Droit international général

The Centre for Private International Law & Transnational Governance of the University of Aberdeen is organising a webinar on Cross-Border Protection of Children under the 1996 Hague Child Protection Convention: Practical Perspectives from Contracting States. The event will be held on 30 June & 1 July and is part of a research project led by Professor Katarina Trimmings, which evaluates the effectiveness of the 1996 Hague Child Protection Convention in the UK and other Contracting States. See webinar registration and further details Cross-Border Protection of Children: The 1996 Hague Child Protection Convention | School of Law – University of Aberdeen This research project examines the legal framework for the cross-border protection of children, focusing on the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (‘the 1996 Hague Convention’). www.abdn.ac.uk

Last week (7 June 2025), I had this extraordinary opportunity to give a presentation at the 138th Annual Conference of the Japanese Association of Private International Law, which took place at Seinan Gakuin Daigaku, Fukuoka – Japan. The theme of my presentation was “Private International Law and Colonialism.” In this talk, I shared some preliminary thoughts on a topic that is both extraordinarily rich and complex. The following note offers some initial reflections based on that presentation (with a few adjustments) with the aim of contributing to ongoing discussion and encouraging deeper reflection.

 

Introduction

The relationship between colonialism and law has been the subject of active debate across various fields, including legal anthropology and comparative law. Key themes include the impact of colonial rule on legal systems in colonized regions, the inherently violent nature of colonialism, and the possibilities for decolonization. This relationship has also received particular attention in the field of international law. Numerous studies have examined how colonialism shaped the very structure of the international legal order, as well as the theoretical justifications for its expansion into regions regarded as “non-Western” or “uncivilized.” In contrast, the field of private international law (PIL) has, until now, rarely engaged directly with the theme of colonialism (see however the various previous posts on this blog). To be sure, some studies on the development of PIL in the 19th century or on the asymmetrical treatment of cross-border legal relationships do touch upon issues linked to colonialism. However, these works do not place the relationship between PIL and colonialism at the center of their analysis.

This note proposes to revisit PIL in light of its historical relationship with colonialism. It aims to explore the ways in which PIL was developed in a context shaped by deep legal and political inequalities, and to consider how this context informed both the theory and practice of the field. It also aims to highlight the complex role that PIL has played historically, not only as a framework that contributed to the stabilization of unequal relations, but also as an instrument that certain states used to affirm their legal and political autonomy.

 

I. Why Colonialism Matters to PIL

To begin with, it is important to understand why examining PIL in light of colonialism is both relevant and necessary.

 

1. Explanatory Value

First, studying the historical links between PIL and colonialism allows us to better understand how the field developed. As is commonly known, PIL claims to rest on the principles of equal sovereignty and neutral legal reasoning. However, this conventional understanding of PIL is incomplete. In reality, PIL particularly developed during a period when global relations were anything but equal. The nineteenth century, which saw the rapid expansion of colonial powers across Asia, Africa, and the Middle East, was also the period during which many of the foundational premises and principles of PIL took shape. Accordingly, while PIL may appear neutral and universal in theory, its development was deeply embedded in a historical context shaped by colonial expansion and domination. This context was characterized, both in law and in practice, by profound asymmetries in power that underpinned the very structures of colonial rule. Understanding this historical backdrop sheds light on how PIL has developed to become the discipline that we know today.

 

2. Inclusiveness and Diversity in Legal Scholarship

Second, analyzing PIL through the lens of colonial history encourages a broader and more inclusive understanding of the field. Traditional narratives have privileged European (Western) legal thought, focusing on figures such as Huber, Story, Savigny, and many others. However, other regions also experienced legal developments that shaped their approaches to cross-border legal issues. It must be admitted that these developments have been often largely overlooked or simply dismissed. Paying attention to these neglected histories can open the way for a richer and more diverse understanding of what PIL is and can be.

 

3. Relevance for Contemporary Practice

Third, reflecting on these issues helps illuminate the traces of these historical patterns that may persist in current legal practices often in a hidden form under “universal” and/or “neutral” approaches. Even today, some assumptions embedded in PIL may reflect older hierarchies. For example, recent tendencies towards lex forism to the detriment of the law that is most closely connected to the case, or the expansive use of public policy or overriding mandatory rules may reproduce asymmetries that have long histories. In some areas, such as the regulation of transnational business and human rights, rules that appear neutral may obscure power relations rooted in earlier eras or based on old-fashioned conceptions. Rather than undermining PIL’s relevance, recognizing the background of such dynamics enables a better adaptation of this field to present realities.

 

II. Scope of Analyses

The focus here is on the traditional form of conflict-of-law issues that arise between “sovereign” states, even though these relations were often marked by legal inequality, as reflected in the structure of colonial domination. It does not deal with the classical question of “colonial conflict of laws” in the strict sense, that is, legal conflicts arising from the coexistence of multiple legal orders within a single political entity composed of the metropole and its colonized territories. Such a “conflict” arose as a result of annexation (such as the annexation of Algeria by France or the acquisition of Taiwan and Korea by Japan) or direct occupation (such as the French occupation of Indochina, or the Dutch occupation of Indonesia). This type of conflicts, despite the similarity they may have with the classical conflict of laws, are more appropriately understood as belonging to the domain of “interpersonal law” or “internal (quasi-)private international law”, or what was sometimes referred to as “inter-racial conflict of laws”.

 

III. The Paradox: Legal Equality vs. Colonial Hierarchy

To understand the relationship between PIL and colonialism, we need to briefly consider their respective characteristics and foundational premises.

PIL, as a legal discipline, is concerned with cross-border private legal relations. It deals with matters such as the jurisdiction of courts, the applicable law in transnational disputes, and the recognition and enforcement of foreign judgments. Its theoretical foundation lies in the idea of sovereign equality and legal neutrality. In this respect, PIL has long been regarded as a technical and neutral discipline providing the rules and mechanisms for resolving private legal disputes involving foreign elements. For much of its development, PIL has maintained an image of formal objectivity and universality, seemingly detached from the political considerations and ideological battles that have shaped other areas of legal thought, although contemporary developments show that this has not always been the case.

Colonialism, on the other hand, rests on the very denial of sovereign equality. Colonialism, broadly defined, refers to systemic domination by one power over another, encompassing political, legal, economic, and cultural dimensions. It creates and institutionalizes structural inequalities between dominating and dominated societies. Colonialism comes in many forms: annexation (e.g., Algeria by France), protectorates (e.g., Tunisia), or semi-colonial arrangements (e.g., Japan, Thailand, Ottman Empire or China under unequal treaties). In this sense, at its core, colonialism was a system of unilateral domination through discourses of civilizational superiority in which one power imposed its authority over another.

Therefore, the fact that PIL, which rests on the idea of sovereign equality, was particularly developed in a colonial context marked inequality and domination, gives rise to a key question: How did PIL, which is premised on equality, coexist with, and arguably help sustain, a global colonial world order defined by legal inequality?

 

IV. The Pre-Colonial Period – From Personality of Law to Legal Hierarchy:

As mentioned above, PIL was shaped and disseminated during the height of colonial expansion in the 19th century. However, before this colonial period, it is worth noting that, in societies with limited external legal interaction (e.g., Tokugawa Japan), PIL was largely absent. In contrast, regions like China or the Ottoman Empire, and even in Europe had systems based on personality of law, where legal norms were tied to an individual’s religion or ethnicity, and disputes involving foreign subjects (usually foreign merchants) administered through forms of consular jurisdiction.

Later, while European countries succeeded in replacing this system with one based on PIL mechanism, the dynamics were quite different under colonial conditions. In places like Japan, the old system of personality of law based on the idea of “extraterritoriality” and “consular jurisdiction” was introduced under foreign pressure, when Japan was effectively forced to abandon its policy of isolation and open up to international commerce within the framework or unequal treaties imposed by Western powers. In regions like the Ottoman Empire and China, this system was not only preserved but exacerbated leading to serious encroachments on legal sovereignty and increasing the dominance of foreign powers over domestic legal and commercial affairs. In all regions, this system was institutionalized by the conclusion of the so-called “capitulations” or “unequal treaties” giving extraterritorial legal and jurisdictional privileges to Western colonial powers, which in some countries has developed to the introduction of foreign courts (e.g. French courts in Tunisia) or mixed courts (e.g. Egypt).

Such an evolution raises an important question: why did European countries, having replaced the system of consular jurisdiction with a PIL-based system among themselves, choose not to apply the same model in their legal dealings with “non-European” countries?

 

V. The “Civilized vs. Uncivilized” Divide

 

1. The Role of PIL in the Formation of the Modern International Order – Asymmetrical treatment based on the notion of “civilization”

In the 19th century, as colonial powers expanded their reach, they also laid the foundations of what became the modern system of international law. Within this framework, the concept of the “family of civilized nations” was used to determine which states could participate in international legal relations on an equal footing, including the application of “private” international law. Legal systems that were seen as having met the standard of “civilization” were granted full recognition under the newly emerged international system. Other states were either excluded or subjected to hierarchical arrangements.

This legal stratification had practical effects. Among “civilized” nations, the principles of PIL (including the applicability of foreign law) applied. But with regard to other nations, these principles were either weakened or suspended. Courts in Europe often refused to recognize laws from countries deemed “non-civilized,” sometimes on grounds such as the rules applicable in the “non-civilized” country could not be categorized as “law” for the purpose of PIL, or its incompatibility with public policy. In this way, PIL developed a dual structure: one that applied fully among recognized sovereigns, and another – if any at all – that applied toward others.

 

2. Extraterritoriality in Practice in “non-Civilized” Countries and the Exclusion of PIL

Outside Europe, one notable feature of legal practice in so-called “non-civilized” countries during the colonial period was the system of extraterritoriality. In these jurisdictions, Western powers maintained consular jurisdiction, which allowed their nationals to be governed not by local law but by their own national legal systems. This arrangement was grounded in the principle of the personality of law and institutionalized through the capitulations in the Middle East and North Africa (MENA) region, and through unequal treaties in Asia.

While the precise structure and operation of these regimes varied from one country to another, they shared a fundamental feature: legal disputes involving Western nationals were handled, entirely or partially, under Western laws. Rules of PIL were effectively bypassed.

Moreover, originally, consular jurisdiction was limited to citizens and nationals of Western countries. However, over time, it was extended to cover protégés (local individuals granted protection by foreign powers) as well as assimilés (non-European nationals who were treated as European for the purpose of legal protection). This extension further curtailed the jurisdiction of local courts, such as religious, customary, or national courts of the colonized states, which became confined to resolving disputes between locals with no international dimension. By contrast, cases involving Western nationals or their protégés were routinely referred to consular courts, or where existed, to foreign courts (e.g. French courts in Tunisia) and mixed courts (such as those in Egypt).

The inequality embedded in this system was particularly evident in the enforcement of judgments: rulings issued by local courts required exequatur in order to have effect before consular or foreign courts. Meanwhile, judgments rendered by foreign courts, notably those of the colonizing power, were typically recognized and enforced without the need for any such procedure.

 

VI. PIL as a tool for emancipation from colonial chains

Interestingly, in the 20th century, as formerly colonized countries sought to assert their sovereignty, PIL became a means to achieve legal and political recognition. To be accepted as equal members of the international community, these states had to show that their legal systems conformed to the standards expected of “civilized” nations. This included establishing reliable legal institutions, codifying laws, and—crucially—adopting PIL statutes.

Japan’s experience in the late nineteenth century is illustrative. Faced with unequal treaties that limited its sovereignty and imposed extraterritoriality, Japan undertook a sweeping legal reform. In 1898, it adopted a modern PIL statute (the Horei), which played a key role in demonstrating its legal capacity and led to the renegotiation of those treaties. A comparable process took place in Egypt, where the Treaty of Montreux (1937) marked the beginning of a twelve-year transitional period leading to the abolition of consular and mixed jurisdictions. During this time (1937–1949), Egypt undertook major legal reforms aimed at restoring full judicial sovereignty. It was in this context that both the Egyptian Civil Code and the Code of Civil and Commercial Procedure were drafted and promulgated in 1949. These codifications included not only substantive and procedural rules, but also incorporated provisions on choice of law, international jurisdiction, and the enforcement of foreign judgments.

 

Conclusion: A Dual Legacy

As the foregoing demonstrates, PIL played a complex and at times contradictory role. It was shaped in a context of inequality, and it often served to justify and perpetuate hierarchical legal relations. Yet it also provided a framework through which some states could engage with and eventually reshape the global legal order. In this dual capacity, PIL reflects both the challenges and possibilities of legal systems operating in a world marked by deep historical asymmetries.

Today, PIL is regarded as a universal framework, taught and applied in jurisdictions around the world. But its history reminds us that legal universality often rests on specific historical and political conditions. By examining how these conditions influenced the formation and application of PIL, we gain a clearer understanding of the discipline and can begin to identify paths toward a more genuinely inclusive and balanced legal system.

Understanding this past is not about assigning blame, but about gaining clarity. By exploring how PIL has operated across different times and contexts, we equip ourselves to improve its capacity to serve all legal systems and individuals fairly. That, in the end, is what will make PIL truly universal.

In 2024 the French Cour de cassation submitted a request for a preliminary ruling to the Court of Justice on a subject with ties to private international law, although none of the questions raised focuses formally on a private international law instrument. The case (C-350/24) is still ongoing. The request explaining the circumstances and legal […]

Written by Yip Man (Professor of Law, Yong Pung How School of Law, Singapore Management University)

To bolster Singapore’s position as an international dispute resolution hub, the Singapore International Commercial Court (International Committee) Bill[1] was introduced in Parliament on 14 October 2024 to establish the International Committee of the Singapore International Commercial Court (the SICC), a standalone body, to hear prescribed civil appeals and related proceedings from prescribed foreign jurisdictions.[2] The Bill was passed by Parliament on 12 November 2024. The Singapore International Commercial Court (International Committee) Act 2024 (the “International Committee Act”) is uncommenced.[3]

The establishment of this transnational appeal mechanism followed the signing of a bilateral treaty between the Government of Singapore and the Government of the Kingdom of Bahrain on 20 March 2024. This treaty concerned collaboration between the two jurisdictions on two key matters: 1) the establishment of the Bahrain International Commercial Court (the BICC); and 2) the setting up of a mechanism for appeals from the BICC to be heard by the SICC.[4]  The remit of the International Committee of the SICC is not limited to appeals from the BICC. Arrangements between Singapore and other foreign jurisdictions may be made for appeals on certain class of civil judgments from a court of the originating foreign jurisdiction to lie to Singapore.

A standalone body

The International Committee Act makes clear that the International Committee is not a court of Singapore. Nor does it exercise the judicial power of Singapore. However, the International Committee will leverage ‘the close relationship with the SICC’, for instance, the International Committee proceedings will take place in Singapore and it may use the resources and facilities of the Supreme Court of Singapore.[5]

Constitution

The International Committee will comprise the Chief Justice (who shall be the President of the Committee), the Judges, Judicial Commissioners and Senior Judges of the Supreme Court of Singapore, the International Judges of the SICC, as well as ad hoc members drawn from the court of the jurisdiction from which the appeal arose.[6]

Jurisdiction and Powers

Where arrangements have been made between Singapore and a foreign jurisdiction for appeals on certain civil matters to lie to Singapore, jurisdiction regulations will be promulgated to give effect to these arrangements (including what jurisdiction and powers the International Committee will have) and designate the International Committee as the appellate body to hear these appeals.[7] In other words, the Act envisages and allows for different collaborative arrangements to be entered into between Singapore and different foreign jurisdictions.[8]The contents of the jurisdictional regulations “will be subject to inter-governmental negotiations”.[9] The International Committee has jurisdiction to decide any question about its own jurisdiction.[10]

 Hearings and Procedure  

Save for contrary provision in the jurisdiction regulations or relevant procedural rules, the International Committee will sit in public.[11]  The Chief Justice may make rules to govern the procedure and practice to be followed by the International Committee and the registry, including matters concerning: documents-based hearings; for the International Committee to sit in private; costs; the means by which facts may be proved and the way in which factual, exert or opinion evidence may be adduced for the proceedings, etc.[12]

Legal Representation

Singapore lawyers and foreign lawyers and legal experts registered to appear before the SICC may also appear before the International Committee. The SICC model of registration for foreign lawyers and law experts will be extended to apply to the International Committee. Amendments to the Legal Professional Act 1966 will be made to give effect the aforesaid arrangements.[13]

Enforcement of orders and judgments of the International Committee

A judgment or order of the International Committee on an appeal from a court of a foreign jurisdiction is considered a foreign judgment or order from that foreign jurisdiction.[14] Enforcement of the judgment or order in Singapore will follow the existing rules or mechanisms applicable to that jurisdiction,[15] unless the judgment or order does not have effect under the law of that foreign jurisdiction.[16]

Finality of Decision

To ensure finality, a decision of the International Committee is “final and may not be appealed or reviewed by any court”.[17]

The International Committee of the SICC is expected to be launched very soon. That it is not a Singapore court, and coupled with the fact that foreign judges could be appointed to hear the proceedings, strengthens the positioning of the International Committee as a truly international (Singapore-based) dispute resolution mechanism.

[1]  https://sso.agc.gov.sg/Bills-Supp/36-2024/Published/20241014?DocDate=20241014

[2] https://www.mlaw.gov.sg/enhancing-singapore-s-offerings-as-an-international-dispute-resolution-hub-with-the-sicc-ic-bill/

[3] https://sso.agc.gov.sg/Act/SICCICA2024/Uncommenced/20250612233557?DocDate=20241210

[4] https://www.mlaw.gov.sg/news/press-releases/singapore-bahrain-sign-treaty-on-appeals-from-bicc/

[5] https://www.mlaw.gov.sg/second-reading-speech-by-minister-of-state-murali-pillai-on-sicc-bill/

[6] The International Committee Act, section 4.

[7] The International Committee Act, section 6.

[8] https://www.mlaw.gov.sg/second-reading-speech-by-minister-of-state-murali-pillai-on-sicc-bill/ paragraph 35.

[9] https://www.mlaw.gov.sg/second-reading-speech-by-minister-of-state-murali-pillai-on-sicc-bill/ paragraph 25.

[10] The International Committee Act, section 7(2).

[11] The International Committee Act, section 8(2).

[12] The International Committee Act, section 10(2).

[13] The International Committee Act, section 14.

[14] The International Committee Act, section 13(1)(a).

[15] The International Committee Act, section 13(1)(b).

[16] The International Committee Act, section 13(2).

[17] The International Committee Act, section 12. See also https://www.mlaw.gov.sg/second-reading-speech-by-minister-of-state-murali-pillai-on-sicc-bill/, paragraph 28 (it is made clear that the decision of the International Committee may not be reviewed by “any court in Singapore”).

The Ulrik Huber Institute for Private International Law is delighted to announce a special one-day conference entitled:

The Next 25 Years of Private International Law: What Does the World Need?

This conference marks a significant occasion: the celebration of Professor Mathijs ten Wolde’s 25-year tenure as a professor and director of the Ulrik Huber Institute. In honour of his contribution to the field and his mentorship of generations of legal scholars, the event will bring together former PhD students and distinguished colleagues from across the globe to reflect on the future direction of private international law.

Key Themes Include:

• The role of private international law in a changing world;
• Evolving cross-border legal frameworks (e.g. EU Regulations and HccH Conventions);
• Regional vs. global harmonisation efforts;
• The impact of digitalisation;
• New frontiers in family, commercial, IP, transport and procedural law.

We warmly invite all scholars, practitioners and students with an interest in private international law to join us for this day of dialogue and celebration. More information, including the conference programme, is available via the following link: https://www.rug.nl/rechten/agenda/2025/the-next-25-years

On 5 June 2025, the Law Commission of England and Wales published a consultation paper (paper; summary) making proposals for reform on certain rules of private international law that apply in the context of digital assets and electronic trade documents. The Commission also made proposals for reform of section 72 of the Bills of Exchange […]

Written by Yip Man (Professor of Law, Yong Pung How School of Law, Singapore Management University)

To bolster Singapore’s position as an international dispute resolution hub, the Singapore International Commercial Court (International Committee) Bill (the International Committee Bill)[1] was introduced in Parliament on 14 October 2024 to establish the International Committee of the Singapore International Commercial Court (the SICC), a standalone body, to hear prescribed civil appeals and related proceedings from prescribed foreign jurisdictions.[2] The establishment of this transnational appeal mechanism followed the signing of a bilateral treaty between the Government of Singapore and the Government of the Kingdom of Bahrain on 20 March 2024. This treaty concerned collaboration between the two jurisdictions on two key matters: 1) the establishment of the Bahrain International Commercial Court (the BICC); and 2) the setting up of a mechanism for appeals from the BICC to be heard by the SICC.[3] The remit of the International Committee of the SICC is not limited to appeals from the BICC. Arrangements between Singapore and other foreign jurisdictions may be made for appeals on certain class of civil judgments from a court of the originating foreign jurisdiction to lie to Singapore.

A standalone body

The International Committee Bill makes clear that the International Committee, when established, will not be a court of Singapore. Nor will it exercise the judicial power of Singapore. However, the International Committee will leverage ‘the close relationship with the SICC’, for instance, the International Committee proceedings will take place in Singapore and it may use the resources and facilities of the Supreme Court of Singapore.[4]

Constitution

The International Committee will comprise the Chief Justice (who shall be the President of the Committee), the Judges, Judicial Commissioners and Senior Judges of the Supreme Court of Singapore, the International Judges of the SICC, as well as ad hoc members drawn from the court of the jurisdiction from which the appeal arose.[5]

Jurisdiction and Powers

Where arrangements have been made between Singapore and a foreign jurisdiction for appeals on certain civil matters to lie to Singapore, jurisdiction regulations will be promulgated to give effect to these arrangements (including what jurisdiction and powers the International Committee will have) and designate the International Committee as the appellate body to hear these appeals.[6] In other words, the Bill envisages and allows for different collaborative arrangements to be entered into between Singapore and different foreign jurisdictions.[7] The contents of the jurisdictional regulations “will be subject to inter-governmental negotiations”.[8] The International Committee has jurisdiction to decide any question about its own jurisdiction.[9]

 Hearings and Procedure  

Save for contrary provision in the jurisdiction regulations or relevant procedural rules, the International Committee will sit in public.[10]  The Chief Justice may make rules to govern the procedure and practice to be followed by the International Committee and the registry, including matters concerning: documents-based hearings; for the International Committee to sit in private; costs; the means by which facts may be proved and the way in which factual, exert or opinion evidence may be adduced for the proceedings, etc.[11]

Legal Representation

Singapore lawyers and foreign lawyers and legal experts registered to appear before the SICC may also appear before the International Committee. The SICC model of registration for foreign lawyers and law experts will be extended to apply to the International Committee. Amendments to the Legal Professional Act 1966 will be made to give effect the aforesaid arrangements.[12]

Enforcement of orders and judgments of the International Committee

A judgment or order of the International Committee on an appeal from a court of a foreign jurisdiction is considered a foreign judgment or order from that foreign jurisdiction.[13] Enforcement of the judgment or order in Singapore will follow the existing rules or mechanisms applicable to that jurisdiction,[14] unless the judgment or order does not have effect under the law of that foreign jurisdiction.[15]

Finality of Decision

To ensure finality, a decision of the International Committee is “final and may not be appealed or reviewed by any court”.[16]

The International Committee of the SICC is expected to be launched very soon. That it is not a Singapore court, and coupled with the fact that foreign judges could be appointed to hear the proceedings, strengthens the positioning of the International Committee as a truly international (Singapore-based) dispute resolution mechanism.

 

[1]  https://sso.agc.gov.sg/Bills-Supp/36-2024/Published/20241014?DocDate=20241014

[2] https://www.mlaw.gov.sg/enhancing-singapore-s-offerings-as-an-international-dispute-resolution-hub-with-the-sicc-ic-bill/

[3] https://www.mlaw.gov.sg/news/press-releases/singapore-bahrain-sign-treaty-on-appeals-from-bicc/

[4] https://www.mlaw.gov.sg/second-reading-speech-by-minister-of-state-murali-pillai-on-sicc-bill/

[5] The International Committee Bill, section 4.

[6] The International Committee Bill, section 6.

[7] https://www.mlaw.gov.sg/second-reading-speech-by-minister-of-state-murali-pillai-on-sicc-bill/ paragraph 35.

[8] https://www.mlaw.gov.sg/second-reading-speech-by-minister-of-state-murali-pillai-on-sicc-bill/ paragraph 25.

[9] The International Committee Bill, section 7(2).

[10] The International Committee Bill, section 8(2).

[11] The International Committee Bill, section 10(2).

[12] The International Committee Bill, section 14.

[13] The International Committee Bill, section 13(1)(a).

[14] The International Committee Bill, section 13(1)(b).

[15] The International Committee Bill, section 13(2).

[16] The International Committee Bill, section 12. See also https://www.mlaw.gov.sg/second-reading-speech-by-minister-of-state-murali-pillai-on-sicc-bill/, paragraph 28 (it is made clear that the decision of the International Committee may not be reviewed by “any court in Singapore”).

 

The newest 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 second issue of 2025 contains four German-language articles on comparative and private international law. Here are their titles and English abstracts, […]

The Ulrik Huber Institute for Private International Law will host on 23 June 2025 a one-day conference in English entitled: The Next 25 Years of Private International Law: What Does the World Need? The event is held on the occasion of Mathijs ten Wolde’s 25-year tenure as a professor and director of the Institute and […]

This post was contributed by Fabien Marchadier, who is a professor of private international law at the University of Poitiers. On 28 May 2025, the Cour de cassation delivered its judgment in Real Madrid Club de Fútbol v. Société éditrice Le Monde following the preliminary ruling by the Court of Justice of the European Union […]

Last month the book The Heroes of the Judicial Periphery: Court Experts, Court Clerks, and Other Actors in the Shadows, edited by Alan Uzelac and Stefaan Voet (Hart/Bloomsbury Publising, 2025) was published. The book highlights the role of perhaps less prominent, but nevertheless important actors in (international) judicial procedures from a national, comparative and/or international perspective.

The European Civil Justice Centre (Erasmus School of Law) hosts a seminar in collaboration with the editors to launch the book on 4th July 2025 from 10-12 CEST.

Discussions on civil justice mostly focus on procedural rules, and the role of courts, parties and lawyers. This book addresses other actors that are often overlooked in academic and policy debates. It assesses the role of court experts, court clerks and court staff, and other actors on the ‘judicial periphery’ who play an important role and often co-determine the pace, outcome, and tone of the judicial process.

The knowledge and skills of experts may be indispensable at times, but it is among the most expensive, complicated and time-consuming means of evidence. The judges adjudicate, but where experts are involved in the process, they have a decisive impact on the outcome of litigation. Therefore, a principal focus of the book is on experts and how they are appointed, managed, and remunerated across Europe and the world.

The editors will discuss topical issues highlighting these ‘actors in the shadows’ and key experts will present their ideas based on the key findings of the book chapters, followed by discussion.

Registration for free here (hosted through Eventbrite)

Speakers & program:

10.00 Opening and welcome: Xandra Kramer

10.05 Alan Uzelac & Stefaan Voet – Heroes of the Judicial Periphery

10.15 Juraj Brozovic – The Case of Judicial Advisors in Croatia

10.30 Camilla Bernt – Expert Evidence in Custody Disputes and Child Protection Cases

10.50 Discussion

11.05 Michael Stürner – Experts on Foreign Law in German Civil Procedure

11.30 Adriani Dori & Xandra Kramer – The Role of Third-Party Funders in the Shadow of the Procedure

11.45 Discussion

 

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

Thank you Alain Devers for alerting us to the Supreme Court’s decision in follow-up of the CJEU judgment in Case C‑633/22 Real Madrid Club  de Fútbol, AE v EE, Société Éditrice du Monde SA which I discussed here.

On 28 May the Supreme Court held that the court of appeal’s refusal of recognition is annulled, and needs to be reconsidered by a different court of appeal. Its annulment is based squarely on the court of appeal not having properly considered the elements identified by the CJEU. Evidently, the final judgment may still lead to the same result, but will have to be justified differently if that is the route that will be taken.

[33] it notes that the court of appeal had reviewed the substance of the Spanish courts’ findings, in reassessing whether the French journalists and editor had acted with disregard for their professional duties and in reevaluating both the seriousness of their disregard and the impact this had on the aggrieved.

[39] it refers to the court of appeal’s ordre public finding which had not considered the seriousness of the infringement as held by the Spanish courts.

[45] the court of appeal is faulted for not having considered the financial means of the journalist in question, in considering whether the recognition and enforcement would have an impact on free speech: this is one of the criteria the CJEU had held as being relevant.

[51] the same consideration is made viz the newspaper itself.

[57] the court of appeal should have considered, as now instructed by the CJEU, the distinction between the reputation of a legal cq natural person (the former lacking the ‘moral’ element of impacting on the ‘dignity’ of the person).

The CJEU had given very specific instructions to the national judges in cases like these and I am not sure that is the way to go. As Szpunar AG had noted in his Opinion in the case, the relevant CJEU authorities prior to current case hitherto had engaged with procedural law ordre public exceptions, rather than substantive rules such as here fundamental rights. The obvious downside of that route is that national courts may now be tempted nay feel obliged to refer to the CJEU to seek substantive instruction for the ordre public assessment of other rights, too, leading to Kirchberg having to give specific instructions for umpteen scenarios. Not what Brussels Ia intended, me thinks.

Geert.

EU Private International Law, 4th ed, 2024, 2.619 ff.

On 26 May 2025, the European Commission launched a call for evidence to support the preparation of the EU Digital Justice Strategy for 2025-2030 – DigitalJustice@2030. Anyone can contribute by logging in to an EU login account. The call is open for feedback until 23 June 2025.  General Context As explained on the dedicated webpage, […]

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In Stichting Environment and fundamental rights v Repsol Perú BV et al ECLI:NL:RBDHA:2025:8700, the claim relates to the 15 January 2022 oil leak at La Pampilla, Peru, also known as the Callao Oil Spill.

Defendants are Repsol Perú BV, domiciled at The Hague: this is the anchor defendant and jurisdiction against it is easily established using Article 4 Brussels Ia. The other defendants are Repsol SA Madrid, and Refinería La Pampilla SAA of Callao. Peru.

‘Forum connexitatis’ is the power for a court to exercise jurisdiction over defendants against whom it does not ordinarily have jurisdiction, provided the claims against them are so closely related to (hence ‘connexitatis’) one against a defendant viz whom said court undisputedly has jurisdiction, that the interest of justice requires joint treatment of all claims concerned. The latter defendant is called the ‘anchor defendant’.

In the case at issue, forum connexitatis needs to be tested against the EU rules (Article 8 Brussels Ia) in the case of Repsol SA; and under residual Dutch rules (Article 7(1) CPR, because A8(1) does not apply against non-EU domiciled defendants) in the case of Refiniería La Pampilla SAA.

Current judgment deals with the jurisdictional issues only and does not mention applicable law at all. It is likely claimants make use of Article 7 Rome II’s lex ecologia provisions (compare the Lliuya v RWE judgment just last week) however I cannot be sure.

A first argument of defendants is that under Article IX of the 1992 International Convention on Civil Liability for Oil Pollution Damage  – CLC, the claim must be brought in Peru:

“Where an incident has caused pollution damage in the territory, including the territorial sea or an area referred to in Article II, of one or more Contracting States or preventive measures have been taken to prevent or minimize pollution damage in such territory including the territorial sea or area, actions for compensation may only be brought in the Courts of any such Contracting State or States.”

[4.6] the court acknowledges that prima facie this does look like a knock-out point. However [4.7] it points out that on the other hand, the CLC only regulates the liability of the ship owner and its insurer and how they can be sued. [4.9] the court confirms its reading of text itself, the travaux and the DNA of the CLC as not pertaining to claims against parties other than the ship owner and its insurer. ‘A 2002 judgment by the Italian Supreme Court’ which I suspect is I.O.P.C.F. v. Registro Italiano Navale and others, re the sinking
of m/t “Erika”, Italian Supreme Court 17 October 2002 n. 14769 is distinguished on the ground that that claim involved the affiliated persons listed in A IX CLC.

The court then considers A8(1) BIa viz Repsol SA, and [4.13] points out that the same principles in application of the EU anchor rules, apply equally to the residual Dutch rules.

[4.11] it suggests that the claim against the anchor defendant must have a prospect of success, for A8(1) jurisdiction to be possible. That view is not imo supported by the authorities and the issue is currently sub judice at least as far as follow-on damages claims are concerned, in CJEU C-673/23 Electricity & Water Authority of Government of Bahrain ea v Prismiian ea. I review the Opinion of Kokott AG here.

[4.16] the core reproach viz the defendants is said to concern the inadequacy of the La Pampilla reception facilities, and defendants’ inadequate response to the spill. Repsol BV argues that it is a most remote shareholder and not at all involved in the goings-on in Peru and that even Repsol SA has no direct dealings with the Peruvian operations. [4.17] claimants argues the near exclusive ownership (more than 99%) of Repsol BV in La Pampilla, a shared director and other links show the direct involvement or at the very least a culpable non-involvement: Repsol VB ought to have used its influence to avoid the calamity.

[4.18] however the court rejects the shareholding and other circumstances and demands claimants show “direct involvement” by Repsol BV. That is most definitely a step back viz recent duty of care litigation, including in The Netherlands. The court did not immediately refuse instant permission to appeal hence I suspect (but I am not a Dutch CPR expert) this must be possible – and most definitely should be exercised.

The merits review test is as I argue above, not good law under A8(1) authority and the requirement of ‘direct involvement’ is not in line with recent duty of care practice.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.13.1 (in particular 2.496); Heading 2.2.15.3.2; Chapter 7.

'Global North' business & human rights claim, Peru oil spillDutch court rejects forum connexitatis viz Spanish, Peruvian corps, wth Dutch anchor defendantAccepts jurisdiction viz NL defendant despite 1992 CLC ConventionStichting E&FR v Repsol BV ea deeplink.rechtspraak.nl/uitspraak?id…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-26T07:17:55.045Z

Tony’s Open Chair have today published my opinion on the impact the European Commission’s ‘Omnibus’ deregulation proposal will have on the applicable law for supply chain liability claims. In short: not a good one.

Richard Gardiner has other updates on the issue here and he is generally a marvel when it comes to sharing all things CS3D.

Geert.

EU Private International Law, 4th ed 2025, Chapter 7.

The 20th Anniversary Conference of the Journal of Private International Law will take place at the Faculty of Laws of University College London between 11 and 13 September 2025. The conference organizers, Ugljesa Grusic (UCL) and Alex Mills (UCL), and the editors of the Journal, Paul Beaumont (University of Stirling) and Jonathan Harris (King’s College London), are pleased to announce that the conference programme […]

A significant decision for the current climate change debate was delivered on 28 May 2025, by the Higher Regional Court (OLG) of Hamm. The OLG in Hamm has dismissed the climate lawsuit brought by Peruvian farmer Saúl Luciano Lliuya against the energy company RWE. The court ruled that an appeal of this decision is not […]

A book on The New Relationship between the United Kingdom and the European Union was recently published. The book is edited by Dr. Emmanuel Guinchard (Liverpool John Moores University) and Prof. Carlo Panara (Leicester University) and may be accessed here.

Overview

• Covers the whole spectrum of the new relationship between the UK and the EU
• Contains original discussion and evaluations of the impact of Brexit on UK sovereignty
• Includes both topics covered in the recent agreements and topics that have been left in a grey area

About the book

Brexit has reshuffled the cards of the relationship between the United Kingdom and the European Union. It is a once in a lifetime event, which ended nearly 50 years of EU Membership. EU law as such no longer applies in the United Kingdom and British citizens and companies no longer benefit from its advantages. Part of the previous regime has however been maintained (at times with amendments) through the series of treaties negotiated between the UK and the EU in 2019 and 2020, in particular the Trade and Cooperation Agreement of 2020, to which the 2023 Windsor Agreement can be added. The end result is a legal regime which is perhaps even more complex than EU law itself. This book aims to provide the reader with a clarification of this legal regime as well as provide context to it and suggestions to improve it. All key topics are covered, such as citizens of the EU in the UK and British citizens in the EU, trade in goods and in services, criminal justice, public procurement, Northern Ireland, the UK overseas territories, the dispute settlement, security and defence, international trade agreements of the UK post-Brexit, environmental protection, European civil justice, financial services, education and research, and the European offices of the UK local authorities and devolved administrations after Brexit. All the chapters follow, wherever possible, the same triadic structure. The first part looks at the regime prior to Brexit; the second part analyses the current regime; and the third part discusses ongoing and predictable trends. The concluding chapter attempts to identify some themes likely to impact on the forthcoming preparation of the 2026 review.

The European Commission’s recent Omnibus proposes a significant change to the Corporate Sustainability Due Diligence Directive (CSDDD). Article 29(7) of the original CSDDD requires Member States to implement its rules on civil liability rules so that these rules apply as overriding mandatory provisions, if the law applicable to the claim is not a law of a Member State. The Omnibus package proposes to delete art. 29(7) CSDDD. As a result, Member States will no longer be obliged to implement CSDDD’s rules on liability as overriding mandatory provisions.

The Omnibus

On 26 February 2025 the European Commission presented the so-called Omnibus. It is a proposal to simplify reporting and compliance in the fields of ESG and corporate societal responsibility (COM(2025) 81 final). Subject to approval by the European Parliament and the Council, Member States will have to implement the changes introduced by the Omnibus by 31 December 2025. The updated instruments will be effective from 1 January 2026.

The Omnibus amends several existing instruments, including the Corporate Sustainability Due Diligence Directive (CSDDD), which entered into force on 25 July 2024. The Omnibus postpones the deadline for the CSDDD’s implementation to 26 July 2027; and the deadline for companies covered by the directive’s scope to be compliant is postponed to 26 July 2028.

CSDDD: civil liability by overriding mandatory provisions

Art. 29 CSDDD provides a harmonised EU uniform liability regime for breaches of due diligence in (cross-border) supply chains. While the CSDDD contains no rules on international jurisdiction (see the blogpost by Ralf Michaels on this matter here), the directive explicitly positions its provisions on civil liability within the conflict of laws. The current text of art. 29(7) CSDDD provides:

Member States shall ensure that the provisions of national law transposing this Article are of overriding mandatory application in cases where the law applicable to claims to that effect is not the national law of a Member State.

This provision requires that Member States implement the directive’s rules on civil liability so that they apply as overriding mandatory provisions (of national substantive law) if the claim is not governed by the law of a Member State. This rationale is also reiterated in Recital 90. The current text of the CSDDD allows for differences within the EU (between Member States’ regimes); these differences would not trigger the application of overriding mandatory provisions. The overriding mandatory character (of any Member State’s national civil liability regime based on the CSDDD) would only manifest itself when the applicable is the law of a third state. It is in relation to the latter situations, that the CSDDD has elevated the civil liability regime to the level of semi-public provisions.

Omnibus: no uniform civil liability regime; not by overriding mandatory provisions

The Omnibus restrains this ambition. Firstly, it contains a proposal to abolish an EU-wide harmonised liability regime. Secondly, it removes Member States’ obligation to implement the (remaining elements of the uniform) liability regime as overriding mandatory provisions. Under the Omnibus:

‘paragraph (12) amends Article 29 of the CSDDD as regards civil liability by deleting paragraph (1), paragraph (3), point (d) and paragraph (7), and changing paragraphs (2), (4) and (5).

• to remove the specific, EU-wide liability regime in the Directive

          (…)

• in view of the different rules and traditions that exist at national level when it comes to allowing representative action, to delete the specific requirement set out in the CSDDD in this regard (…)’
• for the same reason, by deleting the requirement for Member States to ensure that the liability rules are of overriding mandatory application in cases where the law applicable to claims to that effect is not the national law of the Member State (…)’.

Motivation

The provisions that propose to abandon the EU-wide liability regime, quoted above, refers to the divergence in the regulation of representative actions across the EU Member States. The Explanatory Memorandum included in the Omnibus provides several other reasons of the proposal. One of the main reasons is the aim to reduce the ‘administrative, regulatory and reporting burdens, in particular for SMEs’ (small and medium size enterprises). Although the Omnibus package amends instruments that cover primarily large economic players, the simplification aims to prevent a de facto shift of the compliance costs to smaller players, because ‘[t]he ability of the Union to preserve and protect its values depends amongst other things on the capacity of its economy to adapt and compete in an unstable and sometimes hostile geopolitical context,’ as stated in the document with reference to the reports on EU global competitiveness.

Implications

From the perspective of private international law, the original art. 29(7) CSDDD is certainly challenging. It is namely not entirely clear how the doctrine of overriding mandatory rules (based on art. 9 Rome I, and art. 16 Rome II Regulations) would apply to civil liability claims grounded in the rules implementing the directive. Nonetheless, the CSDDD approach might have the potential to open new avenues for further practical and conceptual development of this conflict-of-law doctrine in the future.

Currently, as the Omnibus explicitly rules out the overriding mandatory character of the (remaining parts of) the CSDDD civil liability regime, if the Omnibus is adopted, one would rather not expect from Member States’ legislatives or courts to elevate the regular domestic civil liability rules to the semi-public level of overriding mandatory provisions.

As previously noted on this blog, the Centre for Private International Law and Transnational Governance of the University of Aberdeen will host on 6 June 2025 the third Postgraduate Law Conference of the Centre, under the title New Dimensions in Private International Law. Registrations for the event are open. Further details are available here. The […]