Conflictoflaws

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

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

 

Introduction

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

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

 

I. Why Colonialism Matters to PIL

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

 

1. Explanatory Value

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

 

2. Inclusiveness and Diversity in Legal Scholarship

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

 

3. Relevance for Contemporary Practice

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

 

II. Scope of Analyses

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

 

III. The Paradox: Legal Equality vs. Colonial Hierarchy

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

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

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

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

 

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

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

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

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

 

V. The “Civilized vs. Uncivilized” Divide

 

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

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

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

 

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

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

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

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

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

 

VI. PIL as a tool for emancipation from colonial chains

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

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

 

Conclusion: A Dual Legacy

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

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

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

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

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

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

A standalone body

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

Constitution

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

Jurisdiction and Powers

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

 Hearings and Procedure  

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

Legal Representation

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

Enforcement of orders and judgments of the International Committee

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

Finality of Decision

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

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

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

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

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

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

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

[6] The International Committee Act, section 4.

[7] The International Committee Act, section 6.

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

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

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

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

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

[13] The International Committee Act, section 14.

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

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

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

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

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

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

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

Key Themes Include:

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

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

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

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

A standalone body

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

Constitution

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

Jurisdiction and Powers

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

 Hearings and Procedure  

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

Legal Representation

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

Enforcement of orders and judgments of the International Committee

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

Finality of Decision

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

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

 

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

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

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

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

[5] The International Committee Bill, section 4.

[6] The International Committee Bill, section 6.

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

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

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

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

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

[12] The International Committee Bill, section 14.

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

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

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

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

 

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

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

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

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

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

Registration for free here (hosted through Eventbrite)

Speakers & program:

10.00 Opening and welcome: Xandra Kramer

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

10.15 Juraj Brozovic – The Case of Judicial Advisors in Croatia

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

10.50 Discussion

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

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

11.45 Discussion

 

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

Overview

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

About the book

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

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

The Omnibus

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

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

CSDDD: civil liability by overriding mandatory provisions

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

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

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

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

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

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

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

          (…)

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

Motivation

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

Implications

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

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

Today the European Commission published its eagerly awaited Commission Report on the application of the Brussels Ia Regulation (also referred to as Brussels I-bis), No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). The Report is accompanied by a Staff Working Document, detailing a number of selected topics addressed in the Report. The documents rely in particular on the extensive Evaluation Study that was published in January 2023 as well as the findings of the JUDGTRUST project and the resulting book.

The Report states that it is ‘generally agreed that the Regulation is a highly successful instrument’ and that the enhancements, including the abolition of the exequatur, have strengthened judicial cooperation in civil and commercial matters. Its overall ‘clear and simple’ rules are ‘highly appreciated amongst practitioners. The Report also emphasizes the essential role of the CJEU case law in interpreting and applying the rules. While several complex issues require clarification, given the ‘general satisfaction with the operation of the Regulation, any modifications should respond to real practical difficulties and should not lead to an overhaul of the well functioning system of the Regulation’, according to the Commission.

The Report addresses the scope of application laid down in Art. 1  (in particular the exclusion of arbitration) as well as a number of issues in applying Arts. 2 and 3, including definitions (in particular the term ‘judgment’ in relation to provision and protective measures, and definition of ‘court’ referring to the Pula Parking judgment, see here).

As regards the scope of the jurisdiction rules, the much debated issue of the (non) application to third-country defendants and possible extension is addressed. Topics pointed out in relation to the special, alternative jurisdiction rules in Arts. 7-9 include the increasingly broad interpretation of ‘matters relating to a contract’, determining the place of performance  of contractual obligations (Art. 7, para 1), and as regards torts (Art. 7, para 2) the often problematic determination of the place of damage of pure financial loss (similar to Rome II Regulation, see also here) and the application of the mosaic principle in cases regarding the violation of privacy rights. As to the latter, reference is also made to the (negative) implication in SLAPP cases and the Anti-SLAPP directive, which was adopted in 2024. A number of issues are pointed out in applying the consumer protective rules in Arts. 17-19, including the notion of ‘consumer’, the phrase ‘directing of commercial activity’, the exclusion of transport contracts as well as their non-applicability in collective redress actions, where cases are brought by a representative organisation. A few minor (formulation) issues in the application of Art 24 on exclusive jurisdiction are pointed out.

As regards the rules on recognition and enforcement, it is concluded that the system of the recast Regulation, which abolished the declaration of enforceability (exequatur) works generally well in practice and has had a positive effect on the costs and workload of courts. The Report refers to a number of CJEU rulings on the application of the public policy exception, including in the cases Diageo Brands, H Limited and most recently, the Real Madrid. The CJEU upheld the restrictive application of the public policy exception, though created room for its application in the latter case in which the violation of a fundamental right under the EU Charter of Fundamental Rights (freedom of press) was at stake.

Lastly, the Report reflects on the relationship with other instruments (Arts. 67-74), referencing in particular the Lugano Convention, the New York Convention, bilateral conventions of Member States with third states, and the establishment of the “United” (this should be “Unified”) Patent Court.

A number of important horizontal issues that are pointed out are that of the potential problematic application in collective redress cases, as is also clear from a number of rulings of the CJEU, and the impact of digitalisation, including the increase of digital content and blockchain technologies, and the digitalisation of judicial procedures.

In conclusion, the Commission will initiate ‘a formal review of the Regulation in order to consider and potentially prepare a proposal to amend or recast the Regulation in accordance with the Better Regulation rules’. Highlighted topics in this context are:

• (once again) the extension of the rules of jurisdiction to cover defendants not domiciled in a Member State
• provisions on the scope and definitions, in particular the exclusion of arbitration, the notion of ‘court or tribunal‘ and ‘provisional, including protective, measures‘
• simplifying and enhancing the effectiveness of the provisions on jurisdiction, in particular Arts. 7(1) on contracts and 7(2) on torts, as well as those on consumer contracts
• further streamlining and simplifying the rules on recognition and enforcement
• necessary procedural tools in relation to collective redress
• coordination between the Regulation and international instruments, and
• ways to modernise and simplify procedures as part of the digital reform of civil justice systems

To be continued!

Conflictoflaws will organise an online roundtable on designated topics of the report, following the succesful roundtable on Rome II – Stay tuned

The 20th Anniversary Conference of the Journal of Private International Law will take place at the Faculty of Laws of University College London between 11 and 13 September 2025.A

The conference organizers, Ugljesa Grusic (UCL) and Alex Mills (UCL), and the editors of the Journal, Paul Beaumont (University of Stirling) and Jonathan Harris (King’s College London), are pleased to announce that the conference programme is now available on the conference website.

The conference will include, in the customary manner, a mixture of parallel panel sessions (on Thursday afternoon and Saturday morning) and plenary sessions (on Friday).

A limited number of non-speaker tickets and conference dinner tickets are available via the conference website, with early bird fees until 1 July 2025.

EDITORIAL

In an increasingly globalized world—and especially within the framework of a unified market founded on economic freedom and the free movement and establishment of individuals and businesses—international sales have emerged as a cornerstone of the legal and economic order. They are not merely instruments for the acquisition of assets across borders; they also function as a key mechanism for fostering business growth and enhancing competitiveness through the expansion of commercial activity and client networks.
Given their fundamental role, international sales are subject to a broad and multi-layered legal framework at the international level. This complex regulatory landscape gives rise to a number of interpretative and practical challenges, particularly with regard to the interaction and prioritization of overlapping legal norms.
With these considerations in mind, our journal hosted an online event on 1 October 2025, aiming to shed light on the central legal issues surrounding international sales in the current international context. The scholarly contributions presented during that event are now published in this issue, enriched with doctrinal analysis and case law references, in the hope of contributing meaningfully to ongoing academic and professional discourse. It opens with a study by Professor Michael Sturner, Chair of Civil Law, Private & Procedural International Law and Comparative Law at the University of Konstanz and Judge at the Karlsruhe Court of Appeal, entitled “The Right to Repair: A New Paradigm in EU Sales Law”. Judge Dimitrios Koulaxizis contributes an article examining “The United Nations Convention on Contracts for the International Sale of Goods (CISG) in Relation to the Rome I Regulation on the Law Applicable to Contractual Obligations”; Prof. Anastasios Valtoudis, Professor of Civil Law at the Aristotle University of Thessaloniki, addresses “Issues Concerning the Preconditions for the Application of the CISG – Delimitation in Light of Directive 2019/771 and Articles 534 et seq. of the Greek Civil Code”; Prof. Eugenia Dacoronia, Professor of Civil Law at the Faculty of Law of the University of Athens, offers a critical reflection on “The UNIDROIT Principles of International Commercial Contracts – 30 Years On: Their Significance and Comparison with the Provisions of the Greek Civil Code”. The volume also includes the contribution of Associate Professor of Civil Law at the Aristotle University of Thessaloniki Timoleon Kosmidis, who explores “Natural Gas Supply: National Legislation and International Commercial Practice”.
The Praefatio of the issue hosts the valuable reflections of Professor Silvia Marino of the University of Insubria/Italy, on the complex issue of lis pendens and related actions in the context of family property disputes under European Union Private International Law (“Lis Pendens and Related Actions in European Union Private International Law on Family Property Issues”).
The case law section features a number of significant judicial decisions. Notably, it includes the important judgment of the Court of Justice of the European Union (CJEU), 4 October 2024, C-633/22, Real Madrid Club, addressing public policy as a ground for refusing the enforcement of a foreign judgment on account of an infringement of freedom of the press (commented by R. Tsertsidou). Also presented is the ruling of the German Federal Court of Justice (BGH), 29 November 2023, VIII ZR 7/23, which deals with the application of domestic mandatory rules even in the presence of a contractual choice of law, where the contractual relationship lacks a substantial connection to a foreign legal system (commented by N. Zaprianos). From the Greek courts, this issue includes: Athens Court of First Instance, judgment no. 3155/2022, concerning the possibility of reviewing the parties’ freedom to choose the competent court under the rule (Art. 281 grCC) prohibiting of abuse of rights (commented by S. Karameros); Athens Court of Appeal (Single-Member), judgment no. 2435/2024, concerning the recognition of a foreign adoption judgment issued in favor of a same-sex couple (commented by M. Gerasopoulou); and Piraeus Court of First Instance (Single-Member), judgments no. 3355/2023 and 11/2022, regarding the applicable law for the appointment of a special guardian to initiate a paternity challenge, pursuant to the 1996 Hague Convention (commented by G.-A. Georgiadis).
The scientific section of this issue includes a study by Associate Professor V. Kourtis (Aristotle University of Thessaloniki), entitled “Issues of Intertemporal Law in Cross-Border Maintenance Claims within the European Area”. It also features the academic contribution of Judges P. Kapelouzos, St. Krassas, and M. Martinis, submitted in the context of the Themis Competition 2023, under the title “May I ‘book’ my forum delicti? Or else: The Objective Limits of Jurisdiction Clauses in Tort Cases”. The issue concludes with the regular quarterly review of the CJEU’s case law covering the period July–September 2024, edited by A. Anthimos.
Lex&Forum renews its scientific appointment with our readers for the next, 16th issue, with the central topic (Focus) on “Cross-border matrimonial and registered partnership property regimes”.

The Journal of Law, Market & Innovation (JLMI) welcomes submissions for its first issue of 2026.

The Call for Papers for this second issue is devoted to Tariffs: Emerging challenges in global trade.

You can find the call with all the details at this link.

Prospective articles should be submitted in the form of an abstract (around 800 words) or draft articles to submissions.jlmi@iuse.it within 10 July 2025. The publication of the issue is set for the end of March, 2026.

For further information, or for consultation on a potential submission, you can contact us by email at editors.jlmi@iuse.it.

At the occasion on 5 June of the PhD Defence of Leontine Bruijnen on How can Private International Law bridge the Gap between the Recognition of Unknown Family Relations such as Kafala and Child Marriage for Family Law and Migration Law Purposes? , we are organising an expert seminar at the University of Antwerp and online:

Child marriage: root causes and questions of recognition:

11.00: Welcome and introduction by Thalia Kruger, University of Antwerp

11.10: The Role of Customs and Traditions in Addressing Child Marriages in Tanzania: A Human Rights-Based Approach, by Esther Kayamba, Mzumbe University and University of Antwerp

11.25: The link between climate change and child marriage in Tanzania, by Agripina Mbilinyi, Mzumbe University and University of Antwerp

11.40: Socio-cultural factors that Sustain Child Marriage at Quarit Wereda, Amhara Region, Ethiopia by Yitaktu Tibetu, Human Rights Lawyer, Senior Gender Adviser and councillor psychologist

12.00: Perspective from Europe by Bettina Heiderhoff, University of Münster and Trui Daem, PhD researcher Ghent University

12.20: Debate and Q&A

12.50: End

To register, please contact Thalia Kruger

The second issue of LMCLQ was recently published.

It contains the following conflict of laws works,

 

David Foxton, “The Applicable Law of an Arbitration Agreement: Floating or on the Rocks?”

 

Marcus Teo and Kah-Wai Tan, “Territoriality over Universalism”

 

Adrian Briggs, “Submission to a Russian Court”

On Tuesday, June 3, 2025, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST). Professor Michael Karayanni (Hebrew University of Jerusalem) will speak, in English, about the topic

“Voice and Exit in Private International Law: The Case of the Israeli Inter-religious Regime”

Private international law can play a significant role in countries with inter-religious legal regimes by offering individuals an option to “exit” their personal religious law in favor of secular law in effect in a foreign country. My presentation will examine the development of the lex loci celebrationis choice of law rule within Israel’s inter-religious regime. Additionally, it will investigate whether this development has empowered individuals with an adequate “voice” to challenge community-based religious norms.

 

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

Written by George Jacob, Incoming Associate, Bombay Law Chambers

Globalisation has led to a rise in cross-border disputes, making international service of summons increasingly relevant. While domestic service in India is straightforward, sending summons to foreign defendants involves complex legal procedures. Proper service ensures that the defendant is duly notified and can respond, embodying the principle of audi alteram partem. Until recently, the procedure for international service in India was unclear. This ambiguity was addressed by the Kerala High Court in Charuvila Philippose v. P.V. Sivadasan.[1] This blog outlines the legal frameworks for international service, revisits the earlier Mollykutty[2] decision, and analyses the broader implications of Charuvila Philippose.

Process of Overseas Service of Summons in India – the Methods

Theoretically, serving of summons abroad should be straightforward. However, in India, the mechanism for international service of summons is tangled due to a patchwork of legal frameworks ranging from international treaties – such as the Hague Service Convention and Mutual Legal Assistance Treaties, to government routes such as Letters Rogatory and even provisions under the Indian Code of Civil Procedure, 1908. This section unpacks the various routes for international service from India; it lays the groundwork for understanding why the Charuvila Philippose case and the confusion it sought to resolve, matters.

 

1. Letters Rogatory and Mutual Legal Assistance Treaty (MLAT) Route

 

Traditionally, Indian courts have relied on letters rogatory for service abroad. A letter rogatory is a formal request issued by a court in one country to the judiciary of another, seeking assistance in serving judicial documents – in the absence of a binding treaty. This method was relied on situations when there were no specific agreements between countries.

 

In cases where bilateral Mutual Legal Assistance Treaties (MLATs) exist, the process becomes more structured. MLATs provides a treaty framework for cooperation on international service and other matters. Indian currently has MLATs with 14 countries. However, the abovementioned routes are cumbersome and slow.

 

2. The Hague Service Convention Routes – Article 2, 8 and 10

 

The rise in the number of cross-border disputes led to the development of the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965 (henceforth “Hague Service Convention” or “HSC”). India acceded to the treaty in 2006 and ratified it in 2007. Under Article 2 of HSC, India has designated the Ministry of Law and Justice as the Central Authority responsible for receiving and forwarding summons to the relevant authority in the foreign country where the defendant resides. Once received, the foreign Central Authority effects services on the defendants and returns proof of service. The HSC also permits alternate methods of service through Article 8 and Article 10. However, these routes are subject to each country’s reservations. Article 8 of HSC allows service through consular or diplomatic agents provided the receiving state has not objected. For example, Indian courts can serve a defendant in Canada directly through its consular or diplomatic agents in Canada as Canada has not opposed such a route. This is in contrast with People’s Republic of China which has opposed the Article 8 route, preventing India from serving a Chinese defendant through India’s diplomatic/consular agents in China. Article 10 of HSC allows service via postal channels, subject to whether the receiving country has not objected. For example, an Indian court may send a summons directly by post to a defendant in France, which permits such service. But this route is unavailable for defendants in Germany, as it has formally opposed service through postal channels under Article 10.

 

Indian Code of Civil Procedure Routes

 

In addition to international instruments for service, the Code of Civil Procedure, 1908 (henceforth “CPC”) provides a domestic legal framework for overseas service under Order V through Rules 25, 26 and 26A.

 

Rule 25 allows courts to serve summons via post, courier, or even email if the defendant has no agent in India authorized to accept service. Rule 26 provides for service through political agents or courts specifically appointed by Central Government in a foreign territory. However, this provision remains obsolete as no political agents or courts have been appointed till now. Rule 26A enables service through an officer appointed by a foreign country (and recognized by the Central Government). In this process, the summons is routed through the Ministry to the designated officer abroad. If the officer endorses the summons as served, such endorsement is treated as conclusive proof of service.

 

In conclusion, the issuance of summons abroad from India becomes complex because of the multiplicity of legal frameworks surrounding summons. The provisions of CPC coupled with the distinct HSC routes and the foundational mechanism of MLAT and letters rogatory significantly muddies the water.

 

Dissecting Service – Three Connected Principles

 

Understanding the various legal routes for service is only the first layer of the issue. To fully understand why the procedure of service matters, it remains essential to look deeper into three distinct, but interconnected principles related to service. The three principles are: the act of service, the court’s recognition of service and the consequences flowing from such recognition. These principles are foundational to any well-functioning legal system’s procedural laws concerning service. And they are present in both HSC and CPC. These three principles are crucial to understand the judicial debate that unfolded in Mollykutty and later in Charuvila Phillipose.

 

 

No. General Process Hague Service Convention

  Indian CPC 1. The specific process of service by the court i.e., modality of service (e.g.: postal, email etc.)

  HSC Article 2-5, Article 8 or Article 10 Order V Rule 9(1) and 9(3) [for domestic service]

 

Order V Rule 25, 26 and 26A [for service abroad] 2. Once service of summons is done, there is a declaration of service. This is important as it recognizes that service of summons to the defendant has been accomplished. i.e., the defendant has been provided sufficient notice of the case against them.

  Expressly: In the form of acknowledgement certificates or endorsements that prove delivery of summons. This is vital as it indicates that the defendant had the opportunity to understand the case made against them.

   

 

HSC Article 6  

 

Order V Rule 9(5) Implicitly: In case there are no acknowledgement certificates or endorsements to prove delivery of summons. The court is occasionally permitted to assume that summons was served (“deemed service”).

   

 

 

HSC Article 15 Paragraph 2  

 

 

Order V Rule 9(5) Proviso 3. Issuing decrees – once declaration of service is done, the parties are given time to respond and make their case before the court. If the defendant does not appear, then an ex-parte decree is issued.

 

This is done on the assumption that despite proper service or best efforts to undertake proper service, the defendant did not appear.

   

 

 

 

HSC Article 15 Paragraph 1

 

 

   

 

 

 

Order IX Rule 6

 

 

Background of the Mollykutty Dispute

 

Although India has ratified HSC and issued multiple notifications appointing the Ministry of Law and Justice as the Central Authority under Article 2 of HSC. The HSC provisions have not been legislatively incorporated into CPC. This has resulted in a fragmented legal framework where both HSC and CPC had overlapping legal regimes which diverged on the three connected principles of service – modality of service, declaration of service and issuing of decrees.

 

The coexistence of this diverging regimes came to a head in the Mollykutty case, a seminal decision of the Kerala High Court. The case concerned a suit in which the defendant resided in the United States. The trial court issued summons directly via registered post to the US defendant – a method permitted under Order V Rule 25 of CPC. However, it failed to obtain any acknowledgement of service. Due to this, the court invoked proviso to Rule 9(5) which allows court to declare deemed service if summons was “properly addressed, pre-paid and duly sent by registered post”. This raised concerns across all three foundational principles connected to service.

 

Act/Modality of Service – the trial court’s reliance on registered post conflicted with the procedure set out in HSC which mandates transmission of service through the Central Authority as the main route. The Mollykutty judgement held that in cases involving service abroad to a HSC signatory country, compliance with the HSC’s Central Authority route was mandatory.

 

Declaration of Service – the trial court declared deemed service based on the Proviso to Rule 9(5) which permits assumption of service if the summons was “properly addressed, pre-paid and duly sent by registered post”. The High Court in Mollykutty held that deemed service can be declared only as per the conditions stipulated in Article 15 of HSC.

 

Issuance of Decree – the High Court set aside the trial court’s ex parte decree since the method of service and the declaration of deemed service was improper.

 

The Mollykutty judgment mandated strict compliance with the HSC’s Central Authority for sending summons abroad. However, this strict interpretation of HSC, in the absence of legislative incorporation into CPC was concerning. Several High Court benches found the Mollykutty judgement to be overtly rigid and referred the issue to a larger bench in Charuvila Phillipose. The central question before the larger bench was whether, despite the lack of amendment to CPC, will HSC provisions concerning international service override the corresponding provisions in CPC? Or will CPC based routes for international service remain as valid alternatives?

 

The Charuvila Philippose Case

Arguments Raised

 

The parties primarily debated whether legislative amendment to the CPC is necessary when implementing an international instrument like the Hague Service Convention (HSC). The Amicus Curiae submitted that no such amendment is required unless the treaty affects the rights of citizens or conflicts with municipal law. Given that CPC is procedural in nature, the Amicus argued that litigants do not possess vested rights over specific modes of service and therefore, no individual rights are compromised. Furthermore, the Amicus contended there is no inconsistency between the CPC and the HSC: Order V Rule 25 fails to ensure proof of service; Rule 26 is largely ineffective; and Rule 26A is neutral, aligning with Mutual Legal Assistance Treaties. The Amicus also pointed to various memorandums and notifications to demonstrate the widespread administrative implementation of the HSC across India.

 

In response, the respondents emphasized that Article 253 of the Indian Constitution mandates parliamentary legislation to implement international treaties domestically. They argued that the CPC does confer substantive rights—such as appeals—and that certain HSC provisions, including Articles 15 and 16, impact citizens by altering domestic rules on ex parte decrees and limitation periods. Addressing criticisms of Order V Rule 25, the respondents asserted that uncertainties in proof of service also exist under the HSC, as enforcement depends on mechanisms in the receiving country, beyond India’s control. The respondents further maintained that India’s ratification of the HSC does not render Rule 25 obsolete and stressed that mere executive notifications cannot amend statutory provisions. Citing Article 73 of the Constitution, they concluded that executive action cannot override areas governed by existing laws.

 

Court’s Analysis

 

1. Regarding International Law and its Application in India

 

The court’s analysis centered around whether the Parliament needs to legislatively amend CPC for implementing an international convention like HSC. Since this concerns the question of application of international law to a domestic legal system. The court contrasted monistic and dualistic approaches to international law in the Indian legal system. Article 253 of the Indian Constitution states that “…Parliament has the power to make any law…for implementing a treaty or international convention….”. This article provides support for a dualistic approach as it empowers the Parliament to make laws for implementing treaties or international conventions. Conversely, monism is supported by Article 51(c) of the Indian Constitution, a directive principle, which encourages respect for international law and treaty obligations. In this case, the court balances dualism and monism by stating that Article 253 is “enabling” or provides the Parliament with the power to make laws for implementing treaties/conventions, only if necessary.

 

According to the court, Article 253 of the Constitution is by no means mandating the Parliament to make laws, for implementing every treaty or convention.

 

To support this balanced position, the court then proceeded to examine several precedents including Maganbhai Ishwarbhai Patel etc. v Union of India and Anr.[3] and Karan Dileep Nevatia v Union of India, through Commerce Secretary & Ors[4]. The position that emerges is as follows: –

 

“…(iv) The Parliament needs to make laws in respect of a treaty/agreement/convention when the treaty or agreement restricts or affects the rights of citizens or others or modifies the law of India. (v) If the rights of citizens or others are not affected or the laws of India are not modified, then no legislative measure is needed to give effect to such treaties/agreement/conventions.”

 

Since the Parliament is only required to legislatively implement those treaties/agreements/conventions that are either – (i) restricting or affecting the rights of citizens or others, (ii) or modifies the law of India; the court’s subsequent analysis examines these exceptions in detail.

 

• Whether Rights of Citizens or Others are Restricted or Affected? No, They Are Not!

 

The court held that parties to a litigation have no vested right in procedural mechanism as settled in BCCI v Kochi Cricket Pvt. Ltd.[5] And through Sangram Singh v Election Tribunal and Anr[6], it emphasized that Hague Service Convention merely addresses procedural aspects of CPC without affecting any substantive rights of parties.  On this basis, the court concluded that the HSC does not affect or restrict the rights of citizens or others.

 

• Whether the HSC Modifies the Law of India? The Answer is a Little Complex!

 

If the court found that HSC “modifies” the existing laws of India, then it would be forced to hold that the Parliament needs to legislatively amend CPC to incorporate HSC into the Indian legal system. However, relying on Gramophone Company of India v Birendra Bahadur Pandey and Ors[7], the court held that the standard of “modifies” the laws of India has been significantly tightened. The Gramophone case established that Parliamentary intervention is required only where an international convention is “in conflict with” domestic law, not merely if it “modifies” existing provisions.

 

Moreover, courts are under an obligation to interpret municipal statutes in a way that avoids confrontation with international law. A harmonious approach to interpreting international law and domestic law is encouraged in the Gramophone case. Since the focus is on procedural law rather than any substantive law, the court held that it will not readily infer a conflict between HSC and CPC.

 

Due to the new higher threshold, the court then proceeded to examine if HSC covenants are “in conflict with” the CPC provisions.

 

2. Whether HSC covenants are “in conflict with” CPC provisions regarding service abroad?

 

The rigor when examining the standard of “in conflict with”, is less for procedural law as compared to substantive law. Since the case hinges on whether the HSC methods for international service are in conflict with the CPC methods. The court examined each of the CPC methods – Order V Rule 25, 26 and 26A with HSC.

 

To recap, Rule 25 allows summons to be issued to the defendant by post or courier or email if the defendant does not have an agent empowered in India to receive service. Rule 26 pertains to service through a political agent or court in a foreign country. Rule 26A provides for service of summons through an officer appointed by the foreign country as specified by the Central Government.

 

• Are HSC covenants “in conflict with” Order V Rule 26A?

 

Article 2 and 3 HSC concerns the appointment of a Central Authority by each signatory state for enabling cross-border service. Under this route, service is sent to the requisite authority of the originating state which then forwards the service to the Central Authority of the destination state.

 

According to the court, the only difference between HSC and Rule 26A is that there is a Central Authority rather than a judicial officer (as laid down in CPC) through which service is to be sent abroad. Since this was the only difference, the court held the Central Authority route in HSC to be close and proximate to Rule 26A. And HSC was not “in conflict with” Rule 26A of CPC.

 

• Are HSC covenants “in conflict with” Order V Rule 26?

 

The court did not examine this provision in detail as the Government has not appointed any political agent or courts in any foreign country. Due to this, the question of whether HSC is in conflict with Rule 26 does not arise in the first place.

 

• Are HSC covenants “in conflict with” Order V Rule 25?

 

Article 10 of the Hague Service Convention (HSC) permits alternate methods of serving summons abroad, including through postal channels, subject to the receiving state’s acceptance. India, however, has expressly reserved against these methods, declaring its opposition to the provisions of Article 10. The court clarified that India’s reservation applies specifically to incoming service—i.e., documents sent from other HSC contracting states to India—not to outbound service, from India to states that do not object to direct postal channels.

 

Based on this, the court held that Order V Rule 25 CPC, which governs service of summons abroad, remains unaffected by the HSC. Article 10 HSC and Rule 25 CPC are not in conflict, as the former itself legitimizes postal service to foreign states that permit such service under HSC.

 

Nevertheless, the court noted practical challenges with ensuring effective service under Rule 25, particularly when using post or email, as there is often no reliable mechanism to confirm service, which is an essential safeguard to protect the defendant’s right to a fair hearing. Recognizing this, the court stressed that all courts must endeavor to attempt to secure effective service on the defendant.

 

To reconcile the CPC and HSC, the court endorsed a harmonious interpretation. Courts may proceed under Rule 25 for service abroad – if confirmation of service is received or the defendant appears in response. If so, service under Rule 25 is valid. However, if no confirmation is obtained or the defendant fails to appear within a reasonable period, courts must resort to the Central Authority mechanism prescribed under the HSC.

 

Reference Questions and their Answers

 

The court based on its analysis, concluded that: firstly, HSC is enforceable without a corresponding legislation since it is neither in conflict with provisions of CPC nor affecting the rights of citizens or others. Secondly, HSC does not foreclose CPC Order V Rule 25 route for service, as Article 10 HSC itself contemplates service through postal channels. Thirdly, the law laid down in Mollykutty, which prescribes strict adherence to the procedure prescribed in HSC (Central Authority route) to the exclusion of alternate methods of serving summons, is overruled.

 

Case Analysis

The Change in Jurisprudence

In addition to the factors identified by the court in Charuvila Phillipose, the decision in Mollykutty suffers from a significant omission. The judgment failed to account for the fact that Article 10 of the Hague Service Convention (HSC) permits service through postal channels, and the United States (the destination state in the Mollykutty case) does not object to inbound service via this route. This is a glaring oversight since none of the government memorandums/notifications specifically address the use of Article 10 for service abroad. A detailed judicial consideration of this aspect was required.

 

Despite these limitations, prior to Charuvila Phillipose, several High Courts had blindly relied on the reasoning in Mollykutty to broadly hold that the HSC provides the exclusive mechanism for serving summons outside India. With Charuvila Phillipose now having expressly overruled Mollykutty, courts are presented with two possible approaches: either to adopt the updated and nuanced reasoning in Charuvila Phillipose, which permits the coexistence of the HSC and CPC procedures for service abroad; or to adhere to the dated and restrictive reasoning in Mollykutty, which confines service exclusively to the Central Authority route prescribed under the HSC.

 

This divergence creates the possibility of conflicting High Court judgments on the issue of service abroad—an inconsistency that can ultimately only be resolved through authoritative pronouncement by the Supreme Court, unless the other High Courts also adopt the approach in Charuvila Phillipose.

 

Potential Legal Challenges Following Charuvila Phillipose

 

The Charuvila Phillipose decision may give rise to further litigation on two unresolved legal questions. First, whether the use of methods under Order V Rule 25—such as service by email—would be inconsistent with a destination state’s objection under Article 10 of the Hague Service Convention (HSC). Second, whether Articles 15 and 16 of the HSC, which pertain to ex parte decrees and limitation periods, are “in conflict with” existing provisions of the Civil Procedure Code (CPC).

 

• Compatibility of email service under CPC Rule 25 and HSC Article 10 objection.

 

Article 10 of HSC permits the use of “postal channels” to send summons to persons directly abroad, unless the destination state objects to it. Suppose a destination state has made an objection under Article 10 HSC. In such cases, courts are free to take either a broad or a narrow approach to interpret the scope of “postal channels”.

 

The broad approach to interpretation would entail construing “postal channels” to encompass modern means of communication including social media and email. This approach relies on Article 31 of the Vienna Convention on the Law of Treaties (VCLT), which requires treaty terms to be interpreted in terms of their object and purpose.[8] Under this approach, if a state objects to Article 10 of HSC, it is understood to oppose all alternate channels including email/social media, for direct service abroad.

 

Conversely, the narrow approach construes “postal channels” restrictively – to include direct post only. It excludes modern means of communication such as email and social media. This view draws from the fact that the HSC was concluded in 1965, prior to the advent of electronic communication. This interpretation considers an Article 10 HSC objection by a state, as a bar, only on postal service. It perceives a state objection under Article 10, to not bar service by email/social media, thus validating electronic service under Order V Rule 25.[9]

 

In Charuvila Phillipose, the Kerala High Court endorses a narrow interpretation of Article 10 postal methods by stating “…we take the call to limit the same…” in reference to postal channels. This allows litigants in India to send service abroad via email. However, this interpretation carries significant legal risks.

 

Countries oppose direct “postal channels” under Article 10 HSC for various reasons such as due process concerns, desire for reciprocity or efficiency of Central Authorities. However, certain civil law jurisdictions such as Japan, China and Germany consider service of process as an exercise of judicial sovereignty. They oppose Article 10 HSC on the basis that service is a function exclusively belonging to the state by virtue of its sovereignty.[10] Proceeding with electronic service (through the narrow approach), despite a specific objection, might be perceived as a challenge to a nation’s judicial sovereignty.

 

A further challenge may arise at the enforcement stage. A foreign court may refuse to recognize or enforce an Indian judgment on the ground that service by email was not compliant with proper service under HSC.[11] While such email service might serve the purpose of adequate notice to the defendant, its legality remains contested. For instance, in Lancray v Peters, the Court of Justice of the European Union (CJEU) refused to recognize a foreign judgment due to improper service, even though the defendant had actual notice.[12]

 

• Whether Article 15 and 16 of HSC is “in conflict with” CPC?

 

One of the arguments canvassed to argue that HSC provisions were in conflict with CPC were Article 15 and 16 of HSC. These provisions concern the setting aside of ex-parte judgements and the extension of limitation periods, areas already governed by CPC. It was argued that these provisions significantly alter the existing procedures under CPC

 

The court however, sidestepped the issue, noting that this was not one of the questions referred for determination. Nevertheless, the court, recognizing the possibility of a conflict, clarified that its harmonious construction between CPC and HSC was limited to provisions concerning service of summons and cannot automatically result in compatibility between HSC and Indian law for all the other provisions. Since this question remains unresolved, it is likely to be subject to future litigation. The court’s avoidance of this issue is particularly notable given that Mollykutty held that a deemed declaration of international service to an HSC signatory state could be made only upon satisfaction of the conditions under Article 15 of the Convention. This however went unaddressed in Charuvila Philippose.

 

• Recognition of Problems with HSC Route

 

The judgment implicitly acknowledged the practical difficulties associated with serving summons abroad via the Central Authority route under HSC. These include significant delays, often ranging from six to eight months and the risk of non-service. Additionally, the costs associated with the Central Authority route impose a heavy financial burden, particularly on individual litigants and smaller entities. In light of these challenges, the court’s harmonized approach serves a dual purpose – it resolves an inconsistency between HSC and CPC and, simultaneously offers an alternate route for service of summons that eases the burden on litigants.

 

One hurdle that prevents reliance on Rule 25 is the absence of an express mechanism to prove summons was served abroad. The court adopts a practical approach where service is deemed valid under Rule 25 – if the postal authorities of the destination state provide acknowledgement of successful service, or if the defendant voluntarily appears before the court. This is only a temporary fix to address a procedural lacuna in CPC. However, modern technology can prove to be an effective fix. While regular email offers speed, efficiency and accessibility compared to service by post, it is difficult to conclusively prove whether the email was received, opened or read by the defendant. To address these limitations, “certified email” platforms offer an alternative. Such platforms provide encryption, verifiable delivery tracking, time-stamped acknowledgements along with confirmation of when and whether the recipient opened the message. It provides a comprehensive digital trail similar to postal service, while providing a higher evidentiary value. Incorporation of such tools could significantly improve reliability of international service under Order V Rule 25 of CPC.

 

In conclusion, the Charuvila Philippose judgement is a progressive shift in the law concerning service. The judgement performs a dual function. It overrules the faulty reasoning in Mollykutty while simultaneously harmonizing the HSC and CPC provisions for international service. The judgement provides litigants with alternate channels for international service that is less cumbersome than the Central Authority mechanism. However, there are a set of hurdles that the judgement unfortunately does not resolve. This includes whether email service is compatible under Article 10 HSC with a destination state’s objective, the potential conflict between Article 15 and 16 HSC with Indian procedural law and the likelihood of divergent interpretations by other High Courts. These issues remain ripe for further litigation. While the judgement is clearly a step in the right direction, there is a need to further simplify and clarify the law concerning international service in India.

 

[1] Charuvila Philippose Sundaran Pillai and Ors v. P.N Sivadasan and James W Thomas v. Fr. Jose Thomas S.J and Ors., 2024/KER/84933

[2] Mollykutty v Nicey Jacob and Ors, 2018/KER/67412

[3] (1970) 3 SCC 400

[4] (2010) SCC OnLine Bom 23

[5] (2018) 6 SCC 287

[6] AIR 1955 SC 425

[7] (1984) 2 SCC 534

[8] Nicolás Lozada Pimiento, “From Physical Location to Electronic Address: Omnipresence in the era of the Internet” in The HCCH Service Convention in the Era of Electronic and Information Technology, Page 90-93. Available at: https://assets.hcch.net/docs/24788478-fa78-426e-a004-0bbd8fe63607.pdf.

[9] See the following US case laws – Gurung v. Malhotra [279 F.R.D. 215] and Philip Morris USA Inc. v. Veles Ltd. [2007 WL 725412].

[10] Huang, Jie (Jeanne), Can Private Parties Contract Out of The Hague Service Convention? (July 01, 2024). Journal of Private International Law, volume 20, issue 2, 2024[10.1080/17441048.2024.2369366], Available at SSRN: https://ssrn.com/abstract=5157959.

[11] Id.

[12] Case C-305/88 Lancray v Peters 1990 E.C.R. I-2742, at § 22-31

 

I. Introduction:

In 2024, the Dubai Supreme Court rendered a significant decision concerning the issue of indirect jurisdiction under UAE law (see my comments here). In that comment, I noted that the decision offered “a welcomed, and a much-awaited clarification regarding what can be considered one of the most controversial requirements in the UAE enforcement system” (italic in the original).

The decision commented on here touches on the same issue. Yet rather than confirming the direction suggested in the above-mentioned decision, the Court regrettably reverted to its prior, more restrictive approach. This shift raises doubts about whether a consistent jurisprudence on indirect jurisdiction is taking shape, or whether the legal framework remains fragmented and unpredictable.

 

II. The Case

 

1. Facts

The facts of the case can be summarized as follows:

The appellants (X) filed a petition before the Enforcement Judge seeking the enforcement (exequatur) of a judgment rendered by the Business and Property Courts in Manchester, UK. The judgment, issued against the respondent (Y), ordered the seizure of a luxury penthouse located in Dubai.

The Enforcement Judge declared the English judgment enforceable. However, this decision was overturned on appeal, on the grounds, among others, that UAE courts have jurisdiction over the matter, given that the immovable property in question was located in Dubai.[1]

Dissatisfied with the appellate ruling, X challenged the Court of Appeal’s decision before the Supreme Court of Dubai.

Before the Supreme Court, X argued that provision relied on by the Court of Appeal (Art. 21 of the 2022 Federal Civil Procedure Act) does not confer exclusive jurisdiction in matters of provisional measures. They also argued the enforcement of such orders is permissible under international and bilateral treaties concluded by the UAE, and the Letter addressed by UAE Minister of Justice authorizing Dubai courts to enforce English judgments under the principle of reciprocity.[2]

 

2. The Ruling: Dubai Supreme Court, Appel No. 156/2025 of 24 April 2025

After referring to the relevant provisions governing the enforcement of foreign judgments in the UAE (article 222, article 225 of the 2022 Federal Civil Procedure Act), the Supreme Court rejected the appeal on the following grounds (with slight modifications; underline added):

“As consistently held by this Court, when the UAE has neither acceded to an international convention nor concluded a treaty with a foreign state concerning the enforcement of judgments, UAE courts must ensure that all the conditions set out in article 222 of the Federal Civil Procedure Act are met before ordering enforcement. Among these conditions is the requirement that UAE courts should not have jurisdiction over the dispute on which the foreign judgment was passed, in accordance with the rules of jurisdiction set forth in the Civil Procedure Act.

Under the applicable provisions on international jurisdiction (articles 19, 20, 21, and 24[3] of the 2022 Federal Civil Procedure Act), as consistently held by this Court, procedural matters, including questions of jurisdiction, are governed by the law of the forum before which the proceedings are initiated.[4] [In this regard], Dubai courts have jurisdiction to hear the disputes brought before them if the defendant is a foreign national residing or domiciled in Dubai, except for actions in rem concerning immovables located abroad.[5] Dubai courts also have jurisdiction to issue protective and provisional measures to be executed in the UAE, even if they do not have jurisdiction over the main claim.[6] Any agreement to the contrary shall be deemed null and void.[7] Where any of the grounds for jurisdiction as defined by the law are satisfied, UAE courts cannot decline jurisdiction, as matters of jurisdiction concern public policy (al-nizam al-’âm).[8]

That said, given the absence of any treaty between the UAE and the United Kingdom regarding the enforcement of judgments, and considering that the bilateral agreement with the UK on extradition and mutual legal assistance does not address the enforcement of judgments,[9] it is therefore necessary to refer to the conditions stipulated in Article 222 of the 2022 Federal Civil Procedure Act.

In the present case, X filed a petition seeking the enforcement of an English judgment ordering the seizure of an immovable located in Dubai. Accordingly, under the above-stated applicable legal provisions, the Dubai courts have jurisdiction over the case. In this respect, the ruling under appeal correctly applied the law when it rejected the enforcement of the foreign of the foreign judgment.

This conclusion is not affected by X’s argument that the enforcement order should have been issued based on the principle of reciprocity. This is because the applicability of the reciprocity principle depends on whether UAE courts lack jurisdiction over the dispute and the foreign court properly assumes jurisdiction. As previously stated, this issue concerns public policy.

Accordingly, the grounds of appeal are without merit, and the appeal must be dismissed.

 

III. Comments

The decision comment on here is another illustration of the significance of indirect jurisdiction, which I previously described as “one of the most controversial requirements in the UAE enforcement system.” On this point, the Court’s reasoning and choice of formulation are somewhat disappointing, particularly in comparison with its previous decision on the same issue (Dubai Supreme Appeal No. 339/2023 of 15 August 2024).

In that earlier case, the Court clearly held that “unless UAE courts do not have exclusive jurisdiction over the dispute in which the foreign judgment to be declared enforceable was rendered. Therefore, in case of concurrent jurisdiction between UAE courts and the foreign rendering court, and both courts are competent to hear the dispute, this does not, by itself, prevent the granting of the enforcement order.”

In contrast, in case commented on here, the Court reverted to its traditional, more stringent approach,[10 holding that the jurisdiction of the foreign court should be denied whenever UAE courts have jurisdiction under UAE law, without distinguishing, as the new wording of the applicable provisions adopted since 2018 requires,[11] between cases falling under the exclusive jurisdiction of UAE courts and those that do not.

Instead of reverting to its old, questionable position, the Court could have approached the issue in one of two possible ways:

First, the Court could have considered that the English judgment ordering the seizure of a property located in Dubai constituted in fact an order of “protective measures”, which by nature is temporary and therefore not final and conclusive in the meaning of article 222(2)(c) of the 2022 Federal Civil Procedure Act.

Second, the Court could have found that ordering “protective measures” relating to the seizure of property in Dubai falls within the exclusive jurisdiction of Dubai court.[12] On this basis and applying the same reasoning it adopted in its abovementioned decision of 15 August 2024, the Court could have denied the indirect jurisdiction of English courts.

Such an approach is preferable, as it clearly defines the impact of UAE jurisdictional rules on the indirect jurisdiction of foreign courts, rather than suggesting (imprecisely or overbroadly) that the mere taking of jurisdiction by the UAE courts would automatically exclude the jurisdiction of foreign courts.[13]

In any case, the way the Court framed its reasoning reflects the continuing influence of its long-standing approach to jurisdiction. It also suggests that the more flexible view adopted in the 15 August 2024 decision may still take time to gain a firm footing in judicial practice.

That said, given the lack of clarity in the law itself about what exactly falls within the exclusive jurisdiction of UAE courts, it is perhaps not surprising that judges sometimes fall back on familiar ground when deciding whether to refuse enforcement of foreign judgments.

Still, even if the outcome can be understood, the reasoning remains open to criticism. It risks adding further uncertainty to an area where greater consistency and predictability are badly needed, especially if the UAE seeks to consolidate its position as a global center for international dispute resolution.

 

———————————————

[1] Various issues were raised in this case, notably the question of the notification of the decision, the validity of which was examined by the courts. However, these aspects will not be discussed here.

[2] On this Letter, see my comments here and here.

[3] The Court erroneously cited Article 24; it is likely that Article 23 was meant instead.

[4] This rule is actually found in the 1985 Federal Act on Civil Transactions (article 21) and not the provisions cited in the decision.

[5] See Article 19 of the 2022 Federal Civil Procedure Act. For an example of a case in which the UAE courts declined jurisdiction on the ground that the case concerned an in rem right over an immovable located abroad, see the Abu Dhabi Supreme Court, Appeal No. 238/2017 of 25 March 2018.

[6] In one case, it was declared that “the jurisdiction of national courts to order protective or provisional measures is not contingent upon the court’s jurisdiction over the merits of the case, nor is it linked to the nationality of the parties or the existence of a domicile or residence within the country, but it is due, in addition to the general principle of territoriality of judicial jurisdiction, to the fact that requiring parties to await the outcome of proceedings before a foreign court may be detrimental to their interests”. See Federal Supreme Court, Appeal No. 693/24 of 9 October 2005.

[7] Therefore, choice-of-court agreements are deemed null and void in the UAE. For a very recent application of this rule, see Dubai Supreme Court, Appeal No. 875/2024 of 24 September 2024. The rule applies even to choice-of-court agreements between different Emirates within the UAE. See, e.g., Dubai Supreme Court, Appeal No. 21/2010 of 31 May 2010, in which the Court held that jurisdictional rules cannot be derogated from by agreeing to the courts of another Emirate. The rule also applies when the parties agree to submit to the jurisdiction of a UAE court. See, e.g., Dubai Court of Appeal, Appeals Nos. 162 and 623/2022 of 8 June 2022. This principle has implications for the indirect jurisdiction of foreign courts, particularly where the foreign court assumes jurisdiction on the basis of a choice-of-court agreement between the parties. See, e.g., Dubai Supreme Court, Appeal No. 52/2019 of 18 April 2019, where the Court refused to enforce an English judgment on the grounds that the English court had assumed jurisdiction pursuant to the parties’ choice-of-court agreement.

[8] For examples of cases in which the courts refused to decline jurisdiction, particularly on the grounds that the parties had agreed to the jurisdiction of a foreign court, see Dubai Supreme Court, Appeal No. 86/1996 of 6 April 1997. For a more recent case, see Dubai Supreme Court, Appeal No. 1176/2024 of 4 March 2025.

[9] Courts have ruled in the same manner in the past. See, e.g., the decision of the Dubai Court of First Instance, Case No. 574/2017 of 28 November 2017, cited here.

[10] On this approach with some examples, see the brief overview outlined here.

[11] On the legislative evolution of the applicable rules, see here and here.

[12] Comp. with Article 8(4) of the Tunisian Code of Private International Law of 1998, according to which “Tunisian courts shall have exclusive jurisdiction: (4) If the action concerns a request for protective or enforcement measures against properties situated in Tunisia”. For a translation of the relevant provisions, see Béligh Elbalti, “The Jurisdiction of Foreign Courts and the Enforcement of Their Judgments in Tunisia: A Need for Reconsideration” (2012) 8(2) Journal of Private International Law 221-224.

[13] For some examples on this approach, see my previous comment here and here.

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.

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.