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Le règlement Bruxelles II ter n° 2019/1111 du 25 juin 2019 s’interprète en ce sens que l’autorisation judiciaire, sollicitée pour le compte d’un enfant mineur résidant habituellement dans un État membre, de vendre les parts que cet enfant détient dans des biens immobiliers situés dans un autre État membre relève de la matière de la responsabilité parentale, au sens de l’article 1er, § 1, sous b), de ce règlement, en ce que celle-ci concerne les mesures de protection visées au § 2, sous e), de cet article, de sorte que, en vertu de l’article 7, § 1, dudit règlement, ce sont les juridictions de l’État membre dans lequel l’enfant réside habituellement au moment où la juridiction est saisie qui sont, en principe, compétentes pour délivrer une telle autorisation.

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The following post was kindly provided by Hannah Buxbaum, Vice President for International Affairs, Professor of Law and John E. Schiller Chair, Indiana University, and is cross-posted on tlblog.org

As was widely reported yesterday, the Trump administration permitted two planes carrying Venezuelan deportees to continue on their way to El Salvador after receiving a judicial order to turn the flights back to the United States. A story in Axios quotes an administration official who explains that they were not in fact “actively defying” the judge—the order just came too late, since the planes were already out of U.S. airspace. This seems to be an extraterritoriality argument, suggesting that the judge lacks authority to order an action to take place outside U.S. borders.

The administration has this completely wrong. The judge is ordering the administration to take action inside the United States—that is, to instruct the planes to turn around. That instruction will in turn cause something to happen elsewhere (the pilots will change course), but that doesn’t make the order impermissibly extraterritorial. This is exactly the same the basis on which courts in garden-variety civil disputes order parties subject to their jurisdiction to procure evidence or turn over assets that are located abroad. Moreover, since the planes were reportedly over international waters at the time the order was entered, compliance would not have required any actions by a foreign actor or within the territory of another state—in other words, it wouldn’t have created a conflict of laws.

Now that the deportees are already in El Salvador, that picture is more complicated, since local authorities there might refuse to take action. Even the existence of such a conflict, though, doesn’t mean that Judge Boasberg’s order exceeds his authority. It remains to be seen whether any of the other justifications the White House offered up for ignoring that order are any more compelling, but the argument that it didn’t apply once the planes had left the United States is certainly not.

For further leading expert input on extraterritoriality see one of our previous posts here.

The decision in case C-57/24, Ławida, has been scheduled for delivery on 27 March 2025. The Sąd Okręgowy w Gliwicach (Poland) has referred to the Court of Justice the following question: Must Article 13 of Regulation (EU) No 650/2012 [on succession] be interpreted as meaning that it does not apply in a situation where, in […]

Benedikt Schmitz (University of Groningen) has kindly shared the following reminder of his Call for Participants with us.

The project concerns the interpretation of Article 6 (2) Rome I Regulation in the EU Member States and is very limited in nature. Time commitments are therefore very limited. Click here for more information.

We are still looking for scholars from Croatia, Czechia, Estonia, Finland, France, Ireland, Italy, Luxemburg, Malta, Romania, and Slovenia. Danish scholars may also participate on the basis of Article 5(2) Rome Convention.

The team currently consists of established scholars from 15 (former) EU Member States:

• Austria: Andreas Schwartze (Leopold-Franzens-Universität Innsbruck)
• Belgium: Cedric Vanleenhove (Universiteit Gent)
• Bulgaria: Ilia Lassin (Sofia University St. Kliment Ohridski)
• Cyprus: Nicholas Mouttotos (Universität Bremen)
• Germany: Benedikt Schmitz (Rijksuniversiteit Groningen)
• Greece: Kostas A. Rokas (Aristotle University of Thessaloniki)
• Hungary: Ferenc Szilágyi (Pázmány Péter Katolikus Egyetem Budapest)
• Lithuania: Katarzyna Bogdziewicz (Mykolo Romerio universitetas Vilnius)
• Netherlands: Benedikt Schmitz (Rijksuniversiteit Groningen)
• Poland: Anna Wysocka-Bar (Uniwersytet Jagiello?ski Kraków)
• Portugal: Anabela Gonçalves (Universidade do Minho)
• Slovakia: Dominika Moravcová (Trnavská univerzita v Trnave)
• Spain: Anna María Ruiz Martín (Universitat Oberta de Catalunya) & Beatriz Añoveros Terradas (Universitat de Barcelona)
• Sweden: Gunnar Bramstång (Lunds Universitet)
• UK: Ross Pey (Western University Ontario)

Interested in participating?

Contact Benedikt Schmitz through email: b.schmitz@rug.nl

At the end of each year I publish an article (in German) about the Conflict of Laws developments in Germany of the last twelve months, covering more or less the year 2024 and the last months of 2023. I thought it would be interesting for the readers of this blog to get an overview over those topics that seem to be most trending.

The article focuses on the following topics:

1. Restitution of Money lost in Illegal Gambling
2. Applicable Law in the Dieselgate litigation
3. The (Non-)Valitidy of Online Marriages
4. New German conflict-of-law rules regarding gender afiliation / identity
5. Reforms in international name law

I will start in this post with the two first areas that are mainly dealing with questions of Rome I and Rome II while in my follow-up post I will focus on the three areas that are not harmonized by EU law (yet) and are mainly questions of family law.

This is not a resumen of the original article as it contains a very detailed analysis of sometimes very specific questions of German PIL. I do not want to bore the readers of this blog with those specificities. Those interested in knowing those details can find the article here (no free access).

I would be really curious to hear whether these or similar cases are also moving courts in other jurisdictions and how courts deal with them. So, please write me via mail or in the comments to the post if you have similar or very different experiences on those cases.

Part 1 – Illegal Gambling and “Volkswagen”

I will start with the two areas that are mainly questions of Rome I and Rome II while in my follow-up post I will focus on the three areas that are not harmonized by EU law (yet) and are mainly questions of family law.

1. Restitution of Money lost in Illegal Gambling

Cases involving the recovery of money lost to illegal online gambling are being heard in courts across Germany and probably across Europe. Usually the cases are as follows: A German consumer visits a website offering online gambling. These websites are in German and offer German support by phone or email with German phone numbers etc. However, the provider is based in Malta or – mainly before Brexit – Gibraltar. After becoming a member, the consumer has to open a bank account with the provider. He transfers money from his (German) account to the account in Malta and uses money from the latter account to buy coins to gamble. In Germany, in order to offer online gambling, you need a licence under German law. The operators in these cases are usually licensed under Maltese law but not under German law.

• In terms of applicable law, Rome I and Rome II are fairly straightforward. Since the question in this case is whether the plaintiff can claim the return of money lost on the basis of an illegal and therefore void contract, Rome I is applicable as it also governs claims arising from contracts that are ineffective or of doubtful validity. It is therefore irrelevant that German law would provide for restitution on the basis of unjust enrichment (Leistungskondiktion), which generally is a non-contractual obligation that falls within the scope of Rome II. As we have a consumer and a professional, Article 6 Rome I has to be applied. As I described the case above, there are also little doubts that the website is (also) directed to Germany and therefore German law as the country of the habitual residence of the consumer applies. To this conclusion came, e.g. the German BGH, but also the Austrian OGH.
• The application of German law leads to the invalidity of the contract pursuant to sec. 134 BGB, which declares a contract null and void if it violates a law that prohibits that contract. In order to determine whether the law prohibits this concrete gaming contract, the question arises as to the geographical scope of the prohibition on offering gambling/casino contracts without a German licence. As this prohibition is based on German public law, it is limited to gambling/casino games that take place on German territory. So far, German courts have applied the German prohibition in cases where the consumer was in Germany when playing. One court (LG Stuttgart, 11.9.2024 – 27 O 137/23, 18.09.2024 – 27 O 176/23) even considered it sufficient if the consumer was in Germany when opening the bank account with the gaming provider from which the money was then transferred to the games. The court ruled that it did not matter whether the consumer played from Germany, whether the provider was located abroad or whether the bank account from which the money was finally transferred to the game was located in another country. It appears that Austrian courts have similar cases to decide, but see this point differently, the Austrian OGH decided that the Austrian rules prohibiting unlicensed gambling are limited to providers based in Austria.
• As you probably know, the Austrian OGH made a request to the CJEU to determine the place of the damage (Article 4 para. 1 Rome II) in a case where the consumer/player transfers the money from the local bank account to the account of the Bank in Malta and then makes payments from this second bank account. So far, German courts were hesitant to take this road. The way over unjust enrichment resulting from a invalid contract has the charming effect that you do not have to apply Rome II’s general tort rule (Article 4 para. 1 Rome II) and dive into the discussion how to determine the place of economic damages. Under German law, however, Rome II may be relevant in cases where the claim is not based on unjust enrichment but on intentional damage inflicted in a manner offending common decency (vorsätzliche sittenwidrige Schädigung), a special offence which is more difficult to prove (sec. 826 BGB). In some few cases, where sec. 826 was in question, courts still did try to avoid the discussion how to locate this economic loss. One simply applied the law of the place of the habitual residence of the consumer/gamer as the play from which the transfer from the first bank account was effected (OLG Karlsruhe 22.12.2023 – 19 U 7/23; 19.12.2023 – 19 U 14/23). Other courts avoided the discussion altogether by applying Article 4 para. 3 Rome II directly – leading to an accessory connection to the law applied to the gambling contract (LG Hagen, 5.10.2023).

One footnote to the whole scenario: There is a case pending at the CJEU that might make the whole discussion superfluous (Case C-440/23). The German practice of distributing gambling licences might be classified as unlawful under EU law at least for some older cases. The question by the CJEU to be decided is whether this results in a ban on reclaiming losses from this gambling.

2. Place of Damage in Volkswagen Cases

The Volkswagen emission scandal cases, in German dubbed “Dieselgate”, are about claims for damages that end customers are asserting against Volkswagen (or other vehicle manufacturers). The damage is that they bought a car with a manipulated defeat device which, under certain conditions of the type-approval test, resulted in lower emissions than in normal operation. As a result, vehicles with higher emissions than permitted were registered and marketed. Volkswagen is currently being sued throughout Europe. Most cases are initiated by consumers who did not buy directly from the manufacturer but through a local dealer, so there is no direct contractual link. As German law is in some respects restrictive in awarding damages to final consumers, it seems to be a strategy of Volkswagen to come to German law.

• Rome I: As far as Volkswagen argued that there is an implicit contract between Volkswagen and the end consumer resulting from a warranty contract in case with a Spanish end buyer, a German court did not follow that argument or at least came to the conclusion that this is a question of Spanish law as such a warranty contract would have to be characterized as a consumer contract in the sense of Article 6 para. 1 Rome I Regulation (LG Ingolstadt 27.10.2023 – 81 O 3625/19)
• In general  German courts apply Article 4 para. 1 Rome II and determine the law of the damage following the CJEU decision in VKI  and MA v FCA Italy SpA: The place of damage is where the damaging contract is concluded or, in case the places are different, where the vehicle in question is handed over. The BGH (and lower instance courts, e.g. OLG Dresden, 07.11.2023 – 4 U 1712/22 – not free available online) followed that reasoning. One court had to consider whether, instead, Article 7 Rome II Regulation (environmental damages) would be applicable, as the increased emissions would also damage the environment. The LG Ingolstadt did not follow that line of argument, as the damage claimed in the concrete case was a pure economic loss, not an environmental damage.

What are your thoughts? How do courts treat these cases in your jurisdictions (I guess there are many cases as well)? Do you have different or similar issues in discussion?

 

Stay tuned for the second part of this article which will move to trending topics in family law…

The EAPIL’s Young Research Network has just launched its fifth research project, which is being led by Mathilde Codazzi, Paul Eichmüller and Marco Pasqua. The project will focus on the national rules governing the law applicable to non-contractual obligations arising out of privacy and personality rights. The aim of the project is to enable a […]

La Cour européenne des droits de l’homme avait commencé l’année 2024 au petit trot avec seulement une petite cinquantaine d’arrêts et décisions exclusivement de chambres rendus en janvier et février. En 2025, elle est partie au galop puisqu’au cours des deux premiers mois elle en a produit presque le double. Même si elle ne compte aucun arrêt de grande chambre, la première série bimestrielle de l’année est particulièrement riche. Certaines affaires françaises relatives au devoir conjugal ou au décès de l’opposant à la construction du barrage de Sivens Rémi Fraisse marqueront probablement l’année. D’autres, venues d’ailleurs, se détacheront sans doute aussi : le premier arrêt-pilote environnemental ; les arrêts stigmatisant les cas les plus sordides de viols et d’abus sexuels ; celui admettant la condamnation de syndicalistes pour entrave méchante à la circulation routière ; celui dénonçant la violation des droits d’opposants russes à la guerre d’Ukraine ou la décision écartant l’ouverture d’un nouveau débat sur l’indépendance de la Catalogne. 

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You are invited to the third meeting of Migration Talks organized by the Jean Monnet Chair in Legal Aspects of Migration Management in the European Union and in Türkiye.

Speaker: Prof. Dr. Laura Carballo Piñeiro, Chair of Private International Law, Dean, Faculty of International Relations, University of Vigo

Title: Migrant Workers and Social Security Rights across Borders: a Right or a Privilege?

Date and Time: Wednesday, March 19, 2024, 10.30 a.m. -11.30 a.m. (CET)

Location: via Zoom (The link shall be provided upon request: migration@bilkent.edu.tr)

Abstract

Access to social security is a human right that only a quarter of the world population enjoy. Such an access is particularly challenging for workers who cross national borders, as they may not get access to a national scheme, get access only in a limited way compared to other national or resident workers in the country, be obliged to contribute to more than one system, or not benefit from a system to which had previously contributed due to relocation to their home country or a third country. State coordination in these matters is thus of the essence, in particular to ensure that contributions are only paid to one system at a time, aggregation and maintenance of acquired rights for those workers that are in the course of acquisition, and portability of benefits. Even in a coordinated scenario, legal divergence across countries might further complicate access to benefits. For example, the funding of a benefit by taxes and not contributions might automatically exclude posted workers from their enjoyment. The EU Social Security Coordination Regulation will be used in the presentation to address these principles, the challenges faced by States and social partners in their enforcement, and tools developed to address them. Outside this privileged area, coordination relies on a complex, but insufficient network of treaties which very much focus on the role of receiving countries. As the movement of workers increases, more attention should be paid to the role of sending States by researching the interplay between social protection and migrant studies.

 

By Yuchen Li, a PhD student at Wuhan University.

A. Introduction

An asymmetric choice of court agreement is commonly used in international commercial transactions, especially in financial agreements, which usually allows one party (option holder) an optional choice about the forum in which proceedings may be brought but the other (non-option holder) an exclusive choice to sue in a designated court.[1] A typical example is as follows:

 ‘(A) The courts of England have exclusive jurisdiction to settle any disputes ….

(B) The Parties agree that the courts of England are the most appropriate and convenient courts … to settle Disputes and accordingly no Party will argue to the contrary.

(C) This Clause is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.’ [2]

In recent years, issues concerning asymmetric choice of court agreements have been controversial in cases within some jurisdictions.[3] Despite the significant amount of research on asymmetric choice of court agreements, little attention has been paid to Chinese stance on this topic. With Chinese private parties actively engaging in international transactions, Chinese attitude towards such clauses is important for commercial parties and academic researchers. This article gives a glimpse of how Chinese courts handle asymmetric choice of court agreements in international and commercial civil litigations.[4]

B. Characterization

Chinese courts have demonstrated mainly four different views in characterizing asymmetric choice of court agreements.

Firstly, some courts classify this kind of agreement as asymmetric jurisdiction agreements.[5] In Hang Seng Bank Ltd. v. Shanghai Tiancheng Storage Co., Ltd. & Lin Jianhua, Shanghai Financial Court reasoned that a jurisdiction clause which allows one party to sue in multiple jurisdictions and requires the other to only bring the dispute to a specific jurisdiction should be characterized as an asymmetric jurisdiction clause.[6]

Second, several courts characterize the agreement as non-exclusive jurisdiction clause.[7] In Hwabao Trust Co., Ltd. v. Xiao Zhiyong, Shanghai High People’s Court observed that, according to the jurisdiction clause in issue, the option holder could either choose to initiate proceedings in the designated court or other competent courts, hence the clause is non-exclusive.[8]

Thirdly, it is notable that in GOOD VANTAGE SHIPPING LIMITED v. Chen Fuxiang et al, Xiamen Maritime Court classified the disputed clause as an ‘asymmetric exclusive jurisdiction clause’. The court held that, under the disputed clause, only when the option holder chooses to take the proceedings in the designated court will that court have exclusive jurisdiction, but this does not exclude the right of the option holder to sue in other competent courts.[9]

Last, a number of cases overlook the particularity of asymmetric choice of courts agreements and broadly classify them as jurisdiction agreements.[10]

C. Choice of Law

Most Chinese courts tend to apply lex fori on the effectiveness of asymmetric choice of court agreements. Relying on Article 270 of Chinese Civil Procedure Law (hereinafter referred to as ‘CPL’) which provides that this Law applies to foreign-related civil actions within PRC,[11] Chinese courts normally take the view that the ascertainment of jurisdiction is a procedural matter and apply lex fori.[12]

D. Effectiveness

a. Validity

By far, the validity of asymmetric choice of court agreements has not been addressed by Chinese legislation. However, in 2022, the Supreme People’s Court of PRC (hereinafter referred to as ‘SPC’) issued Summary of National Symposium on Foreign-Related Commercial and Maritime Trials of Courts (hereinafter referred to as ‘the Summary’). The Summary regulates that unless an asymmetric choice of court agreement involves the rights and interests of consumers and workers or violates CPL’s provisions on exclusive jurisdiction, the people’s court should reject the parties’ claim that the agreement is invalid on the ground of unconscionability. Although the Summary is not an official source of law, it serves as an important reference and guideline for courts in the absence of legislation.

Chinese courts generally support the view that an asymmetric choice of court agreement will not be deemed invalid for its asymmetry. The validity of such an agreement is commonly upheld for three reasons. First, such an agreement itself is not contrary to Chinese law.[13] In Winwin International Strategic Investment Funds Spc v. Chen Fanglin, Fujian High People’s court held that such a clause does not violate CPL and recognized its validity. [14] Second, party autonomy in civil and commercial litigations should be protected.[15] In Sun Jichuan v. Chen Jianbao, Beijing Fourth Intermediate People’s Court pointed out that CPL allows parties to a contract the right to select the court by agreement, which reflects party autonomy in civil procedure law. The aim of protecting this right is to safeguard that both parties are treated equally by the court, but this does not mean they have to choose the exact same court. As a result, a choice of court agreement is valid so long as it does not violate mandatory rules and expresses the true intention of the parties.[16] Third, it is necessary to mention that in a domestic case where the validity of an asymmetric choice of court clause in a loan contract is in dispute, Pudong New Area People’s Court of Shanghai analyzed the positions of both the borrower (non-option holder) and the bank (option holder) and concluded that the borrower’s position under an asymmetric jurisdiction clause is no weaker than under an exclusive one.[17]

In a small number of cases, Chinese courts refuse to recognize the validity of standard asymmetric choice of court agreements for violating specific rules of standard clause under Chinese law.[18] In Picc Xiamen Branch v. A.P. Moller – Maersk A/S, Zhejiang High People’s Court ruled that the disputed standard jurisdiction clause in the Bill of Lading lacks explicit, obvious forms to distinguish from other clauses, and the carrier (option holder) failed to establish that the jurisdiction clause had been negotiated with or given full notice and explanation to the shipper (non-option holder).[19] Therefore, if the drafting party fails to prompt or explain the standard asymmetric choice of court agreement to the other party, Chinese court may consider that this clause fails to represent the true intention of the parties and determine that the clause does not constitute a part of the contract.[20]

b. Effects

An asymmetric choice of court agreement has different effects upon option holder and non-option holder. For the non-option holder, the jurisdiction clause has an exclusive effect, restricting the party to taking the proceedings to the designated court only.[21]

As for the option holder, Chinese courts have two different explanations. On the one hand, an asymmetric choice of court agreement has both exclusive and non-exclusive effects on the option holder. While the designated court has exclusive jurisdiction when the option holder brings the case to the designated court, the option holder could also choose to sue the non-option holder in other competent courts.[22] On the other hand, some courts analyze that, apart from the designated court, the option holder could also sue in other competent courts, hence the clause is non-exclusive for the option holder. [23]

E. Construction

In Bank of Communications Trustee Ltd. v. China Energy Reserve and Chemicals Group Company Ltd., whether the jurisdiction clause in a guarantee agreement is an asymmetric one is in dispute. The clause provides:

The guarantor agrees (i) for the benefit of the trustee and bondholder, the courts of Hong Kong have exclusive jurisdiction to settle any disputes arising out of or relating to this Guarantee Agreement; (ii) the courts of Hong Kong are the most appropriate and convenient courts; and (iii) as a result, the guarantor will not argue that other courts are more appropriate or more convenient to accept service of process on its behalf.[24]

The SPC established that, when determining whether the parties’ agreement constitutes an asymmetric jurisdiction clause, the people’s court should construe the parties’ intention in a strict manner. The wording of the asymmetric choice of court clause should be clear and precise. The court reasoned as follows:

In general, contractual parties share equal rights and obligations, and therefore their rights regarding jurisdiction of litigation should also be equal. For this reason, their right to select a court should be the same unless the parties specifically agree otherwise. Under the principle of disposition of procedural rights, parties are allowed to agree on an asymmetric jurisdiction clause whereby one party’s right to choose the court is restricted while the other party is not. An asymmetric jurisdiction clause constitutes a significant, exceptional restriction on one party’s procedural rights, which should be determined through the parties’ clear and explicit intention. Otherwise, unequal or unfair rights and obligations shall not be presumed.[25]

Therefore, the SPC decided that the disputed jurisdiction clause is not an asymmetric one because it only highlights the exclusive jurisdiction of Hong Kong courts and doesn’t specify that the guarantee has the right to bring the proceedings to other competent courts.

F. Conclusion

It seems that Chinese courts take a liberal stance on asymmetric choice of court agreements, showing their respect to party autonomy and freedom to contract in international civil and commercial jurisdiction. In 2024, reviewed and approved by the SPC, two cases[26] recognizing the validity of asymmetric choice of court agreements are incorporated into the People’s Court Case Database as reference cases.[27] What’s more, as has been mentioned before, the Summary recognizes the validity of asymmetric choice of court agreements based on the assumption that those agreements are compatible with CPL’s provisions on exclusive jurisdiction or do not infringe certain weaker parties’ interests. Asymmetric choice of court agreements are ubiquitous in international civil and commercial contracts, especially in international financial contracts. Chinese courts are adapting to the development trends of international commercial practice and are getting prepared to deal with complicated civil and commercial disputes.

Nonetheless, there is still a long journey to go for Chinese courts to establish a sophisticated mechanism to handle such agreements. As for now, Chinese judicial practice regarding asymmetric choice of court agreements remains inconsistent. Additionally, most cases only involve simple disputes concerning whether Chinese courts have jurisdiction under such agreements. Things may get really complicated when other mechanisms in international civil procedure like lis pendens rule apply to such agreements. A proper solution to those issues relies on a unified and nuanced standard for courts to apply. Whether there will be a judicial interpretation or legislation regarding asymmetric choice of court agreements, and how Chinese courts will handle complex disputes related to such agreements remain to be observed in the future.

For practitioners, it is noteworthy that Chinese courts tend to apply lex fori on asymmetric choice of court agreements. The asymmetric nature of the jurisdiction clause should be precisely and clearly expressed. Additionally, if the asymmetric choice of court agreement is a standard one, under the Civil Code of PRC, it is suggested that the drafting party, when concluding a contract, should prompt the jurisdiction clause through conspicuous indicators such as distinctive words, symbols, or fonts that are sufficient to bring the clause to the other party’s attention. Upon the other party’s request, the drafting party should also fully explain the jurisdiction clause to the other party.

 

[1] See Mary Keyes and Brooke Adele Marshall, ‘Jurisdiction agreements: Exclusive, Optional and Asymmetrical’ (2015) 11 Journal of Private International Law 345, 349.

[2] See Louise Merrett, ‘The Future Enforcement of Asymmetric Jurisdiction Agreements’ (2018) 67 International and Comparative Law Quarterly 37, 40-41.

[3] See e.g., Ms X v. Banque Privee Edmond de Rothschild Europe (Societe), French Cour de cassation (Supreme Court) (First Civil Chamber) September 2012, Case 11-26.022, Commerzbank Aktiengesellschaft v Pauline Shipping Limited and Liquimar Tankers Management Inc [2017] EWHC 161 (Comm).

[4] Although asymmetric choice of court agreements may take various forms, the typical example abovementioned in note 2 is the most common type in practice. Therefore, asymmetric choice of court agreements in this article only refer to agreements under which one party may bring proceedings only in the chosen court but the other party may bring proceedings in other courts as well. See Brooke Marshall, Asymmetric Jurisdiction Clauses, (Oxford University Press 2023) 17; Trevor Hartley & Masato Dogauchi, Explanatory Report on the Convention of 30 June 2005 on Choice of Court Agreements (HCCH Publications 2013) 85.

[5] See Hang Seng Bank Ltd. v. Shanghai Tiancheng Storage Co., Ltd. & Lin Jianhua, (2019) Hu 74 Min Chu 127 Hao [(2019)?74??127?]; Sun Jichuan v. Chen Jianbao, (2021) Jing Min Xia Zhong 76 Hao [(2021)????76?]; XYZ Co. v. Chen & Su, (2022) Lu Min Zhong 567 Hao [(2022)???567?].

[6] See Hang Seng Bank Ltd. v. Shanghai Tiancheng Storage Co. Ltd. & Lin Jianhua, (2019) Hu 74 Min Chu 127 Hao [(2019)?74??127?], paras. 94.

[7] See DBS Bank (Hong Kong) Limited v. Forward (Zhaoqing) Semiconductor Co., Ltd. et al, (2011) Yue Gao Fa Li Min Zhong Zi Di 82 Hao [(2011)????????82?]; Suen Kawi Kam v China Dragon Select Growth Fund, (2019) Jing Min Xia Zhong 279 Hao [(2019)????279?]; Hwabao Trust Co., Ltd. v. Xiao Zhiyong, (2021) Hu Min Xia Zhong 60 Hao [(2021)????60?].

[8] See Hwabao Trust Co., Ltd. v. Xiao Zhiyong, (2021) Hu Min Xia Zhong 60 Hao [(2021)????60?], para. 10.

[9] See GOOD VANTAGE SHIPPING LIMITED v. Chen Fuxiang et al, (2020) Min 72 Min Chu 239 Hao [(2020)?72??239?], paras. 13, 15.

[10] See Beijing Huahai Machinery Co., Ltd. v. KAMAT GmbH & Co. KG, (2017) Jing 02 Min Zhong 4019 Hao [(2017)?02??4019?]; Winwin International Strategic Investment Funds Spc v. Chen Fanglin, (2019) Min Min Xia Zhong 151 Hao [(2019)????151?]; Antwerp Diamond Bank v. Weinstock Michel, (2013) Yue Gao Fa Li Min Zhong Zi Di 467 Hao [(2013)????????467?]; Guosen Securities (Hong Kong) Financial Holdings Co., Ltd v. Yunnan Zhongyuan Industrial Group Co., Ltd. et al, (2017) Zui Gao Fa Min Xia Zhong 423 Hao [(2017)??????423?]; Picc Xiamen Branch v. A.P. Moller – Maersk A/S, (2017) Zhe Min Xia Zhong 119 Hao [(2017)????119?]; Zhu Yuquan v. AxiCorp Financial Services Pty Ltd, (2021) Jing Min Zhong 893 Hao [(2021)???893?].

[11] Article 270 of CPL provides: ‘This Part (Part 4 of CPL, Special Provisions on Foreign-Related Civil Procedures) shall apply to foreign-related civil actions within the People’s Republic of China. For issues not addressed in this Part, other provisions of this Law shall apply.’

[12] See Antwerp Diamond Bank v. Weinstock Michel, (2013) Yue Gao Fa Li Min Zhong Zi Di 467 Hao [(2013)????????467?]; Suen Kawi Kam v. China Dragon Select Growth Fund, (2019) Jing Min Xia Zhong 279 Hao [(2019)????279?]; GOOD VANTAGE SHIPPING LIMITED v. Chen Fuxiang et al, (2020) Min 72 Min Chu 239 Hao [(2020)?72??239?]; Hwabao Trust Co., Ltd. v. Xiao Zhiyong, (2021) Hu Min Xia Zhong 60 Hao [(2021)????60?]; Guosen Securities (Hong Kong) Financial Holdings Co., Ltd v. Yunnan Zhongyuan Industrial Group Co., Ltd. et al, (2017) Zui Gao Fa Min Xia Zhong 423 Hao [(2017)??????423?]; Picc Xiamen Branch v. A.P. Moller – Maersk A/S, (2017) Zhe Min Xia Zhong 119 Hao [(2017)????119?]; Zhu Yuquan v. AxiCorp Financial Services Pty Ltd, (2021) Jing Min Zhong 893 Hao [(2021)???893?].

[13] See e.g. Sun Jichuan v. Chen Jianbao, (2021) Jing Min Xia Zhong 76 Hao [(2021)????76?]; XYZ Co. v. Chen & Su, (2022) Lu Min Zhong 567 Hao [(2022)???567?]; GOOD VANTAGE SHIPPING LIMITED v. Chen Fuxiang et al, (2020) Min 72 Min Chu 239 Hao [(2020)?72??239?]; Zhu Yuquan v. AxiCorp Financial Services Pty Ltd, (2021) Jing Min Zhong 893 Hao [(2021)???893?].

[14] See Winwin International Strategic Investment Funds Spc v. Chen Fanglin, (2019) Min Min Xia Zhong 151 Hao [(2019)????151?], para. 2.

[15] See Antwerp Diamond Bank v. Weinstock Michel, (2013) Yue Gao Fa Li Min Zhong Zi Di 467 Hao [(2013)????????467?]; Sun Jichuan v. Chen Jianbao, (2021) Jing Min Xia Zhong 76 Hao [(2021)????76?].

[16] See Sun Jichuan v. Chen Jianbao, (2021) Jing Min Xia Zhong 76 Hao [(2021)????76?], para. 15.

[17] ‘On the one hand, the borrower’s exclusive choice could facilitate the enforcement of judgements. On the other hand, the bank’s right to choose the competent court could reduce commercial costs, which will eventually benefit ordinary clients (including the borrower). In this sense, the borrower’s position is no weaker than under an exclusive jurisdiction clause.’ See Bank of Tianjin CO., LTD. Shanghai Branch v. Gong Chongfang et al, (2022) Hu 0115 Min Chu 87551 Hao [(2022)?0115??87551?], para. 7.

[18] See Shaoxing Haoyi Trading Co., Ltd. v. GMA-CDMS et al, (2016) Zhe Min Xia Zhong [(2016)????294?]; Picc Xiamen Branch v. A.P. Moller – Maersk A/S, (2017) Zhe Min Xia Zhong 119 Hao [(2017)????119?].

[19] See Picc Xiamen Branch v. A.P. Moller – Maersk A/S, (2017) Zhe Min Xia Zhong 119 Hao [(2017)????119?], para. 10.

[20] Article 496, paragraph 2 of the Civil Code of PRC provides: ‘Upon concluding a contract, where a standard clause is used, the party providing the standard clause shall determine the parties’ rights and obligations in compliance with the principle of fairness, and shall, in a reasonable manner, call the other party’s attention to the clause concerning the other party’s major interests and concerns, such as a clause that exempts or alleviates the liability of the party providing the standard clause, and give explanations of such clause upon request of the other party. Where the party providing the standard clause fails to perform the aforementioned obligation of calling attention or giving explanations, thus resulting in the other party’s failure to pay attention to or understand the clause concerning its major interests and concerns, the other party may claim that such clause does not become part of the contract.’ See Civil Code of the People’s Republic of China, The State Council of the People’s Republic of China, https://english.www.gov.cn/archive/lawsregulations/202012/31/content_WS5fedad98c6d0f72576943005.html, visited on 10th March, 2025.

[21] See Sun Jichuan v. Chen Jianbao, (2021) Jing Min Xia Zhong 76 Hao [(2021)????76?].

[22] See Winwin International Strategic Investment Funds Spc v. Chen Fanglin, (2019) Min Min Xia Zhong 151 Hao [(2019)????151?]; GOOD VANTAGE SHIPPING LIMITED v. Chen Fuxiang et al, (2020) Min 72 Min Chu 239 Hao [(2020)?72??239?].

[23] See Suen Kawi Kam v. China Dragon Select Growth Fund, (2019) Jing Min Xia Zhong 279 Hao [(2019)????279?]; Hwabao Trust Co., Ltd. v. Xiao Zhiyong, (2021) Hu Min Xia Zhong 60 Hao [(2021)????60?].

[24] See Bank of Communications Trustee Ltd. v. China Energy Reserve and Chemicals Group Company Ltd., (2021) Zui Gao Fa Min Zai 277 Hao [(2021)?????277?], para. 25.

[25] See Bank of Communications Trustee Ltd. v. China Energy Reserve and Chemicals Group Company Ltd., (2021) Zui Gao Fa Min Zai 277 Hao [(2021)?????277?], para. 26.

[26] See Bank of Communications Trustee Ltd. v. China Energy Reserve and Chemicals Group Company Ltd., (2021) Zui Gao Fa Min Zai 277 Hao [(2021)?????277?]; XYZ Co. v. Chen & Su, (2022) Lu Min Zhong 567 Hao [(2022)???567?].

[27] According to Article 19 of Procedures for the Construction and Operation of the People’s Court Case Database, the people’s courts should refer to similar cases of the Database when hearing cases. However, this reference may not be used as a basis of the adjudication. See Susan Finder, Update on the People’s Court Case Database, Supreme People’s Court Monitor, https://supremepeoplescourtmonitor.com/2024/12/, visited on 26th February 2025.

Limitation period of the enforcement of a UK judgment in Greece

A judgment issued by the Division of Maritime Disputes of the Piraeus first instance court at the end of last year [nr. 3400/2024, unreported] was confronted with an issue which seldomly appears before Greek courts.

The issue raised before the Piraeus Court of First Instance, in the context of Regulation 44/01, was the following: Is it permissible to revoke the recognition of a foreign (English) judgment (order) that  was declared  enforceable in Greece, when allegedly it is no longer enforceable in the State of origin?

The court approached the case from three perspectives:

Firstly, it clarified that a decision of the Supreme Court issued five years ago [Areios Pagos nr. 767/2019], allowing the revocation of the enforceability of a foreign judgment under similar circumstances according to Greek law, cannot be considered as relevant precedent, because it concerned a US judgment, and not a decision of an EU Member State court of law.

It then examined and highlighted the relevant jurisprudence of the CJEU, which ratione materiae resembles to the dispute at issue, i.e., under the Brussels I regime. It stressed that revocation of enforceability under Reg. 44/01 is strictly allowed for specified grounds only, with the case at hand, i.e., loss of enforceability in the state of origin, not being such a ground. The party against whom enforcement is sought in the executing Member State, could raise such a ground, only in the context of enforcement proceedings in the executing state, the court clarified.

Finally, it went into a detailed analysis and reference to the defences against enforcement under English law, focusing on the provisions of the UK Civil Procedure Rules and the Limitation Act, and identifying relevant case law of the English courts. Relevantly, the Piraeus court rejected in substance the arguments raised by the applicants, noting that under English law the judgment of the English court at hand had not lost its enforceability in principle, but rather that special conditions must be met for enforcement in UK to be authorised (i.e., existence of property there, not previously found). Juxtaposing English and Greek law, the Piraeus court made the distinction of enforceability of judgments and the existence of additional modalities, procedures or preconditions that must be fulfilled for enforcement proceedings to take place.

This is one of the rare decisions published by Greek courts, which demonstrates the potential complexity of the subject matter under the Brussels I Regulation, which reappears sporadically, although it gave way to Regulation 1215/2012 some ten years ago.

The specificity of the case lies in the distinctive time of its occurrence: the ground of refusal did not occur at one of the exequatur stages [application to declare enforceability, appeal, second appeal], but much later, when the remedies under Brussels I before the courts of the state of execution have been unsuccessfully exhausted by the debtor.

The likelihood of similar situations occurring under the current regime of Regulation Brussels I bis is scarce. In this case, the judgment debtor is left with either the opposition (stay of execution) under Article 933 of the Greek Code of Civil Procedure, or the filing of a negative declaratory action, in case the enforcement procedure has not been initiated by the judgment creditor.

Finally, let us not forget that the United Kingdom has left the European Union, and, for the time being, there is no direct commencement of enforcement in Greek territory, such as the model of Regulation nr. 1215/2012, not even the previous system of exequatur under EU Regulation nr. 44/2001. A new corridor is expected to open later this year, given that the UK has ratified the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

For further reading on the issue, see Requejo-Isidro(-Chiapponi), Brussels I bis, A Commentary on Regulation (EU) 1215/2012 (2022), Art. 41, nos. 41.22 et seq, Althammer, in: Simons/Hausmann, Brussels I Regulation – Kommentar zur VO (?G) 44/2001 und zum Übereinkommen von Lugano, Unalex Kommentar (2012), Art. 38, nos. 26 & 29); Geimer/Schütze, Europäisches Zivilverfahrensrecht (3rd ed., 2010), Art. 41, no. 44 et seq.

Hot off the press and published in the Cambridge Law Journal, the article “The Inference of Similarity,” written by Marcus Teo, delves into the intricacies of what has traditionally been referred to as the “presumption of similarity” in English legal proceedings. Teo’s work challenges the conventional understanding of this presumption, arguing that it should be seen not as a true presumption but rather as an inference that courts can draw under certain circumstances.

Teo begins by outlining the challenges litigants who wish to rely on foreign law in English courts face. They must first demonstrate that the relevant choice-of-law rule selects the foreign law as applicable and then prove that the foreign law supports their claim or defence. This task is often complicated by the patchy or vague nature of foreign law evidence, leading courts to apply what has been termed a “presumption of similarity”—the idea that foreign law is presumed similar to English law when not sufficiently proven.

However, Teo argues that this “presumption” is misleading. The paper contends that it should not be understood as a true presumption but rather as an inference that courts can draw when there is reliable evidence to suggest that English and foreign courts would render similar rulings on the same facts. This distinction is crucial because a true presumption would be unprincipled, lacking the justifications of logic, convenience, and policy that support other legal presumptions.

Teo’s paper further explores the nature of legal presumptions and inferences, providing a detailed analysis of how they function within the legal system. He explains that legal presumptions are meant to facilitate practical reasoning in situations of evidential uncertainty, allowing courts to proceed “as if” a presumed fact exists until contrary evidence is presented. In contrast, inferences are conclusions drawn from sufficient evidence, representing an actual belief that the inferred fact exists.

The paper also addresses the implications of understanding the “presumption of similarity” as an inference rather than a true presumption. Teo argues that this understanding resolves various controversies surrounding its use in civil proceedings and does not render the proof of foreign law unpredictable or inconvenient in practice. The author emphasises that courts should aim to replicate the ruling a foreign court would render on similar facts, and when English law reflects a shared tradition or universal ethos, this may be enough to infer that a foreign court would render a similar ruling.

Teo’s insights have significant doctrinal implications, particularly in cases where foreign law is partially proven. He explains that when a party has proven only part of the foreign law, the inference of similarity can still be drawn if the court can reliably conclude that the foreign court would likely render a ruling similar to English law’s. This approach prevents parties from using the presumption as a tactical move to fill gaps in their foreign law evidence.

Marcus Teo’s paper offers a fresh perspective on the “presumption of similarity” in English law, advocating for a more nuanced understanding of it as an inference. This shift in perspective not only clarifies the role of foreign law in English courts but also ensures that the application of foreign law aligns with the substantive values underlying choice-of-law rules. As legal scholars and practitioners continue to grapple with the complexities of foreign law, Teo’s work provides a valuable framework for navigating these challenges.

For those interested, the article may be found here!

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. Since 2024, RabelsZ has been an open access publication, with all articles freely available to readers online. The focal point of the first issue of 2025 is international and comparative family law, with contributions critically examining the interactions between […]

En vertu des dispositions de l’article 18 du règlement (UE) n° 2015/848 du 20 mai 2015 relatif aux procédures d’insolvabilité ainsi que des principes édictés en droit français par les articles L. 622-21, I (arrêt des poursuites individuelles) et L. 622-22 du code de commerce (interruption des instances en cours), l’instance en cours en France est interrompue en cas d’ouverture d’une procédure d’insolvabilité sur le territoire d’un autre État membre. Sa reprise demeure subordonnée à la déclaration de la créance du créancier poursuivant au passif de la procédure d’insolvabilité étrangère. L’instance ainsi reprise ne peut alors tendre qu’à la fixation du montant de la créance.

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Audience solennelle d'éloges funèbres à la mémoire de M. Uno Lõhmus et de Mme Ena Cremona

Deldits
Principes du droit communautaire
RGPD et transidentité : la rectification de données relatives à l’identité de genre ne peut être subordonnée à la preuve d’un traitement chirurgical

Shuvalov / Conseil
Relations extérieures
Guerre en Ukraine : la Cour de justice confirme les mesures restrictives adoptées contre M. Igor Shuvalov, ancien vice-Premier ministre du gouvernement russe

Louise Ellen Teitz (Roger Williams University School of Law) has posted Harmonizing Private International Law and International Private Law Through Softlaw on SSRN. The abstract of the article, a homage to Symeon Symeonides and set to be published in the Willamette Law Review, reads as follows: This article, prepared for a celebration of the career […]

La Cour européenne des droits de l’homme a conclu à la violation de l’article 2 de la Convention européenne (droit à la vie) dans son volet matériel à la suite du décès de Rémi Fraisse lors des opérations de maintien de l’ordre sur le site de Sivens.

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ConflictofLaws.net is happy to announce Saloni Khanderia from Jindal Global Law School as our new General Editor. Saloni joined the blog’s Editorial Board in 2019 and has been an active contributor ever since. She takes over from Jeanne Huang (University of Sydney) and will serve as the blog’s General Editor together with Tobias Lutzi (University of Augsburg).

The Editorial Board is indebted to Jeanne for her over two years of service as General Editor. During her tenure, important changes have been implemented regarding the blog’s operation, including the redesign of our frontpage with the new calendar feature. At the same time, our community has continued to grow to more than 2,5k subscribers of our e-mail newsletter and 5k followers on LinkedIn. We’re deeply grateful for the time and energy she has dedicated to the blog and are delighted that she will stay on the Editorial Board.

Semedo / Parlement
Statut des fonctionnaires
Plainte pour harcèlement visant une ancienne membre du Parlement européen : le constat de harcèlement et la sanction prononcée par la présidente du Parlement sont annulés, au motif que les droits de la défense n’ont pas été respectés