague Academy in general, please consult the HAIL Homepage or refer to the enclosed PDF Programme.

 

Prologue

On 15 April 2025, the new federal UAE law on personal status (Federal Decree Law No 41 of 14 October 2024) officially entered into force ( “2024 PSL”). This law fully replaces the 2005 Federal Act on Personal Status (Federal Law No. 28 of 19 November 2005 as subsequently amended) (“2005 PSL”). The new law marks the latest step in the UAE remarkable wave of legal reforms, particularly regarding personal status matters. It follows a series of significant developments at both the federal and local levels. At the federal level, this includes the adoption of the law on Civil Personal Status (Federal Decree-Law No. 41 of 3 October 2022 on Civil Personal Status) (“2022 CPSL”) and its executive regulation. At the local level, specific legislations were adopted in the Emirate of Abu Dhabi, most notably the 2021 Law on Civil Marriages and its Effects (as subsequently amended) (“2021 ADCML”), and its Procedural Regulation. These legislative efforts collectively address what is commonly referred to as “civil family law” (for further details see previous posts on this blog here, here, here, and here). Together with the new 2024 PSL, these instruments will collectively be referred to as the “Family Law Regulations” (see Table below).

This overactive legislative activity has inevitably impacted on the articulation between the different legislative texts, both within the federal framework and between the federal and local levels. At the federal level, there is a need to consider the interaction between the 2024 PSL and the 2022 CPSL. At the intergovernmental level, this extends to the interplay between these two federal laws and 2021 ADCML.

The icing on the cake – or perhaps the tipping point – is when private international law enters the equation. This is because the above family law regulations include provisions determining their scope of application, and in some cases allow for the application of foreign law under some conditions. This necessarily bring them into contact with the conflict of law rules contained in the 1985 Federal Act on Civil Transactions (Federal Law No. 5 of 21 March 1985, as subsequently amended) (“1985 FACT”).

Moreover, with the exception of the federal regulation on civil personal status, the other legislative texts also contain detailed rules on international jurisdiction. This leads to further interaction with the 2022 federal law on Civil Procedure (Federal Decree-Law No. 42 of 10 October 2022 on the Civil Procedure). This aspect, however, will not be addressed in this post. For a comparative overview of international jurisdiction in divorce matters, see my previous post here.

 

Table of relevant legislative texts:

Legislation Federal level Local Level Family Law Regulations Federal Decree-Law No. 41 of 3 October 2022 on Civil Personal Status (*)

• Art. 1: Scope of application and applicability of foreign law
• Art. 11(3): Possibility of applying foreign law in successions and wills?

Abu Dhabi Law No. 14 of 7 November 2021 On Civil Marriage and its Effects in the Emirate of Abu Dhabi (as subsequently amended)

• Art. 3: Direct application of the law
• Art. 11(3): Possibility of application of foreign law in matters of successions and wills
• Art. 17bis: International jurisdiction

Procedural regulation (Resolution No. (8) of 1 February 2022 concerning the Marriage and Civil Divorce Procedures in the Emirate of Abu Dhabi)

• Art. 4: International jurisdiction (confusingly referred to as territorial jurisdiction in the Regulation)
• Art. 5: Scope of applicationadjd.gov.ae/…/regulation 8 2022 family law.pdf

Federal Decree Law No 41 of 14 October 2024 on Personal Status

• Art. 1: Scope of application and applicability of foreign law
• Arts. 3 and 4: International jurisdiction

Private International law Federal Decree-Law No. 42 of 10 October 2022 on the Civil Procedure

• Arts. 19 – 23: International jurisdictions

Federal Law No. 5 of 21 March 1985 on Civil Transactions

• Arts. 10 – 28: Conflict of laws rules

(*) One of the unresolved questions is whether the 2022 CPSL also applies in Abu Dhabi—at least in a way that would override the provisions of the Abu Dhabi Law that are inconsistent with the federal legislation. This aspect is briefly addressed below.

 

It must be acknowledged that the current framework is highly complex, marked with multiple layers of interaction, and at times, inconsistencies and unresolved questions. The aim of this short post is simply to highlight these difficulties, particularly those relating to the scope of application and the interplay with choice of law rules, leaving a more-in-depth analysis for another occasion.

 

I. Innovations and clarifications

 

1. Scope of application

One of the most significant innovations introduced by the new 2024 PSL is its clear delineation of its scope of application, particularly in relation to the other foundational law, that is the 2022 CPSL. Indeed, the latter has already defined its scope by limiting its application to family law matters between non-Muslims, whether nationals or foreigners. Accordingly, it can be inferred that 2024 PSL limits its scope to family law matters involving Muslims. This is explicitly stated in respect of family relations involving UAE citizens. As for non-citizens, since family relations of foreign non-Muslims are primarily governed by the 2022 CPSL, the reference to “non-UAE citizen” in 2024 PSL should be understood as referring to “foreign Muslims”.

2024 PSL 2022 CPSL Art. 1 [Scope of Application]:

(1) The provisions of this Law shall apply to UAE citizens if both parties of the relationship or one of them is Muslim. Art. 1 [Scope of Application]:

(1) The provisions of this Decree-Law shall apply to non-Muslims who are national citizens of the United Arab Emirates, and to non-Muslim foreigners residing in the state […] Art. 1 [Scope of Application]:

(3) The provisions of this Law shall apply to non-UAE citizens […]

(*) All translations are based on the officially adopted versions, with modifications made where necessary. Own underlines and Italics.

 

2. Parties’ agreement

Another point worth highlighting is that both federal personal status laws contain provisions suggesting that a certain degree of party autonomy is permitted. However, the extent of this autonomy remains unclear. This issue will be discussed below.

2024 PSL 2022 CPSL Art. 1 [Scope of Application]:

(2) The provisions of this Law apply to non-Muslim UAE citizens unless […] they agree to apply another law permitted by the legislation in force in the State. Art. 1 [Scope of Application]:

(2) The persons governed by the provisions of this Decree-Law … may agree to apply other legislation regulating the family or personal status matters currently in force in the State instead of applying the provisions of this Decree-Law. Art. 1 [Scope of Application]:

(3) The provisions of this Law shall apply to non-UAE citizens unless […] any other law that has been agreed to be applied, as permitted by the legislation in force in the State.

 

3. Possibility of applying foreign law

Finally, like the 2022 CPSL and the now-repealed 2005 PSL, the 2024 PSL also allows for the application of foreign law. What is particularly noteworthy, however, is that the formulation originally found in the repealed 2005 PSL was not reproduced in the newly adopted 2024 PSL, despite its inclusion – albeit with some modifications – in the 2022 CPSL (see the underlined portion below). The reasons for this divergence remain unclear.

2024 Personal Status Law 2022 Civil Personal Status Law Art. 1 [Scope of Application]:

(3) The provisions of this Law shall apply to non-UAE citizens unless one of them invokes the application of his law [….] (*) Art. 1 [Scope of Application]:

(1) The provisions of this Decree-Law shall apply to non-Muslims who are national citizens of the United Arab Emirates, and to non-Muslim foreigners residing in the state, unless one of them invokes the application of his law, with regard to matters of marriage, divorce, successions, wills, and establishment of filiation, without prejudice to the provisions of Articles (12), (13), (15), (16), and (17) of the Federal Law No. (5) of 1985[on Civil Transactions] (**).

(*) The Gender biased formulations found in the original texts are maintained.

(**) Art. 1(3) of the now-repealed 2005 PSL stated as follows: “The provisions of this Law shall apply to non-UAE citizens, unless one of them invokes the application of his law, without prejudice to the provisions of Articles (12), (13), (15), (16), (17), (27) and (28) of the Federal Law No. (5) of 1985 on Civil Transactions”.

The numbered articles concern respectively, conflict of law rules in matters of marriages (12), divorce (13), maintenance (15), guardianship and other institutions of protection of persons with limited capacity and absentees (16), successions and wills (17), as well as public policy (27) and failure to prove foreign law (28).

 

II. Ambiguities and persistent problems

 

1. Ambiguities

a) Scope of application

i) The 2021 ADCML and its 2022 Procedural Regulation

One of the most crucial points concerns the relationship between federal and local law. As previously mentioned, the Emirate of Abu Dhabi took the initiative in 2021 by enacting its “Law on Civil Marriage and Its Effects”. This law – originally titled the “Personal Status Law of Non-Muslim Foreigners” – defined its scope of application in a more restrictive manner compared to the 2022 CPSL. While the latter applies to both foreign and local non-Muslims, the 2021 Abu Dhabi law was limited, as its title suggests, to foreign non-Muslim only.

  2021 ADCML (before amendment) 2022 CPSL Art. 1 [Definitions]:

Foreigner: Any male or female non-Muslim foreigner, having a domicile, residence or place of work in the Emirate. Art. 1 [Scope of Application]:

(1) The provisions of this Decree-Law shall apply to non-Muslims who are national citizens of the United Arab Emirates, and to non-Muslim foreigners residing in the state […] Civil Marriage: A union that is intended to be of indefinite duration according to the provisions of this Law, between a foreign man and woman, both non-Muslim.

Only a few weeks after its adoption, the 2021 ADCML was amended. Notably, in addition to the change of the title of the as mentioned above, all references to “foreigners” and “foreign non-Muslims” were replaced with the more neutral phrase of “persons covered by the provisions of this law” and new jurisdictional rules adopted (Art. 17bis). Despite this amendment, and somewhat surprisingly, the amended law continues does not only define “persons covered by the provisions of this law” in an ambiguous manner (see some critical comments here), it also continues to define civil marriage as union “between a foreign man and woman, both non-Muslim”. This has reinforced the impression that both the original law and its subsequent amendments were enacted without thorough consideration of their internal consistency or of the broader legal context in which they would operate.

  2021 ADCML (after amendment) Art. 1 [Definitions]:

Civil Marriage: A union that is intended to be of indefinite duration according to the provisions of this Law, between a foreign man and woman, both non-Muslim.

Persons covered by the provisions of this law: Foreigners and Nationals, non-Muslims, whether male or female. (*)

(*) The original ambiguity in the formulation is maintained in purpose.

 

In 2022, a Procedural Regulation (“2022 Procedural Regulation”) was adopted with the intention of clarifying, inter alia, the scope and application of the 2021 ADCML. However, this instrument has introduced more inconsistencies and ambiguities than it has resolved. This is particularly evident with regard to the definition of “civil marriage”, as well as the ratione personae and ratione materiae of both the 2021 ADCML and its accompanying 2022 Procedural Regulation.

 

  Abu Dhabi 2021 Law (after amendment) The 2022 Procedural Regulation Art. 1 [Definitions]:

Civil Marriage: A union that is intended to be of indefinite duration according to the provisions of this Law, between a foreign man and woman, both non-Muslim. Art. 1 [Definitions]:

Civil Marriage: Marriage that is concluded and registered under statutory laws and regulations, without taking into account of any particular religious law. Persons covered by the provisions of this law: Foreigners and Nationals, non-Muslims, whether male or female Persons covered by the provisions of this law: Foreigners and non-Muslims Nationals, whether male or female Article 5 (Persons covered by the provisions of this law): 

The provisions of this law govern civil marriages and their effects, as well as all matters concerning the civil family according to the following cases:

1)       Non-Muslim citizens

2)       A foreigner who holds the nationality of a country that does not primarily apply Islamis Sharia in matters of personal status […] In the case of multiple nationalities, the nationality to be taken into account shall be the one used based on the person’s status of residence in the State.

3)       Where the marriage is concluded in a country that does not primarily apply Islamic Sharia provisions in matters of personal status [….]

4)       Where the marriage is concluded in accordance with the provisions of civil marriage.

5)       Any other case for which a decision is issued by the Head of the Department.

Problems of interpretation and application generated by the ambiguities and inconsistencies of the 2021 ADCML and its 2022 Procedural Regulations have already been addressed on this blog (see here, here, and here). These issues particularly concern the application of these instruments to foreign Muslims, a possibility permitted under the 2021 ADCML and its 2022 Procedural Regulations as confirmed by recent case law, but not allowed under the 2022 CPSL.

 

ii) Constitutional implications

Given the differing scopes of application, a crucial issue has arisen: whether the 2022 CPSL overrides the local law in this respect. In other words, does the Federal Civil Personal Status Law also apply in Abu Dhabi?

From a constitutional perspective, the answer should be affirmative (see Article 151 of the Federal Constitution). However, the issue remains largely unresolved. In practice, lower courts in Abu Dhabi appear to give little weight to the federal law, applying the local law and its regulations instead. (The Abu Dhabi Supreme Court seems to follow a slightly different approach, as on some occasions it cited the 2022 Federal Law on Civil Personal Status. For examples, previous posts here, and here).

 

iii) Impact of the 2024 PSL

The situation, however, changes significantly with the adoption of the 2024 PSL. It is undisputed that this new federal law applies in Abu Dhabi as well. The absence of any local regulation on personal status (other than the 2021 ADCML and its 2022 Procedural Regulation) makes the application of the new federal law self-evident. Therefore, even if one were to argue (for the sake of discussion) that the 2022 CPSL does not apply in Abu Dhabi, it will still be necessary to observe how Abu Dhabi courts will reconcile the new law, which explicitly applies to Muslims (regardless of their nationality or whether their country of origin applies Islamic sharia in personal status matters), with the existing local regulations. A typical case would be a Muslim couple from Europe or elsewhere where Islamic Sharia does not primarily apply in matters of personal status, or Muslims from Muslim jurisdictions who got married under the 2021 ADCML, but then one of the parties claims the application of the 2024 PSL because they are Muslim, and therefore subject to the federal and not local law.

 

b) The Parties’ agreement

As mentioned above, both federal laws allow the parties to “agree” to apply “another law permitted by the legislation in force” (2024 PSL) or “other legislation regulating family or personal status matters currently in force” in the UAE (2022 CPSL). The formulations used here are highly problematic, as their exact meaning remains unclear.

For instance, it is unclear, whether the phrase “legislation in force” includes also local laws, notably the 2021 ADCML. Assuming that the 2022 CPSL does not override the 2021 ADCML, could parties residing in Dubai agree to apply it? This remains unresolved.

Moreover, an open question also concerns the form that such an agreement must take. Is an explicit agreement required, e.g., one that is formally recorded in the marriage contract? Or can consent be implied, such that a party’s reliance on the provisions of a given law is sufficient to infer tacit agreement?

Finally, and more importantly, it is not clear whether “non-UAE citizens” under the 2024 PSL, which applies primarily to Muslims (see above), would be allowed to choose the application non-Muslim law. While this can be somewhat “tolerated” in matters of marriage or divorce as the practice now in Abu Dhabi clearly shows (see previous post here, although the boundaries of such “tolerance” remains certainly unclear notably in other Emirates. From a broader perspective, see examples cited in Béligh Elbalti, “The Recognition and Enforcement of Foreign Filiation Judgments in Arab Countries”, in Nadjma Yassari et al. (eds.), Filiation and the Protection of Parentless Children (T.M.C. Asser Press, 2019), 397), such a possibility seems to be inconceivable in matters of successions, giving the longstanding position of UAE courts to consider that the Federal Personal Status Law – which is largely based on Islamic Sharia – should apply whenever one of the parties (the deceased or the heir) is Muslim (for detailed analyses and overview of applicable case law, see Béligh Elbalti, “Applicable Law in Succession Matters in the MENA Arab Jurisdictions – Special Focus on Interfaith Successions and Difference of Religion as Impediment to Inheritance”,  88(4) RabelsZ  2024 748, 751).

 

2. Persistent problems

Two are particularly relevant here, both concern (a) the applicability of foreign law, and (b) the interplay of the family law regulations with private international law.

 

a) Applicability of foreign law

A key difference between the 2021 ADCML and the 2022 CPSL (as well as the 2024 PSL) lies in the fact that the former excludes the very application of foreign law, rendering the 2021 ADCML directly and automatically applicable in all disputes that enter into its scope of application (it must be acknowledged, however, that a recent Abu Dhabi Supreme Court’s ruling suggests otherwise. Upon examination, though, the Court’s reference to choice of law rules does not have any tangible implication on the above stated conclusion). The only exception concerns matters of succession and wills, for which, a reference to choice of law rules is explicitly provided for within the law itself.

  2021 ADCML (after amendment) 2022 CPSL Article 3 [Scope of Application] (*) (**):

(1)    If the marriage is concluded in accordance with this law, it shall be the applicable law governing the effects of the marriage and its dissolution.

(2)    This law shall apply to wills and succession matters concerning persons subject to its provisions, provided that the estate or the bequeathed property is located within the State. Art. 1 [Scope of Application]:

(1) The provisions of this Decree-Law shall apply to non-Muslims who are national citizens of the United Arab Emirates, and to non-Muslim foreigners residing in the state, unless one of them invokes the application of his law, with regard to matters of marriage, divorce, successions, wills, and establishment of filiation […] Article 11 [Distribution of Estate]:

(3) Notwithstanding paragraph (2) of this Article [testate succession], any heir of the foreign deceased may request the application of the law governing the estate in accordance with the provisions of [1985 FACT], unless a registered will provides otherwise. Article 11 [Distribution of Estate]:

(3) Notwithstanding paragraph (2) of this Article [testate succession], any heir of the foreign deceased may request the application of the law governing the estate in accordance with the provisions of [1985 FACT], unless a registered will provides otherwise.

(*) It is worth noting that article 3 in its original form was similar to that of Article of the 2022 CPSL. It stated as follows: “Unless the foreigner requests the application of their national law, the court shall apply this law to foreigners in matters relating to marriage, divorce, inheritance, wills, and the establishment of parentage.”

(**) See also Article 5 of the Procedural Regulation cited above.

 

This does not only give rise to problems of inconsistency with the federal personal status laws, but also with the 1985 FACT.

 

b) Interplay with choice of law rules

This is arguably the main issue that remains unresolved despite the various reforms and amendments. As mentioned above, the federal laws allow “one of the parties” to invoke the application of “his law”. Theoretically, if properly invoked, the foreign law would apply instead of the federal provisions. However, this possibility raises three core issues:

1) who is exactly meant by “one of the parties” (ahadihim)?

2) what is meant by “his law” (qanunihi), and

3) what is the current relevance of choice of law rules governing family matters as set out in the 1985 FACT?

 

i) Meaning of “one of the parties”

Regarding 1), there is a range of diverging opinions. For instance, the Explanatory Report of the now-repealed 2005 PSL referred to the “adversary party” (al-khasm). Certain strands in literature, contra legem, suggest that this concerns any party, but only when both of them share the same nationality. Case law, however, reveals more diverse scenarios: courts addressed the issue of the application of foreign law regardless of whether the parties hold the same nationality or not, and when the foreign is invoked by any of them. Yet, to the best of our knowledge, UAE courts have not provided a definitive answer to this question, often focusing instead on whether the party’s claim could be accepted or not.

 

ii) The Meaning of “his law”

Regarding 2), case law has largely clarified that “his law” refers to the lex patriae. Still, ambiguity remains in cases involving parties of different nationalities. Prior to 2020, the main connecting factor in matters of marriage and its dissolution was the lex patriae of the husband. It was thus unclear whether the wife could invoke the application of “her law” or whether she should claim the application of the lex patriae of her husband, when the latter based his claim on UAE law. In any case, where a party holds multiple nationalities, Article 24 (still in force) states that the lex fori (UAE law) shall apply.

However, in 2020, an amendment to the 1985 FACT introduced significant changes, shifting away from lex patriae as the main connecting factor in personal status. Particularly, articles 12 and 13 dealing respectively with marriage and its dissolution now refer to lex loci celebrationis. Moreover, Article 17 dealing with successions and wills grants considerable weight to professio juris, allowing a person in testate successions to designate the law that shall govern their estate. These changes have further deepened the discrepancy between the federal personal status regulations and the choice of law provisions contained in the 1985 FACT.

 

iii) Relevance of choice of law rules

Regarding 3), an as a result of what was stated above, resolving conflicts of law and coordinating the application of the various legislative instruments has become particularly difficult without significantly stretching the wording, and arguably, the intended meaning of the law. This difficulty is especially evident when the lex loci celebrationis differs from the parties’ lex patriae.

Article 1(2) of the 2022 CPSL offers somehow better articulation by including a two-part clause: “unless one of the parties invoke the application of his law, without prejudice to the provisions of Articles (12), (13), (15), (16), and (17)” of the 1985 FACT. Nevertheless, this articulation becomes problematic when both parties share the same nationality but have concluded their marriage abroad.

In any case, both laws remains silent on the consequences of the parties invoking his lex patriae when it conflicts with the law designated under the conflict of laws rules included in the 1985 FACT.

 

Epilogue

In practice, these theoretical complexities are often resolved in a far more radical and pragmatic way: foreign law is rarely applied, even when validly invoked by one or both parties.

It is against this backdrop that one can understand the rationale behind the adoption of civil family law regimes and the recent adoption of the 2024 PSL: rather than refining the existing conflict-of-law mechanisms, these instruments aim to sidestep them altogether by offering a self-contained and directly applicable alternative.

 

The first issue of the Journal of Private International Law for 2025 was published today. It contains the following articles:

Pietro Franzina, Cristina González Beilfuss, Jan von Hein, Katja Karjalainen & Thalia Kruger, “Cross-border protection of adults: what could the EU do better?†”

On 31 May 2023 the European Commission published two proposals on the protection of adults. The first proposal is for a Council Decision to authorise Member States to become or remain parties to the Hague Adults Convention “in the interest of the European Union.” The second is a proposal for a Regulation of the European Parliament and the Council which would supplement (and depart from, in some respects) the Convention’s rules. The aim of the proposals is to ensure that the protection of adults is maintained in cross-border cases, and that their right to individual autonomy, including the freedom to make their own choices as regards their person and property is respected when they move from one State to another or, more generally, when their interests are at stake in two or more jurisdictions. This paper analyses these EU proposals, in particular as regards the Regulation, and suggests potential improvements.

 

Máire Ní Shúilleabháin, “Adult habitual residence in EU private international law: an interpretative odyssey begins”

This article examines the first three CJEU cases on adult habitual residence in EU private international law, against the background of the pre-existing (and much more developed) CJEU jurisprudence on child habitual residence. While the new trilogy of judgments provides some important insights, many questions remain, in particular, as to the scope for contextual variability, and on the role of intention. In this article, the CJEU’s treatment of dual or concurrent habitual residence is analysed in detail, and an attempt is made to anticipate the future development of what is now the main connecting factor in EU private international law.

 

Felix Berner, “Characterisation in context – a comparative evaluation of EU law, English law and the laws of southern Africa”

Academic speculation on characterisation has produced a highly theorised body of literature. In particular, the question of the governing law is the subject of fierce disagreement: Whether the lex fori, the lex causae or an “autonomous approach” governs characterisation is hotly debated. Such discussions suggest that a decision on the governing law is important when lawyers decide questions of characterisation. Contrary to this assumption, the essay shows that the theoretical discussion about the governing law is unhelpful. Rather, courts should focus on two questions: First, courts should assess whether the normative context in which the choice-of-law rule is embedded informs or even determines the question of characterisation. Insofar as the question is not determined by the specific normative context, the court may take into account any information it considers helpful, whether that information comes from the lex fori, the potential lex causae or from comparative assessments. This approach does not require a general decision on the applicable law to characterisation, but focuses on the normative context and the needs of the case. To defend this thesis, the essay offers comparative insights and analyses the EU approach of legislative solutions, the interpretation of assimilated EU law in England post-Brexit and the reception of the via media approach in southern Africa.

 

Filip Vlcek, “The existence of a genuine international element as a pre-requisite for the application of the Brussels Ia Regulation: a matter of EU competence?”

Under Article 25(1) of the Brussels Ia Regulation, parties, regardless of their domicile, may agree on a jurisdiction of a court or the courts of an EU Member State to settle any disputes between them. The problem with this provision is that it remains silent on the question of whether it may be applicable in a materially domestic dispute, in which the sole international element is a jurisdictional clause in favour of foreign courts. Having been debated in the literature for years, the ultimate solution to this problem has finally been found in the recent judgment of the ECJ in Inkreal (C-566/22). This article argues that the ECJ should have insisted on the existence of a material international element in order for Article 25 of the Regulation to apply. This, however, does not necessarily stem from the interpretation of the provision in question, as Advocate General de la Tour seemed to propose in his opinion in Inkreal. Instead, this article focuses on the principle of conferral, as the European Union does not have a legal base to regulate choice-of-court clauses in purely internal disputes. Accordingly, with the Regulation applying to legal relationships whose sole cross-border element is a prorogation clause, the Union legislature goes beyond the competence conferred on it by Article 81 TFEU. Such an extensive interpretation of the Regulation’s scope, which is, in reality, contrary to the objective of judicial cooperation in civil matters, is moreover prevented by the principle of subsidiarity as well as the principle of proportionality. Finally, this approach cannot be called into question by the parallel applicability of the Rome I and II Regulations in virtually analogous situations as those Regulations become inherently self-limiting once the international element concerned proves to be artificial.

 

Adrian Hemler, “Deconstructing blocking statutes: why extraterritorial legislation cannot violate the sovereignty of other states”

Blocking statutes are national provisions that aim to combat the legal consequences of foreign, extraterritorial legislation. They are often justified by an alleged necessity to protect domestic sovereignty. This article challenges this assumption based on an in-depth discussion of the sovereignty principle and its interplay with the exercise of state power regarding foreign facts. In particular, it shows why a distinction between the law’s territorial scope of sovereign validity and its potentially extraterritorial scope of application is warranted and why, based on these foundations, extraterritorial legislation cannot violate foreign sovereignty. Since Blocking Statutes cannot be understood to protect domestic sovereignty, the article also discusses how they serve to enforce international principles on extraterritorial legislation instead.

 

Michiel Poesen, “A Scots perspective on forum non conveniens in business and human rights litigation: Hugh Campbell KC v James Finlay (Kenya) Ltd”

In Hugh Campbell KC v James Finlay (Kenya) Ltd the Inner House of the Court of Session, the highest civil court in Scotland subject only to appeal to the UK Supreme Court, stayed class action proceedings brought by a group of Kenyan employees who claimed damages from their Scottish employer for injuries suffered due to poor labour conditions. Applying the forum non conveniens doctrine, the Court held that Kenya was the clearly more appropriate forum, and that there were no indications that the pursuers will suffer substantial injustice in Kenya. Campbell is the first modern-day litigation in Scotland against a Scottish transnational corporation for wrongs allegedly committed in its overseas activities. This article first observes that the decision of the Inner House offers valuable insight into the application of forum non conveniens to business and human rights litigation in Scotland. Moreover, it argues that the decision would have benefitted from a more rigorous application of the jurisdictional privilege in employment contract matters contained in section 15C of the Civil Jurisdiction and Judgments Act 1982

 

Hasan Muhammad Mansour Alrashid, “Appraising party autonomy in conflict-of-laws rules in international consumer and employment contracts: a critical analysis of the Kuwaiti legal framework”

Party autonomy plays a vital role in international contracts in avoiding legal uncertainty and ensuring predictability. However, its application in international employment and consumer contracts remains a subject of debate. Consumers and employees are typically the weaker parties in these contracts and often lack the expertise of the other party, raising questions about their autonomy to choose the applicable law. Globally, legal systems differ on this point with some permitting full party autonomy, others rejecting it outrightly and some allowing a qualified autonomy with domestic courts empowered to apply a different law in deserving cases to protect the employee or consumer. Kuwaiti law allows full autonomy only in international consumer contracts but prohibits it in international employment contracts. This paper critically analyses Kuwait’s legal approach to find an appropriate balance between the principle of party autonomy in the choice of law and the protection of employees and consumers.

 

Alexander A. Kostin, “Recognition and enforcement of foreign judgments in bankruptcy and insolvency matters under Russian law”

This article addresses the role of certain Russian Federal Law “On Insolvency (Bankruptcy)” provisions (eg Article 1(6)) for resolving bankruptcy and insolvency matters under Russian law. The author argues that the “foreign judgment on the insolvency matters” term covers not only the judgments on initiation of bankruptcy/insolvency, but also other related judgments like those on vicarious liability, avoidance of transactions and settlement agreements. The issues associated with enforcing foreign judgments on the grounds of reciprocity under Article 1(6) of the Federal Law “On Insolvency (Bankruptcy)” are being explored and valid arguments in favour of recognition simpliciter (recognition of foreign judgments without extra exequatur proceedings at the national level) are provided. The legal effects of foreign judgments on the initiation of bankruptcy/insolvency proceedings recognition are analysed as well as the interconnection between relevant provisions of the Russian legislation on lex societatis of a legal entity and the rules for recognising foreign judgments on the initiation of bankruptcy/insolvency proceedings.

On the occasion of the 150th anniversary of the Swiss Federal Tribunal, the Swiss Institute of Comparative Law (SICD) is pleased to announce its 35th Conference on Private International Law, to be held on 19–20 November 2025 in Lausanne.

The conference addresses how courts, lawyers, and litigants have shaped—and how they continue to shape—private international law. Special emphasis will be placed on how legal practice drives the development of private international law at both the national and supranational levels. Judges, through landmark rulings, have clarified conflicts of laws rules, set precedents on the recognition of foreign judgments, and adapted legal frameworks to globalization and digital commerce. Lawyers, by crafting novel arguments, have influenced judicial reasoning and contributed to evolving legal doctrines. Finally, strategic litigation, led by litigants and advocacy groups, has driven major jurisprudential shifts, particularly in fundamental rights, corporate liability, and cross-border regulation. The conference will analyse these actors’ distinct but interconnected roles in shaping contemporary private international law.

We invite scholars (both established and early-career researchers), legal practitioners, and policymakers to submit papers addressing these issues.

Possible topics include:

• The role of national and supranational courts in shaping private international law
• The impact of key judicial decisions on cross-border legal relationships
• The influence of legal practitioners in driving jurisprudential change
• Strategic litigation as a tool for legal evolution in private international law
• Comparative approaches to judicial reasoning in international private law cases
• Judicial responses to global challenges such as migration, digital commerce, corporate responsibility, and human rights protection

Paper Submission
Please submit an abstract (up to 500 words) of your proposed paper by 11 May 2025 to Ms. Marie-Laure Lauria (marie-laure.lauria@isdc-dfjp.unil.ch), with the subject line “ISDC 35th PIL Conference Submission“. Abstracts may be submitted in English, German, or French.

All submissions will undergo a double-blind peer review and decisions will be communicated by 3 June 2025. Accepted papers will be considered for publication in an edited volume or a special journal issue.

Organization
The conference will be hosted by the Swiss Institute of Comparative Law.

Funding
The Swiss Institute of Comparative Law will provide funding for the travel costs and accommodation of all presenters.

In April, the Aberdeen Centre for Private International Law and Transnational Governance will be relaunching its Crossroads in Private International Law research seminar series. It will feature both online and hybrid events.

For the upcoming term, six events have been scheduled:

23 April 2025 at 14:00 (UK time) | “Consumer Protection and Justice in Israeli Private International Law” by Prof Sharon Shakargy (The Hebrew University of Jerusalem) | online and in-person

In 1933, Professor David Cavers argued for rethinking the choice of law process by prioritizing justice and party expectations over formal rules, sparking the American choice of law revolution. While this movement had some lasting impacts, it ultimately was mostly unsuccessful. Nearly 90 years later, the issue of justice in conflict of laws remains relevant, especially regarding power disparities between major tech companies and consumers. This paper calls for a renewed focus on justice within this context, outlining its implications for the existing legal framework.

24 April 2025 at 14:00 (UK time) | “Collisions and Autonomous Ships: A Challenge for the Collision Convention 1910” by Ms Luci Carey (University of Aberdeen) | online only

The introduction of Maritime Autonomous Surface Ships (MASS) whereby human crews are replaced by AI driven navigation systems raises novel legal questions. One of these relates to the liability of the vessel in the event of a collision. The International Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels 1910 (1910 Collision Convention) apportions liability between colliding ships based upon the degree of fault. The introduction of artificial intelligence is making the determination of fault or liability in negligence increasingly difficult. This seminar questions whether fault-based liability for collisions involving ships navigated without human control is appropriate, enquires if strict liability is the logical solution or if the 1910 Collision Convention is robust in its current form to accommodate technological developments.

30 April 2025 at 12:00 (UK time) | “A Skewed Bargain? Platforms get the King’s Protection for little or no Obedience or Allegiance” by Prof Uta Kohl (University of Southampton) | online only

Common law jurisprudence on civil jurisdiction over non-resident defendants has occasionally made explicit reference to the justification of jurisdiction as formulated in Calvin’s Case (1608): ‘when an alien in amity cometh into England, because so long as he is within England he is within the King’s protection; therefore so long as he is here he oweth unto the King a local obedience or ligeance, for the one (as it hath been said), draweth the other.’ This justification is powerful in so far as it demonstrates that territorially based jurisdiction (in civil and criminal cases) is one side of a two sided bargain: obedience and allegiance in exchange for protection. In this talk I will reflect on how this bargain has played out – or not played out – in the case of online platforms, and on how we might use Calvin’s Case to fundamentally rethink the treatment of platforms.

7 May 2025 at 11:00 (UK time) | “Should the Rules on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters Be Harmonised in Africa? A Comparative and Empirical Assessment” by Dr Chukwuma Okoli (University of Birmingham) | online only

This study examines 200 decided cases from 18 African legal systems, focusing on the recognition and enforcement of foreign judgments in civil and commercial matters. It reveals significant disparities in outcomes and grounds for recognition and enforcement and refusal. It underscores the diversity of legal frameworks, procedural rules, and judicial interpretations across the continent. The findings highlight the challenges posed by this fragmentation and make a strong case for harmonisation. A more unified approach, the study argues, would not only streamline cross-border legal processes but also foster economic development and strengthen investor confidence across Africa.

14 May 2025 at 14:00 (UK time) | “Navigating Generative AI, Copyright Protection, and Private International Law in Europe” by Dr Michiel Poesen (University of Aberdeen) | online and in-person

Generative AI has an intellectual property problem. This seminar enquires whether the current framework of private international law in the European Union is fit to deal with cross-border copyright infringement litigation concerning (i) the use of copyrighted work to train and develop GenAI and (ii) AI-generated content (AIGC) which resembles protected work.

21 May 2025 at 10:00 (UK time) | “Platform Governance and Wikilegality” by Prof David Nelken (UCL) (Joint seminar with the Aberdeen Centre for Constitutional and Public International Law) | online and in-person

Registration for all events is possible here.