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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 […]

Originally sourced from Max Planck Institute for Comparative and International Private Law post on 22 July 2025, with slight amedments.

Make today matter! Under this motto, legal scholars from all over the world gathered at the University of Pretoria on July 8, 2025 to take part in the conference “Sustainable Development and Transnational Law in Africa”. The event was jointly organized by the Law Schools Global League and Max Planck Institute for Comparative and International Private Law with a view to fostering academic exchange across continents on today’s most pressing challenges.

“It was fantastic to see the breadth and depth of work done in and on Africa within the new field of sustainable development and private international law. Thanks are due also to our co-organizers at the Law Schools Global League ant the University of Pretoria; it is so important to hold conferences like this one outside of Europe,” says Max Planck Institute’s Director Ralf Michaels.

The conference program consisted of four panel discussions (for a report, see ? here). The last two panels brought together five of the participants in a current project titled “Private International Law and Sustainable Development in Africa”**:

Solomon Okorley (University of Johannesburg) spoke about International Child Abduction Jurisprudence in South Africa; Grihobou Roland Nombré (Thomas SANKARA University School of Law) discussed the implications of the rise of Nuclear Energy in Africa for Private International Law; Michael K. Quartey (University of Johannesburg) and Theophilus Edwin Coleman (University at Buffalo School of Law & University of Johannesburg) addressed Product Liability Disputes in Ghana from the perspective of sustainable development, and Panji Chirwa (University of Pretoria) looked at the Impact of the EU Directive 2024/1760 on African Sustainability Frameworks.

** The project “Private International Law and Sustainable Development in Africa” forms the African component of the broader initiative “The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law” (see ? here), led globally by Ralf Michaels (Max Planck Institute),  Hans Van Loon (previously Secretary General of the Hague Conference on Private International), and Veronica Ruiz Abou-Nigm (University of Edinburgh). The African initiative is spearheaded by Chukwuma Samuel Adesina Okoli (University of Birmingham), in partnership with Eghosa Ekhator (University of Derby) and the Journal of Sustainable Development Law and Policy (Afe Babalola University, Nigeria), and works closely with the global project leaders.

Publication of the fifth editions of the Practical Handbooks on the Operation of the 1965 Service and 1970 Evidence Conventions

The Permanent Bureau of the HCCH is pleased to announce that the fifth editions of the Practical Handbooks on the Operation of the 1965 Service and 1970 Evidence Conventions are now available for purchase in both paper and e-book format.

The 1965 Service and 1970 Evidence Conventions establish uniform frameworks of cooperation mechanisms to streamline, respectively, the transmission of documents for service abroad and the taking of evidence abroad. The Service and Evidence Handbooks are intended to assist users of the Conventions, including Central Authorities, government officials, courts, counsel and legal practitioners, by providing practical guidance on their implementation and operation.

The Practical Handbook on the 1965 Service Convention is designed first and foremost to assist users with the operation of the main and alternative channels of transmission and the provisions regarding adequate protection of the defendant. As for the Practical Handbook on the 1970 Evidence Convention, it is designed to assist users with the operation of the two systems of taking evidence that are provided by the Convention, namely (1) Letters of Request and (2) Consuls and Commissioners. The Practical Handbooks also explain how information technology is and may be used to further enhance the operation of the Conventions, including by incorporating, for the 1970 Evidence Convention, relevant information from the HCCH Guide to Good Practice on the Use of Video-Link.

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 on how to purchase hard copies and/or e-book copies is available on the Publications section of the HCCH website (for the general public).  Specific instructions for HCCH National and Contact Organs and Member Central Authorities designated under the Service and Evidence Conventions are also provided on the Publications section of the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

The second issue of 2025 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. It features three contributions. Francesco Pesce, Il riconoscimento delle decisioni straniere in materia civile tra previsioni sulla competenza funzionale del giudice interno e comunicazioni alla Commissione europea [Recognition of Foreign Decisions in Civil Matters between Provisions on the […]

The authors of this post are Birgit van Houtert and Marco Pasqua, co-Chairs of the EAPIL Working Group on Anti-SLAPP Directive Transpositions. The post is the result of the collective work of the members of the Working Group. On 27 June 2025, the EAPIL Working Group on Anti-SLAPP Directive Transpositions held its first online meeting, […]

This post was written by Marco Buzzoni,  Doctoral Researcher at the Luxembourg Centre for European Law (LCEL). By a post of 16 July 2025, Professor Gilles Cuniberti reported on this blog about a ruling of the Grenoble Court of Appeal that refused enforcement of a Luxembourg judgment because the certificate required by Article 53 of the […]

The second edition of International Asset Tracing in Insolvency, edited by Felicity Toube, has recently been published by Oxford University Press. The publisher’s blurb reads as follows. This is the only book to provide comprehensive coverage of the legal issues involved in asset tracing in insolvencies. Both corporate and personal insolvencies are covered in domestic […]

We have recently shared the call for papers by the Journal of Law, Market & Innovation (JLMI) for its first issue of 2026. The deadline has now been moved to 20 July 2025.

For further information, we are again referring to the editors who can be reached at editors.jlmi@iuse.it.

Necla Ozturk (Editor of the Akdeniz University Faculty of Law Journal) has kindly shared the following call for papers with us:

On the occasion of the 90th birthday of distinguished legal scholar Professor Dr. Peter Hay, Akdeniz University Faculty of Law Journal is preparing a special issue to be published in 2025, dedicated to his outstanding contributions to Private International Law and Comparative Law.

Throughout his illustrious academic career, Professor Hay has profoundly influenced the field through his pioneering work on the relationships between American, German, and European Private Law systems. His publications, teaching, and international engagements have left a lasting mark on the legal world.

We would be honored to receive a contribution from you for this commemorative issue. We especially welcome articles that address topics aligned with Professor Hay’s areas of expertise or offer critical reflections inspired by his scholarly legacy.

Suggested Topics Include:
• Private International Law
• Comparative Law
• Convergence/Divergence of Legal Systems
• American And European Private Law
• Critical Assessments of Professor Hay’s Work

Submission Deadline: November 15, 2025
Languages Accepted: Turkish, English, German, French.
Submission Guidelines: https://dergipark.org.tr/en/pub/akdhfd/writing-rules

Please submit your article via https://dergipark.org.tr/en/pub/akdhfd or hukukdergi@akdeniz.edu.tr by the deadline indicated above.

We look forward to your valuable contribution to this special issue that pays tribute to Professor Peter Hay’s scholarly achievements and influence.

In a judgment of 28 January 2025, the Court of Appeal of Grenoble (France) ruled that a Luxembourg judgement could not be enforced in France in the absence of an Article 53 Brussels I bis certificate enforcement, as it was not satisfied that the foreign judgment was enforceable. Background A Luxembourg bank had successfully sued […]

Written by Dr. Nima Nasrollahi-Shahri (Sorbonne Law School) and Vincent Bassani-Winckler (PhD Candidate, Sorbonne Law School), both authors participated in the Working Group.

A few days ago, the Sorbonne Law School released the final report of a collective research project chaired by Professors Mathias Audit and Sylvain Bollée, entitled “Towards an EU Law on International Commercial Arbitration?”.

Conducted within the IRJS (Institut de Recherche Juridique de la Sorbonne), and more specifically its research group on private international law, SERPI (Sorbonne – Étude des Relations Privées Internationales), this project sets out to examine whether and how to improve the relationship between commercial arbitration and EU law.

Aims of the project and content of the report

Rather than proposing a full-scale harmonisation, the group focused on identifying limited and concrete modifications, focused on procedural issues, that would improve clarity, consistency, and the mutual recognition of arbitration-related judgments across Member States. Most notably, the report contains a proposal to qualify the arbitration exclusion in the Brussels I recast regulation and to add several provisions granting jurisdiction to the court of the seat of the arbitration, giving priority to these courts to prevent forum shopping and allowing arbitration-related judgments to circulate automatically within the EU.

The report is divided into three main parts. The first part of the report maps out the fragmented legal landscape currently governing international commercial arbitration within the European Union. Although arbitration is expressly excluded from the scope of the Brussels I Recast Regulation and Rome I regulation, it is not entirely isolated from EU law. For instance Regulation 2015/848 on insolvency proceedings refers to the effects of insolvency on pending arbitral proceedings, effects solely governed by the lex loci arbitri. By contrast, the jurisprudence of the CJEU has had a more substantial impact on arbitration-related matters, whether it is on application of EU public policy in arbitration (Mostaza Claro and Eco-Swiss) or of course investment arbitration between EU Member States (Achmea, Komstroy, and PL Holdings rulings). The CJEU has also shaped the scope of the arbitration exclusion in the Brussels I system. While early cases seemed fairly uncontroversial, West Tankers precluded Member States’ courts from issuing anti-suit injunctions relating to arbitration. Particularly controversial was the London Steamship Judgement, in which the Court limited the ability of a (then) Member State to refuse recognition of a judgment on the basis of a prior arbitration award – even where the award had already been confirmed by a court in that Member State (where the seat of arbitration was located).

The second part of the report lays out the rationale behind the working group’s proposals. It begins by acknowledging the political and legal constraints of a full-scale harmonisation, before arguing that targeted integration of arbitration-related rules into EU law – in particular the Brussels I Recast Regulation – would meaningfully enhance legal certainty, coherence, and the effectiveness of commercial arbitration within the Union. The report identifies a series of concrete legal issues where the current exclusion of arbitration from Brussels I Recast creates legal uncertainty or unfair outcomes. The first issue is certainly the risk of competing proceedings: the current framework does not give any priority, where the validity or applicability of an arbitration agreement is contested, to the judge of the seat of arbitration. Uncertainties remain, additionally, regarding the leeway of a judge of a Member State faced with a judgment rendered on the merits by the judge of another Member State after the latter has dismissed an arbitration agreement. Litigation concerning the constitution of the arbitral tribunal can also give rise to procedural conflicts. The circulation of decisions on the constitution of the arbitral tribunal and relating to the validity of the award are currently governed by a patchwork of national laws. Both could be ensured by a European recognition regime. In the wake of the London Steamship ruling the handling of conflicts between judgments and awards has never been more uncertain. In short, the current regime gives no clear priority to the court of the seat of arbitration, nor does it offer sufficient predictability to parties who rely on arbitration within the European judicial area.

In the final part of the report, the working group sets out a targeted reform plan for the Brussels I Recast Regulation. These proposed amendments are designed to strengthen the effectiveness of arbitration within the EU judicial area without harmonising the substance of arbitration law. Each provision responds to existing legal uncertainties or procedural inconsistencies and aims to enhance predictability, mutual trust, and party autonomy.

The proposed amendments to the Brussels I Recast Regulation

The amendments focus on six areas:

1.  Limited extension to arbitration of the scope of application of the Regulation (Article 1(2)(d))

Proposed provision (art. 1(2)(d)):

“This Regulation shall not apply to: (…) (d) arbitration, save as provided for in Articles 25 bis, 31 bis, 45 1. (d) and 45 3”

The first proposed amendment refines the current exclusion of arbitration from the Brussels I Recast Regulation. Presently, Article 1(2)(d) excludes arbitration entirely, which has led to interpretive tensions when arbitration-related issues intersect with judicial proceedings. The proposed reform retains the general exclusion but introduces narrowly defined exceptions – specifically for (proposed) Articles 25 bis, 31 bis, 45(1)(d), and 45(3).

This opening is not meant to harmonise arbitration law within the EU, but rather to create bridges where interaction with judicial mechanisms is unavoidable. It provides gateways for EU procedural law to engage with arbitration in discrete and functional ways, particularly around jurisdictional conflicts, enforcement of judgments, and safeguarding the role of the arbitral seat. Crucially, this shift does not introduce EU-wide arbitration rules. Instead, it merely extends the scope of the Regulation in a way that strengthens procedural consistency while continuing to respect the autonomy of Member States in substantive arbitration matters.

2. Recognition of Judgments Related to Arbitration (Article 2)

Proposed provision (art. 2):

“For the purposes of this Regulation: (a)(…) (…)

For the purposes of Chapter III, ‘judgment’ includes a judgment given by virtue of Article 25 bis paragraph 1 in the Member State where the seat of arbitration is located. It also includes a judgment given by virtue of Article 25 bis paragraph 1 (a) in another Member State, the court of which was expressly designated by the parties. It does not include a judgment issued by the court of another Member State on matters referred to in Article 25 bis paragraph 1; (…)”

This reform targets a critical gap in the existing system: the inability of arbitration-related court judgments (e.g. those concerning the annulment or enforcement of arbitral awards) to circulate within the EU under the automatic recognition regime of the Brussels I Recast.

The proposal amends Article 2 to include within the definition of “judgment” those decisions rendered either by the courts of the seat of arbitration (under Article 25 bis) or by courts expressly designated by the parties. Such judgments would now benefit from the mutual recognition mechanism of Chapter III. Conversely, judgments by other courts, not falling under these categories, would be excluded from automatic recognition.

This shift would enable decisions such as annulment or enforcement of awards issued by courts at the arbitral seat to circulate seamlessly across Member States. In effect, it creates a “European passport” for arbitration-related judicial decisions – enhancing legal certainty and mutual trust –  and preventing inconsistencies where one Member State’s court upholds an award and another ignores or contradicts it.

Importantly, this proposal, read in conjunction with article 25 bis, also ensures that parties retain freedom: they may still seek enforcement under national rules of jurisdiction if they prefer (art. 25, 3.). The reform merely introduces a uniform recognition track, based on mutual trust, building on the legitimacy of decisions from the arbitral seat.

3. Jurisdiction of the Courts of the Seat of Arbitration (Article 25 bis)

Proposed provision:

Article 25 bis:

“1. If the parties, regardless of their domicile, have agreed to settle their dispute by arbitration with its seat in the territory of a Member State, the courts of that Member State shall have jurisdiction over the following actions:

(a) Actions relating to the support for the constitution of the arbitral tribunal or the conduct of the arbitration procedure. This should be without prejudice to the jurisdiction of any other court expressly designated by the parties;

(b) Actions relating to the existence, validity or enforceability of the arbitration agreement. This should be without prejudice to:

• provisions of the national law of that State Member empowering the arbitral tribunal to rule on its own jurisdiction and, as the case may be, recognising it a priority in this respect; and
• article 31 bis paragraph2.

(c) Actions for annulment, recognition or enforcement of the arbitral award.

2. Actions referred to in paragraph 1 (a) and (b) may not be brought before a court of a Member State on the basis of national rules of jurisdiction.

3. Paragraph 1 (c) should be without prejudice to the right for a party to seek recognition and enforcement of an arbitral award before a court of a Member State on the basis of its national rules of jurisdiction.

4. The provisions of this article are without pre judice to the application of a rule of national law of the Member State where the seat of arbitration is located enabling the parties to waive their right to bring an action for annulment.

5. The provision of this article do not apply in disputes concerning matters referred to in Sections 3, 4 or 5 of Chapter II.”

This core reform introduces a new jurisdictional rule under EU law that recognises the centrality of the seat of arbitration. Under the proposed Article 25 bis, when parties have agreed to seat their arbitration in the territory of a Member State, the courts of that State will have jurisdiction over three key types of actions:

• (a) Requests for judicial assistance, such as the appointment of arbitrators;
• (b) Challenges to the existence, validity, or enforceability of the arbitration agreement; and
• (c) Actions for annulment, recognition, or enforcement of the award.

However, this is not a rule of exclusive jurisdiction in all cases. While Article 25 bis bars recourse to national jurisdiction rules for actions falling under (a) and (b), paragraph 3 expressly preserves the right for parties to seek enforcement of arbitral awards before other Member State courts, under those States’ existing national jurisdiction rules. In other words, a party could still apply directly for enforcement in a Member State other than the seat — which remains particularly important in practice for seeking execution against assets wherever they are located.

What this rule achieves, then, is not exclusivity per say, but a harmonised baseline: it grants primary jurisdiction to the courts of the seat for core functions, while preserving flexibility where appropriate. It also enhances coherence and foreseeability, notably by ensuring that judgments rendered by the court of the seat (especially on annulment or validity of awards) will benefit from automatic circulation under Chapter III of the Brussels I Recast (which is the effect of the proposed addition to article 2 (a)) — effectively granting them a “European passport.”

In addition, the rule accommodates Member States’ domestic doctrines, such as competence-competence and its negative effect, and waiver of annulment actions, making it fully compatible with diverse national legal cultures.

4. Priority of the Seat’s Courts in Conflicting Proceedings (Article 31 bis)

Proposed provision:

Article 31 Bis:

“1. Where a court of a Member State is seized of an action and its jurisdiction is contested on the basis of an arbitration agreement establishing the seat of the arbitration in another Member State, it shall, on the application of the party seeking to rely upon the said agreement, stay the proceedings until the courts of this other Member State have ruled or may no longer rule on the existence, validity or enforceability of the arbitration agreement.

2. However the court whose jurisdiction is contested continues the proceedings if:

(a) the arbitration agreement is manifestly inexistent, invalid or unenforceable under the law of the Member State where the seat is located; or

(b) the arbitral tribunal was seized and declined jurisdiction, and the arbitration agreement is inexistent, invalid or unenforceable under the law of the Member State where the seat is located.

For the purposes of this paragraph, reference to the law of the Member State where the seat is located encompasses conflict-of laws rules applicable in that Member State.

3. The provisions of this article are without prejudice of the application of a rule of national law of the Member State where the seat of arbitration is located empowering the arbitral tribunal to rule on its own juris diction and, as the case may be, recognizing it a priority in this respect.”

This reform introduces a stay mechanism to prevent jurisdictional races and forum shopping when disputes arise about the validity of an arbitration agreement.

When a court in one Member State is seized and the arbitration agreement designates a seat in another, the seized court must stay its proceedings until the courts of the seat have ruled — unless:

• The arbitration agreement is manifestly invalid, or
• The arbitral tribunal has already declined jurisdiction.

This reform addresses the recurring problem of inconsistent rulings and tactical litigation, where parties rush to court in jurisdictions likely to undermine arbitration. The proposed rule:

• Respects the primacy of the seat in deciding the validity of the arbitration agreement;
• Integrates negative effect competence-competence where national laws so provide (see para. 3);
• Ensures minimal interference by requiring only a prima facie validity to continue proceedings, thus filtering abusive challenges;
• Maintains consistency with the New York Convention, especially Article II(3), by offering a more favourable approach (per Article VII).

In practice, this rule harmonises procedural treatment of arbitration agreements across the EU and strengthens the parties’ contractual choices, giving effect to their selection of the arbitral seat as the appropriate forum for judicial review.

5. Clarification on Provisional Measures (Article 35)

Proposed provision:

Article 35: “Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State or an arbitral tribunal have jurisdiction as to the substance of the matter.”

This is a seemingly modest, but practically important clarification. Currently, Article 35 allows courts to grant provisional measures even if they lack jurisdiction on the merits — but it does not expressly mention arbitration.

The proposal amends this article to state that courts may issue such measures even if an arbitral tribunal has jurisdiction over the dispute. This codifies the approach taken by the ECJ in Van Uden.

6. Refusal of Recognition in Case of Conflict with Arbitral Awards (Article 45)

Proposed provision:

Article 45:

“1. On the application of any interested party, the recognition of a judgment shall be refused:

(…)

(d) if the judgment is irreconcilable with an earlier judgment given in another Member State or in a third State, or an arbitral award, involving the same cause of action and between the same parties, provided that the earlier judgment or arbitral award fulfils the conditions necessary for its recognition in the Member State addressed; or (…)

3. Without prejudice to point (e) of paragraph 1, the jurisdiction of the court of origin may not be reviewed. The test of public policy referred to in point (a) of paragraph 1 may not be applied to the rules relating to jurisdiction, including the rules governing the existence, validity or enforceability of arbitral agreements.”

This reform targets one of the most pressing weaknesses exposed by the London Steamship case: under current law, an arbitral award cannot itself prevent the recognition of a conflicting court judgment within the Brussels I framework.

The proposed change adds arbitral awards to the list of prior decisions that can bar recognition of later inconsistent judgments, provided that:

1. The award was rendered before the judgment,
2. Both involve the same cause of action and parties, and
3. The award meets the conditions for recognition in the requested state.

This ensures that awards enjoy the same res judicata value as earlier judgments, preventing inconsistent decisions and protecting the authority of arbitration.

In addition, paragraph 3 of Article 45 is revised merely to extend the prohibition of the use of public policy exceptions to the rules relating to jurisdiction, even when the rules governing the existence, validity or enforceability of arbitral agreements are at stake.

Conclusion: A Coherent and Functional Reform

These proposals are carefully calibrated. They do not seek to harmonise the substance of arbitration law in the EU – something neither realistic nor desirable given the diversity of legal traditions. Rather, the proposals aim to:

• Close procedural loopholes in the Brussels I Recast Regulation;
• Ensure legal certainty in cross-border litigation involving arbitration;
• Support party autonomy and reward the choice of a Member State seat;
• Enhance the attractiveness of European arbitration venues, through mutual trust in court supervision and support for arbitration.

In short, the proposals promote integration without harmonisation. They offer a modest but meaningful step towards a more coherent and predictable European framework for arbitration—one that recognises both the autonomy of arbitration and the importance of judicial cooperation in the EU.