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Servis-Terminal LLC v Drelle [2025] EWCA Civ 62 is an interesting case highlighting the difference between recognition and enforcement, and the circumstances in which one may not need formal recognition of a foreign court’s finding, in order effectively to enforce that finding. 

Can a bankruptcy petition be presented when payment ordered by foreign Court has not been made yet foreign judgment has not been sought to be enforced? The first instance judge had held [Drelle v Servis-Terminal LLC [2024] EWHC 521 (Ch)] that the fact that the Judgment had not been the subject of recognition proceedings in this jurisdiction did not prevent it from being the basis of a bankruptcy petition. 

Newey LJ [40], reversing, confirms that “(p)lainly, a foreign judgment can be determinative on a point even in the absence of recognition or registration.” Referring to Dicey Rule 45, the Court of Appeal recalls that as a general principle a foreign judgment “has no direct operation in England” and [39] “[a] judgment creditor seeking to enforce a foreign judgment in England at common law cannot do so by direct execution of the judgment” but “must bring an action on the foreign judgment”. Lord Justice Newey then uses a sword and shield analogy: [41]

The principle that a foreign judgment “has no direct operation in England” reflects the common law’s aversion to enforcing a foreign exercise of sovereign power. As Professor Briggs has explained, “if a foreign adjudication and judgment is understood as being an act of state sovereignty, … it is regarded as completely effective within the territory of the sovereign, and as completely unenforceable outside it”: see paragraph 21 above. That logic suggests that any use of an unrecognised and unregistered judgment as a “sword”, including presentation of a bankruptcy petition founded on it, is objectionable.

The ‘revenue rule’ (famously and extensively entertained in SKAT) [42]

has a similar root. Professor Briggs referred to it as “a particular manifestation of a more fundamental rule, that an assertion or exercise of the sovereign right of a foreign state will not be enforced by an English court”: see paragraph 21 above. In Solo Partners, Lord Lloyd-Jones thought that the “revenue rule” was to be explained on the basis that “enforcement of a claim for taxes is but an extension of the sovereign power which imposed the taxes, and … an assertion of sovereign authority by one state within the territory of another, as distinct from a patrimonial claim by a foreign sovereign, is (treaty or convention apart) contrary to all concepts of independent sovereignties”: see paragraph 20 above.

Further authorities re discussed however Newey LJ’s mind is firm on the ‘shield and sword’ issue: [55] an unrecognised foreign judgment, which …involves an exercise of sovereign power [similar to a foreign tax not giving rise to a debt that can be the foundation of a bankruptcy petition] cannot form the basis of such petition. Of note! Geert. https://x.com/GAVClaw/status/1886740770033438751

The Austrian Supreme Court (OGH) has rendered an important decision to solve conflicts between several forum selection agreements. Facts An Austrian company had sub-contracted a German company to perform construction works in Germany. The main agreement contained a clause giving jurisdiction for any dispute to a German court. However, in two additional agreements, jurisdiction was […]

The first book in the European Association of Private International Law series, published by Edward Elgar is out. Edited by Morten M. Fogt (Aarhus University), the volume builds on the presentations delivered at the EAPIL Founding Conference held in Aarhus in June 2022. The chapters discuss current and future challenges of private international law. While […]

The European Association of Private International Law is delighted to announce the establishment of its own book series with Edward Elgar. The European Association of Private International Law Series will publish the outcome of the association activities. These include the proceedings of its conferences, but also papers based on the lectures given at the EAPIL […]

Russmedia Digital et Inform Media Press
Liberté d'établissement
Commerce électronique et RGPD : l’avocat général Szpunar clarifie les responsabilités de l’exploitant d’une place de marché en ligne

As part of Hart’s Studies in Private International Law – Asia, Min Kyung Kim, Judge at the Incheon District Court in Korea, just published her new book on Overriding Mandatory Rules in International Commercial Disputes: Korean and Comparative Law.

The impressive monograph, just shy of 200 pages, takes a comprehensive look at the role of overriding mandatory rules in international commercial litigation and arbitration, using Korea as a vantage point. It takes a close look at a large variety of (mainly European) sources in order to interpret and critically discuss the Korean Act on Private International Law, with a particular focus on the treatment of third-country mandatory rules. The book also identifies a range of potentially overriding mandatory provisions in Korean law.

The book is available open access at the publisher’s website.

A short note (on the day the UKSC appeal in MSC Flaminia is being heard) on the CJEU judgment in C‑188/23 Land Niedersachsen v Conti  11. Container Schiffahrts-GmbH & Co. KG MS ‘MSC Flaminia’.

The Court essentially followed the Opinion of Capeta AG which I discussed here. The operative part reads

Article 1(3)(b) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste

must be interpreted as meaning that the exclusion from the scope of that regulation that that provision provides for, pertaining to the waste generated on board a ship following damage sustained by that ship on the high seas until that waste is offloaded in order to be recovered or disposed of, no longer applies to the waste which remains on board that ship in order for it to be shipped, together with that ship, for recovery or disposal, after part of that waste has been offloaded in a safe port in order to be recovered or disposed of, that interpretation being in conformity with Article 1(4) of the Convention on the control of transboundary movements of hazardous wastes and their disposal, signed in Basel on 22 March 1989, approved on behalf of the European Economic Community by Council Decision 93/98/EEC of 1 February 1993.

The CJEU applies the VCLT’s interpretative matrix holding it leads to the Basel Convention having to be applied teleologically, and it also reminds us [58] of the ling-standing CJEU authority that “in interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the objectives pursued by the legislation of which it forms part”. It then essentially repeats the AG’s lines of analysis that while exemption from notification etc may be justified in the light of the immediate aftermath of an incident at sea, but is no longer justified once the ship had docked and the captain etc can properly assess the various implications of what has happened.

All in all a sensible judgment.

Geert.

Handbook of EU Waste Law, 2nd ed. 2015, Oxford, OUP, Chapter 3, 3.27 ff.

The latest issue of the Dutch Journal on Private International Law (NIPR) has been published.

EDITORIAL

M.H. ten Wolde / p. 626-628

ARTICLES

A. Mens, De kwalificatie en de rechtsgevolgen van de erkenning van een kafala op grond van het Nederlandse internationaal privaatrecht/ p. 628-649

Abstract

This article focuses on the qualification and legal consequences of recognising a kafala under Dutch private international law. A kafala is a child protection measure under Islamic law, which entails an obligation to care for, protect, raise, and support a child, but without any implications for lineage or inheritance rights. The main conclusion is that a kafala generally constitutes both a guardianship and a maintenance decision. Consequently, the recognition of a foreign kafala in the Netherlands essentially entails the recognition of both the guardian’s (kafil) authority over the child (makful) and the recognition of the guardian’s maintenance obligation towards the child.

B. van Houtert, The Anti-SLAPP Directive in the context of EU and Dutch private international law: improvements and (remaining) challenges to protect SLAPP targets / p. 651-673

Abstract

While the scope of the Anti-SLAPP Directive is broad, this paper argues that the criteria of ‘manifestly unfounded claims’ and the ‘main purpose of deterrence of public participation’ may challenge the protection of SLAPP targets. The Real Madrid ruling should nonetheless play an important guiding role in all Member States; the legal certainty and protection for SLAPP targets will increase by applying by analogy the factors of the Real Madrid ruling established by the CJEU to assess whether there is a manifest breach of the right to freedom of expression. Although the Anti-SLAPP Directive provides various procedural safeguards for SLAPP victims, it does not prevent SLAPP targets from being abusively sued in multiple Member States on the basis of online infringements of personality rights or copyrights. The recast of the Brussels Ibis and Rome II should alleviate this negative effect of the mosaic approach by adopting the ‘directed activities’ approach.
While the public policy exception in Dutch PIL already has a great deal of potential to refuse the recognition and enforcement of third-country judgments involving a SLAPP, the grounds in Article 16 Anti-SLAPP Directive provide legal certainty, and likely have a deterrent effect on claimants outside the EU. As EU and Dutch PIL generally do not provide a venue for SLAPP targets to seek compensation for the damage and costs incurred regarding the third-country proceedings initiated by the SLAPP claimant domiciled outside the EU, the venue provided by Article 17(1) Anti-SLAPP Directive improves the access to Member State courts for SLAPP targets domiciled in the EU. However, although Articles 15 and 17 Anti-SLAPP Directive aim to facilitate redress for SLAPP victims, the re-sulting Member State judgments may not be effective in case these are not recognised and enforced by third states. Hence, international cooperation is important to combat SLAPPs worldwide.

V. Van Den Eeckhout, Rechtspraak van het Hof van Justitie van de Europese Unie inzake internationaal privaatrecht anno 2024. Enkele beschouwingen over de aanwezigheid, de relevantie en de positie van internationaal privaatrecht in de rechtspraak van het Hof. Een proces van inpassing? Over de gangmakersfunctie van het ipr / p. 675-693

Abstract

With the increase in the number of European regulations on Private International Law, increasing attention has been paid by scholars to issues of consistency between different private international law regimes. The foregoing also includes attention to the position of the Court of Justice of the European Union with regard to (un)harmonised interpretation when answering preliminary questions on the interpretation of those regimes.
This contribution examines a number of current developments concerning the ‘PIL case law’ of the Court, viewed from the perspective of consistency, albeit in a broad sense: it examines aspects of judgments of the Court that lend themselves to highlighting various facets and dimensions of consistency. As a matter of fact, current case law and developments invite those who wish to pay attention to issues of consistency regarding the Court’s PIL case law to adopt a broad perspective and, while discussing aspects of consistency, to highlight points of attention regarding the presence, the relevance and the position of PIL in the Court’s case law, going along with issues of ‘fitting in’ of case law.
The paper includes a discussion of aspects of, i.a., C-267/19 and C-323/19 (joined cases Parking and Interplastics), C-774/22 (FTI Touristik), C-230/21 (X v. Belgische Staat, Refugiee mineure mariee), C-600/23 (Royal Football Club Seraing), C-347/18 (Salvoni) and C-568/20 (H Limited).

M.H. ten Wolde, Oude Nederlandse partiële rechtskeuzes en het overgangsrecht van artikel 83(2) Erfrechtverordening / p. 695-702

Abstract

On 9 September 2021, the ECJ ruled in case C-277/20 (UM) that Article 83(2) of the Regulation on succession does not apply to a choice of law made in an agreement as to succession in respect of a particular asset of the estate. Such a choice of law does not concern the succession in the estate as a whole and therefore falls outside the scope of the said provision, the Court stated. The question arises whether such partial choices of law made before 17 August 2015 have been voided with the CJEU’s ruling now that they likewise concern only certain assets and not the estate as a whole.

CASE NOTE

B. Schmitz, Artikel 6 lid 2 Rome I-Verordening en het Duitse Bundesgerichtshof. Bundesgerichtshof 15 mei 2024 – VIII ZR 226/22 (Teakbomen) / p. 703-709

Abstract

The German Federal Court of Justice (BGH) has ruled in its recent decision that Article 6(2) Rome I Regulation contains the preferential law approach. In its reasoning, the court specifically refers to three recent CJEU judgements to support this view. However, this case note argues that these CJEU judgements are not a valid basis for such reasoning. Instead, the BGH should have turned to Article 8 Rome I Regulation and its case law to apply the Gruber Logistics ruling by analogy.

LATEST PHDS

B. Schmitz, Rethinking the consumer conflict rule – Article 6(2) Rome I Regulation and party autonomy in light of principles, efficiency, and harmonisation (dissertation, University of Groningen, 2024) (Summary) / p. 711-714

BOOK ANNOUNCEMENT

M.H. ten Wolde, book announcement: Chr. von Bar, O.L. Knöfel, U. Magnus, H.-P. Mansel and A. Wudarski (eds.), Gedächtnisschrift für Peter Mankowski [A Commemorative Volume for Peter Mankowski], Tübingen: Mohr-Siebeck 2024, XIV + 1208 p. / p. 715-717

Ryanair / Commission (TAP II ; aide au sauvetage ; COVID-19)
Aide d'État
Le Tribunal rejette le recours de Ryanair contre la décision de la Commission approuvant de nouveau l’aide au sauvetage à TAP dans le contexte de la pandémie de Covid-19

Pologne / Commission
Droit institutionnel
Réforme de la justice polonaise de 2019 : le Tribunal confirme que la Pologne doit payer un montant total d’environ 320 200 000 euros au titre de l’astreinte prononcée par la Cour de justice au cours de la procédure en manquement

On 16 January 2025 the European e-Justice Strategy 2024–2028 has been published in the Official Journal of the European Union. It provides a framework designed to enhance the digitalization of justice systems across the EU and is a continuation of the Union’s ongoing efforts to modernize judicial systems. Context The Strategy builds on several EU […]

A recent study by the Law Commission of England and Wales has resulted in proposed amendments to the Arbitration Act 1996 that include a default rule that an arbitration agreement will be governed by the law of England and Wales if the arbitration is seated in that territory. Given the importance of London as an arbitration center, this has implications for many international commercial contracts.

In his new article, Professor Ron Brand from the University of Pittsburgh School of Law challenges the premise behind the proposed amendment that there is a single “law of the arbitration agreement.” Instead, he demonstrates that there are multiple laws applicable to an arbitration agreement. He explains this multiplicity of applicable laws by considering the possible grounds for challenge of jurisdiction of an arbitral tribunal based on the arbitration agreement. Such an analysis demonstrates that very different laws may apply to questions of the existence, formal validity, substantive validity, scope, and exclusivity of an arbitration agreement. He reviews these issues in the broader context of choice of forum clauses generally, including both arbitration and choice of court agreements, and then considers a hypothetical international commercial transaction in which questions might arise about the first four of these five jurisdictional questions – demonstrating both the problems with the idea of a single “law of the arbitration agreement,” as well as the practical impact and importance of well-drafted choice of forum agreements, including provisions on choice of law. Although prompted by the proposed change in English law, this discussion has implications for the law in every jurisdiction regarding agreements to arbitrate, indicating that both transaction planners and dispute resolution lawyers need to be cognizant of the laws applicable to arbitration and choice of court agreements.

The article is available here.

Commission / Courtois e.a.
Droit institutionnel
L’obligation de la Commission de divulguer l’identité des membres de l’équipe de négociation pour l’achat anticipé de vaccins contre la Covid-19 est suspendue provisoirement, dans l’attente de l’arrêt de la Cour

Keren
Espace de liberté, sécurité et justice
Protection internationale : le droit de l’Union ne s’oppose pas, sous certaines conditions, à ce que les bénéficiaires d’une protection internationale doivent réussir un examen d’intégration civique

The Court of First Instance of Mytilene (Greece) ruled on 16 May 2024 on an application filed by the mother of child against the child’s father. Acting on behalf of the child, the mother requested injunctive relief for child support (judgment No 161/2024, published in the Thessaloniki Bar Rewiew ‘Armenopoulos’ 2025, pp. 1497 et seq.) […]

Asociația Inițiativa pentru Justiție / Commission
Adhésion de nouveaux Etats
État de droit : le recours d'une association professionnelle de procureurs roumains contre la décision de la Commission abrogeant la décision instituant le mécanisme de coopération et de vérification est rejeté comme irrecevable

The thirty-eighth annual survey on choice of law in the American courts is now available on SSRN. The survey covers significant cases decided in 2024 on choice of law, party autonomy, extraterritoriality, international human rights, foreign sovereign immunity, adjudicative jurisdiction, and the recognition and enforcement of foreign judgments.

This annual survey was admirably maintained by Symeon Symeonides for three decades. The present authors are pleased to have extended this tradition.

Those interested in EU private international law may want to follow the hearing in case C-77/24, Wummer, on 5 February. The Oberster Gerichtshof (Austria) has referred to the Court of Justice two questions on the interpretation of the Rome II Regulation pursuant to Article 267 TFEU: 1. Must Article 1(2)(d) of [the Rome II Regulation] […]

The European Commission published on 31 January 2025 its long-awaited report (COM(2025) 20 final) on the application of Regulation No 864/2007 on the law applicable to non-contractual obligations (Rome II). The report is based on Article 30 of the Regulation. The latter provision required the Commission to submit to the European Parliament, the Council and […]

Conventions & Instruments

On 1 January 2025, the 2005 Choice of Court Convention entered into force for Switzerland. At present, 36 States and the European Union are bound by the 2005 Choice of Court Convention. More information is available here.

On 12 January 2025, the 2007 Child Support Convention entered into force for Cabo Verde. At present, 52 States and the European Union are bound by the 2007 Child Support Convention. More information is available here.

 

Meetings & Events

On 10 January 2025, representatives from 19 French-speaking African States, along with a delegate from the Organisation internationale de la Francophonie, convened in Brussels for a meeting focused on exploring the benefits of membership in the HCCH and the Permanent Court of Arbitration. More information is available here.

On 24 January 2025, the Working Party on Cross-Border Family Mediation in the Context of the Malta Process met online. During the meeting, participants discussed the future trajectory of the Working Party, taking into consideration the results of the questionnaire circulated in 2024 and the discussions held at the Malta V conference in October 2024. More information is available here.

 

Vacancies

Applications are now open for the position of Administrative Assistant. The deadline for the submission of applications is 22 February 2025. More information is available here.

Applications for a remote Communications and Outreach Internship will open next week. More information will soon be 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.