Conflictoflaws

Issue 1 of RabelsZ 90 (2026) has just been released. It contains the following articles which are all available Open Access: CC BY 4.0:

Holger Fleischer, Felix Bassier, Samuel Insull und Ivar Kreuger: Finanzskandale als Katalysatoren der US-amerikanischen Wertpapiergesetze von 1933/34 [Samuel Insull and Ivar Kreuger: Financial Scandals as Catalysts of US Securities Law from 1933 and 1934], pp. 1–57, https://doi.org/10.1628/rabelsZ-2026-0008

The US securities laws from 1933 and 1934 remain to this day the international benchmark for modern capital market regulation. Like many other regulations in this area, the legislation was preceded by major scandals. This article reconstructs the two leading scandals surrounding electricity magnate Samuel Insull and »Match King« Ivar Kreuger. After situating them within the spectrum of scandals occurring in the Roaring Twenties, the article considers these incidents in the larger context of research on corporate law scandals.

Bero Gebhard, Julian Greth, Dispositive Organhaftung: Perspektiven aus Rechtsvergleichung und Rechtsökonomik [Contracting Around Director Liability: Perspectives from Comparative Law and Law & Economics], pp. 58–91, https://doi.org/10.1628/rabelsz-2025-0070

The business judgment rule is intended to protect managers and board members from personal liability in connection with business decisions, thereby enabling risk-optimized decision-making. However, the requirements of an adequate information base and reasonableness preserve incentives for risk-averse behaviour, and the possibility of erroneous evaluations of business decisions by courts creates further incentives for board members to shy away from risk, yet such risk aversity is inefficient in a diversified shareholder structure. This article examines mechanisms for excluding the personal liability of board members in Delaware (USA) and Switzerland. The policy reference point is the ex ante dispositive liability regime under § 102(b)(7) Delaware General Corporation Law, whereas Swiss corporate law relies on less effective ex post mechanisms. The authors call for the implementation of an opt-out model for liability due to breaches of duty of care, similar – but not identical – to the legal framework in Delaware; such a model could be especially beneficial to high-growth companies. To this end, a policy proposal is developed that should also allow for exemption from liability for gross negligence.

Julia Kraft, Pflichtprüfung und Anschlusszwang im Kontext grenzüberschreitender Genossenschaftsmobilität. Wie viel Zwang verträgt die Freiheit? [Mandatory Audits, Membership in Umbrella Organizations, and the Cross-border Mobility of Cooperatives.
How Much Constraint Is Still Freedom?], pp. 92–119, https://doi.org/10.1628/rabelsZ-2026-0003

The cross-border mobility of companies is an expression of the freedom of establishment, which also applies to cooperatives, as emphasized in Art. 54(2) of the TFEU. But German cooperative law doubly constrains the freedom of establishment. First, every registered cooperative (eingetragene Genossenschaft, eG) under German law is subject to mandatory periodic audits. Second, cooperatives must belong to an umbrella organization that the state has authorized to perform the audits. Both obligations – core elements of the German act on cooperatives – may conflict with the freedom of establishment. Considering the German government’s 25 June 2025 draft of an act to »Strengthen the Legal Form of the Cooperative«, this article explores the tension between regulatory constraints and the freedom of establishment and assesses whether the requirements imposed by German cooperative law are compatible with it.

Christian Rüsing, Zum Verhältnis von Internationalem Privat- und Verwaltungsrecht.
Eine Untersuchung am Beispiel von Eingriffsnormen im Europäischen Kollisionsrecht [The Relationship between Private International Law and Administrative International Law.  The Example of Overriding Mandatory Provisions in EU Conflict of Laws]m pp. 120–156, https://doi.org/10.1628/rabelsZ-2026-0005

The relationship between private international law and administrative international law is rarely examined in detail. Yet both areas would benefit from considering the other. In the context of private international law, this is particularly pertinent in relation to overriding mandatory provisions. In the HUK-Coburg II case, the CJEU recently established two unwritten requirements for the enforcement of these provisions: Courts may enforce such provisions only if, first, the legal situation in question has sufficiently close links with the Member State of the forum and, second, the public interest cannot be achieved through the application of the lex causae. This article demonstrates that the criterion of a sufficiently close link with the Member State of the forum is viewed differently when considered alongside the principles of administrative international law. The second requirement, the necessity test, has – among other things – a significant influence on approaches to coordinating administrative and private international law through the instrument of overriding mandatory provisions. The article therefore examines how both areas can be better coordinated, at least within the internal market.

Mary-Rose McGuire, Das auf Datennutzungsverträge anwendbare Recht.
Eine kritische Analyse der Einordnung von Art. 3 DSGVO und Art. 1 Abs. 3 Data Act als international-privatrechtliche Kollisionsnormen [The Law Applicable to Data Sharing Agreements.  A Critical Analysis of the Classification of Article 3 GDPR and Article 1(3) Data Act as Conflict-of-law Rules under Private International Law], pp. 157–190, https://doi.org/10.1628/rabelsZ-2026-0007

The European legislature has issued a series of legal acts aimed at creating a European data space. Common to these instruments is that they establish a regulatory framework for this data space but leave it to be filled by the relevant actors through a network of contracts. The acts include only isolated requirements for these contracts, and their conclusion, validity, and termination is otherwise governed by national law. With regard to such data use contracts, harmonized private international law does not yet provide any specific rules. The two central legal acts – the GDPR and the Data Act – contain provisions only on the territorial scope of application. Against this background, it is subject to debate whether the general conflict-of-law rules of the Rome I and Rome II Regulations apply or are superseded by conflict-of-law rules “hidden” in the rule on the scope of application. Practical differences arise particularly with regard to the admissibility of choice of law and the applicability of European data law in relation to third countries. The analysis shows that a reliable determination of the applicable law requires distinguishing between the existence of rights to data, contracts relating to data, and breaches of obligations relating to data. The article advocates application of the Rome Regulations on determining the law applicable to contracts and torts with adaptation to the specific characteristics of the digital space.

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. 191–221).

You are invited to the next Migration Talk organized by the Jean Monnet Chair in Legal Aspects of Migration Management in the European Union and in Türkiye.

Speaker: Prof. Dr. Diego Acosta, University of Bristol

Title: An Analysis of Free Movement Regimes Globally

Date and Time: Monday, April 20, 2026 – 12:30 PM – 1:20 PM (Turkish Time)

Event Location: via Zoom (The Zoom link shall be provided upon request: migration@bilkent.edu.tr)

GE 250/251 will be given for full attendance.

The event will be held in English.

About Guest

Dr. Diego Acosta is a Law Professor at the University of Bristol in the UK. He has authored over 80 academic works and has consulted for various governments and international organisations worldwide. As a prominent speaker, he has presented his research at academic conferences and workshops in more than 40 countries. He has been interviewed by several media outlets, most recently by The New York Times. You can visit his professional website at: www.diegoacosta.eu

Abstract

Governments worldwide engage in a variety of treaties to regulate the movement of people, which either impose restrictions or make mobility easier. However, the treaties facilitating movement are not properly categorized. Instead, scholars and policymakers often pile them up under the wider umbrella of free movement. The Freemove project, supported in part through a grant from the Open Society Foundations, is the first one ever to comprehensively map, analyze, and compare all bilateral and multilateral free movement of people regimes at the global level. Users can access information about each regime, see how they have evolved over the last 30 years, compare them with others, and assess trends in this crucial area which affects the rights of millions of people in situations of human mobility. The website is available here: www.freemovehub.com

I. Introduction

Finally out: the new Moroccan Code of Civil Procedure (Law No. 58.25), the preparation of which was previously announced on this blog, has been promulgated by Dahir (Royal Decree) No. 1.26.07 of 11 February 2026 and published in the Official Journal (Al-Jarida Ar-Rasmiyya) No. 7485 of 23 February 2026. The legislative process was fraught with difficulties, and the draft went back and forth several times before its final adoption earlier this year. The Code will enter into force six months after its publication, i.e. on 24 August 2026.

As previously introduced on this blog, the preparatory work for the new Code dates back to 2023, when a first draft was submitted to the Moroccan House of Representatives (Draft No. 02.23). One of the main innovations of the new Code is the introduction, for the first time in Moroccan history, of a catalogue of rules on international jurisdiction. The Code also amends the existing rules governing the recognition and enforcement of foreign judgments. Apart from a few minor exceptions, the provisions contained in the new Code, both on international jurisdiction and on the recognition and enforcement of foreign judgments, remain largely unchanged compared with those previously presented, save for limited linguistic and stylistic adjustments that do not entail any substantive legal implications.

What follows is a brief outline of the main solutions adopted in the Code, followed by a short assessment.

II. International Judicial Jurisdiction

The rules governing international jurisdiction are now expressly set out in Articles 72 to 75 of the new Code, contained in Chapter IV, entitled “International Judicial Jurisdiction” (al-Ikhtisas al-Qada’i ad-Duwali). The new rules may be summarized as follows:

1. General jurisdiction based on the defendant’s Moroccan nationality and the domicile or residence of a foreign defendant in Morocco (Articles 72 and 73)

Article 72 confers general jurisdiction on Moroccan courts on the basis of the Moroccan nationality of the defendant, even where the latter has neither domicile nor residence in Morocco. Article 73, by contrast, adopts the classical principle of actor sequitur forum rei when proceedings are brought against a foreign defendant. In both cases, jurisdiction is excluded where the action concerns an immovable property located abroad (last sentence of Articles 72 and 73).

2. Special jurisdiction in cases where the action is brought against foreign defendants with no domicile or residence in Morocco (Article 74)

Article 74 lays down an additional set of rules on special international jurisdiction applicable where proceedings are brought against foreign defendants who have neither domicile nor residence in Morocco. In such cases, Moroccan courts may assume jurisdiction when the action concerns:

1) assets located in Morocco, or obligations formed, performed, or to be performed in Morocco (Article 74(1));

2) tortious liability where the act giving rise to liability or the damage occurred in Morocco (Article 74(2));

3) the protection of intellectual property rights in Morocco (Article 74(3));

4) proceedings relating to businesses in difficulty instituted in Morocco (Article 74(4));

5) cases involving multiple defendants, provided that at least one of them is domiciled in Morocco (Article 74(5));

6) maintenance obligations where the maintenance beneficiary resides in Morocco (Article 74(6));

7) matters relating to the filiation of a minor residing in Morocco, or to guardianship over a person or property (Article 74(7));

8) matters of personal status where

• (i) the plaintiff is Moroccan, or
• (ii) the plaintiff is a foreigner residing in Morocco and the defendant has no known domicile abroad (Article 74(8))

9) dissolution of the marital bond where

• (i) the marriage contract was concluded in Morocco;
• (ii) the action is brought by a spouse who is a Moroccan national; or
• (iii) one spouse has abandoned the other and established domicile abroad or has been deported from Morocco (Article 74(9)).

In addition, article 74 in fine further clarifies the ancillary heads of international jurisdiction. In particular, Moroccan courts to hear an original action are also empowered can assume jurisdiction to adjudicate any counterclaims and related claims arising from the same legal relationship. Finally, Moroccan courts are granted jurisdiction to order conservative and provisional measures intended to be executed in Morocco, even where they lack jurisdiction over the merits of the principal dispute.

3. Jurisdiction based on the agreement of the parties (Art. 75)

The new Code also recognises party autonomy as an independent basis of international jurisdiction. Under Article 75 para. 1, even where a dispute would not otherwise fall within the ordinary heads of jurisdiction set out above, Moroccan courts may assume jurisdiction where the defendant expressly or implicitly consents to, or submits to, their jurisdiction. This jurisdiction by consent is, however, excluded where the action concerns immovable property situated abroad.

4. Ex officio declining jurisdiction in the event of non-appearance

The Code further introduces a rule aimed at preventing the exercise of jurisdiction by default (Article 75 in fine). Where the defendant fails to enter an appearance, the court is required, ex officio, to decline jurisdiction and to declare itself incompetent.

III. Recognition and Enforcement of Foreign Judgments

The new rules on the recognition and enforcement of foreign judgments are now set out in Articles 451 to 456 of the new Code. While they largely reproduce existing solutions, they nonetheless introduce several important innovations.

1. Necessity of exequatur

Article 451 establishes the principle that foreign judgments cannot be enforced in Morocco as such. Their enforcement is subject to a prior declaration of enforceability (exequatur) by the competent Moroccan court, granted in accordance with the conditions laid down in the Code. Article 452 sets out the procedural framework governing applications for exequatur, while article 454 specifies the documentary requirements and the avenues of appeal applicable to exequatur proceedings.

2. Enforcement requirements

Article 453 sets out the substantive conditions that must be satisfied before a foreign judgment may be declared enforceable in Morocco. These requirements may be grouped as follows.

a) Requirements relating to the jurisdiction of the foreign court. First, the foreign court must not have ruled on a matter falling within the exclusive jurisdiction of Moroccan courts (Article 453(i)). In addition, the choice of the foreign forum must not have been tainted by fraud (Article 453(ii)).

 b) Requirement relating to due process. Due process guarantees must have been respected, in particular insofar as the parties were duly summoned and properly represented in the proceedings before the foreign court (Article 453(iii)).

 c) Requirements relating to finality and the absence of conflicting judgments. The judgment must be final and conclusive under the law of the court of origin (Article 453(iv)). Moreover, it must not be incompatible with a judgment previously rendered by Moroccan courts (Article 453(v)).

 d) Requirement relating to public policy. The foreign judgment must not violate Moroccan public policy (Article 453(vi)).

 e) Requirement relating to the contravention of international conventions ratified by Morocco. Finally, the content of the enforcement judgment must not contravene the provisions of any international convention ratified by Morocco and published in the Official Gazette (Article 453(vii)).

3. The reciprocity requirement

In addition to the foregoing conditions, Article 456 introduces the requirement of reciprocity as a condition for the enforcement of foreign judgments. While the application of the above requirements remains subject to international conventions binding on Morocco, the new Code now expressly requires that the existence of reciprocal treatment between Morocco and the State of origin be taken into account when ruling on an application for exequatur.

4. Instruments eligible to enforcement

Article 455 extends the exequatur mechanism beyond foreign judgments to cover titles and authentic instruments drawn up abroad. Such instruments may be enforced in Morocco provided that they were established by competent public officers or public servants and that they qualify as enforceable titles under the law of the State of origin. Their enforcement in Morocco is subject to a prior declaration of enforceability and is conditional upon the instrument being enforceable in its State of origin and not being contrary to Moroccan public policy.

IV. Comments

The introduction of new rules on international jurisdiction and on the recognition and enforcement of foreign judgments is, in itself, a welcome development. It reflects a growing awareness among the Moroccan authorities of the practical importance of private international law and an intention to provide legal practitioners and courts with a clearer and more structured framework. This development is consistent with Morocco’s increasing engagement at the international level, notably through the work of the Hague Conference on Private International Law (HCCH), an engagement that has recently culminated in the establishment of an HCCH Regional Office for Africa in Morocco.

However, from a substantive point of view, the newly adopted rules may leave a certain sense of dissatisfaction. This is due to a number of issues, most of which were already pointed out in a previous post on this blog.

1. International jurisdiction

First, as regards the legal framework governing international jurisdiction, a reading of the adopted provisions gives the impression that the legislature has remained attached to an outdated conception of private international law, and has failed to take account of more recent developments, even with respect to some fundamental issues. In particular, the new rules do not distinguish between exclusive and concurrent heads of jurisdiction, despite the practical importance of such a distinction for the recognition and enforcement of foreign judgments. Nor do they introduce specific regimes for situations requiring enhanced protection, such as disputes involving weaker parties (notably consumers and employees), or provide more detailed rules for parallel proceedings, including lis pendens and connexity.

More importantly, the new Code introduces a number of questionable grounds of jurisdiction. These include, in particular, the nationality of the defendant, the place of conclusion of the contract, and the mere location of property in Morocco, irrespective of its value. Finally, although the Code introduces a new rule based on party autonomy in matters of jurisdiction, it fails to provide a clear and coherent regime governing choice-of-court agreements, in particular as regards whether the parties may oust the jurisdiction of Moroccan courts that would otherwise be competent under the newly adopted rules.

2. Enforcement of foreign judgments

While the new provisions clarify the formal requirements for the enforcement of foreign judgments, they fail to take sufficient account of existing judicial practice and introduce rules that lack precision and are open to divergent interpretations.

For instance, Moroccan law does not, as a general rule, clearly distinguish between recognition and enforcement, as foreign judgments are in principle subject to a prior declaration of exequatur. Nevertheless, the case law of the Moroccan Supreme Court has, to some extent, developed a pragmatic approach that de facto allows the recognition of certain effects of foreign judgments even in the absence of a prior exequatur declaration. However, the new Code does not take these developments into account and instead adopts rules focusing exclusively on the enforcement of foreign judgments, thereby leaving the status quo on this issue largely unchanged.

In addition, the new rules clarify the control exercised over the jurisdiction of the foreign court by introducing a twofold examination. First, the matter decided by the foreign court must not fall within the exclusive jurisdiction of Moroccan courts. However, as noted above, the new provisions on international jurisdiction fail to identify or define the matters that are to be regarded as falling within such exclusive jurisdiction. Secondly, the rules require that the choice of the court of origin must not have been fraudulent. In this respect, it should be noted that an additional requirement concerning the existence of a characteristic connection between the dispute and the State of the rendering court had initially been envisaged. This requirement, which echoed the approach adopted by the French Cour de cassation in the well-known Simitch case, was ultimately removed from the final version of the Code, arguably because of the practical difficulties it would have entailed for judges in assessing the existence of such a connection.

Furthermore, the version finally adopted introduces a new requirement that was absent from earlier drafts and appears to have been added during the legislative process. This concerns the condition that the content of the enforcement judgment must not contravene an international convention duly ratified by Morocco. The rationale for the introduction of this requirement is not only unclear, but the provision itself is largely redundant. Indeed, Articles 454 and 456 of the new Code already give priority to the application of international conventions ratified by Morocco. The provision appears also to be difficult to apply in practice, given that the manner in which this provision is formulated, particularly in the Arabic version of the text, is awkward and makes its precise scope and operation difficult to ascertain.

Finally, the introduction of reciprocity as a condition for the enforcement of foreign judgments comes as something of a surprise and is arguably problematic. The former Code of Civil Procedure contained no reference to reciprocity, and Moroccan practice had long evolved without treating it as a relevant requirement. It is true that Article 19 of the Dahir (Royal Decree) of 12 August 1913 on the civil status of French nationals and foreigners in Morocco refers to reciprocity. However, although that provision has never been formally repealed, the prevailing view among Moroccan scholars is that it is no longer applicable, a position reflected in judicial practice, as Moroccan courts do not rely on it in their decisions. More importantly, the inclusion of reciprocity appears at odds with the general tendency in comparative law, which is either to abandon this requirement or to significantly limit its effect. Its (re?)introduction sends a negative signal to jurisdictions where reciprocity remains a condition for recognition and enforcement and is likely to unnecessarily complicate both the recognition of foreign judgments in Morocco and, consequently, the circulation of Moroccan judgments abroad.

V. Concluding Remarks

The general impression that emerges from a reading of the new rules is, on the whole, one of disappointment. The newly adopted provisions appear to be based on an outdated model and fail to take account of recent developments, including those observed in neighbouring jurisdictions. The content of a number of provisions gives the impression of a step backwards in time. For instance, some of the newly adopted rules, notably in matters of international jurisdiction, are comparable to those formerly found, for example, in Tunisia under the Code of Civil Procedure of 1959, which were later repealed and replaced by more modern provisions now contained in the Code of Private International Law of 1998. The new rules also do not fully reflect existing Moroccan practice, whether at the diplomatic level, where Morocco has been actively engaged with the work of the HCCH – an engagement that contributed to the establishment of its Regional Office for Africa in Morocco – or at the judicial level, particularly in the field of recognition and enforcement of foreign judgments. Available records relating to the drafting process suggest that these issues did not receive the level of attention they deserved, nor did they benefit from sufficient expert consultation or discussion that might have allowed the legislature to draw on both recent international developments and established domestic practice. One hope nevertheless remains: that the Code will already be subject to early reform.

A new extensive handbook on European Civil Procedure (eds. Xandra Kramer, Stefaan Voet and Adriani Dori) was just published by De Gruyter Brill. This book offers a comprehensive overview of the overarching themes shaping civil justice in Europe, an overview of key instruments and a broader outlook on the future of European civil procedure.

The book is divided into three parts. Part I deals with the general themes regarding the development of European civil procedure, including the EU competence, historical perspectives, the principles of mutual trust and access to justice as foundational principles, the interaction between European and national civil procedure and innovation and the role of digitalisation in civil procedure. Part II deals with key topics of litigation and other means of dispute resolution. It starts with the service of documents as this is usually the first step in initiating litigation, and following the sequence of the procedure discusses the international jurisdiction, taking of evidence and the recognition and enforcement based on the general EU instruments. Two chapters address international jurisdiction and enforcement in family matters, maintenance, matrimonial property and succession. Uniform debt collection procedures, asset preservation, insolvency proceedings and specialised courts are discussed in separate chapters. The last three chapters focus on ADR and ODR as alternative pathways, collective redress and legal aid, costs and funding of civil litigation. Part III is dedicated to general and future outlooks on European civil procedure, including harmonisation through soft law, the EU enlargement process (Albania, Serbia and Ukraine) and perspectives from non-European jurisdictions (China, South Africa, the United States and Brazil) and wider challenges of European civil procedure. A hybrid launch event, organised by the European Civil Justice Centre, will be held at Leuven University on 25-26 June (information to follow). More information available at the publisher’s website here.

Part I: Introduction and General Perspectives on European Civil Procedure
Chapter 1  Xandra Kramer, Stefaan Voet, and Adriani Dori  – Introduction to European Civil Procedure
Chapter 2  Eva Storskrubb – Civil Justice and EU Competence
Chapter 3  Cornelis Hendrik van Rhee – The History of Civil Procedure in Europe
Chapter 4  Matthias Weller – Mutual Trust
Chapter 5  Burkhard Hess – Access to Justice as a Fundamental Principle of European Union Procedural Law
Chapter 6  Alain Ancery and Bart Krans – EU Law and National Civil Procedural Law: A Much Greater Area than at First Glance
Chapter 7  Anna Nylund – Innovation and Digitalisation

Part II: Litigating and Other Means of Dispute Resolution in Europe 
Chapter 8  Wendy Kennett – Getting Started: Service of Documents
Chapter 9  Geert van Calster – International Jurisdiction: Fundamental Issues and ‘Principles’ of EU Private International Law
Chapter 10  Pietro Franzina – International Jurisdiction in Civil and Commercial Matters

Chapter 11  Jachin Van Doninck and Wannes Vandenbussche – Taking of Evidence
Chapter 12  Fernando Gascón Inchausti – Recognition and Enforcement: Fundamental Issues
Chapter 13  Wolfgang Hau – Recognition and Enforcement of Civil and Commercial Judgments
Chapter 14  Apostolos Anthimos – International Jurisdiction and Recognition and Enforcement in Family Matters and Maintenance
Chapter  15  Anna Wysocka-Bar – International Jurisdiction and Recognition and Enforcement in Matters of Property Regimes and Succession
Chapter 16  Elena D’Alessandro – Debt Collection and Special Procedures: Small Claims and Orders for Payment
Chapter 17  Carlos Santaló Goris – Asset Preservation and Provisional Measures
Chapter 18  Vesna Lazic – Insolvency Proceedings
Chapter 19  Georgia Antonopoulou – Specialised Courts: The Unified Patent Court and International Commercial Courts
Chapter 20  Emma van Gelder – Alternative Pathways: ADR/ODR
Chapter 21  Eva Lein – Collective Redress
Chapter 22  John Sorabji – Legal Aid, Costs and Funding

Part III: Outlooks on European Harmonisation and Beyond
Chapter 23  Emmanuel Jeuland – Harmonisation Through Soft Law, Common Standards, and Best Practices
Chapter 24  Monika Canco, Ana Harvey, and Iryna Izarova – European Civil Procedure and the EU Enlargement Process
Chapter 25  Magdalena Tulibacka, Peter C.H. Chan, Mohamed Paleker and Eduardo Silva de Freitas – European Civil Procedure From a Non-European Perspective
Chapter 26  Alan Uzelac – Wider Challenges: The EU, Europe, and the World

The following call was kindly shared with us by the editors of TDM.

We are pleased to announce a forthcoming Transnational Dispute Management (TDM, ISSN 1875-4120, www.transnational-dispute-management.com) special issue on “Project Finance in International Arbitration” This Special Issue will be edited by Seabron Adamson and Tiago Duarte-Silva, both of Charles River Associates.

This call for papers can also be found on the TDM website:
https://www.transnational-dispute-management.com/news.asp?key=2118

Project finance is used in many of the world’s largest energy, mining, infrastructure, telecommunications, and digital infrastructure projects. Many of the most complex commercial and investor-State arbitrations involve project financed businesses. However, the financial logic of special-purpose vehicle (SPV) structures, lender controls, cashflow waterfalls, and project financeability remains under-examined in arbitration writing. This special issue invites contributions on how project finance shapes jurisdiction, liability, causation, valuation, and remedies across both commercial and treaty disputes.

The sectors in which project finance is predominantly used — energy, mining, infrastructure, and telecommunications — are also the sectors that generate the greatest volume of international arbitration disputes. According to 2024 statistics, energy and construction matters collectively account for a substantial majority of ICC commercial arbitration cases, while energy and mining-related disputes represent nearly half of all ICSID cases. Project finance structures are therefore routinely at the heart of some of the most complex and high-value arbitrations in the world.

Despite this convergence, the specific financial mechanics of project finance remain under-explored in the international arbitration literature. The structural features of project-financed transactions (the SPV architecture, cashflow waterfalls, lender step-in rights, covenant frameworks, and heavily negotiated risk allocations) create a distinct legal and economic context that shapes how disputes arise, how liability is assessed, and how damages are quantified. Even modest disruptions to revenues or operations can trigger cascading contractual consequences that may wipe out equity value entirely, even when the underlying asset continues to function. Quantifying the full extent of such losses increasingly requires a sophisticated understanding of project finance mechanics by arbitration tribunals and practitioners.

Disputes in project-financed transactions frequently arise from governmental actions that may impair project economics or bankability (including permit delays, regulatory changes, and expropriation), counterparty failures (whether by offtakers, EPC or O&M contractors, or co-investors), or unforeseen operational disruptions. In the investor-State context, the interplay between treaty protections and the rights of lenders raises fundamental questions about who has standing to claim, what losses are recoverable, and how reparations should be structured. In commercial arbitration, multi-party, multi-contract disputes are common, involving intricate questions of risk allocation under construction contracts, power purchase agreements (PPAs), concession agreements, and financing documentation.

This special issue seeks to bring together leading practitioners, academics, and experts to examine the intersection of project finance and international arbitration in depth. Contributions from practitioners with experience in the field (whether as counsel, arbitrators, damages experts, or other specialists) are particularly welcome.

We invite submissions addressing one or more of the following topics, or any other relevant issues at the intersection of project finance and international arbitration:

• The SPV structure and its implications for jurisdiction, standing, and enforcement in arbitration
• Lender rights in arbitration: step-in rights, direct agreements, and the role of lenders as parties or third parties to disputes
• Multi-party arbitration in project finance: aligning disputes across the contractual matrix (EPC, O&M, offtake, financing)
• Confidentiality and disclosure of financing documents in arbitral proceedings
• Arbitration clauses in project finance agreements: drafting considerations, potentially problematic clauses, and interaction between dispute resolution tiers
• The impact of political risk insurance
• Corruption and cronyism in project development

• Bankability and the fair and equitable treatment standard: when do regulatory changes cross the line?
• Stabilization clauses in concession agreements and their interaction with treaty protections
• Standing, nationality and attribution issues in investor-State claims involving SPVs, HoldCos, lending and sponsor syndicates and lender-controlled structures
• Force majeure, necessity, and hardship in project-financed infrastructure and energy disputes
• Government actions affecting project bankability: permit delays, regulatory creep, and currency restrictions
• The role of export credit agencies (ECAs), political risk insurers and multilateral development banks (MDBs) in shaping dispute outcomes
• Managing the risk of conflicting decisions across arbitral and judicial disputes involving separate claimants
• Political risk in project development and operation

• Quantifying losses in project-financed disputes: the role of the cashflow waterfall and financial model
• The “binary” nature of project finance equity losses: implications for damages methodology
• DCF and comparables-based valuation in early-stage, construction-phase, and operational project finance disputes
• Financeability as a damages issue: was the project realistically bankable, and how should that be assessed?
• Mitigation obligations and lender enforcement tools (waivers, cure periods, restructuring) in the damages analysis
• Loss of chance and causation in complex, multi-causal project finance disputes
• The impact of liability limits in project contracts

• Renewable energy project finance disputes: PPAs, curtailment, and the energy transition
• Mining and natural resources: concession agreements, offtake disputes, and royalty financing in arbitration
• Infrastructure projects: PPP structures, availability-based payments, and government termination rights
• Oil and Gas project finance: production sharing agreements, joint operating agreements, and contractor disputes
• Digital infrastructure and data centres: emerging project finance disputes in a rapidly growing sector
• Disputes involving Islamic finance structures used in project financing

• Interim measures and the protection of project assets and revenues pending arbitral proceedings
• Expert evidence in project finance disputes: financial modelling, engineering, and sector expertise
• Enforcement of project finance arbitral awards against States and SPVs
• Third-party funding in project finance arbitrations
• Insolvency, restructuring, and arbitration: managing distressed project finance disputes
• Dispute avoidance and management clauses in project finance documentation

We invite all those with an interest in the subject to contribute articles or notes on one of the above topics or any other relevant issue. Proposals for papers (150–200 words) should be submitted to the editors by June 30th publication is expected final quarter 2026/first quarter 2027.

Please address all questions and proposals to the editors at sadamson@crai.com and tduarte@crai.com and CC info@transnational-dispute-management.com when submitting your materials.

Articles accepted for publication before this deadline will also go through TDM’s on-line advance publication process, allowing your work to reach its target audience as soon as the paper completes peer review and the editing process.

The minimum word count for articles is 5,000 words (excluding footnotes, endnotes, appendices, tables, summary etc.). Articles must include a short summary of the key points addressed and any conclusions drawn (150–200 words).

The layout of the articles should conform to TDM’s submission guidelines, available at: www.transnational-dispute-management.com/contribute.asp (more information available upon request).

For citations, please follow OSCOLA (4th Edition): www.law.ox.ac.uk/research-subject-groups/publications/oscola

This call for papers can also be found on the TDM website:
https://www.transnational-dispute-management.com/news.asp?key=2118

Bilkent University Faculty of Law is pleased to invite you to an upcoming conference titled “Private International Law and Sustainable Development.”

We are honored to host a panel of world-renowned experts to discuss the evolving role of Private International Law in achieving Sustainable Development Goals (SDGs).

Date: 13th April 2026, Monday
Time: 13:30 – 15:30
Venue: FFB 2

Moderator: Prof. Dr. Bilgin Tiryakio?lu

Distinguished Speakers:
Prof. Dr. Ralf Michaels (Max Planck Institute) – The Place of Private International Law in Sustainable Development
Prof. Dr. Veronica Ruiz Abou-Nigm (University of Edinburgh) – Sustainable Consumption and Production (SDG 12): Circularity in Fashion
Prof. Van Loon Hans (Former Secretary General of the HCCH) – The Role of the Judge in Climate Cases (SDG 13)
Assoc. Prof. Dr.Gulum Özçelik (Bilkent University) – Recognition of Personal Status Acquired Abroad (SDGs 5, 10, 16)

The conference will be live-streamed on our official YouTube channel: @bilkentuniversitesihukuk.

The event will be held in English.
All interested participants are welcome.

Students who attend the event will be awarded GE 250/251 points.

The following announcement was shared with us by the conference organizers, Aleksandrs Fillers (Riga Graduate School of Law, Latvia), Adrian Rycerski (SWPS University in Poznan, Poland).

Please save the date: 19 November 2026

We are pleased to invite you to an international scientific conference devoted to modern problems of Private International Law, with particular attention to the impact of new technologies.

We hope the event will provide an excellent opportunity for the exchange of views, experiences, and in-depth discussion.

The conference will be held online and will bring together students, PhD candidates, and experienced experts.

The organizers plan a post-conference publication.

We welcome abstracts addressing any aspect of Private International Law, especially those focusing on modern issues and emerging challenges.

Abstracts (in English, max. 1500 characters) should be submitted to:
Aleksandrs.Fillers@rgsl.edu.lv and arycerski@swps.edu.pl

Submission deadline: 31 May 2026

Notification of acceptance: by 30 June 2026

Participation in the conference is free of charge.

We look forward to your contributions!

Aleksandrs Fillers, PhD
Associate Professor at Riga Graduate School of Law

Adrian Rycerski, PhD
Assistant Professor at SWPS University in Poznan

The University of Udine, together with its partners, has announced two exciting opportunities for students, researchers and practitioners interested in European consumer and market law, with a particular focus on sustainability and the circular economy.

The first call invites participants to register for the Summer School “Consumer and Market Law in the European Circular Economy” to be held at the University of Udine, from 8 to 17 July 2026. This programme offers a unique chance to engage with leading scholars and experts, explore the evolving legal framework surrounding sustainable markets and deepen understanding of how EU law is adapting to support the transition toward a circular economy. The Summer School promises an interdisciplinary and international learning environment, making it especially valuable for those looking to expand both their academic knowledge and professional networks. The organisers have provided the Call for applications – Udine Summer School 2026 and the Brochure – Udine Summer School 2026.

In parallel, a second call has been launched for abstracts for the Workshop “Judicial Protection and Enforcement of ‘Green’ Rights in the EU”. This workshop aims to bring together researchers and practitioners to discuss critical issues related to environmental rights enforcement, judicial protection mechanisms and the role of courts in advancing the EU’s green transition. Contributors are encouraged to submit abstracts that engage with current challenges and emerging developments in this rapidly evolving field. The workshop will be held at the University of Udine, on 14 July 2026. The organisers have provided the Call for Abstracts – Workshop Udine Summer School 2026.

Registration is now open for the Summer School, and interested participants are encouraged to apply promptly. At the same time, those wishing to present at the workshop can submit their abstracts for consideration.

Both initiatives reflect a growing commitment within the European academic and legal community to address sustainability challenges through legal innovation and collaboration. For more information on the programmes, application procedures and deadlines, please visit the official project website.

Activities are co-funded by the EU Erasmus+ Programme.

Introduction

Hilton v Guyot, is the most influential case in the United States—and perhaps globally—on the use of comity as a basis for recognising and enforcing foreign judgments. In that case, Justice Gray of the United States Supreme Court defined comity as follows:

“No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent of which the law of one nation… shall be allowed to operate within the dominion of another nation, depends upon… the “comity of nations”…”

Comity in the legal sense is neither a matter of absolute obligation, on one hand, nor a mere courtesy and goodwill, on the other; it is the recognition which one allows within its territory to the legislative, executive or judicial act of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under protection of its laws…”

By contrast, under English common law, the dominant basis for recognising and enforcing foreign judgments is the theory of obligation. Blackburn, J in the English case of Schibsy v Westenholz  stated that the true principle is that,

“…the judgment of a court of competent jurisdiction over the defendant, imposes a duty or obligation on him to pay the sum for which the judgment is given, which the courts in this country are bound to enforce…”

And further on in his judgment, Blackburn J. makes it plain that the doctrine of “comity” is incorrect. Thus, no question of reciprocity could arise in an action brought upon a foreign judgment.”

The theory of obligation is applied in many Commonwealth and Anglophone African countries. Interestingly, an emerging but underexplored trend is the growing consideration—and in some instances, application—of the principle of comity by courts in these jurisdictions, with several African judges expressly citing Hilton v Guyot.

This blog highlights selected cases illustrating this development, focusing on Liberia, Kenya, Uganda, Tanzania, South Africa, and Nigeria. The discussion is limited to the common law framework and does not address statutory regimes or international conventions.

Liberia

Liberia is a former colony of the United States located in West Africa. In  Turner v Burnette, the Liberian Supreme Court firmly established the principle of comity in the recognition and enforcement of foreign judgments, drawing particular support from Hilton v Guyot. The Court further explained—by reference to another U.S. authority—that:

“The application of comity does not rise [sic] to the effect of establishing an imperative rule of law; it has the power to persuade but not command. Comity being voluntary, and not obligatory, rests in the discretion of the tribunal of the forum and is governed by certain more or widely recognized rules.” Generally, greater force and dignity will be given to judgments of foreign courts when parties have had their day in a court of competent jurisdiction, after due service of process or after an entry of appearance, and have had a full and impartial hearing upon the merits of their case; unless it can be shown that the proceedings were tainted with fraud.”

Andrew Moran and Anthony Kennedy, conclude on the basis of the above Liberian Supreme Court decision that, “It seems, therefore, that any foreign judgment may be enforceable in Liberia at common law as a matter of comity between nations. The procedure appears to be that a suit commenced on the foreign judgment, in the same way as an action is commenced at common law in other jurisdictions.”

Kenya

Kenya is a former colony of the United Kingdom located in East Africa. Nevertheless, Kenyan courts apply both the theory of obligation and the principle of comity in recognising and enforcing foreign judgments at common law.

In ABSA Bank Uganda Limited (Formerly Known as Barclays Bank of Uganda Limited) v Uchumi Supermarkets PLC, the Kenyan High Court held at paragraph 5 that,

In the absence of a reciprocal enforcement arrangement, a foreign judgment was enforceable in Kenya as a claim in common law. Where a foreign court of competent jurisdiction had adjudicated a certain sum to be due to another, a legal obligation arose to pay that sum, on which an action of debt to enforce the judgment could be maintained. In deciding whether a foreign court was one of competent jurisdiction, the courts would apply not the law of the foreign court itself but English rules of private international law. The competence of the foreign court was the competence of the court in an international sense, that was, its territorial competence over the subject matter and the defendant. Its competence or jurisdiction in any other sense was not material.”

However, in a more recent case, the Kenyan Supreme Court, relying on Hilton v Guyot, applied the principle of comity in determining whether to recognise and enforce a locus inspection order from Scotland (see Anam Abdul Majid and Chukwuma Okoli). After quoting the key passage from Hilton v Guyot with approval, the Court stated at paragraph 60 that:

“This approach prioritizes citizen protection while taking into account the legitimate interests of foreign claimants. This approach is consistent with the adaptability of international comity as a principle of informed prioritizing national interests rather than absolute obligation, as well as the practical differences between the international and national contexts.”

Uganda

Uganda is a former colony of the United Kingdom located in East Africa. Nevertheless, Ugandan judges apply both the theory of obligation and the principle of comity in recognising and enforcing foreign judgments at common law. More recently, Ugandan courts have justified the recognition and enforcement of foreign judgments by reference to the theories of obligation, comity, and reciprocity. In the very recent case of Brianna v Mugisha, Justice Nagawa, after a careful consideration of Ugandan case law authorities and Hilton v Guyot, stated that:

“5.4 However, I have observed that despite the absence of a statutory
reciprocal arrangement, Ugandan courts have recognized and
enforced foreign judgments under the common law principles of
obligation, reciprocity, and comity.

5.5. These doctrines provide a legal foundation for cross-border judicial
cooperation, particularly in the absence of a formal treaty or statutory
framework, such as in the case of Uganda and the United States.

5.6. The doctrine of comity is based on mutual respect between sovereign
states. It allows a court to recognize and enforce a foreign judgment
not as a matter of strict legal obligation, but out of respect to the
foreign court’s authority and fairness in its proceedings. Courts apply
comity where: the foreign court had competent jurisdiction over the matter and the parties, the proceedings were conducted fairly, with
due process observed and enforcing the judgment would not be
contrary to public policy in the recognizing jurisdiction.

5.7. The obligation theory treats a valid foreign judgment as creating a legal
duty on the judgment debtor to comply, similar to a contractual
obligation. This approach holds that once a court of competent
jurisdiction has determined a party’s liability, that decision should be
respected and enforced in other jurisdictions unless there is a
compelling reason not to do so, such as: Fraud in obtaining the
judgment, Violation of natural justice, or a fundamental defect in
jurisdiction.

5.8. Under reciprocity, a foreign judgment will only be enforced if courts in
the originating country would likewise enforce judgments from the
enforcing country. This principle ensures mutual legal cooperation
between jurisdictions.”

It must, however, be noted that the acceptance of reciprocity as a basis for the recognition and enforcement of foreign judgments at common law marks a significant departure from the position in other Anglophone and Commonwealth African countries, as well as Commonwealth jurisdictions more broadly.

Tanzania

In Tanzania, a significant number of recent cases have used foreign judgments to preclude new actions on grounds of res judicata, obligation, and comity (Exim Bank (COMORES) SA vs Costa Sari;  Standard Chartered Bank (Hong Kong) Limited & Another vs Independent Power Tanzania Limited & Others)

South Africa

South Africa, located in Southern Africa and formerly colonised by both Britain and the Netherlands, is a mixed legal system drawing from Roman Dutch law and the common law. The theory of obligation remains the dominant basis for the recognition and enforcement of foreign judgments. This position was affirmed by the Supreme Court of Appeal in Jones v Krok, where the Court endorsed the English authority of  Nouvion v Freeman as support for applying the obligation theory in recognising and enforcing foreign judgments

However, in Government of the Republic of Zimbabwe v Fick,, the Constitutional Court referred to the principle of comity to justify the development of the common law framework for recognising and enforcing judgments from international courts, signalling a limited but notable openness to comity based reasoning.

Nigeria  

Nigeria is a former colony of the United Kingdom and is located in West Africa. Under the common law regime, it applies the theory of obligation in the recognition and enforcement of foreign judgments (Alfred C Toepfer Inc v Edokpolor).

However, some Nigerian judges at the Supreme Court have proposed comity, jurisdictional reciprocity, and the facilitation of international trade and commerce as additional bases for enforcing foreign judgments (Grosvenor Casinos Ltd v Ghassan Halaoui (2009) 10 NWLR 309, 338–39 (Oguntade JSC)), but there has been no reported case where these proposals have been implemented in practice.

Conclusion

The purpose of this post is to highlight how selected Commonwealth and Anglophone African courts have received and applied the principle of comity in the recognition and enforcement of foreign judgments under the common law, particularly as articulated in Hilton v Guyot.

At present, Liberia is the only jurisdiction that fully applies the principle of comity as advanced in Hilton v Guyot, arguably influenced by its historical ties to the United States.

Kenya applies the doctrine of obligation alongside the principle of comity, while Uganda adopts a similar approach and has recently gone further by recognising reciprocity as an additional basis for enforcement.

South Africa primarily follows the doctrine of obligation, although a few cases have considered comity in the context of recognising and enforcing foreign judgments, albeit without concrete application.

In Nigeria, courts continue to rely principally on the doctrine of obligation at common law. Although some Supreme Court justices have proposed comity as a possible basis for enforcement, this has not been implemented in practice.

Overall, the doctrine of obligation remains the dominant common law basis for the recognition and enforcement of foreign judgments across Anglophone and Commonwealth Africa. Nonetheless, the principle of comity, as developed in Hilton v Guyot, continues to play an important role in shaping the jurisprudence of a limited number of African jurisdictions.

Applications are now open for three- to six-month legal internships at the headquarters of the Permanent Bureau of the HCCH in The Hague, for the period from September 2026 to February 2027!

Interns work with our legal teams in the Family and Child Protection Law Division, the Transnational Litigation and Apostille Division, and the Commercial, Digital and Financial Law Division.

Duties may include carrying out research on particular points of private international law and/or comparative law, taking part in the preparation of HCCH meetings, and contributing to the promotion of the HCCH and its work.

Applications should be submitted by Monday, 20 April 2026 at 18.00 (CEST). For more information, please visit the Internships Section of the HCCH website.

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

INTRODUCTION

Following a significant hiatus, the public policy defense has re-emerged prominently in discussions surrounding the enforcement of foreign judgments, particularly in the context of a judgment issued by the Panama Maritime Court in 2024. The primary issue addressed by the Greek court was whether a foreign judgment could be recognized and enforced when the foreign court denied appellate proceedings due to the failure to post a security deposit that was both substantial and necessary for the appeal process.

FACTUAL BACKGROUND AND LEGAL FRAMEWORK

The case involved a claim for damages between a company based in Hong Kong and another company registered in the Marshall Islands. This dispute was adjudicated under Panama’s maritime law, established by Law 8 of 1982 and updated by Law 55 of 2008, which governs maritime-related disputes through a specialized and efficient legal framework. The Panamanian maritime courts possess exclusive jurisdiction over in rem actions, enabling prompt vessel arrests and maritime liens within both Panamanian territorial waters and the Panama Canal for claims related to damages, cargo issues, and collisions.

The Panamanian court ruled in favor of the claimant, mandating the defendant to either return the vessel or pay approximately 45 million USD, i.e., the valuation of the vessel along with associated legal costs, as ordered by the court.

Subsequently, the judgment creditor sought recognition and enforcement of the Panamanian judgment in Greece, as the vessel was docked within Greek territorial waters.

The opposing party contended that the ruling from the Panamanian Naval Court of First Instance contravened Greek public policy and the European Convention on Human Rights (ECHR), primarily because the appellate process was effectively obstructed. According to Article 490 of Panama’s Maritime Courts and Disputes Law, the appellant was required to deposit a security of nearly 45 million USD (equivalent to the judgment amount and associated legal fees) within ten days to have its appeal considered.

The original text from Article 490 reads:

“Artículo 490. Para cursar la apelación se requerirá la consignación, ante la secretaría del Tribunal Marítimo de primera instancia, de una caución que garantice el pago del monto de la condena más las costas. Para determinar el monto de la caución se considerará la caución consignada para levantar el secuestro o el valor del bien secuestrado. Dicha caución será consignada dentro de los diez días siguientes a la notificación de la providencia que admita el recurso. Si el apelante no consigna la caución de que trata este artículo, el juez declarará desierto el recurso.”

In light of the above, the excessive requirement for a security deposit resulted in the judgment debtor’s appeal being dismissed, thereby forfeiting its right to be heard.

FINDINGS OF THE GREEK COURT.

The Greek court recognized that while imposing a financial guarantee as a prerequisite for appeal can have legitimate justifications, such as discouraging vexatious litigation and promoting judicial efficacy, the circumstances in this case revealed that the requirement was manifestly disproportionate and unduly burdensome. The court articulated the following concerns:

– The required guarantee matched the total amount of the initial judgment plus costs.

– There was no cap, no exceptions, and no discretion for reduction based on the specifics of the case.

– It effectively forced the appellant to comply with the first-instance judgment in full just to access the appeal process.

The court referenced Article 323(5) of the Greek Code of Civil Procedure, which encompasses the public policy clause, confirming that the security requirement violated the principle of proportionality. Furthermore, limiting access to the court and undermining judicial protection directly contravened Article 6(1) of the ECHR and Article 20, paragraph 1 of the Greek Constitution.

Consequently, the obligation to deposit an amount of USD 44,397,715.97, which constitutes the awarded sum of the initial judgment (USD 41,248,107.88) plus legal costs (USD 3,149,608.09), was viewed as an untenable financial burden that contradicts the right to judicial protection.

More specifically, the imposition of a security deposit that equaled the judgment amount plus legal fees, with no statutory limits, exceptions, or discretionary reduction possibilities, violated public policy. This requirement substantially infringed upon the appellant’s right to access judicial remedies against an enforceable ruling.

Finally, the court noted that while Greek law allows for provisional enforceability of first-instance judgments under certain conditions, including the possibility of appeal suspension without a guarantee if there is a likelihood of success, such provisions were absent in Panamanian law.

This blog note is kindly provided by Dr. Muhammad Zubair Abbasi (Lecturer, School of Law, Royal Holloway, University of London; zubair.abbasi@rhul.ac.uk). It follows the author’s previous post on this topic, which was published earlier on this blog.

In MA v WK [2025] EWFC 499, three women had undergone Islamic marriage (nikah) ceremonies in England. Each argued that subsequent registration of her marriage in Pakistan had converted it into a valid foreign marriage entitled to recognition in England and Wales. The Family Court rejected this argument because the lex loci celebrationis is fixed at the place and moment of the ceremony; no later act of registration in another jurisdiction can alter it.

The more important question is why the argument was made at all. Each applicant had already accepted that her ceremony was a non-marriage or non-qualifying ceremony (NQC) under English matrimonial law. Each had therefore been excluded, by the rule established in Attorney General v Akhter & Others [2020] EWCA Civ 122 from the financial remedies that the Matrimonial Causes Act 1973 would otherwise have provided. The argument from Pakistani registration was, in substance, a desperate attempt to find through private international law a route that domestic law had closed. It was always going to fail but the fact that it was attempted is itself instructive. When the law systematically denies recognition to a form of marriage that a significant part of the population regards as valid, litigants will look for whatever route remains open. MA v WK is a record of one such attempt, and it is unlikely to be the last as long as the existing legal framework remains unreformed.

There were three female applicants, each of whom had celebrated a nikah-only in England and sought to rely on subsequent registration in Pakistan. The first, MA, had celebrated a nikah with WK in Oxfordshire on 1 April 2013. She produced a Pakistan Marriage Registration Certificate recording both the marriage date and entry date as 1 April 2013, with an issue date of 26 August 2024. The second, TM, had celebrated a nikah with MM at a mosque in England on 19 January 1992. She produced a Pakistan Marriage Registration Certificate, but the entry date was 2 October 2025 — thirty-three years after the ceremony and after MM had already remarried in Pakistan in 2017. The third, AM, had celebrated a nikah with RK in England in 2005. No evidence of registration was produced.

The formal validity of a marriage is governed by the lex loci celebrationis, as restated by Moylan LJ in Tousi v Gaydukova [2024] EWCA Civ 203. All three ceremonies took place in England; all three applicants accepted that none had complied with the Marriage Act 1949. Each was therefore a non-qualifying ceremony (NQC). The question was whether subsequent registration in Pakistan could convert them into valid foreign marriages capable of recognition in England and Wales. The court held that it could not: the lex loci is determined by the place of celebration, not by any later administrative act. There is no authority for the proposition that registration can substitute for, or supplement, the ceremony for the purposes of legal recognition.

The applicants advanced two arguments. First, that registration is the operative event for lex loci purposes, deriving from Sottomayor v De Barros (No 1) (1877) 3 PD 1, a principle elevating it to the “pinnacle” of matrimonial law [para 16]. That reading does not survive examination: in Sottomayor ceremony and registration happened simultaneously at an English register office, and their coincidence does not make registration the constitutive event. The three further authorities relied upon, Boughajdim v Hayoukane [2022] EWHC 2673; Entry Clearance Officer v Firdous [2018] HU/04562/2016 (Upper Tribunal); and Farah v Farah 16 Va. App. 329 (Va. Ct. App. 1993), each turned on where the ceremony, or its dominant elements, had taken place. None held that registration of an English ceremony abroad could shift the lex loci; they are authority for the opposite proposition.

The second argument assumed what it needed to prove. The principle in Berthiaume v Dastous (Quebec) [1929] UKPC 73, that a marriage valid where celebrated is valid everywhere, operates in favour of a marriage validly formed at its place of celebration. It avails nothing where the ceremony was not valid there in the first place. A further difficulty lay in Pakistani law itself. On the expert evidence, accepted in Rana v Manan 2011] EWHC 2132 and applied here, registration under section 5 of the Muslim Family Laws Ordinance 1961 is directory rather than mandatory: it is the nikah contract that creates the marriage. What Pakistani law had done in registering these marriages was not to create new Pakistani marriages, but to record marriages that Pakistani law treated as having taken place in England.

On the presumption of marriage, the answer was straightforward. The presumption, as Evans LJ explained in Chief Adjudication Officer v Bath 1999] EWCA Civ 3008 at [31]–[32], fills evidential gaps; it does not operate where there is positive evidence of non-compliance with the statutory formalities. The circularity this produces is uncomfortable. A party who wishes to argue for recognition of her marriage must disclose to the court the circumstances of the ceremony; and once she has done so honestly, she will typically have foreclosed the only doctrine that might have assisted her.

The judgment in this case is the latest in a sequence that has progressively narrowed the legal options available to parties in religious-only or a nikah-only marriages. Until Attorney General v Akhter & Others [2020] EWCA Civ 122, the courts had available to them a range of tools: the “hallmarks of marriage” test from Gereis v Yagoub [1997] Fam Law 475; the presumption of marriage from long cohabitation from Chief Adjudication Officer v Bath1999] EWCA Civ 3008; and a generally flexible approach to the non-marriage category, which had been applied in reported cases almost exclusively to polygamous unions (A-M v A-M (Divorce: Jurisdiction: Validity of Marriage) [2001] 2 FLR 6; Gandhi v Patel [2002] 1 FLR 603; Shagroon v Sharbatly [2012] EWCA Civ 1507; and El Gamal v Al-Maktoum [2011] EWHC B27.

The Court of Appeal’s introduction of the NQC category in Attorney General v Akhter & Others [2020] EWCA Civ 122 changed the landscape. A court asked to classify a religious-only ceremony now asks a single, decisive question: did the ceremony comply, at least to some degree, with the statutory requirements? If the answer is no, the ceremony is outside the regulatory framework entirely, and neither the hallmarks test nor the presumption can operate to bring it back in. The present case is a private international law application of the same logic: the question is what happened at the ceremony, assessed as at the date of the ceremony, and later events, including registration abroad, are irrelevant.

The choice of jurisdiction made no difference to that conclusion. The applicants sought declarations of marital status under section 55(1) of the Family Law Act 1986, which enables a person to apply for a declaration that a marriage was at its inception valid, or that it subsisted on a particular date. That jurisdiction is declaratory, not constitutive: it identifies the status that the law recognises, it does not create one. The argument from foreign registration was in substance an invitation to the court to use the section 55 jurisdiction to confer a status that English law does not recognise. It was always going to fail, not because of any deficiency in the evidence or any technical point of procedure, but because the declaratory jurisdiction cannot be deployed as a means of circumventing the requirements that the Marriage Act 1949 imposes.

None of this is a criticism of the applicants, who were doing what people in their position typically do: looking for whatever route the law might offer. It is a comment on the law itself. The Attorney General had foreshadowed a public policy objection under section 58(1) of the 1986 Act had the court found in the applicants’ favour, an indication that the state’s interest in maintaining the integrity of the marriage framework is regarded as sufficiently strong to resist even a successful argument from foreign registration [para 30]. That the argument failed means the public policy point did not arise, but its potential invocation confirms that the current framework is not one the courts are inclined to look for ways around.

The decision in MA v WK is easy to justify on the law as it stands. The lex loci celebrationis is not a rule that administrative convenience in another jurisdiction can displace, and the section 55 jurisdiction does not exist to remedy the deficiencies of the Marriage Act 1949. But the case is a reminder that when domestic law closes every available door, litigants will look elsewhere.

The failure in this case is not one of private international law. The Marriage Act 1949, built on foundations laid by Lord Hardwicke’s Clandestine Marriages Act 1753, which transformed the private marriage contract into a public act requiring the sanction of the church-state — was not designed with cultural and religious diversity in mind. The Government has committed to reform. But the proposed changes are prospective. They will not assist the three women in this case, nor the many others in the same position. Until Parliament addresses that gap, family courts will continue to turn away women whose marriages are real to everyone except the law.

Transnational Dispute Management (TDM) has kindly shared the following Call for Papers with us.

We are pleased to announce a forthcoming Transnational Dispute Management (TDM, ISSN 1875-4120, www.transnational-dispute-management.com) special issue on “International Arbitration and the Space Industry.”

This Special Issue will be edited by Alexandra van der Meulen, Kate Gough, Joshua Kelly, Annie Pan and Veronika Timofeeva (Freshfields LLP).

Space exploration was once the traditional domain of State actors, with the government space agencies of the United States and the USSR leading the way. Today, the landscape has shifted dramatically: private companies are now at the forefront, driving innovation in areas such as satellite launches, commercial space flight and space stations, among others. According to the World Economic Forum, the global space economy is projected to reach US$1.8 trillion by 2035, growing at an average annual rate of 9%.[1]

The influence of the space industry is becoming increasingly pervasive. Once associated mainly with satellite launches and services such as satellite radio, broadcast television and GPS, these technologies now represent only a fraction of the space industry’s reach. Satellite communications technologies have only grown in sophistication over the past decade, with thousand-strong satellite constellations now delivering a wide variety of commercial and societal services to businesses and consumers. These range from satellite broadband to climate monitoring, enabling accurate environmental data collection and analysis, to supply chain and transportation applications. Aside from its commercial applications, space has also become indispensable for defense purposes, with satellites and other space-based assets providing the backbone for surveillance, communication and strategic operations.

With the rapid growth of the space industry and heightened financial stakes, an increase in space-related disputes is inevitable. In the commercial arena, these disputes are likely to center on contractual issues, such as the supply of services by satellite operators to the telecoms and defense sectors, disputes concerning launch, refueling and maintenance service, and joint venture disputes between State-owned entities and private-sector operators.

Growing private-sector investment in space-related activities is also likely to fuel investor-State disputes. States’ interests in controlling various aspects of space-related technologies and resources (such as spectrum usage) for national security or public interest reasons will inevitably rub up against the purely commercial interests of private operators. Striking the right balance between these competing interests will be critical to sustaining confidence and investment in the sector.

International arbitration is well-positioned to address space-related disputes. In doing so, the international arbitration community will have to grapple with a range of novel legal and technical issues, such as:

• Territoriality in investor-State disputes involving space law
• Specialised rules for disputes related to outer space activities
• The need for specialised treaties protecting foreign investment in the space sector
• The notion of ownership in space
• The role of international and regional space agencies in shaping space-related arbitration
• Damages assessment, particularly for novel space projects
• Multi-contract and multi-party space disputes in complex space ventures
• Space-related disputes under domestic law
• State-to-State disputes concerning space activities
• Mitigation of third-party losses from satellite collisions and space debris
• Licensing and authorization disputes (national overlap, ISDS, etc.)
• Insurance and liability regimes
• National security overlap

We invite all those with an interest in the subject to contribute articles or notes on one of the above topics or any other relevant issue. Proposals for papers (150-200 words) should be submitted to the editors by May 31, 2026, publication is expected in final quarter of 2026.

Please address all questions and proposals to Annie Pan, at annie.pan@freshfields.com, and Veronika Timofeeva, at veronika.timofeeva@freshfields.com. Please CC info@transnational-dispute-management.com when submitting your materials.

Articles accepted for publication before this deadline will also go through TDM’s on-line advance publication process, allowing your work to reach its target audience as soon as the paper completes peer review and the editing process.

The minimum word count for articles is 5,000 words (excluding footnotes, endnotes, appendices, tables, summary etc.). Articles must include a short summary of the key points addressed and any conclusions drawn (150-200 words). The layout of the articles should conform to TDM’s submission guidelines, available at: www.transnational-dispute-management.com/contribute.asp (more information available upon request).

For citations, follow OSCOLA (4th Edition): www.law.ox.ac.uk/research-subject-groups/publications/oscola

This call for papers can also be found on the TDM website here:
https://www.transnational-dispute-management.com/news.asp?key=2101

[1] https://www3.weforum.org/docs/WEF_Space_2024.pdf

The Permanent Bureau (PB) is pleased to announce that registration is now open for participation in the 14th International Forum on the electronic Apostille Programme (e-APP Forum), which will take place on Tuesday 12 and Wednesday 13 May 2026 in Marrakesh, Morocco. To be held for the first time in Africa, this edition of the e-APP Forum will be organised by the HCCH’s Regional Office for Africa, with the support of the Ministry of Justice of Morocco. The Forum will be conducted in English, French, and Arabic, with simultaneous interpretation provided.

Since its launch in 2006, the e-APP has become an integral part of the operation of the Apostille Convention. The e-APP has two electronic components: an e-Apostille and an e-Register, which, over the past twenty years, have been instrumental in ensuring the practical, effective, and secure operation of the Apostille Convention amid constant technological development.

The e-APP Forum gathers experts and stakeholders from around the world. The Forum will provide a unique international platform for governments, organisations, and the private sector to learn more about the benefits of the e-APP, to promote its effective implementation, and to discuss the latest developments in relation to the e-APP worldwide.

Interested persons should register via this form no later than Friday 1 May 2026, 5.00 p.m. (CEST). Participation in the Forum is free of charge. However, participants are required to make their own travel and hotel arrangements and cover all related costs if participating in person. Please note that in-person seats will be allocated on a first-come, first-served basis and will be confirmed via e-mail by the PB.

For more information on the e-APP Forum, please visit the dedicated page on the HCCH website. A draft Agenda is available on the HCCH website and will be updated as panellists are confirmed.

For further information on the Apostille Convention and the e-APP, please visit the Apostille Section of the HCCH website.

This post is posted on behalf of Kwamou FEUKEU Eva, Head of the Africa Centre of Expertise and Coordinator of Decolonial Comparative Law, Max-Planck-Institut für ausländisches und internationales Privatrecht

The Africa Centre of Expertise and the Max Planck Institute for Comparative and International Private Law have announced a call for papers for the fourth edition of their Decolonial Comparative Law Workshop series, to be held on 5–6 May 2027 in Douala in collaboration with the Fondation Afric’Avenir. This edition focuses on the theme “Decolonial Comparative Law and the Informal/Formal Economy,” asking scholars to rethink the distinction between formal and informal economies from a decolonial and comparative perspective. The workshop places particular emphasis on recognising the informal economy as a site of legality in its own right, foregrounding legal pluralism and context-specific practices. Contributions are encouraged on a wide range of topics, including microlending, alternative forms of value creation, labour rights in informal work, and indigenous and customary economies. Selected papers will be discussed in an interdisciplinary setting, with engagement from peers, scholars from fields such as anthropology, history, and economics, and practitioners and artists.

The deadline for paper submissions is 1 September 2026. Further details, including the full call for papers (available in English, French, Portuguese, Spanish, and Arabic), can be accessed here: https://www.mpipriv.de/2020710/decola-informal-formal-economy. An online information session for prospective applicants will be held on 18 March 2026 at 10:00 and 16:00 GMT, with registration available here: https://events.mpipriv.de/b?p=decola_and_the_informal_forma_leconomy_information_session. Following the workshop, an “Epupa School” (meaning “rainy season” in the Douala language) will take place from 10 to 12 May 2027 at the Fondation Afric’Avenir, offering scholars, students, and activists an opportunity to further engage with decolonial comparative approaches to the formal and informal economy.

On 24 and 25 September 2026, the international conference ‘International Filiation Law in the EU’ will take place at the University of Bonn (Germany). The conference will analyse the EU Parenthood Proposal and the several academic and political reactions to this Proposal, and embed it in a human rights and EU law frame.

Confirmed speakers are Cristina González Beilfuss (Barcelona, Spain), Susanne Lilian Gössl (Bonn, Germany), Ulrike Kjestina Janzen (German Federal Ministry for Justice and Consumer Protection), Martina Melcher (Graz, Austria), Nicolas Nord (CIEC/ICCS), Ilaria Pretelli, (Lausanne, Switzerland), Velina Todorova (Plovdiv, Bulgaria), Alina Tryfonidou (Cyprus), and Patrick Wautelet (Liége, Belgium).

Everybody who is interested in cross-border questions of filiation, child protection and EU law is invited to come and contribute to the ongoing discussion!

More information and the programme will follow soon. If you have questions, please write to sekretariat.goessl@jura.uni-bonn.de.

The next Asian Private International Law Academy (APILA) meeting will be on Tuesday 24 March (not 17 March) when Professor Tu Guangjian will introduce his work in progress on “Legislative Jurisdiction, Adjudicatory Jurisdiction and Enforcement Jurisdiction: How Can They Be Reconciled in Private International Law and Beyond?”. Professor Tu looks forward to the insights and comments of attendees on how he might develop his ideas on the topic.

Here is link for the APILA meeting on 24 March:

Topic: APILA Monthly Online Meeting on Tuesday 24 March 2026

Time: Mar 24, 2026 07:00 PM Japan Standard Time

Join Zoom Meeting

https://us02web.zoom.us/j/89964430222?pwd=xiXxPfPw76j4oOwXCJTGC941teKWjM.1

Meeting ID: 899 6443 0222

Passcode: 670895

On Tuesday, April 7, 2026, 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). Chukwuma Okoli (University of Birmingham) will speak, in English, about the topic

“Choice of Law for Employment Contracts in Africa: Rethinking the EU Methodology in an African Context”

This presentation examines how African courts have approached choice of law in cross-border employment contracts, often drawing—explicitly or implicitly—on the dominant EU methodology reflected in the Rome I framework. It argues that while the EU model has influenced doctrinal development, its underlying assumptions do not always align with African values and labour realities. Drawing on primary sources from across African jurisdictions, including case law and legislation, the paper proposes a modified methodology that better reflects worker protection, and normative commitments embedded in African legal systems.

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.

This week the Conclusions & Decisions (C&D) of the HCCH governing body, the Council on General Affairs and Policy (CGAP or Council), were published. Click the links below for the relevant language versions (English, French and Spanish).

Although a wide range of topics were discussed, I would like to focus on four items: parentage/surrogacy project, the cross-border recognition and enforcement of protection orders, the jurisdiction project and a Note on the Trusts Convention.

In my view, the C&D are significant for two reasons. First, the work related to a possible new instrument of a long-standing topic at the HCCH has been concluded (without a Convention) and secondly, a “new” topic has been inserted into the agenda of the HCCH. For more information, see below.

Parentage/surrogacy project

The parentage/surrogacy project has been a recurrent topic in the work of the HCCH. It has expanded more than a decade, starting in 2010 with some preliminary research, which resulted in the establishment of an Experts Group (EG) and subsequently, a Working Group (WG).

In preparation for this meeting, a document was drawn up by the Working Group (WG) on Parentage / Surrogacy entitled: Final Report on the Feasibility of a possible Convention on the Recognition of Judgments on Legal Parentage (Preliminary Document (Prel. Doc.) No. 1). This is a monumental work, which includes a text of a draft Convention (as of p. 13).

The specific proposal of the WG to the Council was the following:

“The WG acknowledged the importance of the HCCH Parentage / Surrogacy Project to develop an international instrument on legal parentage in cross-border situations. The WG agreed that such an instrument is desirable, as it could enhance legal certainty, predictability and continuity while protecting the rights of children and families, and all persons involved.”

It further acknowledged that policy differences remained and for some experts these were fundamental, and as a result, consensus could not be reached on a way forward (i.e. advancing to a Special Commission, which is the usual path when negotiating a HCCH Convention and which are meetings held prior to a Diplomatic Session).

With this Final Report, and as its name suggests, the work of the WG has concluded and this Preliminary Document is the last document drawn up by the WG on this topic.

Reflecting the disagreement existing at the WG level, the Council decided on this topic the following: “While recognising the progress made by the Working Group, CGAP decided not to advance to a Special Commission at this stage, with the understanding that this issue may be revisited at a later stage.”

Accordingly, this year marks the end of this project (if not the end of an era), with the exception of monitoring legal and practical developments on the subject that are to be presented at the 2028 meeting of the Council (C&D No. 5). Perhaps this topic may be revived in the future when and if the time is ripe.

Cross-border recognition and enforcement of protection orders

While the ashes of the Surrogacy/Parentage project were still warm, a “new” proposal for a Convention emerged and was tabled by the UK as: Prel. Doc. No 25 of January 2026 – Proposal from the United Kingdom to establish a Working Group on Recognition and Enforcement of Protection Orders – not publicly available.

The Council mandated the establishment of a WG on a potential future convention on cross-border recognition and enforcement of protection orders (see C&D No. 22).This is remarkable and underlines the importance of keeping women and children safe. By tabling this proposal, the UK makes clear that this is an absolute priority.

This initiative will build on previous work conducted by the Permanent Bureau from 2011-2018, during which an Experts Group was established (see C&D No. 23 and 24). At its 2018 meeting, the Council noted that “14. The Council decided to remove from the Agenda of the HCCH the topic of recognition and enforcement of foreign civil protection orders, with the understanding that this issue may be revisited at a later stage.” A statement that now is history.

This will be an important initiative to follow in the future.

Jurisdiction project

The decision on the future of the jurisdiction project has been delayed until the next meeting of the Council in 2027. At that meeting a decision will be made whether that project advances to a Special Commission “or decide on any other outcome of the Project” (C&D 9).

A Report of the Chair of the Working Group on matters related to jurisdiction in transnational civil or commercial litigation was presented as Prel. Doc. No 2A of December 2025. This Report includes a draft text of a future convention on parallel proceedings and related actions (from p. 13, with many [square brackets], signalling lack of consensus or agreement on the text).

Last year a public consultation was launched on the Draft Text of a possible new convention on parallel proceedings and related actions, the results of which still need to be analysed. The Council mandated that a document be submitted analysing such responses by the end of September 2026 and gave specific instructions on how it should be drafted (C&D No. 8). The responses will be published subject to the permission of the respondents.

We will keep you informed of any new developments.

A Note on the Trusts Convention

Finally, a Note on the Application and Interpretation of Article 2 of the Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition and on the Institutions Analogous to Trusts was submitted as Prel. Doc. No 12B of January 2026 (for the actual Note see Annex V, p. 25). In particular, a fascinating explanation of the terms used in English (estate) and French (patrimoine) is included in pages 28-29. Equally interesting is Annex A to Note (for Section V) – Institutions Meeting the Criteria in Article 2 of the Trusts Convention. This Note was approved and will be published together with its Annexes (C&D 69).

In sum, this Council’s meeting decided on crucial matters related to treaty making on Private International Law at the HCCH. The next meeting of the Council in 2027 will also be of great importance as it will decide on the future of the jurisdiction project. With regard to specific projects, the cross-border recognition and enforcement of protection orders attests to the fact that a topic can indeed return to the agenda of the HCCH, and thus some experts may harbour the wish that the parentage/surrogacy project may rise one day like a phoenix from the ashes.

Edinburg Law School and Max Planck Institute for Comparative and International Private Law organize a Private International Law Festival, to take place in Edinburgh 24-25 September 2026. Save the date!

And submit a proposal of up to 500 words, together with a short bio/s in the same word document, to law.events@ed.ac.uk by 10 April 2026 with the email subject clearly marked “Proposal PIL Festival_ Surname/s”. Selected speakers will be informed in May 2026.

More information about the event and the call for papers below.