IPRax: Issue 1 of 2026

The validity of asymmetric jurisdiction agreements has long been a controversial issue in European procedural law, with views differing widely even among the courts of EU Member States. In a preliminary ruling of 27 February 2025, the CJEU clarified that such agreements are generally permissible under Article 25 Brussels I Regulation, and that, with the narrow exception of reasons leading to nullity, their substantive validity must be assessed according to autonomous criteria of EU law. These may even allow for commonly used asymmetric jurisdiction clauses which reserve to the privileged party the right to bring proceedings before “any competent court” – but only insofar as they are intended to refer exclusively to courts of Member States of the EU and the Lugano Convention. This article argues that the decision of the CJEU, while providing welcome clarifications on the scope of Article 25 Brussels I Regulation, may also have detrimental effects on legal certainty and the attractiveness of EU law in areas such as international finance, where asymmetric jurisdiction agreements often extend to the courts of non-member states, inter alia for enforcement purposes.

The parents and their two children are Polish citizens and have their habitual residence in Germany. In Poland, the parents’ divorce proceedings and, alongside these, proceedings concerning rights of custody and rights of access are pending. The Polish court issued a provisional order for the children to reside with their father until the divorce becomes final. The decision of the OLG Stuttgart is about whether this prevents the initiation of access rights proceedings at the request of the mother in Germany. The court answered this in the negative, arguing that the Polish courts do not have international jurisdiction and therefore the objection of double lis pendens under Article 20 paragraph 2 of the Brussels IIb Regulation does not apply. In the article, the author concludes that both the Polish and the German courts have not applied, or have not applied correctly, the jurisdiction provisions of the Brussels IIb Regulation, which include Articles 18 and 20. In addition, the opportunity for consultations between the courts was not utilized. This has led to parallel proceedings on identical issues, with the risk of contradictory decisions, which must be avoided at all costs in the interests of the child.

The decision of the Federal Supreme Court concentrates on the question whether a marriage can be formed validly according to the rules on formation of marriage in Utah by online declaration of the spouses in Germany. Under German private international law, the formal aspects of the formation of marriage are governed either by the lex causae, which means by the national laws of both spouses, or, alternatively, by the lex loci celebrationis, this means by the local law of the place of the celebration. However, if a marriage is celebrated in Germany, the German rules on formal issues have to be applied. According to these German rules, the future spouses must be present at the registry office and must declare their consent in person in front of the competent registrar. An online declaration will not suffice. Thus, the decisive question is where one locates the place of celebration of a marriage.

Whereas the traditional approach located the place of celebration at the place where the constituting act (if necessary) took place, the Federal Supreme Court now held that the place where the spouses consent always is to be regarded as the place of celebration.

This article tries to reveal the inconsistencies of the Court’s arguments, the uncertainties following from this approach and the problems of contradicting results for comparable situations, especially concerning the treatment of marriage by proxies and of same-sex marriages. It is true that German private international law on formation of marriage altogether should be reformed. However, in this case, it would have been possible to reach reasonable results just by interpreting the existing legal rules.

In a recent preliminary ruling, the ECJ has sketched a framework for determining habitual residence for the purposes of the Rome III Regulation. The court emphasises private over professional life circumstances in determining the applicable law. Furthermore, the circumstances of a person’s dwelling outweigh a potential lack of continuous presence in a given jurisdiction. The ruling discloses structural differences between the concept of habitual residence in EU secondary law on the one hand and German Private International Law on the other. These differences ought to be taken seriously by German PIL literature.

The Austrian Supreme Court decides on the question whether the surviving partner of a de facto couple is entitled to a survivor’s pension under social security law. The couple had lived in Bosnia and Herzegovina, where de facto unions are, under certain circumstances, treated as spouses for the purpose of maintenance and property rights. The article shows that the rationale of the decision cannot convince from a dogmatic perspective. The Supreme Court confuses the institutes of characterization and substitution. The result of the decision is, however, convincing: the surviving partner of a de facto union is not entitled to a survivor’s pension under Austrian law.

The article examines a decision of the Court of Appeal Karlsruhe, which confirms that a company’s eligibility for a cross-border conversion depends solely on its current existence under the law of any EU Member State. It is irrelevant whether the company was originally incorporated under that law or acquired its applicability through a cross-border conversion from a third country. This article situates the ruling within the European corporate-mobility framework and shows how it underlines a strictly present-focused, biography-neutral interpretation of freedom of establishment and of the harmonized law on cross border conversions.

The Swiss Federal Court had to decide on the international jurisdiction for a negative declaratory action in a product liability dispute in the case of cross-border manufacturing involving a division of labour. On the one hand, it affirmed the possibility of bringing a negative declaratory action in a product liability dispute at the place of action within the meaning of Art. 5 No. 3 Lugano Convention. On the other hand, in the case of cross-border manufacturing involving a division of labour, it considered the place of development to be the sole place of action for the product developer. This not only represents a rejection of a mutual attribution of the place of action in relation to other addressees under product liability law, but also an opening of the place of action in product liability to an interpretation specific to the addressee of liability.

In a recent decision concerning the enforcement in France of an arbitral award issued by the Danish Institute of Arbitration the Court of Appeal ruled that provisions aimed at protecting private interests (such as those concerning significant imbalance in commercial relationships) do not form part of international public policy. Instead, only norms safeguarding truly public interests, like prohibitions of corruption or competition-distorting practices that harm the market, can trigger the international public policy exception. Consequently, the enforcement of the award was upheld.

In a sensational decision of 22 June 2021, the Paris Court of Appeal ruled that actions for damages brought by parties to arbitration proceedings against arbitrators for breach of disclosure obligations are covered by the exception in Article 1(2)(d) of the Brussels Ibis Regulation and that international jurisdiction is therefore governed by the national international civil procedure law of the court seized. The following discussion shows that this view cannot be accepted because it does not sufficiently specify the violated obligation and therefore comes to a conclusion that is incompatible with the genesis and the policy of the exception.

The judicial Interpretation concerning the application of international treaties and practices promulgated on 5 December 2023 by the Supreme People’s Court of China provides a unified legal basis and normative guidance for the application of international treaties and practices by Chinese courts in the trial of foreign-related civil or commercial cases, and reflects three principles to be followed therein, namely, the principle of performing treaty obligations in good faith, the principle of respecting international practices, and the principle of safeguarding the sovereignty, security or social public interests. This Interpretation is conducive to improving the quality and efficiency of foreign-related civil or commercial trials in China, expanding the international credibility and influence of China’s judiciary.

G. Zou, W. Llai, Y. Che, The Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of International Treaties and International Practices in the Trial of Foreign-related Civil or Commercial Cases (English)

C. Budzikiewicz, Dagmar Coester-Waltjen for her 80. birthday (German)

M. Erb-Klünemann, Conference in Washington: “15 Years of the HCCH Washington Declaration: Conference on Progress and Perspectives on International Family Relocation” (German)