Droit international général

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

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

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

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

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

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

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

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

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

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

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

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

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

An interesting judgment.

Geert.

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

 

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

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

 

ESSAYS

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

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

 

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

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

 

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

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

 

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

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

 

BOOK REVIEWS

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

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

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

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

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

 

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

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

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

Legal Background

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

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

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

Factual Background in Discovery Drilling

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

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

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

Applicability of Section 44A of the CPC

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

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

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

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

Tests Under Section 13 of the CPC

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

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

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

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

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

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

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

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

Conclusion and Implications

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

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

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

 

 

[1] 2025 SCC OnLine Del 1075.

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

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

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

 

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

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

The topic:

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

The Chair:

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

The Presenter:

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

Details

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

Online only: Zoom Link

Zoom ID: 839 4662 2158

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

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

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

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

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

 

The Recalibration of Enforcement Doctrine

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

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

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

Early Presumption in Favour of Enforcement of Arbitral Awards

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

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

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

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

Australia: Treaty Reservations and Domestic Legal Classification

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

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

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

United Kingdom: Consent to Arbitrate Is Not Consent to Enforce

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

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

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

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

Comparative Analysis: Convergence and Doctrinal Resonance

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

Historical Approach of Indian Courts

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

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

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

India’s Recent Treaty Practice

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

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

Conclusion: Sovereignty as the Organising Principle of Enforcement

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

The Institute for Comparative and Private International Law (Department 3) at Freiburg University (Germany) is seeking a Research Associate (m/f/d), 26%, to begin as soon as possible.

The responsibilities of this position include supporting the professorship in organizational and pedagogical matters, participating in the professorship’s research projects, and conducting own courses. The opportunity to pursue a doctorate is offered. The position is suitable for parallel training or doctoral funding. Applicants are expected to demonstrate a particular interest in the professorship’s key areas of focus and have passed the first (or second) state examination with above-average results (at least fully satisfactory). Knowledge of German civil law and international private and procedural law is also required. Applicants with severe disabilities will be given preference if they are suitable.

The position is initially limited to two years. Remuneration is based on the TV-L E13 salary scale.

We particularly welcome applications from women for the position advertised here.

For further information, please click here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Geert.

European Private International Law, 2.572 ff.

 

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

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

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

The third issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) for 2025 has been published. The following English abstracts have been kindly provided by the editor of the journal. M.F. Müller-Berg, The effects of the new product liability directive on international product liability [German] The concepts of damage, marketing and the person sustaining […]

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

Our University’s reminder re open access policies and our publication repository, reminds me of the interesting provision inserted in 2018 in Article X.196 of Belgium’s Economic Law Act: (DeepL translation)

The author of a scientific article that is the result of at least half publicly funded research retains, even if, in accordance with Article XI.167, he has disposed of his rights to a journal publisher or placed them under an ordinary or exclusive licence, the right to make the manuscript available free of charge in open access to the public in a journal after the expiry of a period of 12 months for human and social sciences and six months for other sciences after the first publication, provided that the source of the first publication is mentioned.
The publishing contract may provide for a shorter period than that stipulated in the first paragraph.
The King [that is shorthand for the Government, GAVC] may extend the period stipulated in the first paragraph.
The right described in the first paragraph cannot be waived. This law is mandatory and applies irrespective of the law chosen by the parties as soon as there is a link in Belgium. It also applies to works created before the entry into force of this paragraph and which do not belong to the public domain at that time.

Under Article 9 Rome I 

1.   Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.

2.   Nothing in this Regulation shall restrict the application of the overriding mandatory provisions of the law of the forum.

3.   Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.

This is the ‘overriding mandatory law’, aka lois de police aka lois d’application immédiate provision.

Clearly even in Belgian courts the provision is bound to trigger interesting discussions. First of all of course the statutory construction of ‘scientific’ [note that the Dutch (‘wetenschappelijk’) and French use of ‘scientific’ is a much broader category than the English language ‘scientific’; humanities faculties for instance are very much ‘scientific’ in the ‘wetenschappelijk’ sense]. Is a historic novel loosely based on scientific research, a ‘scientific’ work? Further, the meaning of ‘at least half publicly funded research’: that’s a statutory construction quagmire and I suspect the travaux might help (I have not consulted them for this post). Finally, at least for purposes of this blog, the limitation to cases with ‘a link to Belgium’: e.g. would the mere seizing of a Belgian court not suffice? Further, any choice of court away from Belgium, in copyright and other agreements is likely to upend the impact of the provision, seeing as a non-Belgian, EU Member States courts (and the UK under Rome I) will have much more flexible room for manoeuvre under  Rome I (see above) to apply the Belgian Act. This may be managed by authors either by seizing a Belgian court first (in a denial of (copyright) infringement claim, presumably), or potentially by claiming the illegality of choice of court away from Belgium (not such an easy proposition I imagine; e.g. the consumer contract protection prima facie would seem unavailable). Fun with conflict of laws. Have I mentioned it’s exam season? (I know, I am on sabbatical. But not everyone is). Geert. Handbook of EU Private International Law, 4th ed. 2024, 3.73 ff.

Under Article 10 of the Spanish Law 14/2006 of 26 May 2003 on assisted human reproduction techniques, gestation agreements, for a price or not, by a woman who renounces to motherhood in favour of a party to the contract or of a third party are null and void. As a rule, the parenthood of children born […]

In preparation of the University of Bologna (Ravenna Campus) Summer School on Transnational Litigation, already noted on this blog, a warm-up webinar will take place on 19 May 2025, from 6 to 7 pm CET. The session will feature Marco Pasqua (PhD at Catholic University of the Sacred Heart of Milan) who will speak on […]

The Cambridge Law Journal has published, on First View (that is, online before print), an interesting article by Marcus Teo (Assistant Professor, Faculty of Law, National University of Singapore) on proof of foreign law in English law, titled The Inference of Similarity English courts have long professed to apply a “presumption of similarity” when faced with […]

 

 

 

 

 

 

 

 

 

 

 

 

 

Written by Catherine Shen, Senior Assistant Director, ABLI

Following successful sessions in 2021, 2022 and 2023, the Singapore-based Asian Business Law Institute (ABLI) and the Permanent Bureau of the Hague Conference on Private International Law (HCCH) return after a one-year hiatus with their fourth joint webinar, this time on electronic service of documents and remote taking of evidence.

Titled Cross-border Commercial Dispute Resolution – Electronic Service of Documents and Remote Taking of Evidence, the webinar will take place on Thursday 10 July between 5 to 6:10pm (Singapore time) or 11am to 12:10 noon (CEST), and is expected to discuss, among others, electronic transmission of requests under the Service Convention, such as the use of IT for communication among Central Authorities and other competent authorities, service by electronic means across different jurisdictions, and remote taking of evidence by video-link and electronic evidence under the Evidence Convention.

Invited speakers include Melissa Ford, Secretary of HCCH,  Lucinda Orr, Partner of Enyo Law LLP, Justice Anselmo Reyes, International Judge of the Singapore International Commercial Court, and Dr Xu Guojian, Senior Partner of SGLA Law Firm.

More about the webinar and its speakers can be found in the flyer.

For more information or to register, click here. Early bird discount is available till 10 June. Queries about the webinar can be directed to Catherine of ABLI at abli_info@abli.asia.

This is an academic public service claxon: the European Commission Roadmap towards ending Russian energy imports COM(2025)440 is an absolute treasure trove for questions in current exam season underway in much of the Northern Hemisphere at least.

The Roadmap obviously has solid security credentials in the light of Russia’s invasion of Ukraine, and raises the type of issues which imo are excellent to discuss with students particularly in an oral exam:

what are the implications of the consequential trade restrictions viz international trade law;

how does the EC propose to deal with ongoing long-term contracts (both in the suggestions for communication of these contracts to Commission services, and the roadmap towards ending them. Flag viz the latter element: these contracts are subject to a smorgasbord of dispute resolution clauses, governing law provisions etc. How does force majeur in war times impact on contracts subject to different national laws? (The Commission suggesting ia ‘Building on joint European preparations, the assessment of the impact of the measures carried out by the Commission since the Versailles Declaration, including effects on gas security of supply, market, prices and legal aspects (including contracts), the Commission intends to propose legal measures for the effective phase out of gas imports from Russia.’);

what is the impact of any EU measure on claims under international investment law, particularly for claims that may be brought outside of the EU;

etc. Should guarantee at least half an hour of discussion which may gauge a student’s knowledge of the issues in various legal subjects quite nicely.

You’re welcome.

Geert.

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

In HM Treasury & Anor v Global Feedback Ltd [2025] EWCA Civ 624, the Court of Appeal overturned the finding by Lang J in [2024] EWHC 1943 (Admin) that the relevant UK statutory provisions on trade in agricultural products (specifically: beef), giving effect to the UK-Australia 2021 Free Trade Agreement (FTA), are a “provision of [a Contracting State’s] national law relating to the environment” (emphasis added) in Article 9(3) of the Convention on Access to Information Public Participation in Decision-Making and Access to Justice in Environmental Matters (“the Aarhus Convention“).

The judgment has an important impact, before you start wondering why I am reporting on a nerdy issue of international environmental law.

A9(3) Aarhus (the Convention was ratified by the United Kingdom on 23 February 2005, and Brexit has no impact on its membership) requires each Party to ensure that members of the public “have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”

A9(4) in turn requires inter alia those procedures, and also procedures under Art.9(1) and (2), to “provide adequate and effective remedies” and not to be “prohibitively expensive”. The latter element has been transposed in English civil procedure law as follows:

Part IX of the civil procedure rules – CPR 46 give partial effect to A9(4) by imposing costs limits on “Aarhus Convention claims”. That expression means “a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Art. 9(1), 9(2) or 9(3)” of the Aarhus Convention (CPR 46.24(2)(a)).

The central issue in this appeal is therefore the meaning and width of the phrase “which contravene provisions of its national law relating to the environment” in Art.9(3).

The issue has arisen in a claim for judicial review brought by Global Feedback Limited (GFL) against the UK Government viz its 23 February 2023 to make the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023 (SI 2023 No. 195) (“the 2023 Regulations”). The 2023 Regulations give effect to tariff preferences on Australian imports under the Free Trade Agreement (“FTA”) between the UK and Australia which was signed on 17 December 2021 and came into force on 31 May 2023.

GFL claims that the 2023 Regulations will harm the environment by adversely impacting on climate change. It says that the FTA would lead to a substantial increase in greenhouse gas (GHG) emissions from the production of cattle meat, because (i) beef production methods in Australia produce significantly more GHG emissions per weight of beef than those in the UK and (ii) the lower prices of Australian beef compared to UK beef are likely to lead to a net increase in production of Australian beef for consumption in the UK. According to GFL, “carbon leakage” occurs when production moves from one country to another resulting in higher net GHG emissions, for example where the production process in the new country is more GHG intensive.

GFL’s specific target is the insufficient nature, it argues, of the Impact Assessment that coincided with the amendments to the UK’s customs classifications and -tariffs resulting from the UK-AUS FTA.

Lang J ordered that the costs limits in CPR 46 should apply. [58-59] of the current judgment summarise her findings as

the judge decided at [12]-[14] that the present claim does fall within Art.9(3) and (4). She said that it was arguable that s.28 of the 2018 Act required the appellants to have regard to relevant international obligations, including the UNFCCC, and those obligations were directly concerned with environmental issues. The appellants were under obligations in UK national law to have proper regard to their environmental obligations under international law when making the 2023 Regulations. This was sufficient to bring the claim within the scope of Art. 9(1), applying a broad purposive approach.

The judge also took into account at [13] the nature of the alleged contravention. She was not persuaded that the appellants’ obligations only related to GHG emissions in the UK as opposed to Australia, in circumstances where the implementation of the FTA by the 2023 Regulations would promote a market for the importation of Australian produce into the UK with a risk of increased emissions in Australia. There is a public interest in the environmental issues raised by the claim and the scope of s.28 of the 2018 Act may be relevant to other free trade agreements which are being implemented.

The Court of appeal disagrees with the first instance judge.

Holgate LJ reminds parties first of the informative yet non-binding nature of both the findings of the Aarhus Compliance Committee, and the Guidance documents drawn up by the EU when the EU itself acceded to the Convention. He turn summarises the relevant interpretative provisions of the Vienna Convention on the Law of Treaties – VCLT, incl [5v2] in fine, with reference to A33 VLCT, the provision on authentic (language) versions of the Convention.

[74] ff he considers first “relating to”. That, “(and other similar connectors) shows that the nature and strength of the link will depend upon the surrounding language, the wider context of the legislation and its purpose.” Discussion of CJEU authorities not being of determinative help, he then [82] turns to the travaux préparatoires and the French text of the Aarhus Convention to find [88] that the French text confirms that “relating to” is used as a strong, not a loose or broad, connector:

The relevant legal provision of national law should be to do with, or be concerned with, the environment. This is consistent with saying that to fall within Art.9(3) the purpose of the legal provision in question should be for the protection or regulation of the environment. The preparation of the Convention shows that the Parties were not prepared to agree that Art.9(3) should apply to any claim or matter related to the environment or the protection of the environment.

Discussion of relevant case-law does not he decide help claimants, and [134] ‘the present case raises this issue: does Art.9(3) of the Aarhus Convention apply where a claim alleges that a defendant’s decision or act under a legal provision not relating to the environment is vitiated by a public law error in some way connected to the environment or an effect on the environment?’ He decides [141]

it cannot be assumed that the Court’s reasoning in Venn [Venn v Secretary of State for Communities and Local Government [2015] 1 WLR 2328], which was specific to the nature of the well-established role played by the planning regime in environmental protection, is transferrable to open-ended statutory requirements to take into account relevant considerations in other legislation enacted for non-environmental purposes, such as funding for overseas projects, financial market controls or international trading arrangements.

and [148]

this is a challenge which amounts to allegations of breaches of public law principles and not any breach of this country’s law relating to the environment or environmental law. It therefore falls outside the scope of Art.9(3) of the Aarhus Convention. Any costs protection could only be considered through an application for a costs protection order.

Evidently the views of the Court of Appeal are debatable, and one imagines there might be more in the Aarhus travaux that might help claimants. For those interested in the domestic implementation of Treaty law, this is an interesting judgment.

Geert.

1/2 Cost caps, public interest litigationMeaning of "provisions of..national law relating to the environment" A9(3) Aarhus ConventionCustoms provisions in UK-Australia FTA with impact on Greenhouse Gas emissions[HMG] v Global Feedback [2025] EWCA Civ 624bailii.org/ew/cases/EWC…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-14T06:45:07.686Z