Droit international général

The author of this post is Federica Sartori, PhD student at the University of Pavia. A pending case, Tatrauskė (C-789/23), offers the Court of Justice an opportunity to rule on the relationship between the EU citizens’ right to free movement and residence under Article 21 TFEU and national legislation on the registration of marriage property […]

In Sinclair v Venezia Turismo, 2025 SCC 27 (available here) the Supreme Court of Canada has, by 5-4 decision, held that the Ontario court does not have jurisdiction to hear claims by Ontario residents against three Italian defendants in respect of a tort in Italy.  The Sinclair family members were injured in a gondola collision in Venice that they alleged was caused by the Italian defendants.  But there were several connections to Ontario.  The trip to Italy had been booked by Mr Sinclair using a premium credit card’s concierge and travel agency service [4, 156] and the gondola ride had been arranged through that service [15, 160].  The card was with Amex Canada and one or more contracts connected to the gondola ride had been made in Ontario.  The Sinclairs were also suing Amex Canada and the travel service for carelessness in making the arrangements with the Italian defendants, and those defendants attorned in Ontario [167, 172].  A core overall issue, then, was whether the plaintiffs would be able to pursue all of their claims arising from the gondola collision, against various defendants, in one legal proceeding in Ontario.

For assumed jurisdiction, Canadian common law requires that the plaintiff establish a presumed connecting factor (PCF) in respect of each defendant.  Once established, the defendant can rebut the PCF by showing that it does not point to a real relationship, or only a weak relationship, with the plaintiff’s chosen forum [7, 49, 202, 216].  It is well established that damage sustained by the plaintiff abroad, and continuing to be suffered in the forum, is not a PCF.  While less clear, the better view of the law is that the defendant’s being a “proper party” to a proceeding advanced against a local defendant is not a PCF.  So neither of these routes to jurisdiction, familiar in some legal systems, was available despite their fitting the facts.

Canadian courts have held that the fact that a contract connected with a tort was made in the forum is a PCF.  This is controversial because many have questioned the strength of this connection, based as it is on the place of making a contract, but it has been repeatedly endorsed by the Supreme Court of Canada.  Sinclair turned on whether this PCF had been established and if so rebutted [1, 51, 146].  The majority (decision written by Justice Cote) found the defendants had rebutted the PCF; the dissent (decision written by Justice Jamal) found not.

The reasons are a challenging read.  The majority and dissent disagree on many discrete points (including the standard of review and the standard of proof).  Many of these are essentially factual.  Because they do not see the facts the same way, it is hard to compare the legal analysis.  A key example is on the issue of what contract(s) had been made in Ontario.  The majority is not overly satisfied that any contract had been, but is prepared to accept that Mr Sinclair’s cardmember agreement was made in Ontario [102-103].  That contract is in a loose sense connected with the tort in Italy, but it is easy to see how one might think this is at best a very weak link [9].  In contrast, the dissent has no issue with the cardmember agreement having been made in Ontario [253, 259] and finds an additional contract also made in Ontario in respect of arranging the specific gondola ride [268].  That second contract is more closely linked to the tort and so the rebuttal analysis would be expected to differ from that relating to the cardmember agreement.  The majority does not find any such second contract at all: it sees this as a reservation made to arrange that the gondola be available, which is not a separate contract but rather a part of the way Amex Canada performs its service obligations under the cardmember agreement [105-107].

The result of the appeal is highly fact-specific.  But some useful general points can be extracted from the reasons.  First, the decision may add to our understanding of the test for when a contract made in the forum is “connected” to the tort.  In Lapointe (available here) the court had said that this is satisfied if “a defendant’s conduct brings him or her within the scope of the contractual relationship” AND “the events that give rise to the claim flow from the relationship created by the contract” [58, 215].  I confess to having had trouble understanding what the former aspect means.  What is it to be brought within the scope of the contractual relationship?  Is this a factual or legal question?  In what way would the Italian defendants be brought within the scope of the cardmember agreement (this does not seem possible) or even the second contract between Amex Canada and Carey International to arrange a gondola?  Do they get brought within the scope just because they end up being the relevant gondola providers?  Anyway, in this case, both the majority and the dissent seem to focus all of their analysis of whether the contract is connected to the tort on the second aspect: whether the tort “flows” from the earlier contract (a pretty easy test to meet here for all contracts involved) [128, 246].

Second, the judges engage in a lively debate about the standard of establishing a PCF.  This is understandable given the extent to which they disagree about the facts.  But their debate ends up being inconclusive.  For the majority see [59] to [62] and the conclusion that this is not an appropriate case to develop the law on this point (so these paragraphs, then, are markers for arguments parties might make in future cases in which the law might be developed).  For the dissent see [224] to [236] and the conclusion that what it considers the status quo on the issue remains the law (yet this is in dissent).  There may be common ground, since in both discussions care is taken, at least in places, to refer specifically to the distinction between disputes about facts and disputes about the application of the law to those facts.  A standard of proof, whether a balance of probabilities or a good arguable case, must be about facts and not law.  It does not make sense to talk about the standard of proof for establishing a point of law or satisfying a legal test.

Third, few Canadian cases have provided a detailed analysis of how the rebuttal of a PCF works, so this case is most welcome on that specific issue.  The majority offers some general considerations that feed into the analysis [67-72].  It also rejects the contention that rebuttal is a “heavy” burden on the defendant [74].  It calls the rebuttal “a shift in burden and perspective, not a shift in difficulty” [74, quoting the intervener BC Chamber of Commerce].  This language is likely be repeated quoted in subsequent decisions.  The majority also says that the PCF and rebuttal stages work in tandem and are complementary [74-75].  This reflects the idea that if the PCF is broad, there should be more scope for rebuttal, and if the PCF is narrow, less so.  The dissent does not disagree with this stated approach to the rebuttal analysis [see 217].  However, the judges disagree about whether the defendant’s reasonable expectations of where it might be sued can be considered as part of the rebuttal analysis.  The dissent says no [218, 291].  The majority says yes [71-72].

Finally, on the broader question of how willing courts should be to take jurisdiction over a defendant on grounds of efficiency, access to justice and avoidance of multiple proceedings, most comments from the judges are indirect.  The majority stresses the importance of “fairness” to defendants [45].  It rejects “bootstrapping” and insists that a PCF must be shown for each defendant [63].  It cautions against a jurisdiction analysis that considers “the factual and legal situation writ large” [63].  In contrast, the dissent sees the proceeding as one that “claims inseparable damages for these integrally related torts” [281] and rejects focusing on the collision as something separate from other facts and claims [249].  More directly, it states “[i]n a case alleging multiple torts, as in this case, or a case raising claims under multiple heads of liability, focussing on the dispute as a whole ensures that a court does not inappropriately hear only part of the case in the forum while leaving related claims to be heard in the extra-provincial or foreign court” [244].  In doing so it quotes the notorious para 99 of Club Resorts (available here), language that continues to trouble courts more than a decade later.  After Sinclair, are we closer to a principled answer for cases with related claims against multiple defendants?  By focusing on the narrow and specific questions raised by the particular PCF at issue, including identifying whether and where certain contracts were made, the broader debate is being conducted covertly rather than in the open.

 

The EAPIL blog will be publishing fewer posts than usual in the course of August. As in previous years, there will be no more than two or three posts per week until 25 August, when we plan to resume our usual pace. Potential guests are encouraged to keep submitting their proposals at blog@eapil.org, in the […]

A collection of essays titled Europäisierung des Zivilrechts, edited by Guido Kosmehl, Steffen Pabst and István Varga, has been published by C.H. Beck to celebrate the 70th birthday of Thomas Rauscher. It comes with some thirty contributions, mostly in German, dealing with a variety of topics in the area of private law and private international […]

The Australian Institute of International Affairs and the Australian Branch of the International Law Association call for applications for the 2026 Peter Nygh Hague Conference Internship.

Awarded annually, the Nygh internship offers a postgraduate student or graduate of an Australian law school the exciting opportunity to undertake a 6-month internship with The Hague Conference on Private International Law, in the Netherlands.

The successful applicant will have the chance to work with some of the world’s leading private international law practitioners and will receive funding to assist with travel costs and living expenses.

Previous Nygh interns have worked on projects in fields including: family law; evidence and access to justice; cross border flow of personal data; migration; civil liability for trans-boundary harm and commercial dispute resolution. For many interns, the opportunity to observe the negotiation of an international convention first-hand has been a highlight of their internship, all whilst living and working in the Netherlands.

English, French and Spanish are the three working languages of the Hague Conference and Australian law graduates and final year law students with French and/or Spanish language skills are encouraged to apply for the internship.

The Peter Nygh Hague Conference Internship was established in memory of the late Hon Dr Peter Nygh AM, a renowned international lawyer and former judge of the Family Court of Australia.

Applications for the 2026 Nygh Internship have been extended to close on 14 August 2025. For further information and application instructions visit: Peter Nygh Hague Conference Internship – Australian Institute of International Affairs or email Nicola Nygh at nicola.nygh@rllawyers.com.au

The following announcement was kindly shared with us by Fabienne Jault-Seseke

Created with the support of LexisNexis, the Review Perspectives contentieuses internationales (PCI) is a biannual academic journal dedicated to the globalization of international litigation in both its public and private aspects. Each issue features a thematic dossier, complemented by several articles outside the main topic (Varia), as well as brief focus pieces addressing current events relevant to political or regulatory developments impacting international disputes (Focus).

The editorial committee, which ensures the scientific and operational direction of the Review, is composed of Sandrine Clavel, Patrick Jacob, and Fabienne Jault-Seseke (professors at Université Paris-Saclay, UVSQ).

Three issues have already been published and are available open access.

Issue 3 was released a few weeks ago.

It features a dossier dedicated to the Real Madrid / Le Monde case, following the decisions of the Court of Justice and the French Court of Cassation. Articles in this dossier were written by Fabienne Jault-Seseke, Julie Traullé, Marie Dugué and Laura Vitale, Ana Quinones, Olivera Boskovic, and Fabien Marchadier.

The issue also contains an article in English by Gilles Cuniberti on the international attractiveness of specialized commercial courts: “Assessing the International Attractiveness of Commercial Courts: Will Paris Eat London’s Lunch?”

A recent decision by the French Court of Cassation enabled Marylou Françoise to write a study devoted to the seising of the Judge in International Disputes.”

The issue concludes with presentations of:

• The Arbitration Act 2025, by Thomas Clay,
• The report on the application of the recast Brussels I Regulation: “To revise or not to revise?” by Sandrine Clavel,
• The order issued by the ICJ in the Sudan v. United Arab Emirates case: a brake on the Court’s openness, by Patrick Jacob.

A new volume coming out of the Programme in European Private Law for Postgraduates (PEPP) has just been published as part of the Scritti di diritto privato europeo ed internazionale series.

The table of contents can be found here; the full volume is available open access here.

Today (1 August 2025), the Arbitration Act 2025 comes into force. This is provided by the Arbitration Act 2025 (Commencement) Regulations 2025. The Act applies to arbitration proceedings commenced on or after today, as well as to court proceedings in connection with arbitration that falls within the temporal scope of the Act (section 17(4)(a)). The […]

Conventions & Instruments

On 1 July 2025:

• The 2019 Judgments Convention entered into force for the United Kingdom. At present, 33 HCCH Members are either bound by the 2019 Judgments Convention or a Contracting Party for which the Convention has not entered into force yet (Albania, Andorra, and Montenegro). More information is available here.
• The 1996 Child Protection Convention entered into force for El Salvador. The Convention currently has 57 Contracting Parties. More information is available here.
• The 2007 Child Support Convention entered into force for Colombia. At present, 55 States and the European Union are bound by the 2007 Child Support Convention. More information is available here.
• The 2005 Choice of Court Convention entered into force for Bahrain. At present, 37 States and the European Union are bound by the 2005 Choice of Court Convention. More information is available here.

On 5 July 2025, the 1970 Evidence Convention entered into force for the Philippines. The Convention currently has 69 Contracting Parties. More information is available here.

On 24 July 2025, the Republic of Moldova acceded to the 1970 Evidence Convention. The Convention currently has 69 Contracting Parties. More information is available here.

 

Publications

On 22 July 2025, the Permanent Bureau announced the publication of the fifth editions of the Practical Handbooks on the Operation of the 1965 Service and 1970 Evidence Conventions. Incorporating recent developments, court decisions, and practical examples provided by experts from around the world, as well as updates from the meeting of the Special Commission held in July 2024, the fifth editions of the Handbooks are essential resources for anyone involved in the implementation and operation of the 1965 Service and 1970 Evidence Conventions. More information is available here.

 

Meetings & Events

On 10 July 2025, the Permanent Bureau of the HCCH and the Asian Business Law Institute co-hosted the webinar “Cross-border Commercial Dispute Resolution – Electronic Service of Documents and Remote Taking of Evidence”. More information is available here.

On 11 July 2025, the first meeting of the Working Group dedicated to the Model Forms for Chapter II of the 1970 Evidence Convention was held online, hosted by the Permanent Bureau. More information is available here.

 

Other Developments

On 9 July 2025, the premises of the HCCH’s Regional Office for Africa, hosted by the Kingdom of Morocco, were officially opened in Rabat. More information is available here.

On 10 July 2025, the Permanent Bureau of the HCCH announced several developments with regard to the HCCH’s International Child Abduction Database (INCADAT), including the launch of its new notification service. More information is available here.

 

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

The Special Interest Group established in the framework of the European Law Institute (ELI) to deal with family and succession law plans to award of a prize recognizing outstanding doctoral theses in Comparative Family Law, Comparative Succession Law, and Comparative or European Private International Law in the field of family or succession. A call has […]

We are delighted to announce that Wilson Lui will be joining our Editorial Board. Wilson holds degrees from the Universities of Oxford, Cambridge, the Chinese University of Hong Kong and the University of Hong Kong. He currently teaches at the University of Hong Kong while working towards his PhD at the University of Melbourne. His many publications include a comprehensive volume on the conflict of laws in Hong Kong,  Hong Kong Private International Law (Hart 2025; together with Anselmo Reyes).

At the same time, we are sad to see Samuel Fulli-Lemaire (Université de Strasbourg), David P. Stewart (Georgetown University), and Marlene Wethmar-Lemmer (University of South Africa) retire from the blog after years of service to this project – we are all the more grateful for their contributions and wish them all the best.

The registrations for the Hague Academy Centre for Studies and Research of 2026 are open. The 2026 edition of the Centre will focus on Cyberspace and International Law. The Directors of Research will be Mohamed S. Helal (Ohio State University, Moritz College of Law) for the English-speaking section, and Lukas Rass-Masson (University of Toulouse) for […]

Written by Hadrien Pauchard (assistant researcher and doctoral student at Sciences Po Law School)

The second issue of the Revue Critique de droit international privé of 2025 has just been released. It contains four articles, seven case notes and numerous book reviews. In line with the Revue Critique’s recent policy, the doctrinal part will soon be made available in English on the editor’s website (for registered users and institutions).

The issue opens with Dr. Delphine Porcheron’s (Université de Strasbourg) in-depth study of Les actions transnationales en réparation de crimes internationaux commis par un État : l’émergence d’un nouveau contentieux (Transnational reparation claims for international crimes committed by States: the emergence of a new form of litigation). At the crossroads of public and private international law, the contribution discusses the lessons learned from emblematic cases rendered across multiple jurisdictions. Its abstract reads as follows:

In light of the limited availability of international judicial remedies for individuals and the inadequacy of existing compensation schemes, victims of international crimes attributable to a State increasingly seek redress through domestic courts. These transnational claims for reparation are on the rise and have generated a new category of litigation, raising complex legal questions. An emerging trend in favor of the admissibility of such actions before national courts calls for a re-examination of the relationship between different branches of law and highlights the evolving role of private international law in this context.

The second article by Prof. Rebecca Legendre (Université Paris Nanterre) untangles recent controversies on Le droit international privé à l’épreuve de la gestation pour autrui (Private international law facing surrogacy). The treatment of foreign surrogacy in prohibitive legal orders such as France raises serious legal debates, recently fuelled by several important rulings by the French Supreme Court which the present contribution analyses:

For over fifteen years, surrogacy has posed a persistent challenge to private international law. The most recent case law from France’s Cour de Cassation underscores this tension with striking clarity. The decisions handed down in October and November 2024 introduce significant developments to the field: the weakening of a substantive international public policy which is stripped of its essence, a procedural public policy distorted in service of substantive aims, a softening of the principle prohibiting review of the merits of foreign judgments, and the neutralisation of sanctions for fraud. Yet, upon closer examination, private international law appears ill-equipped to provide satisfactory solutions. It is by moving beyond its traditional boundaries—drawing instead on the framework of fundamental rights, and particularly on the principle of proportionality—that more viable and equitable answers may be found in the future.

In the third contribution, Dr. Georgette Salamé (Université Paris I Panthéon-Sorbonne) and Dr. Guillaume Kessler (Université Savoie Mont Blanc) share thoughtful Réflexions sur l’accueil du sexe neutre en droit international privé (A propos de la décision du Tribunal fédéral suisse du 8 juin 2023) (Reflections on the Legal Recognition of a Third Sex Category in Private International Law (in light of the Swiss Supreme Federal Court’s decision of June 8, 2023)). Its abstract reads as follows:

The decision issued by the Swiss Supreme Federal Court on June 8, 2023, relates to the recognition of gender neutrality in binary legal systems. The Court ruled that a Swiss female citizen that had exercised in Germany the option to leave her gender designation blank in public registers, may not avail herself of such status to claim the same in Switzerland. The decision is remarkable considering the recent developments of private international law and therefore requires thorough assessment of its legal grounds. Moreover, it prompts a prospective study of the possible recognition in France of intersex individuals’ claims to a neutral gender registration in instances where such claims are based on a foreign judgment or foreign public document. It finally calls for an examination of considerations that argue for or against the recognition of a neutral gender in France from the standpoint of private international law; the analysis addresses the ongoing evolution of international public policy and the degree to which the legal categories of the forum can be reinterpreted and adapted.

The doctrinal part of the issue wraps up with Prof. Maxime Barba’s (Université Grenobles Alpes) essay on Les impératifs de concentration en matière d’exequatur des jugements (Concentration imperatives in matters of judgements’ exequatur). Tackling a major procedural issue that is playing an increasingly important role in transnational disputes, the contribution’s abstract reads as follows:

In a world where judgements circulate more and more freely, the exact place of concentration imperatives needs to be determined. Can a party initiate a new indirect proceeding by changing its pleas? Can a party assert, in the requested forum, pleas and claims omitted in the original forum? These are just some of the questions now facing French and European judges, who are taking their time, hesitating and, sometimes, contradicting each other. The aim of this contribution is to present the various solutions currently in force, and to suggest ways in which they might be developed – modified or generalized –, with a view to enabling jurisprudence to step up and improve its normative approach to these delicate issues.

The full table of contents will be available here.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.

Written by Héloise Meur, Université Paris 8

In two rulings dated 28 May 2025, the French Cour de cassation (Supreme Court) ruled on the issue of the law applicable to a sub-purchaser’s direct action in a chain of contracts transferring ownership, under European private international law. The issue is sensitive. The contractual classification under French law —an outlier in comparative law— had not been upheld by the Court of Justice of the European Union (CJEU) to determine international jurisdiction under the Brussels system (CJEU, 17 June 1992, C-26/91, Jakob Handte). Despite CJEU’s position, the Cour de cassation had consistently refused to adopt a tort-based qualification to determine the applicable law (esp. Civ. 1st, 18 dec. 1990, n° 89-12.177 ; 10 oct. 1995, n° 93-17.359 ; 6 feb. 1996, n° 94-11.143 ; Civ. 3rd, 16 janv. 2019, n° 11-13.509. See also, Civ. 1st, 16 jan. 2019, n° 17-21.477), until these two rulings rendered under the Rome II Regulation.

The proceedings

In the first case (No. 23-13.687), a Luxembourgian company made available to a Belgian company certain equipment it had obtained through two lease contracts. The lessor had acquired the equipment from a French intermediate seller, who had purchased it from a French distributor, who had sourced it from a Belgian manufacturer (whose rights were ultimately transferred to a Czech company).

Following a fire that destroyed the equipment, the Dutch insurer — subrogated in the rights of the Luxembourgian policyholder — brought proceedings against the French companies before the French courts on the basis of latent defects. The manufacturer’s general terms and conditions included a choice-of-law clause in favour of Belgian law. The Belgian and Luxembourg companies sought various sums based on latent defects, lack of conformity, and breach of the selller’s duty to advise. The manufacturer voluntarily joined the proceedings.

Applying French law, the Court of Appeal held the insurer’s subrogated claims admissible and dismissed the French intermediary seller’s claims. The Court ordered the Czech manufacturer and French companies jointly and severally liable to compensate the Luxembourg company for its uninsured losses and to reimburse the French intermediary seller for the insured equipment. The manufacturer appealed to the Cour de cassation, and the French distributor lodged a cross appeal.

In the second case (No. 23-20.341), a French company was in charge of designing and building a photovoltaic power plant in Portugal. The French company purchased the solar panels from a German company. The sales contract included a jurisdiction clause in favour of the courts of Leipzig and a choice-of-law clause in favour of German law. In 2018, the Portuguese company, as assignee of the original contract, brought proceedings against the French and German companies seeking avoidance of the successive sales and restitution of the purchase price. Alternatively, the Portuguese final purchaser invoked the contractual warranty granted by the German manufacturer and sought damages. The Court of Appeal dismissed the purchaser’s claim under German law, which was applicable to the original contract. The Court of Appeal also declined jurisdiction over the French company’s claims against the German company due to the jurisdiction clause. The purchaser appealed to the Cour de cassation.

The legal question

Both appeals raised the question of the determination of the law applicable to the sub-purchaser’s direct action in a chain of contracts transferring ownership under European private international law, especially where a choice-of-law clause is included in the original contract.

The rulings of 28 May 2025

The Cour de cassation adopted the reasoning of the Jacob Handte judgment. The Court held that, in conflict of laws, the sub-purchaser’s action against the manufacturer does not qualify as a “contractual matter” but must be classified as “non-contractual” and therefore be governed by the Rome II Regulation (§§ 16 seq n° 23-13.687 ; §§ 18 seq n° 23-20.341).

The Court concluded that: “A choice-of-law clause stipulated in the original contract between the manufacturer and the first purchaser, to which the sub-purchaser is not a party and to which they have not consented, does not constitute a choice of law applicable to the non-contractual obligation within the meaning of Article 14(1) of that Regulation.” (§ 20, n° 23-13.687 ; § 22, n° 23-20.341).

This solution should be also supported by the Refcomp ruling (§ 18, n° 23-13.687 ; § 16, n° 23-20.341), in which the Court held that a jurisdiction clause is not enforceable against the sub-purchaser, “insofar as the sub-purchaser and the manufacturer must be regarded, for the purposes of the Brussels I Regulation, as not being bound by a contractual relationship” (CJEU, 7 Feb. 2013, C-543/10, para. 33).

According to the Cour de cassation, the law applicable to sub-purchaser’s claims against the manufacturer is the law of the place where the damage occurred, pursuant to Article 4 of the Rome II Regulation.

Comments

Firstly, the rejection of the contractual classification does not necessarily entail a tortious classification. To do so, it must also be established that the action seeks the liability of the defendant, in accordance with the definition adopted in the Kalfelis judgment (ECJ, 27 Sept. 1988, Case 189/87). It was not the case here, where the claims were based on latent defects and avoidance of contract.

Secondly, the choice of a non-contractual classification appears contrary to the developments in CJEU’s recent case law (H. Meur, Les accords de distribution en droit international privé, Bruylant, 2024, pp. 325 seq.), For the CJEU, it is sufficient to establish that the action could not exist in the absence of a contractual link for it to qualify as a “contractual claim” under Brussels I Regulation (CJEU, 20 Apr. 2016, C-366/13, para. 55, Profit Investment). The European Court further held that the identity of the parties is irrelevant to determine whether the action falls within the scope of contractual matters ; only the cause of the action matters (CJEU, 7 Mar. 2018, Flightright, joined cases C-274/16, C-447/16, C-448/16; and CJEU, 4 Oct. 2018, Feniks, C-337/17). Thus, the Court has moved away from its Jacob Handte case law.

Thirdly, limiting the effect of the choice-of-law clause to the contracting parties alone is inappropriate, as it will lead to the applicable law to the contract to vary depending on who invokes it (H. Meur, Dalloz actualité, 16 June 2025). This solution is also contrary to the European regulations. It is in contradiction with Article 3.1 of the Rome I Regulation, which states that “a contract shall be governed by the law chosen by the parties.” It is also incompatible with Article 3.2 of the Regulation. This article provides that “any change in the law to be applied that is made after the conclusion of the contract shall not […] adversely affect the rights of third parties,” from which it must be inferred a contrario that the original choice-of-law clause is enforceable against third parties (see the report by Reporting Judge S. Corneloup, pp. 21 seq.; also see the Report on the Convention on the Law Applicable to Contractual Obligations, OJEC, C 282, 31 Oct. 1980, para. 7 under the commentary on Article 3). For the sake of consistency, this understanding of the principle of party autonomy should also apply to Article 14 of the Rome II Regulation. Finally, Article 12 of the Rome I Regulation confirms that it is for the law applicable to the contract to determine the persons entitled to invoke it and the conditions under which they may do so (by contrast, the Vienna Convention on the International Sale of Goods and the Hague Convention do not apply to the question of the effect of the contract on third parties – see in particular Hague Convention, 1955, Art. 5.4; Civ. 1st, 12 July 2023, No. 21-22.843).

Thus, the law applicable to the sub-purchaser’s direct action should be the one chosen by the parties to the original contract (regardless of the claiming party), provided that this choice is intended to govern the contract. In the absence of a chosen law, the law of the habitual residence of the seller, as the debtor of the characteristic performance, should apply. If the designated law recognises, in principle, that a third party may invoke the rights available to the original contracting purchaser, the Vienna and Hague Conventions, which are applicable before the French courts, may regain their relevance in determining the content of those rights (see V. Heuzé, RCDIP, 2019, p. 534; E. Farnoux, AJ Contrat, 2020, p. 521).

Unfortunately, this is not the path taken by the Cour de cassation in its rulings of 28 May 2025. In practice, the original seller may be bound in respect of certain sub-purchasers, particularly those established in France, even though it may have had no knowledge of the successive sales. Such a solution increases legal uncertainty.

In 2022, the European Court of Human Rights (ECtHR) held in its KK and Others v. Denmark judgment that Denmark had violated Article 8 of the European Convention on Human Rights (ECHR) by its legislative measures trying to prevent commercial surrogacy arrangements (reported for the blog here). Measures were taken by Danish institutions in response […]

The third issue of the Journal du droit international for 2025 has been released. It contains one article and several case notes relating to private international law issues. It is also worth mentioning a contribution on (public) international law that echoes a special issue of the Journal, published earlier this year to mark its 150th anniversary. In […]

Any student of German private international law will take delight in the news that a new textbook has just been published by our co-editor Susanne Goessl together with Florian Kienle. The book covers questions of both the applicable law (internationales Privatrecht) and of jurisdiction and foreign judgments (internationales Zivilverfahrensrecht), with a certain focus on the former area. As one might expect from a new text, it puts the European instruments of private international law (and the areas governed by them) into the centre (pp. 16–144) – without neglecting the areas that remain governed by domestic law (pp. 145–282).

Readers looking to familiarize themselves with German PIL will appreciate the concise introduction to the field (pp. 1–15), the comprehensive coverage of fundamental questions (such as renvoi, characterisation, etc.; starting at p. 157), and the revision questions provided at the end of each chapter. Above all else, however, they will notice the many topical examples used by the authors to explain the material, ranging from climate change and human rights litigation to Covid, the Volkswagen emissions scandal, and the 2021 Suez Canal obstruction by the Ever Given. The wealth of these examples alone makes the book a great read even for those who may consider themselves already well acquainted with German PIL (not least if they need to teach it).

More information on the book is available here.

 

Nadia Rusinova has recently published an open access book titled Practical Handbook on EU Family Law. Part I: Key Concepts, Legal Terminology, and CJEU Case Law in Cross-Border Judicial Cooperation (2025).The Handbook can be downloaded from the Author’s website here. The blurb reads as follows: The EU Family Law Handbook is a unique, practitioner-focused resource, […]

The author of this post is Pierfancesco Rossi, tenured researcher of International Law at the University of Teramo. On 5 June 2025, the Hague Court of Appeal declined to grant exequatur to a Ukrainian judgment holding Russian energy giant Gazprom jointly and severally liable for material damages incurred during Russia’s invasion of the country. The […]

At the University of Vienna, a Chair for Comparative Law and Private International Law will become vacant in 2026 (current holder: Professor Helmut Ofner). We are looking for experts around the world.   The role will primarily involve teaching and research in private international law and comparative law. Knowledge of the German language and the […]