Archive for category: Scholarship

The fourth and final issue of the RabelsZ (The Rabel Journal of Comparative and International Private Law) for the year of 2025 has been published and is now available via open access and in print, featuring topics as diverse as Roman marriage and digital assets. The following titles and English abstracts of the articles have been kindly provided to us by the editor of the journal.

Anne Röthel, Debatten über das Vergleichen. Wanderungen zwischen Rechtsvergleichung und Komparatistik (Debates about Comparison. Journeys between Comparative Law and Comparative Literature) (Open Access)

Many academic fields look to comparative methods in pursuit of insight, with scholars debating how to proceed and what they hope to learn from the comparison. This article explores what comparative law stands to gain from interdisciplinary dialog with other fields of comparative inquiry. By way of example, it evaluates the potential gain from several journeys into the field of comparative literature. At first, these journeys back and forth between disciplines reveal a number of parallels: a striking resemblance between each field’s narrative of its own becoming; both fields’ exposure to fundamental criticisms; both fields ethicizing along similar trajectories; each one’s encounter with related dilemmas. At the same time, these journeys into comparative literature reveal implicit hierarchies and orientations in comparative law. But these cursory journeys through the history of comparative literature also counsel that comparative law would do well to avoid letting its own debates over the direction of the field veer into polarization and name-calling, into a kind of struggle that is mostly unwinnable and unproductive.

João Costa-Neto and João Guilherme Sarmento, From Roman Marriage to Unmarried Unions. Defining the Requirements for de facto and Registered Partnerships (Open Access)

This study examines the historical and comparative evolution of family law, tracing the transition from Roman marriage to contemporary partnerships. The article explores how Roman law conceptualised marriage as a social institution based on affectio maritalis, detailing its transformation through Christian doctrine into an indissoluble sacrament and its subsequent adaptation within modern legal systems. By analysing legal frameworks in Germany, Italy, France, England, and Brazil, the inquiry highlights the varying degrees of recognition granted to unmarried unions, from informal cohabitation to registered partnerships. The comparative analysis reveals the dynamic interplay between tradition, societal norms, and legal evolution, underscoring how distinct legal systems balance autonomy and protection in family law. This work contributes to the broader discourse on the harmonisation of family law and the impact of evolving societal values on legal institutions.

Tom Hick, Claiming Back Anticipatory Performance after Failed Negotiations. A Comparative Analysis of Alternatives to Precontractual Liability (Open Access)

As a matter of principle, breaking-off negotiations or refusing a contract offer are lawful actions. For based on freedom of contract, each individual is free to contract, free to choose one’s counterpart and the content of the contract, and equally free not to contract. Only exceptionally can a party be held liable for breaking-off negotiations based on wrongful conduct. Hence, it appears worthwhile to look for alternative approaches to recover fruitlessly incurred costs in the context of negotiations that failed independently of any wrongful conduct. Undue payment offers precisely this possibility. Therefore, the present contribution offers an exploratory look at the chances of success of an action for undue payment to recover costs incurred in the context of failed contract negotiations in Belgium, France, the Netherlands, and Germany. The paper finds that in those cases where fruitlessly incurred costs technically qualify as a payment in the respective national legal system, the prospects for the party seeking to recover these costs are surprisingly positive.

Derwis Dilek, Sebastian Omlor, and Dominik Skauradszun, A New Private International Law for Digital Assets (Open Access)

The increasing popularity of digital assets presents significant challenges for private international law, as fundamental conflict-of-laws rules concerning proprietary issues are often absent. This article outlines a possible approach to a technologically neutral and function-based conflict-of-laws framework. Taking existing instruments into account, it examines in particular the role of party autonomy through a choice-of-law rule, as well as alternative connecting factors based on structural, functional, or factual links between digital assets and legal systems. Building on this, the article proposes a conflict-of-laws framework for determining the law applicable to proprietary issues. This framework is designed to be applicable to various types of digital assets, including those based on decentralized networks. The proposed draft rule combines an express choice-of-law option with a multi-layered system of objective connecting factors and includes supplementary mechanisms for cases where the applicable law lacks substantive provisions.

Claudia Mayer, Keine verfahrensrechtliche Anerkennung von beurkundeten oder registrierten familienrechtlichen Rechtsgeschäften innerhalb der EU (No Procedural Recognition of Acts Affecting Personal Status Based on Certificates Issued by Public Agencies within the EU) (Open Access)

In EU law, there is a discernible tendency on the part of the EU legislature to subject legal acts to procedural recognition – including as to their substance – based on certificates of recording or other kinds of documents issued by public agencies. It has therefore already been argued in the literature that a change of method has taken place whereby the conflict-of-laws as well as substantive review in the receiving state has been replaced by a recognition system. But this position must be rejected; generally, such documents issued by public agencies, from a procedural point of view, only have formal probative value. If the validity of the underlying legal act is ultimately uncertain from the point of view of the originating state and if no (procedural) position can be established based on the state’s participation, the substance of the act may and must be re-examined by the receiving state in accordance with the law designated by a conflict of laws examination there, even at the risk of creating a limping legal relationship. The ECJ’s case law on Art. 21 of the TFEU does not alter this principle. To further prevent limping legal relationships at the European level, what is needed instead is better standardization of the conflict of laws in EU secondary law.

As always, the issue also contains several book reviews. The full table of contents is available here.

The latest volume of the Yearbook of Private International Law is out. Edited by Andrea Bonomi and Ilaria Pretelli, it is the first volume of the Yearbook published by Brill.

The volume consists of six sections: the usual “Doctrine” section; a section on choice of court agreements; a section on court decisions; a section exploring the case law of several EU Member States regarding Regulation (EU) No 650/2012 on matters of succession (the European Succession Regulation); a section on the “COVID-19 Impact on International Family Law”; two “National Reports” (from Mongolia and Bangladesh, respectively); and the the presentation of two monographs in the “Forum” section.

The Doctrine section comes with four contributions: Paving the Way for an Internationalist Representation of Private International Law Today, by Pascal de Vareilles-Sommieres; The Law Applicable to Third-Party Effects of the Assignment of Claims – The travaux préparatoires for an EU Regulation, by Francesca C. Villata; New Private International Law Rules in the Law of Persons in Germany – Gender and Names, by Christiane von Bary; and Cross-border Service of Documents via Social Media “Notifications” in Global and EU Private International Law, by Stefano Dominelli.

Here’s how the editors of the Yearbook present the section in their foreword:

The volume’s Doctrine section opens with a foundational contribution exploring an internationalist conception of private international law, inviting us to reconsider the theoretical underpinnings of our discipline. This reflective approach sets the tone for a volume that addresses both emerging challenges and enduring questions in cross-border legal relations. The same section delves into the complexities of modern commercial relationships through a detailed analysis of the law applicable to third-party effects of assignment of claims. In the context of civil law, the Doctrine section highlights how contemporary social developments are reflected in the new German private international law rules concerning gender and names, revealing how evolving concepts of personal identity impact transnational relations. Finally, the section examines cross-border service of documents via notices on social media, illustrating how digital communication may transform traditional procedural mechanisms.

The following are the three essays included n the section devoted to choice of court agreements: Delineating EU Law from Member State Law – The Latest from the CJEU on Choice of Court Agreements (Inkreal, Lastre, Maersk), by Matthias Weller; A Swiss Federal Court Decision on Jurisdiction Clauses and Multiple Defendants, by Tanja Domej; The Law Governing Forum-Selection Clauses in International Commercial Contracts – Interpretation and Enforcement in Light of Choice-of-Law Provisions, by Lyssa Maria Brito.

The “Court decisions” section features an article by Johan Meeusen entitled The Interaction between Freedom of Establishment and Corporate Conflict of Laws in the European Union – The CJEU’s Edil Work 2 Judgment, and an article by Etienne Pataut on Selling Citizenship – A Challenge for Europe
A Commentary on the CJEU’s Decision in Commission v Malta.

As stated in the editors’ foreword, this volume of the Yearbook

also completes … the extensive overview of the application of the European Succession Regulation by the national courts of the Member States, inaugurated last year. After covering the case law of fifteen Member States in the previous volume, this year’s section presents judicial decisions from eight additional Member States, providing a comprehensive picture of the interpretative challenges that the Regulation continues to generate in its practical implementation.

The States covered are Belgium, France and the Nethrlands (all three by Patrick Wautelet), Finland (Iina Tornberg and Katja Karjalainen), France (Patrick Wautelet), Latvia (Inga Kačevska), Lithuania (Eglė Čaplinskienė), Malta (Paul Cachia), and Romania (Ioana Olaru).

The three contributions in the specialised section on the impact of the COVID-19 pandemic on international family law (International Issues of Surrogacy during the Pandemic and the War in Ukraine, by Bohdana Ostrovska; The Effects of the Pandemic on Cross-border Parental Relations and in Child Return Proceedings, by Regiane Pereira; The Impact of the Covid-19 Pandemic on International Child Abduction – An Analysis of the Grave Risk Exception and the Prompt Enforcement of the Return Order, by Thiago Lindolpho Chaves) are presented as follows in the foreword:

[the contributions] examine, on the one hand, how those extraordinary circumstances affected surrogacy arrangements in Ukraine during the war, and, on the other hand, how they interfered with the functioning of the 1980 Hague Child Abduction Convention, particularly with respect to the application of the grave risk exception. This section illustrates how contemporary humanitarian crises are placing unprecedented strain on international legal frameworks. It illustrates the farreaching consequences of the breakdown of these frameworks, which affect cross-border legal relations, family structures, and commercial arrangements across continents. Reflecting on contemporary challenges, it is clear that the unprecedented disruptions to the international legal order caused by armed conflicts and humanitarian crises worldwide pose a serious threat to established international law. The scale and nature of the civilian casualties and destruction witnessed in Gaza have raised fundamental questions about the continued effectiveness of international humanitarian law. These events compel us to examine whether current legal frameworks and enforcement mechanisms fulfil the post-Holocaust commitment enshrined in the Geneva Conventions. The ongoing armed conflicts in Ukraine and Gaza directly challenge the legal architecture designed both to prevent the use of force as a means to settle international disputes and the indiscriminate killing of innocent civilians.

The national reports are by Tamir Boldbaatar and Batzorig Enkhbold (Child Protection in Mongolia in the Context of the HCCH 1993 Adoption Convention), and by Mohammed Rakib-ul-Hassan (Beyond Judicial Patchwork – The Urgency of a Comprehensive Statute for Private International Law in Bangladesh).

Finally, the forum is concerned with the monographs of N. Kansu Okyay (Hybrid Dispute Resolution Clauses in International Law) and Manuel José Segovia González (Cross-border Insolvency Cooperation Agreements – Elements for a Contract Theory of Joint Jurisdiction).

Further information can be found here.

The third issue of 2025 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out.

It features five contributions.

Cristina Campiglio, Cittadinanza iure sanguinis e nazionalità: riflessioni internazionalprivatistiche [Citizenship by Birthright and Nationality: Private International Law Reflections]

The recent amendment to the citizenship law, which restricts transmission by descent to two generations, offers an opportunity to revisit the concept of ius sanguinis from that specific legal perspective outlined in the nineteenth century by Mancini. Mancini linked citizenship (a public law institution) to nationality (a guiding principle of private international law). This connection remains evident today in cases where Italian citizenship is passed down to descendants born abroad. Filiation status must be evaluated according to conflict-of-laws rules (Arts 33 and 35 of Law 31 May 1995 No 218), which refer to the child’s own national law (creating a circular situation) or, if more favourable, to the parent’s national law. The public order exception (Art 16), particularly in cases of medically assisted procreation, can lead to the denial of filiation recognition, potentially resulting in statelessness. The new citizenship rules’ generational limit ultimately prompts reflection on whether Law No 218 of 1995, rooted in the nineteenth-century principle of nationality, should also be reconsidered.

Costanza Honorati, La circolazione di «accordi» in materia di responsabilità genitoriale nel Regolamento Bruxelles II-ter: Una disciplina destinata ad uno scarso rilievo pratico [The Circulation of ‘‘Agreements’’ on Parental Responsibility in the Brussels IIb Regulation: A Legal Framework of Marginal Practical Significance]

Among the most interesting developments in European family law in recent years is the circulation of authentic instruments and agreements. Regulation (EU) 2019/1111, also known as Brussels II-ter, introduced specific rules for the circulation of authentic instruments and agreements relating to legal separation and divorce, as well as parental responsibility. While numerous contributions have focused on the circulation of agreements relating to separation or divorce, less attention has been paid to agreements relating to parental responsibility. This contribution, through a detailed analysis of the provisions relating to parental responsibility agreements contained in both the aforementioned Regulation and the internal laws of individual Member States, highlights how, at present, this innovative regulatory framework is likely to have little impact. With the sole exception of what occurs in the French legal system, in fact, the category of “agreements” contemplated by the Brussels II-ter Regulation is currently devoid of its own content, being compressed between the private act which embodies the exchange of wills between the parties but which is irrelevant at the international level, and an increasingly broad notion of “decision”, modeled on a control carried out by any public authority, including an administrative one, which is classified as “on the merits” but which can be limited to compliance with the conditions established by law without implying any real appreciation of the content of the agreement.

Gaetano Vitellino, Misure cautelari e rapporti con stati terzi in materia civile e commerciale [Provisional Measures and Relations with Third States in Civil and Commercial Matters]

This paper examines the issues that arise when provisional or protective relief is granted in cases involving non-EU States. This topic has received limited attention in legal scholarship. The analysis presents three main arguments. First, interim relief may be granted not only by courts with jurisdiction over the merits but also by other courts. In this case, the restrictive conditions set out in Art 35 of the Brussels Ia Regulation, as interpreted by the CJEU, should not apply when no EU courts can hear and decide the dispute. Second, recognition and enforcement of provisional measures ordered by non-EU courts are subject to differing domestic rules across Member States. The analysis shows that in most countries – both within and outside the EU – foreign interim measures are generally not capable of being recognised, mainly due to their provisional nature. Third, the paper explores two key aspects of the free circulation of provisional measures within the EU. Firstly, contrary to the suggestions made by the European Commission in its recent report on the application of the Brussels Ia Regulation, it argues that provisional measures granted by EU courts with jurisdiction over the merits under national law should also freely move. Secondly, in line with the rationale behind Art 35, interim measures issued by courts without jurisdiction over the merits should not be prevented from circulating when no EU court can hear and decide the dispute.

Bartosz Wołodkiewicz, Erosion of the lex fori processualis principle: A comparative study

The lex fori processualis principle is one of the fundamental concepts of private international law. It asserts that in civil proceedings, unlike in the sphere of private law relations, it is not necessary to indicate the applicable law, since courts apply their own procedural law. Accepted since the 13th century, this principle became almost a dogma in the 19th century. However, in recent decades, the lex fori processualis principle has been criticised in academic discourse. Additionally, national legal systems have introduced procedural conflict-of-law rules that explicitly permit the application of foreign procedural law. This paradigm shift, and the resulting erosion of the dominant approach to (in)application foreign procedural law, is the focus of this study. The paper explores the contemporary relevance and legitimacy of this principle, as well as the exceptions to its application, in four legal systems: English, French, German, and Polish law. Based on these findings, three levels of erosion of the lex fori processualis principle are identified and discussed.

Paolo Vinciguerra, Anti-suit injunctions, ECHR and the public policy defence

This article examines a specific injunctive remedy: the anti-suit injunction. This is a discretionary judicial order directed at a private party, intended either to prohibit the initiation of proceedings in another forum or to compel the party to cease any proceedings already commenced in that forum under the threat of financial or personal sanctions. After outlining the key judicial developments that have established the incompatibility of anti-suit injunctions with the European legal order, the analysis shifts to the impact of Brexit and the conflict with Russia on the issuance of such injunctions by courts. Within this framework, the article primarily focuses on the possibility of identifying a new legal basis for restricting the circulation of anti-suit injunctions under the general clause of international public policy.

The fourth issue of the Journal du droit international for 2025 has been released.

It contains two articles and several case notes relating to private international law issues, including the 2024 case-law review dedicated to EU private international law prepared by Louis d’Avout, Jean-Sébastien Quéguiner, Stefan Huber, Patrick Kinsch, Lukas Rass-Masson, Sixto Sánchez-Lorenzo and Michael Wilderspin.

It is also worth mentioning the publication of three articles resulting from a round table held on 10 April 2025 on ‘Arbitration involving public entities’ during Paris Arbitration Week, authored by C. Lapp, P.-M. Duhamel and E. Silva Romero.

In this first article, Paul Klötgen (University of Lorraine) analyses the concept of forum necessitatis in the light of the public policy exception (L’ordre et la nécessité – Du forum necessitatis comme exception d’ordre public).

The English abstract reads:

The forum necessitatis, which exceptionally and subsidiarily establishes the jurisdiction of French courts in cases where there is a risk of a denial of justice, is nothing more than a form of international public policy argument. The approach of the French Cour de cassation in this respect appears flawless, both in the conditions for using the mechanism and in the terminology used to describe it. Well known in matters of conflict of laws or recognition and enforcement of judgments, the invocation of the ordre public exception can thus also apply to the question of direct jurisdiction; it is a general application mechanism. The forum necessitatis, based on the risk of denial of justice, clearly does not evict any foreign rule of law, but rather a repugnant legal situation. This allows for a renewed perspective on the function of the ordre public in Private international law: the historical dogma, according to which the triggering of the international ordre public exception serves to set aside the normally applicable foreign rule, does not reflect the current state of the law and deserves to be definitively forsaken.

In the second article, Johanna Guillaumé (University of Rouen Normandie) examines the complex issue of the represention of parties residing abroad before a French notary in matrimonial matters (La réception par le notaire français de la convention matrimoniale d’un couple domicilié à l’étranger).

The English abstract reads:

French notaries are obliged to act when requested to do so, and the exceptions to their obligation to act are listed exhaustively in the law. The foreign nature of the relationship is not a reason for refusing to act. For example, a couple living abroad, usually expatriates, may ask the French notary to draw up their marriage contract. Since French diplomatic and consular authorities abroad no longer perform notarial functions, the deed can only be drawn up on French territory. However, this does not necessarily mean that the future spouses have to travel abroad. Insofar as article 1394, paragraph 1, of the French Civil Code authorizes representation to conclude a marriage contract, notarized power of attorney concluding by distance avoids the need for travel. In the presence of a foreign element, it is still necessary to ensure that the article 1394, paragraph 1, is applicable and, if so, that the conditions of authenticity, on the one hand, and of simultaneous presence and consent, on the other, are met. The use of representation also raises the question of compliance with these conditions when drawing up powers of attorney and, consequently, of the use of the principle of parallelism of forms in private international law.

The table of contents of the issue can be accessed here.

The sixth and final issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) for 2025 has been published on 1 November. The following abstracts have been kindly provided by the editor of the journal.

After 25 years of restitution practice under the “Washington Principles on Nazi-Confiscated Art”, two fundamental innovations are emerging for the restitution of Nazi-looted art: Firstly, a “Restatement of Restitution Rules for Nazi-Confiscated Art” was generated from case practice in six states (Germany, Austria, the Netherlands, France, the United Kingdom, Switzerland). Secondly, Germany has decided to set up an “Arbitral Tribunal for Nazi-Confiscated Art”. This article outlines the history and main features of these innovations.

The Anti-SLAPP Directive, which was adopted in 2024 and has to be transposed by EU Member States by May 2026, is the reaction of the EU legislator to the growing phenomenon of abusive civil litigation that has as its main objective the prevention, restriction or penalisation of participation in the public discourse or, in other words, a chilling effect on the freedom of expression and media freedom. The Directive obliges Member States to guarantee the existence of certain procedural safeguards including the early dismissal of manifestly unfounded claims, remedies against abusive court proceedings and protection mechanisms in relation to proceedings in third countries. This contribution presents the different elements of the Directive, placing a particular focus on changes the text has undergone in the legislative negotiation process, and takes into account the recently published proposal for transposition in Germany.

The third issue of the Revue critique de droit international privé for 2025 was just published.

It contains three articles dealing with conflict issues (and a fourth concerned with immigration law) and a number of casenotes.

The case, which arose when recognition was sought in France of a Spanish court’s ruling against a French newspaper ordering it to pay heavy damages, highlights the conflict between the European objective of mutual trust and the protection of fundamental rights, particularly the freedom of the press. In a decision dated October 4, 2024, the Court of Justice (on a preliminary reference by the Cour de cassation) outlined the general methodology for controlling the proportionality of a financial penalty imposed abroad, on the basis of international public policy, a mechanism strongly influenced by European law. This control, which was subsequently implemented by the Court of Cassation in a ruling dated May 28, 2025, is severely limited by the European principle of prohibition of the review on the merits.

In the second article, Fabienne Jault- Seseke (University Paris Saclay, UVSQ) explores the unspoken aspects of European digital law in private international law, with a focus on the Digital Services Act (Les non-dits du droit européen du numérique en matière de droit international privé : l’exemple du règlement sur les services numériques).

The Digital Services Act (DSA) addresses issues of private international law in a very limited way. It mainly defines its territorial scope using a unilateral rule : it applies to any intermediary service provider that targets users in the European Union, regardless of its place of establishment. It is largely silent on other aspects of the private international law, such as determining the law applicable to illegal content or to actions for injunctions and damages. In terms of jurisdiction, it refers to the Brussels I bis Regulation, whose provisions are poorly adapted to the specificities of the digital world. The preference that the DSA seems to give to public enforcement rather than private enforcement cannot justify its silence on most questions of PIL, which are essential if we are to ensure effective protection of rights in the digital environment, which is almost always cross- border.

Finally, Marcel Zernikow (University of Orléans) explores how certificates and digitalisation have renewed the methodology of European judicial cooperation to serve the right to a fair trial (Le renouvellement des méthodes de la coopération judiciaire au service du droit au procès équitable : l’instrument du certificat et la numérisation).

Judicial cooperation is an object of study in private international law that is justified by the need to make the State’s jurisdictional activity effective in a foreign territory. Since it describes the connection between State or judicial authorities of two different States, it is governed by their respective territorial procedural laws. This field is nevertheless undergoing a renewal of its methods, which will be studied through the prism of the introduction of a new instrument: the certificate. The latter is gradually being used to accompany public documents or judicial decisions or for evidentiary purposes. How has this development become the basis for digitalization, which relies on the interconnection of legal systems and individuals via the internet? The renewal of methods is universal insofar as it is based on the guarantee of the right to a fair trial in international civil proceedings.

The full table of contents can be found here.

The second issue of the Revue critique de droit international privé for 2025 was published over the summer.

It contains four articles and numerous casenotes.

The third issue of 2025 of ZEuP – Zeitschrift für Europäisches Privatrecht, is out.

Various articles featured in the new issue will likely be of interest for the readers of this blog, including one by Helmut Ortner, Veronika Korom and Marion Neumann, in English, titled Pacta Sunt Servanda’s Soliloquy Amidst Sanctions: The Impact of EU Sanctions on Contractual Performance in Arbitration Proceedings.

EU sanctions against Russia and Russia’s countermeasures have significantly disrupted trade, supply chains, and contractual relations, sparking disputes frequently resolved through arbitration. European legal systems provide a range of mechanisms — including force majeure, impossibility, frustration, and hardship — to address sanctions-related performance impediments. Despite doctrinal divergences, these frameworks tend to converge on practical outcomes. To mitigate risks and increase legal certainty, parties are well-advised to incorporate tailored clauses in their contracts.

The issue also includes an analysis by Fabian Kratzlmeier of the ruling of the Court of Justice in Olichart, concerning the European Insolvency Regulation (on which see the post by Antonio Leandro on this blog). The article’s title is Die europäische vis attractiva concursus – Altbekanntes, Neues und Ungeklärtes zu Reichweite, Kompetenzkonflikten und materieller Sperrwirkung.

The first issue of the Revue critique de droit international privé for 2025 has been published. It features the proceedings of the international conference held in honour of the distinguished Austrian-American conflicts scholar Albert A. Ehrenzweig, which took place in Vienna in June 2024 under the scientific coordination of Matthias Lehmann and Florian Heindler.

In addition, this issue includes a critical analysis of a French Report prepared by the Cour de cassation on the handling of Private International Law (PIL) cases before that court, alongside numerous case notes discussing recent PIL decisions  from both by the CJEU and the French Cour de cassation.

In the first article, Matthias Lehmann (University of Vienna) offers a compelling analysis of Albert A. Ehrenzweig’s intellectual legacy in private international law (Albert A. Ehrenzweig: un géant du droit international privé).

With Albert Ehrenzweig, Austria lost one of its undoubtably greatest legal talents. But one’s loss was another’s gain, that of the US. This simple zero sum is worth emphasising at a time when the hatred against migrants is rising yet again on both sides of the Atlantic. Ehrenzweig brought to the US plenty of ideas from his native Austria. Among them is the abstract consideration of legal problems and the strictly logical approach to their solution, which is particularly helpful in areas such as conflicts of jurisdiction or conflicts of laws. He also brought with him a great deal of interest and knowledge in the area of psychology, which was en vogue in his days in Vienna.

In the second contribution, Florian Heindler (Sigmund Freud Privat University) examines Ehrenzweig’s comparative methodology and its implications for integrating conflict-of-laws rules in determining international jurisdiction in civil matters (Albert Armin Ehrenzweig : la méthode comparative et l’intégration du droit des conflits de lois dans la détermination de la compétence internationale en matière de juridiction civile).

Ehrenzweig’s work deserves attention – primarily because of its topicality – beyond its historical-bibliographical interest and its link the question of remedy for past injustices. Two methodological cornerstones of his work on the conflict of law must be emphasised. Firstly, transatlantic dialogue: Ehrenzweig frequently sought to align “European learning and experience” with the “pragmatic approach” and “technique of recording daily experiences”. He was endowed with the particular ability to address discussions in the US and in Europe so as to bridge the gaps between European and US private international law, thus bringing the highly divided US and European legal systems closer together. The second theme is linked to the integrated thinking of Ehrenzweig which shaped his theories in the area of conflict of laws. Indeed, Ehrenzweig was also famous tort lawyer, where he demonstrated out-of-the-box thinking, also characteristic of his way of conducting legal research. Illustrating this talent, most prominently, is his publication on “a proper law in a proper forum” (“jurisdictional approach”).

In the third article, Andrew D. Bradt (University of California, Berkeley School of Law) delves into Ehrenzweig’s opinion and impact on the Restatement of the conflict of laws in the United States (Albert Ehrenzweig, Berkeley, et la question du Restatement des conflits de lois).

Like his fellow realists, Ehrenzweig eschewed metaphysical dogma, viewing choice of law in a more “pluralistic” way, as a matter for the law of the forum, so that applying a different state’s law to a case is less a choice of foreign law than an expression of forum law and policy. In this respect, his campaign against Restatements of choice of law voices concerns that remain pertinent as the American Law Institute enters its second decade of its efforts to create a Third Restatement.

The fourth article, authored by Chris Thomale (University of Vienna), investigates Ehrenzweig’s legal scholarship approach, with a focus on the treatment of moral data (Datum et Substance – L’approche des données morales d’Albert Ehrenzweig).

The changing, almost fluid nature of Ehrenzweig’s legal scholarship between three modalities of claims about the law has opened up his work to much undeserved criticism, which calls for a new and instructive look at the very epistemological substance of his findings. Moreover, the contemporary re-politization of private law could also be a call for its re-moralization, raising exactly the same moral data questions that were on Ehrenzweig’s mind. In this respect, too, Ehrenzweig’s moral data approach offers a helpful heuristic to describe and understand these developments.

In the fifth article, Jeremy Heymann (University of jean Moulin Lyon 3) reflects on Ehrenzweig’s doctrinal legacy and its relevance for the development of EU private international law (La doctrine d’Ehrenzweig. Une pensée en héritage pour le droit international privé européen)

All too often reduced by his detractors, at least over the European side of the Atlantic, to his plea for the « proper law of the forum » – and all too often misread –, Ehrenzweig’s thinking calls to be reconsidered. His very distinctive unilateralist approach to the conflict of laws is well in tune with the method posited, in numerous judgments, by the Court of Justice of the European Union and more generally by the EU legislator.

Finally, in the sixth contribution, David Messner-Kreuzbauer (University of Graz) explores the substantive (tort) law approach in Ehrenzweig’s work, tracing its influence from Vienna to the US academia (L’argument de l’«évolution substantielle» en tant qu’héritage du droit international privé d’Albert Armin Ehrenzweig. Continuités de Vienne à Berkeley).

Albert Armin Ehrenzweig has been portrayed as a “European Legal Realist”, and is remembered for the fact-oriented data approach as well as a preference for the lex fori. This article presents a slightly different Ehrenzweig: a Viennese judge and academic who went to the United States formed by strong ideas about substantive (tort) law, by the jurisprudence of interests and with a keen sense for moral psychology. His thoughts may have great value in navigating a contemporary task: bringing together contemporary private international law with the evolution of substantive (tort) law in recent decades

These contributions will also be available in English.

The full table of contents is available here.

The newest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. Since 2024, RabelsZ has been an open access publication, with all articles freely available to readers online.

The second issue of 2025 contains four German-language articles on comparative and private international law. Here are their titles and English abstracts, kindly provided to us by the editor of the journal:

Urs Peter Gruber, Ein europäisches »Full Faith and Credit« für Rechtsgeschäfte? – Über die (partielle) Ersetzung des IPR durch ein Anerkennungssystem (European »Full Faith and Credit« for Private Acts? – On the (Partial) Replacement of PIL with a System of Recognition) (Open Access)

In EU law, there are increasing signs of a fundamental change in methodology: Step by step, the EU legislature could be moving towards extending the rules on the recognition of judgments to private acts. Taken to its logical conclusion, the (quasi-)procedural recognition of private acts means that there is no need for an ex post review of the validity of these acts in the Member State of recognition. Therefore, in the Member State of recognition, the application of conflict-of-law or substantive law rules is no longer admissible. At first glance, the (quasi-)procedural recognition of private acts appears to be incompatible with the established principles of private international law. It is therefore likely to meet with considerable resistance. However, upon closer look, it could prove to be an effective tool in the creation of a single European judicial area.

Frederick Rieländer, Digitalisierung des grenzüberschreitenden Zivilprozesses – Entwicklungsstufen und Entwicklungsperspektiven im europäischen Rechtsraum (Digitalization of Cross-Border Civil Procedure – Current Developments and Prospects for Reform Within the European Judicial Area) (Open Access)

Regulation (EU) 2023/2844 plays a key role in the European Union’s efforts to improve the efficiency and effectiveness of judicial proceedings in cross-border civil, commercial, and criminal matters and to utilize digital technology to improve access to justice in civil and commercial matters. It establishes a new frame-work for exchanging data in cross-border judicial procedures, introduces a central platform for communication between the parties and the authorities in cross-border civil cases, regulates the formal requirements for and legal effects of electronic documents, and provides for the optional use of videoconferencing or other remote communications in oral hearings in civil and criminal matters with cross-border implications. The article critically examines the reform package, arguing that while the EUs initiatives are an important step in the right direction, they are insufficient and not well coordinated. In particular, the article calls for the EU Service Regulation and the EU Evidence Regulation to be revised, and soon, to address these shortcomings.

Patrick Ostendorf, Auslegung und Wirksamkeit von Freizeichnungsklauseln im unternehmerischen Geschäftsverkehr im deutschen, Schweizer und englischen Recht (The Interpretation and Applicability of Exemption Clauses in Commercial Transactions under German, Swiss, and English Law) (Open Access)

Given the unlimited liability that most jurisdictions provide for breach of contract, exemption clauses are, due to the lack of adequate alternatives, an essential tool for contractual risk management in commercial transactions. At the same time, broad application of the law regulating general terms and conditions, in conjunction with the »cardinal obligation doctrine« of the German Federal Court of Justice (Bundesgerichtshof), has made it virtually impossible to draft enforceable limitation of liability clauses under German law. English and Swiss law, by contrast, are among the most frequently chosen laws for international commercial transactions and give the parties far more leeway to conclude exemption clauses. Against this background, the article examines principles of interpretation and applicable legal restrictions regarding exemption clauses in these legal systems, also with a view to the potential reform of German law.

Mika Sharei, Rechtsbegriffe in internationalen Wirtschaftsverträgen (Legal Terms of Art in International Commercial Contracts) (Open Access)

Rarely will a contract be free of terms that have specific meanings in legal contexts. This is especially true in the highly professionalized realm of cross-border commercial transactions. Some of the transactional attorney’s lexicon could even be considered to constitute a standard terminology. However, the exact recognized usage of a specific term will often differ from one jurisdiction to the next, and this can lead to considerable uncertainty in the practice of international business law. So it is no surprise that case law and scholarship perennially devote a great deal of attention to this kind of issue at the national level. This article critically examines different jurisdictions’ approaches to these issues, some of which appear to be marred by serious mis-understandings. Where this is so, this study aims to introduce clarity by suggesting viable principles instead.

As always, the issue also contains several book reviews. The full table of contents is available here.

The third issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) for 2025 has been published. The following English abstracts have been kindly provided by the editor of the journal.

The concepts of damage, marketing and the person sustaining the damage in Article 5 Rome II Regulation must be interpreted exclusively according to conflict of laws. Corresponding changes to the Product Liability Directive 2024 therefore have no effect on conflict of laws. However, an interpretative connection between Article 5 Rome II Regulation and Product Liability Directive 2024 must be recognized for the product and the person claimed to be liable. The partial expansion of the product concept into the area of digital services and information leads to an expansion of the subject matter of Article 5 Rome II Regulation at the expense of Article 4 Rome II Regulation. The associated expansion of the scope of the definition of (partial) manufacturer as well as the extension to authorised representatives of a manufacturer, “quasi-importers” and “quasi-dealers” of e-commerce affects conflict of laws likewise. Depending on the starting point adopted in Article 5 Rome II Regulation, this will only lead to a further loss of the Member State’s discretion for qualification of the subject matter in Article 5 Rome II Regulation or, more broadly, to a further immediate shift in the subject matter at the expense of Article 4 Rome II Regulation.

The ECJ had to decide whether a jurisdiction clause included in a bill of lading may be invoked against the consignee of the goods who has, pursuant to the applicable national law, succeeded in the carrier’s rights and obligations upon reception of the bill of lading. The Court drew on its case law beginning with the Tilly Russ case but was also required to answer questions that had been raised by inconsistencies in its more recent case law, in particular its judgment in the DelayFix case. The Court now rejects the choice-of-law rule formulated in the operative part of the DelayFix judgment pursuant to which the succession of the third party into the substantive rights and obligations of the original party to the jurisdiction clause is governed by the lex fori prorogati. Instead, the ECJ reaffirms its previous case law according to which the applicable law is to be determined pursuant to the private international law of the forum state. Moreover, the Court declares that national legal provisions are contrary to EU law if they make the third-party effect of a jurisdiction clause included in a bill of lading dependent on further conditions beyond the recipient’s full succession into the carrier’s substantive rights and obligations.

The second issue of the Journal du droit international for 2025 has been released. It contains two articles and several case notes relating to private international law issues. It is also worth mentioning the 2024-2025 edition of the column dedicated to judicial cooperation in civil, criminal and arbitral matters authored by Kamalia Mehtiyeva (University Paris-Est Créteil), focusing inter alia on the impact of acute geopolitical issues in this area.

In the first contribution, Mathias Audit (University of Paris I Panthéon-Sorbonne) analyses the complex issue of the assignment of compensation claims in Investor-State disputes (La cession des créances indemnitaires dans les différends entre investisseurs et États).

The English abstract reads:

Investor-State Dispute Settlement (ISDS) allows foreign investors to claim compensation for losses caused by the host state’s breach of an obligation under international law. Specifically, ISDS claims require a finding that a state has violated these rules of conduct, giving rise to compensation for the investor. This particular liability mechanism therefore presupposes a legal relationship in which the investor is the creditor, and the host State is the debtor. Based on this background, this paper addresses the issue of the assignment of such ISDS claims, which is also the subject of a developing arbitral case law. It appears that assignments may complicate the arbitral proceedings themselves or the enforcement of the resulting awards. By examining the concept of claims in this particular context and their assignment, this article aims to situate itself at the intersection of investment law, arbitration law and private law mechanisms for the assignment of claims.

In a second article, Augustin Gridel (University of Lorraine) explores the rules of international jurisdiction in insolvency matters from a European Union perspective (Le domaine de la compétence internationale du tribunal de l’insolvabilité).

The English abstract reads:

In insolvency disputes, it is not unusual to ask the question of which court has international jurisdiction. In the context of the European law on international jurisdiction, there is a chronic difficulty over the respective application of the Brussels Ia and Insolvency Regulations: while the latter Regulation gives the insolvency court jurisdiction in all matters relating to insolvency, it is nevertheless necessary to delimit the area of jurisdiction thus assigned to it, in a context where other special, voluntary, exclusive or even ordinary jurisdictions may compete with it. The purpose of this article is to explore the rationale behind this special jurisdiction, which in many respects lies in the existence of a genuine organisation intrinsic to collective proceedings. This observation makes it possible to delimit the area of the scope, ratione materiae, of the insolvency court, which lies in the internal order of the collective proceedings.

The table of contents of the issue can be accessed here.

The first issue of 2025 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out.

It features five contributions.

Bruno Nascimbene, Cittadinanza: riflessioni su problemi attuali di diritto internazionale ed europeo [Citizenship: Reflections on Current Issues of International and European Law]

The theme of citizenship is the subject of some reflections concerning its meaning and relevance in international, European and national law. The exclusive competence of the State is examined in the light of the evolution of the rules relating, above all, to the protection of fundamental human rights. The traditional domestic jurisdiction undergoes an important process of erosion.

Paolo Bertoli, La Palestina nel diritto internazionale privato e processuale [Palestine in Private International and Procedural Law]

The article discusses the applicability of private international law rules to cases involving connections with Palestinian territories or subjects. It argues that the notion of statehood relevant for the operation of private international law rules should be strictly functional, meaning it is detached from the concept accepted in public international law and determined with regard to the specific purposes of private international law. Consequently, the conflict of laws rules that lead to the application of Palestinian law are operational, the Palestinian citizenship can be configured as a connecting factor, it is possible to choose Palestinian courts as the competent forum, and exequatur can be granted to judgments issued by Palestinian courts.

Filippo Corsini, Arbitrato e misure conservative a tutela dei crediti [Arbitration and Provisional Measures for the Protection of Credits]

Notwithstanding the short duration of the arbitral proceedings, it is crucial that the plaintiff could enjoy the right to obtain injunctions from the arbitration panel, so to avoid that its claim suffers irreparable harms before the issuance and enforcement of the award. The essay analyses the recently enacted provisions of the Italian code of civil procedure, which confer, for the very first time in the Italian legal system, to arbitrators the power to issue interim measures; the attention is particularly focused on the two conservative measures which are commonly used in order to protect the right of the creditor through the freezing of the assets of the debtor (i.e. “sequestro giudiziario” and “sequestro conservativo”). A major step forward has been made, but still a number of issues remain unsolved. In order to ensure that an effective protection is granted to preserve the right of the plaintiff to enforce its credit vis-à-vis the defendant when the relevant contract includes an arbitration clause, other legislative amendments should be introduced.

Giovanni Zarra, Ciro Caccavale, Riflessioni sulla legge applicabile alla successione ab intestato del cittadino italiano residente abituale in Svizzera [Reflections on the Law Applicable to the Intestate Succession of an Italian Citizen Habitually Residing in Switzerland]

This paper discusses the law applicable to successions of Italian nationals habitually residing in Switzerland in the absence of a will, highlighting the interplay between (EU) Regulation No 650/2012 and the establishment and consular Agreement concluded on 22 July 1868 and in force as of 1 May 1869. In particular, this paper discusses whether Art 17(3) of the Convention – which apparently only regulates jurisdiction in succession matters – implicitly regulates (based on the alleged desirability of the alignment of jurisdiction and applicable law) also the question of applicable law, as supported by the Swiss jurisprudence and part of its scholarship. Based on the most recent scholarly publications (including from Switzerland), this paper criticizes this approach, highlighting the opportunity for an interpretation of the Convention based on its wording, in compliance with the 1969 Vienna Convention of the Law of Treaties, something which would determine the application (by the national courts of the Member States bound by the Regulation) of the EU Succession Regulation to the issues of applicable law.

Federica Sartori, La quantificazione del risarcimento del danno non patrimoniale nel prisma del diritto internazionale privato [The Determination of the Amount of Compensation for Non-Pecuniary Damage in Private International Law]

This article focuses on two recent decisions, one by the Italian Court of Cassation and the other by the Court of Justice of the European Union, concerning the quantification of non-pecuniary damage in a transnational case in which foreign law is applicable. Analyzing, respectively, the scope of operation of the criteria for the ascertainment of foreign law and international public order, on the one hand, and of the overriding mandatory rules, on the other hand, both decisions conclude that the lex fori is not applicable as a supplement or replacement to the applicable foreign law, which, as such, must be applied in its entirety, in compliance with the principle of the global application of foreign law.

The latest issue of the Netherlands International Law Review (issue 3 of 2024) features five articles related to public interest litigation, preceded by an introductory paper by Xandra Kramer. The articles address different aspects of public interest litigation either from a primarily public law or private law perspective.

Xandra Kramer, Public Interest Litigation at the Intersection of Public Law and Private Enforcement

Public interest litigation has played an important role in enforcing rights involving a wide range of public or collective interests over the past decades. In recent years, particularly climate litigation and related social rights have gained substantial attention. This article sketches the background of public interest litigation, addresses the different procedural frameworks through which public interests are litigated, including public international, administrative and private law mechanism, and introduces the topic-specific contributions to this special issue. It concludes that while public interest litigation faces considerable legal, socio-political and financial challenges it fulfils an important role in legal mobilisation with the aim to pursue the enforcement of a multitude of collective interests.

María Carlota Ucín, In the Name of Human Rights: Sketching a Definition of Public Interest Litigation

Public interest litigation is currently receiving considerable attention as an emerging phenomenon in Europe. However, the movement is neither novel nor homogeneous. It is not novel, because over the last six decades many actors have been attempting to provoke social change through the courts in several jurisdictions. And it is not homogeneous, because as soon as the literature is reviewed, several dissimilar names that refer to the same body of cases can be found. Moreover, some cases are in a grey area that raises questions about their inclusion in the definition of public interest. Owing to this lack of clarity, it becomes pertinent to provide a clear concept of public interest litigation geared to inform not only academic discussions and research but also the future design of adequate judicial policies. The aim of this article therefore is to state a definition that isolates the main elements of this litigation experience, and also to offer preliminary guidelines for future regulations that can address the special needs of these cases within court procedures. To achieve this goal, the article will adopt a comparative perspective and explore the elements that appear to be constant in the different jurisdictions: namely, the human rights framework, which is applied to these claims, and the altruistic element, by which civil society actors such as NGOs or public authorities defend ‘other people’s rights’ while facilitating democratic participation geared towards promoting a certain degree of social change. As will be shown throughout the article, these elements allow us to distinguish these collective claims from others that are oriented towards a retributive or strategic rationale.

Gizem Halis Kasap, Defending Privacy Across Borders: Public Interest Litigation in the Fight Against Data Exploitation

This paper examines the pivotal role of public interest litigation in tackling the escalating issue of cross-border data exploitation. In an era where data flows freely across jurisdictions, multinational corporations often exploit legal loopholes to bypass accountability, posing serious risks to individual privacy and data security. Traditional legal avenues, while addressing personal grievances, often fall short of deterring large-scale abuses and do little to address the collective societal impacts that arise from widespread data misuse. Public interest litigation, however, enables individuals, civil society organizations, and advocacy groups to push for more extensive, structural changes that foster greater corporate accountability and compliance on a global scale. Through a thorough review of legal frameworks, real-world case studies, and the intricacies of international jurisdiction, this paper argues that public interest litigation is essential—not just as a complement to private enforcement but as a transformative tool for enforcing data protection laws and protecting collective digital rights. This analysis highlights the capacity of public interest litigation to prompt judicial activism and adapt to global digital challenges, marking it as a powerful pathway toward equitable data privacy protection.

Ignacio Vásquez Torreblanca, Pablo Neupert Kaplan, Public Interest Climate Litigation in Latin America Leading the Way in Addressing Climate Change? The New Focus on Ecocentric and Intergenerational Dimensions

In recent years, strategic litigation has established itself as a fundamental instrument in the defence and promotion of environmental rights in international law. Within this context, this article aims to characterize climate litigation in the Global South, specifically in Latin America. To achieve this, it analyses a series of cases illustrating innovative legal responses in Latin America being directed towards enhanced environmental and human rights protection in the region. The first part explores the phenomenon of climate litigation and its reception in Latin America, distinguishing between strategic litigation and public interest litigation. It concludes that, with some nuances, climate litigation in Latin America falls under the category of environmental public interest litigation. The second part analyses key judicial decisions, which have established significant precedents in terms of their transnational effects, allowing the consolidation of concepts such as intergenerational justice and ecocentric dimension in regional litigation.

Vera Strobel, Litigating and Enforcing International Humanitarian Law before German Courts: Public Interest Litigation via Individual Rights as a Vehicle for Access to Justice in Situations of Armed Conflict

Amidst global armed conflicts, the importance of International Humanitarian Law (IHL) is notably high. Unlike human rights, IHL does not grant individuals direct rights, but modifies individual rights, like the right to life, during armed conflict. Key principles of IHL include distinction and proportionality to limit civilian casualties. However, IHL lacks effective enforcement mechanisms. Public interest litigation offers a potential avenue for enforcing IHL through individual rights-based approaches with the potential to impact domestic and international law. Recent public interest cases range from climate change, digital rights, and corporate responsibility to refugee and human rights cases, often incorporating international law arguments. Resorting to (international) criminal law in the case of war crimes is an established public interest approach. Yet, recently, public interest litigation alleging violations of IHL before administrative, constitutional, and human rights courts has established itself as a novel approach. Scrutinizing such landmark decisions, particularly those involving IHL, provides insights into the approaches and potentials of public interest litigation. This contribution analyzes examples of public interest litigation seeking compliance with IHL in arms export, drone strike and air strike cases to illustrate the procedural avenues, legal arguments, and socio-political implications. The analysis offers a critical evaluation of the potential and challenges of public interest litigation in shaping domestic and international law and practice, especially concerning IHL.

Charlotte de Meeûs, Investing in Responsible Litigation: Third-Party Funding for Public Interest Litigation

While public interest litigation (‘PIL’) is on the rise, it continues to face significant funding challenges. In various sectors, financial barriers to accessing justice such as high litigation costs and a decline in public legal aid have gradually led to the development of private litigation funding mechanisms, such as third-party litigation funding (‘TPLF’). The development of TPLF primarily took place in the context of high-value commercial litigation with funders showing little interest in PIL. However, several recent PIL cases appear to have been backed by TPLF, suggesting that the TPLF market might be evolving in a new direction. Against this background, this paper explores the role that TPLF can play in enhancing access to justice in PIL. It attempts to highlight some of the obstacles that third-party litigation funders may encounter when financing PIL and focuses on two specific hurdles. First, the type of relief sought in PIL, which does not necessarily entail substantial pecuniary damages, does not align with the focus of third-party litigation funders on high-value litigation. Second, the difficulty in determining the law that is applicable to TPLF agreements may arguably affect the role of TPLF in PIL. It is indeed currently not clear whether EU courts will assess TPLF based on the law of the forum or based on the law contractually designated by the parties in the TPLF agreement. The last part of this paper explores some avenues for future research aimed at addressing these obstacles and encouraging the use of TPLF in PIL.

The latest issue of the new French journal dedicated to international dispute resolution, Perspectives Contentieuses internationales (PCI), has been released.

It is an open access publication and can be freely downloaded here.

Unfair Trade Practices

The focus of the issue is on unfair trade practices in private international law. It includes the following articles.

Hakim Hadj-Aïssa (University of Versailles St Quentin), Le droit français des pratiques commerciales déloyales inter-entreprises : état des lieux et analyse critique

The purpose of this article is to present French unfair trade practices law in b2b relationships in the light of the creation of European super purchasing bodies and to discuss certain avenues for both national and European reform that have been proposed in recent months in the context of the future Egalim 4 law and a possible European Egalim.

Carmen Estevan de Quesada (University of Valencia), Le droit espagnol des pratiques commerciales déloyales inter-entreprises applicable aux centrales d’achat

This article provides an overview of Spanish unfair trade practices law and its approach to industry-trade relationships, in a context of european grouping of central purchasing bodies. It argues in favour of harmonising unfair competition law at European level.

Laurent Jacquier (French Competition, Consumer Affairs and Fraud Control Directorate), L’action de l’administration : des voies procédurales diverses pour contrer les pratiques des centrales d’achat

The DGCCRF (French Competition, Consumer Affairs and Fraud Control Directorate) monitors the practices of purchasing centers, even those established abroad, as long as their activity concerns the French market. Legal action before civil courts available to the Minister is a long and obstacle-filled path with an uncertain outcome. The DGCCRF also uses administrative sanctions to enforce economic public order.

Valérie Pironon (Nantes University), La délocalisation des centrales d’achat au prisme du droit international privé

The French Minister of the Economy has exorbitant prerogatives to preserve the effectiveness of unfair commercial practices regulation in France. With the internationalization of group purchasing organisations, the territorial limits of the exercise by the Minister of his powers of investigation, administrative sanction and legal action are questioned in the light of private international law mechanisms whose limits are in turn called into question. The Eurelec “saga” gives a core illustration of the problem. In “Egalim 3”, the French legislator expressed a strong voluntarism to keep these crucial operators of the distribution chain under the influence of French jurisdictions and laws. The effectiveness of the rules inserted to this end in article L444-1 A of the Commercial Code remains extremely fragile though. Combining positive law and prospective law, this contribution attempts to carry out a diagnosis of the questions actually raised in international litigation before drawing national and/or European perspectives of evolution.

Cyril Nourissat (University of Lyon 3), Le contentieux européen des pratiques commerciales déloyales au prisme des pratiques des centrales d’achat. Propos conclusifs

After a deep clarification of terminology and concepts, the study try to show how – due to uncertainty about the possibility of an European legislation – the national judge and the Court of Justice (through a well-understood preliminary ruling dialogue) will be in the front line to sanction the unfair trading practices of pan-European purchasing groups.

Other Articles

Estelle Gallant (University of Toulouse), Gestation pour autrui à l’étranger : les clés de son efficacité en France

Following a series of rulings handed down by the French Supreme Court (“Cour de Cassation”) at the end of 2024, the strategy of parents of intention who have had recourse to surrogate motherhood abroad to have the parent-child relation ship established by the foreign court and then to apply for the exequatur of this decision in France seems likely to prevail. While the French Supreme Court considers that such decisions are not contrary to substantive public policy, even in the absence of any biological link between the child and the mother of intention, it is now taking the position that procedural public policy requires greater control over the reasons given for foreign decisions, justified by the vulnerability of the persons in question and the dangers inherent in the practice of surrogate motherhood. Furthermore, by specifying that such a filiation decision cannot be equated to full adoption judgments, the French Supreme Court definitively places filiation decisions resulting from surrogate motherhood in the category of non-adoptive filiations and thus removes any ambiguity as to the origin of filiations established abroad.

Justice Cyril Roth (Court of Appeal of Versailles), Les significations internationales : ancillaires mais indispensables

The service of a legal document to an addressee located abroad should be straightforward. Lawyers and bailiffs cannot be blamed for their imperfect command of international service procedures, given how challenging it is today to acquire relevant information, navigate between international instruments and domestic law, and sometimes overcome administrative resistance. This ultimately compromises access to justice, the length of proceedings and the enforcement of judicial decisions. While within the European space, mechanisms of inter-State cooperation are gradually giving way to direct transmission methods, the physical forwarding of paper documents will soon become obsolete: the decisive revolution will stem from the advent of digital identity for natural and legal persons.

The issue concludes with three short reports on a conference on regional human rights courts, on criminal settlement and on the establishment in Germany of international commercial courts.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. Since 2024, RabelsZ has been an open access publication, with all articles freely available to readers online.

The focal point of the first issue of 2025 is international and comparative family law, with contributions critically examining the interactions between modern families and the law. Here are the titles and abstracts in full, which have been kindly provided to us by the editor of the journal:

Anne Röthel, Familienrechte unter den Bedingungen der Moderne – eine Erprobung (Family Law Under the Conditions of Modernity – An Assay) (Open Access)

Since the turn of the twentieth century, many European legal concepts of marriage, divorce, parentage, and family have been fundamentally transformed. These shifts are spoken of in terms of relaxation, liberalization, pluralization, individualization, and emancipation, whereupon family law is often said to have been »modernized« or become »more modern«, premised on the everyday usage of »modern« to signify what is new or has changed. This article focuses instead on the concept of modernity as the quintessential identifier of particular legal ideals and particular assumptions about developments in the law as they have unfolded in the sociological theory of modernization. Based on examples, this article shows how family law in European jurisdictions can be described as »modern« in this specific sense of the word, identifies the legal structures through which these modernizing instances have been accomplished, and points out ongoing tensions over the legal ideals of modernity. The result is a nuanced portrait of the modernity of family law in Europe and the various dynamics affecting it. Modernity is as much of a failure as it is a fait accompli. But modernity has fundamentally changed expectations, both about how the core notions of family law are to be justified as well as about law’s legitimate function.

Johanna Croon-Gestefeld, Is There Such a Thing as Transnational Family Law? (Open Access)

Analysis of transnational law embraces the idea that thinking about the law almost exclusively in national terms is inadequate. Transnational legal analysis further rests on the concept of legal pluralism. Family law has received little attention in the field of transnational law so far. But the existence of transnational and migrant families is plain. Moreover, family law pertains to events that take place in a pluralist environment. Does it therefore make sense to look at family law from the transnational point of view? This article explores this question in detail. It sets forth that the transnational perspective assists in depicting the operation of family law in a globalized world, including by encompassing the phenomenon of non-state actors being heavily involved in the creation, application and enforcement of family law.

Anatol Dutta, Familie und Personenstand: Die zunehmende Bedeutung des Personenstandswesens (Family and Personal Status: The Increasing Importance of Civil Status Registration) (Open Access)

This article focuses on the civil status registration system, an area of public administration whose central task is to record as completely as possible important life events of citizens – birth, marriage, the establishment of a registered partnership, and death. In many jurisdictions, the civil registrars thereby engage in public enforcement of otherwise private family status laws. The registry offices not only record the facts relevant for civil status but also certify parentage, marriage and partnership, name and gender as legal status relationships based on family law and the law of natural persons. This paper aims to show that certain recent developments have increased the importance of civil status registration, but so far the consequences of this increase have not always been sufficiently recognized, neither in legal policy nor in legal academia.

Katharina Kaesling, Kindliche Autonomie und elterliche Sorge im (digitalen) Binnenmarkt (Children’s Autonomy and Parental Rights of Care in the [Digital] Single Market) (Open Access)

Children are increasingly important actors in the (digital) single market. The realization of their (digital) autonomy has to be reconciled with their protection. The developing capacities of minors, to which the legal systems of the Member States and the European regulatory approaches refer in different ways, are crucial in this respect. The rules of the Member States determine how children can shape their external relations autonomously and how their opinions are taken into account within the family. Starting with the General Data Protection Regulation and continued by new EU digital legislation, such as the Digital Services Act, new, largely indirect regulatory approaches have emerged, based on the obligations of other private actors, such as data controllers and online platforms. Against this background, the article comparatively analyses context-specific regulations and their application in the analogue and digital spheres. The legal fragmentation resulting from the differences in regulation jeopardizes not only the internal market, but also the steering function of state law and thus the guarantee of children’s autonomy in the EU – especially in the data and platform economy.

Iryna Dikovska, Removal and Retention of Children in Times of War: The Hague Child Abduction Convention and the Case of Ukraine (Open Access)

It seems fair that a parent who has custody of a child who is removed or retained abroad without the parent’s consent should be able to have the child returned. However, what if this entails return to a country at war? What if the child has settled down in a new country to such an extent that returning to the country from which he or she was once removed would be highly traumatic? What should happen when the child objects to his or her return? To which state can a child be returned? Does the parental right of return depend on the legis-lative provisions regarding border crossings and whether they stipulate that a child may be taken out of the country without the parent’s consent? These and other questions are analysed under the lens of the 1980 Hague Convention on the Abduction of Children, con-sidering in particular the specific example of Ukrainian children who, after the beginning of Russia’s full-scale invasion of Ukraine, were taken to the territory of states that are party to the Convention.

The full table of contents, which also includes several book reviews on the subject of family law, is available here.

The first issue of the Journal du droit international (JDI, Clunet) for 2025 has been released. It contains one article and several case notes relating to private international law issues.

In her contribution, Sandrine Clavel (University of Paris-Saclay) analyses the recently adopted Directive on Corporate Sustainability Due Diligence (“CS3D”) through the lens of European economic integration and EU values (La directive “Devoir de Vigilance” (CS3D), entre ambition politique et réalisme économique).

The English abstract reads:

The European Directive on Corporate Sustainability Due Diligence is a political project with a particularly ambitious agenda. On the one hand, it aims to bolster the social responsibility of major multinational corporations, by making them accountable to civil society and to their own value chains. On the other hand, it aims to use these companies to spread the humanist values now promoted by the European Union into global business practice, by transferring the duty of care to business partners operating exclusively in foreign countries. The undertaking is all the more delicate in that it cannot be carried out without a certain amount of caution, since the competitiveness of European companies must be preserved. The European and national negotiators have therefore engaged in a veritable balancing exercise, producing a text which, while still suffering from a number of shortcomings, represents a major step forward.

The full table of contents of the issue can be accessed here.

The French Journal du Droit International, also known as Clunet after the name of its founder, celebrates its 150th birthday.

On this occasion, a celebratory volume will soon be published. It contains 16 articles which each comments on one of the groundbreaking articles published in the Journal in the past decades.

In accordance with the broad scope of the Journal, which covers both public and private international law, the themes of the articles are varied.

As far as private international law is concerned, three articles revisit issues of choice of law (party autonomy in contractual matters, succession, foreign mandatory rules). Three others address certain aspects of international commercial arbitration peculiar to French law, such as delocalisation or lex mercatoria. One deals with uniform law (CISG). But, interestingly, none of them is concerned with jurisdiction, foreign judgments or international civil procedure.

More details can be found here, including an early bird offer (which will lapse on 19 Februay 2025)

Jacco Bomhoff, Uglješa Grušić and Manuel Penades Fons, Introduction to the special issue in honour of Professor Trevor Hartley, 501-508

Professor Trevor C Hartley’s Bibliography (prepared by Jacco Bomhoff, Uglješa Grušić and Manuel Penades Fons), 509-521

Jacco Bomhoff, Law made for man: Trevor Hartley and the making of a “modern approach” in European and private international law, 522-538

This article offers an overview and an interpretation of Trevor Hartley’s scholarship in the fields of private international law and EU law. It argues that Hartley’s work, beginning in the mid-1960s and spanning almost six decades, shows striking affinities with two broader outlooks and genres of legal discourse that have roots in this same period. These can be found, firstly, in the approach of senior English judges committed to “internationalising” the conflict of laws in the post-war era; and, secondly, in the so-called “legal process” current of scholarship that was especially influential in American law schools from the late 1950s onwards. Reading Hartley’s writings against these backgrounds can help illuminate, and perhaps to some small extent complicate, two labels he himself has given to his own work: of a “modern approach”, in which “law is made for man, not man for the law”.

Adrian Briggs, What remains of the Brussels I Regulation in the English conflict of laws?, 539-553

The paper argues that whether we are concerned with retained or assimilated EU laws, or with rules of UK law made as close copies of EU laws, initial encouragement to interpret them as though they were still rules of EU law is coming to be, and should be, replaced by a cooler realisation that, as they no longer function in English law as cogs in a great European legal construction, they should be reassessed and repurposed to serve the purposes of domestic law. That will mean, for good or ill, that the tangible and intangible effect of the Brussels I Regulation on English law is less, and will come to be much less, than some had supposed.

Hans van Loon, A view from the Hague, 554-562

This article highlights the crucial role of Trevor Hartley as the principal author of the Explanatory Report of the 2005 Hague Choice of Court Convention. His exhaustive and crystal-clear explanations, for example on the Convention’s sophisticated rules on intellectual property and its relation to the Brussels I Regulation, are a lasting, indispensable help to its correct interpretation and application. They even shed light on some aspects of the 2019 Hague Judgments Convention. The article also recalls Trevor Hartley’s essential role in the European Group for Private International Law, of which he has been an original member since 1991, most of the time as the only representative of a common-law legal system. Lastly, this contribution praises Trevor Hartley’s exceptional scholarly and pedagogical qualities, as evidenced notably by his widely used International Commercial Litigation.

Linda Silberman, Trevor Hartley: champion for the Hague Choice of Court Convention, 563-572

This article, in tribute to Professor Trevor Hartley, discusses the debate between Gary Born and Professor Hartley about whether countries should ratify the Hague Choice of Court Convention. It also explains how that debate contributed to the conclusions reached by a New York City Bar Committee that was asked by the United States State Department for its views on ratification of the Convention.

Alex Mills, Assessing the Hague Convention on Choice of Court Agreements 2005, 573-585

Almost twenty years after the adoption of the Hague Choice of Court Convention 2005, it may be an appropriate moment to reflect on and assess its legacy to date. This article, part of an issue paying tribute to the work of Professor Trevor Hartley, notes a number of different ways in which the legacy of the Convention may be evaluated, particularly appreciating the important role of the Explanatory Report co-authored by Professor Hartley. It argues that the Convention should not be judged merely based on the (admittedly limited, but perhaps growing) number of state parties, but also taking into account its wider influence in a number of different respects which may cast a more positive light on its achievement. These include the importance of the Convention to the Hague Conference on Private International Law, the soft power of the Convention, and the role of the Convention in preserving the enforceability of UK judgments based on exclusive jurisdiction agreements in European Union Member States notwithstanding Brexit.

Andrew Dickinson, Anti-suit injunctions – beyond comity, 586-597

This short article considers a theme emerging from Trevor Hartley’s writing on the topic of anti-suit injunctions – the significance of the existence of an international treaty that regulates the circumstances in which the States concerned may or must assert, and may or must decline, jurisdiction with respect to the subject matter of the dispute. It examines, in particular, recent case law extending the reach of the European Union’s prohibition on anti-suit injunctions within the Brussels I regime, and the place of anti-suit injunctions within the framework of the Hague Choice of Court Convention.

Verónica Ruiz Abou-Nigm, Iconic asymmetries of our times: “super Highways” and “jungle tracks” in transnational access to justice, 598-614

Drawing from Hartley’s “Multinational Corporations and the Third World: A Conflict-of-Laws Analysis” where he exposes the “unequal fight” between powerful multinational corporations and the people and communities in “the third world”, suggesting that this is partly a consequence of the deficits of legal infrastructures therein, this brief contribution dwells on the global systemic impact of channelling legal proceedings justiciable in the Global South (GS) to courts in the Global North (GN). It takes a private international law and sustainable development perspective and draws attention to the rhetoric and narratives of interdependence between the “super highways” and the “jungle tracks”- the illustrations used by Hartley. The main argument taken forward in this paper is that to realise private international law’s contribution to SDG 16 (peace, justice and strong institutions) responsivity is necessary in jurisdictional decision making in this context to enhance access to justice for all in the GS.

Grace Underhill, Masterstroke or misguided? Assessing the proposed parallel proceedings solution of the Hague Conference on Private International Law and the likelihood of its acceptance in Australia, 615-650

A dispute litigated simultaneously in two different jurisdictions wastes time and resources, and risks inconsistent judgments. In March 2024, the Hague Convention on Private International Law’s Working Group on matters related to civil and commercial jurisdiction released its third iteration of draft provisions on parallel proceedings. These provisions represent the groundwork (and one chapter) of a long-awaited international instrument that addresses the assumption and declining of jurisdiction. This article canvasses the proposal’s successes and failures in securing the continuance of litigation in a single forum. To assist, this article selects the example of Australia, against whose judicial practice the compatibility of the Working Group’s proposal is tested. This exercise identifies fundamental inconsistencies between the two schemes. Those (potentially insurmountable) concerns for judicial practice, alongside bureaucratic stagnation in Australia’s policy-making appetite in this area must, it is argued, be balanced against the strong normative influences for Australia’s accession to such an agreement. This invites concern for the acceptance of the proposal, and the broader future of the Jurisdiction Project as a whole.

Tobias Lutzi, What remains of H Limited? Recognition and enforcement of non-EU judgments after Brexit, 651-667

In its controversial decision in H Limited, the Court of Justice held that an English confirmation judgment, transforming two Jordanian judgments into an English one, constituted a judgment in the sense of Articles 2(a) and 39 Brussels Ia and, as such, qualified for automatic recognition and enforcement in all Member States. The decision has been heavily criticized for seemingly violating the rule against double exequatur and potentially opening a backdoor into the European Area of Justice. As the particular door in question has already been closed with the UK’s completed withdrawal from the EU, though, crafty judgment creditors will have to look to other Member States. This paper will make an attempt at identifying those jurisdictions to which they might look. For this purpose, it will first argue that for an enforcement decision to fall under Chapter III of the Regulation, two requirements must be fulfilled: It must be a new decision on the judgment debt (rather than a mere declaration of enforceability) and it must have come out of adversarial proceedings. The paper will then look in more detail at a selection of jurisdictions that might fulfil these two requirements.

The fourth issue of 2024 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out.

Along with recent case law and materials, it features five contributions.

Francesca C. Villata, On the Track of the Law Applicable to Preliminary Questions in EU Private International Law

Silenced, if not neglected, in (most) legislation and practice, the issue of determining the law applicable to preliminary questions is a constant feature in the systematics of private international law (“p.i.l.”). In legal doctrine, in a nutshell, the discussion develops along the traditional alternative techniques of (i) the independent connection (or disjunctive solution, based on recourse to the conflict rules of the forum even for preliminary questions), (ii) the dependent connection (to which both the so-called “joint” solution and the “absorption” solution are attributable, for which, respectively, the conflict rules of the lex causae or, directly, the substantive law of the latter are relevant), or, finally, (iii) the approach which emphasises the procedural dimension of preliminary questions and leads them back to the substantive law of the forum. In these pages, an attempt is made to ascertain whether, in the absence of EU rules explicitly intended to determine the law applicable to preliminary questions, there are nevertheless indications within the EU Regulations containing uniform conflict rules that make it possible to reconstruct, at least in selected cases, an inclination, if no adherence, of the European legislature to a specific technique for resolving preliminary questions. To this end, particular attention will be paid to the rules defining the material scope of application of the various EU p.i.l. Regulations in force and in the making, to those establishing the “scope” of the applicable law identified by these Regulations, and to those concerning the circulation (of points) of decisions on preliminary questions. This approach will concern both the preliminary questions the subject-matter of which falls ratione materiae within the scope of those Regulations and those that do not. On the assumption that at least in some areas, if not in all, the EU legislator does not take a position on the law applicable to preliminary questions, leaving this task to the law of the Member States, the compatibility of the traditional alternative techniques used in the law of the Member States (or in practice) with the general and sec-toral objectives of EU p.i.l. and with the obligation to safeguard its effectiveness will be assessed. Finally, some considerations will be made as to the appropriateness, relevance and extent of an initiative of the EU legislator on this topic, as well as the coordinates to be considered in such an exercise.

Sara Tonolo, Luci e ombre: il diritto internazionale privato e strumento di contrasto allo sfruttamento della poverta`o di legittimazione dell’ingiustizia? [Lights and Shadows: Is Private International Law a Tool for Combating the Exploitation of Poverty or Legitimising Injustice?]

The relationship between private international law and poverty is complex and constantly evolving. It is a multifaceted issue in which private international law plays an ambivalent role: on the one hand, as a tool to combat the exploitation of poverty, and on the other, as a means of legitimizing injustice. The analysis of the role of private international law in countering the exploitation of poverty often intersects with other fields, such as immigration law, due to the relevance that private law institutions have on individuals’ status and their international mobility, which is significantly affected in the case of people in situations of poverty.

Lidia Sandrini, La legge applicabile al lavoro mediante piattaforma digitale, tra armonizzazione materiale e norme di conflitto [The Law Applicable to Labour through a Digital Platform, between Material Harmonisation and Conflict of Law Rules]

This article explores the phenomenon of platform work in the legal framework of the European Union from the methodological point of view of the relationship between substantive law and conflict-of-law rules. After a brief examination of the text of the Directive (EU) No. 2024/2831 “on improving working conditions in platform work”, aimed at identifying its overall rationale and the aspects that most directly reverberate effects on the EU conflict-of-law rules, the article investigates its interference with Regulation (EC) No. 593/2008 (Rome I), proposing an assessment of the solutions accepted from the point of view of the coherence between the two acts and their adequacy to their respective purposes.

Stefano Dominelli, A New Legal Status for the Environment and Animals, and Private International Law: Tertium Genus Non Datur? Some Thoughts on (the Need for) Eco-Centric Approaches in Conflict of Laws

Traditional continental approaches postulate a fundamental contraposition between (natural and legal) ‘persons’ – entitled to a diverse range of rights – and ‘things’. Conflict of laws is methodologically coherent with an anthropocentric understanding of the law. Yet, in some – limited – cases, components of the environment are granted a legal personality and some rights. Narratives for animals’ rights are emerging as well. This work wishes to contribute to current debates transposing in the field of conflict of laws reflections surrounding non-human legal capacity by addressing legal problems a national (Italian) court might face should a non-human-based entity start proceedings in Italy. The main issues explored are those related to the possibility of said entity to exist as an autonomous rights-holder and thus to start legal proceedings; to the search for the proper conflict of laws provisions as well as to the conceptual limits surrounding connecting factors developed for ‘humans’. Furthermore, public policy limits in the recognition of non-human-derived autonomous rights-holders will be explored. The investigation will conclude by highlighting the possible role of private international law in promoting societal and legal changes if foreign legal personality to the environment is recognised in the forum.

Sara Bernasconi, Il ruolo del diritto internazionale privato e processuale nell’attuazione del «pacchetto sui mercati e servizi digitali» (DMA&DSA) [The Role of Private International and Procedural Law in the Implementation of the ‘Digital Markets and Services Package’ (DMA&DSA)]

In line with the goal to achieve a fair and competitive economy, Regulation (EU) 2022/1925 of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) and Regulation (EU) 2022/2065 of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) – composing the so called Digital Services Act Package – aim at introducing a uniform legal framework for digital services provided in the Union, mainly protecting EU-based recipients, companies and the whole society from new risks and challenges stemming from new and innovative business models and services, such as online social networks and online platforms. Namely, the ambition of the abovementioned regulations is, on the one hand, to regulate, with an ex ante approach, platform activities so to reduce side-effects of the platform economy and therefore ensure contestable and fair markets in the digital sector and, on the other hand, to introduce EU uniform to grant a safe, predictable and trustworthy online environment for recipients (e.g. liability of providers of intermediary services for illegal contents and on obligations on transparency, online interface design and organization, online advertising). Despite expressly recognising the inherently cross-border nature of the Internet, which is generally used to provide digital services, DMA and DSA do not contain any private international law rule or provide for any provision on the relationship between the two sectors, but only state that their rules do not prejudice EU rules on judicial cooperation in civil and commercial matters. Therefore, the present article will discuss the role of private international law rules in the daily application of DMA and DSA to cross-border situations. Accordingly, after having ascertained the so called extraterritorial effects of the new rule on digital markets and digital services and assessed their overriding mandatory nature, the author first investigates the role that conflict-of-laws provisions could possibly play in the application of DMA and DSA, by integrating such regimes, and then suggests a possible role also for rules on jurisdiction in a private enforcement perspective, highlighting potential scenarios and possible difficulties arising from the need to coordinate two different set of rules (i.e. substantive provisions on digital markets and digital services, on the one hand, and private international rules, on the other hand).

Sandrine Clavel, Patrick Jacob and Fabienne Jault Seseke (all professors at the University of Versailles St Quentin) are the editors of a new French journal dedicated to international dispute resolution, Perspectives Contentieuses internationales (PCI).

The journal, which will be freely available, aims at covering both public and private law aspects of international dispute resolution. It will be published twice a year.

The first issue, which can be accessed here, is primarily dedicated to the relationships between local communities and arbitration, and offers nine pieces on this topic. It also includes one additional article on private international law in arbitration, a commentary of the Inkreal decision and notes on recent developments in French private international law. The table of contents can be accessed here.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. Since the beginning of 2024, RabelsZ has been an open access publication, with all articles freely available to readers online.

The fourth issue of 2024 closes off the year with a varied selection of essays on comparative and private international law, two of which are published in English. Here are the titles and abstracts in full, which have been kindly provided to us by the editor of the journal:

Holger Fleischer and Simon Horn, Unternehmensskandale und skandalgetriebene Regulierung: Die Stavisky-Affäre als Prüfstein (Corporate Scandals and Scandal-Driven Regulation: The Stavisky Affair as Touchstone) (Open Access)

This article is an opening contribution to a new research program on corporate scandals and their legal treatment around the world. In addition to addressing civil and criminal sanctions, the main focus lies on the widespread but under-researched phenomenon of scandal-driven reform legislation. Selected case studies from the past and the present will help to create a better picture of the connections between business scandals and legal regulation. A first touchstone for such systematic comparative scandal-based research is found in early 1930s France with the Stavisky affair – a case that not only kept the business and financial world in suspense, but one that also shook the political foundations of the Third Republic.

Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, Enhancing the Draft African Principles on the Law Applicable to International Commercial Contracts – Innovations for the African Context (Open Access)

This article examines the draft African Principles on the Law Applicable to International Commercial Contracts, evaluating current and proposed choice of law rules in numerous African countries and incorporating global comparative perspectives. It argues that the African Principles should not only largely echo regional/supranational and international instruments like the Rome I Regulation and the Hague Principles on the Law Applicable to Commercial Contracts but should innovate to address the specific needs of the African context. The article suggests reforms in several areas: the scope of the African Principles, protection of weaker parties such as consumers and employees, government contracts, non-state law, and in provisions for the law applicable in the absence of choice.

Béligh Elbalti, The Applicable Law in Succession Matters in the MENA Arab Jurisdictions – Special Focus on Interfaith Successions and Difference of Religion as an Impediment to Inheritance Open Access)

This article examines the question of the law applicable in cross-border successions in the MENA Arab region, with a particular focus on the issue of interfaith succession. It shows that the private international law treatment of succession matters depends largely on derogative factors, in particular the involvement of Islam as the religion of one of the parties. In cases where all the parties are foreign non-Muslims, the conflict of laws approach is usually observed, and the foreign law is applied. However, if one of the parties is a Muslim, nationality as the connecting factor is effectively supplanted by the religion of the parties, and the lex fori is applied. Unlike the usual perspective, which typically examines this approach through the lens of public policy, this article argues that the practice, of substituting the lex fori for the ordinarily applicable law in disputes involving Muslims, is based on an »unwritten principle of private international law« that effectively designates the Islamic religion as a de facto connecting factor under the cover of public policy.

Martin Lutschounig, Eingeschränkte Anwendung des lex fori-Prinzips bei internationalen Verkehrsunfällen (Limited Application of the lex fori Principle for Cross-border Traffic Accidents) (Open Access)

According to the principle of forum regit processum, a court deciding a dispute applies its own national procedural law even in cases which are substantively governed by foreign law. It is therefore crucial how the individual legal question is categorized, namely whether it is classified as substantive or procedural. According to the prevailing opinion, this decision is made applying the lex fori. The situation is different, however, under the Rome II Regulation, as also the scope of the applicable law (lex causae) is subject to an autonomous interpretation. The article argues that the question of whether a foreign rule is to be classified as procedural or substantive is, therefore, not a question of national but of autonomous European law. A classification according to the lex fori would, by contrast, bear the danger of leading to different scopes of application of the lex causae depending on the place of jurisdiction. These problems are illustrated with reference to traffic accident cases in which a litigant seeks recovery of a supplementary claim, such as the pretrial costs of an expert opinion, an out-of-court settlement, or lump-sum costs.

The full table of contents, which also includes several book reviews, is available here. The issue also contains an index of all contributions to this year’s volume.

The latest issue of the International and Comparative Law Quarterly (Volume 73, Issue 4) features two short articles on private international law.

Maria Hook, The Purpose of the Gateways for Service out of the Jurisdiction, pp 1023-1044

This article argues that the purpose of the English gateways for service out of the jurisdiction is to identify a presumptive meaningful connection; that courts have used different mechanisms to rebut the presumption of a meaningful connection established by the gateways; and that there are lessons to be learnt from a clearer, more explicit understanding of this presumptive purpose of the gateways. The article uses Brownlie (I and II) and Fong v Ascentic Ltd to support and illustrate these arguments.

Uglješa Grušić, The Law Governing United Kingdom Government Tort Liability in the ‘War on Terror’, pp 1045-1060

This article discusses the United Kingdom Supreme Court judgment in Zubaydah v Foreign, Commonwealth and Development Office, which addressed the law governing the tort liability of the United Kingdom Government for its alleged complicity in the claimant’s arbitrary detention and torture overseas by the Central Intelligence Agency. In holding that English law applied, the Court departed from previous case law by giving decisive weight to public law factors in its choice-of-law reasoning. This decision arguably heralds a greater role for English law in relation to tort claims brought by overseas victims of allegedly wrongful exercises of British executive authority as a mechanism for achieving executive accountability, controlling abuse of power, ensuring the rule of law and providing victims access to remedy.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided by the editor of the journal.

Although the attribution of a specific gender to a person has become less important in the German legal order, it can still be relevant. Thus, the rules of descent set out in Sections 1591 et seqq. of the Civil Code provide that a mother is a woman and a father a man. The legislature has therefore done well to address private international law issues of gender attribution in a new specific gender conflict rule, Art. 7a of the Introductory Act to the Civil Code. In doing so, it primarily opted for a nationality-based approach: According to Art. 7a para. 1, a person’s birth gender is determined by the law of the state of whom the person is a citizen. This is remarkable because, in other areas, conflict rules increasingly hold a person’s habitual residence determinative. At the same time, Art. 7a para. 2 provides that a person who habitually resides in Germany can opt for the application of German law to the change of their gender or first name later in life. The following article will outline and discuss these legislative decisions and other questions regarding the scope of Art. 7a.

This article shows that Directive (EU) 2019/770 on contracts for digital content and services does not harmonise perfectly with the existing EU conflict of laws. Regarding consumer contracts, Art. 6(1) of the Rome I Regulation convinces through its contract type neutrality; however, the service exception of para. 4(a) does not fit to digital products. Correctly viewed, the Geoblocking Regulation does not affect the directing criterion of para. 1(b). If Member States made use of the option to extend the consumer concept under Directive (EU) 2019/770, conflict of laws would in most cases defeat such an implementation. On the other hand, the trader’s recourse pursuant to Art. 20 of the Directive (EU) 2019/770 is defective. The chain of recourse (implementation variant 1) can be broken if the CISG or a third-country legal system apply. In comparison, the direct claim (implementation variant 2) is superior as the loss cannot be taken by someone halfway up the chain of recourse. The eCommerce Directive, which would also render the direct claim meaningless, is not applicable. If both implementation variants collide, the redress system breaks down entirely. In terms of legal policy, the trader’s recourse should be abolished.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. The following abstracts have been kindly provided to us by the editor of the journal.

Holger Fleischer and Heike Schweitzer, Ernst-Joachim Mestmäcker † 22 April 2024 (Open Access)

Klaus Ulrich Schmolke, Das Prinzip der beschränkten Gesellschafterhaftung – Ein Streifzug durch die Debatten- und Argumentationsgeschichte (The Concept of Limited Shareholder Liability – A Walk Through History’s Debates and Lines of Argument.) (Open Access)

Today, the concept of limited shareholder liability is considered a core feature of the modern corporation. And indeed, limited liability has been continuously provided for in the corporate (and limited partnership) laws of western jurisdictions since the 19th century. However, limited liability is not such a matter of course as it is widely perceived today. Rather, it took tough disputes and hard-fought debates before the legislators of the major European jurisdictions of the time were able to bring themselves to provide for limited shareholder liability without tying it to prior state approval. Even after this breakthrough, the debate about the legitimacy and scope of limited liability flared up time and again. This is particularly true for the close corporation, in which the shareholders also exercise control over the management of the business. This article traces the historical dimension of the transnational debate and evaluates the arguments for and against limited shareholder liability that have been put forward over time. The insights gained thereby provide a basis for analysing and evaluating the currently revived criticism of limited shareholder liability.

Sandra Hadrowicz, Natural Restitution in a Comparative Legal Perspective – An Underappreciated Remedy or an Unnecessary Relic? (Open Access)

Natural restitution is one of the permissible methods for remedying damage in numerous legal orders. However, this form of compensation is much less frequently used in practice than monetary compensation. While monetary compensation is a universally found method of reparation in major legal orders, the issue is more complex when it comes to natural restitution. In some countries (e. g. England, France, the Netherlands), natural restitution is used only by way of exception, in specific cases. In others (e. g. Poland), despite the injured party being given the right to choose the method of reparation, natural restitution is very rarely requested by injured parties. Even more intriguingly, in jurisdictions where natural restitution is theoretically upheld as a principle – including Germany, Austria, Portugal, and Spain – its actual adoption by courts remains relatively rare. The question then arises: Have courts and victims come to undervalue natural restitution or even forgotten of its existence? Or, conversely, does it represent an obsolete or unnecessary element of compensation law?

Domenico Damascelli, Determining the Applicable Law in Matrimonial Property Regimes – On the Interpretation of Article 26 Regulation (EU) No 2016/1103 in the Absence of Choice-of-law and Common Habitual Residence (Open Access)

Wishing to remain faithful to the alleged principle of immutability of the law governing matrimonial property regimes, the literature interprets Art. 26 para. 1 Regulation (EU) No 2016/1103 such that if the spouses have their habitual residence in different States at the time of marriage, it is necessary to wait for a period of time to ascertain whether they will move it to the same State. If so, only the law of that State is to apply (retroactively); if not, one of the other two laws indicated in Art. 26 is to apply (once and for all). This position gives rise to uncertainty in the determination of the applicable law and is contradicted by literal, systematic and teleological interpretations of the Regulation, which show that, in the absence of a common habitual residence, the law governing the matrimonial property relationships is, depending on the circumstances, the one provided for in letters b or c of para. 1 of Art. 26. However, this law may change the moment the existence of a first common habitual residence is ascertained, regardless of whether it was established immediately, shortly, or long after the conclusion of the marriage.

María Mercedes Albornoz, Private International Law in Mexico’s New National Code of Civil and Family Procedure (Open Access)

In June 2023, Mexico enacted a National Code of Civil and Family Procedure that includes private international law provisions on procedural matters. The adoption of this Code constitutes a landmark reform in the Mexican legal system, modernizing and, for the first time, unifying civil and family procedural laws across the country. The Code’s primary objectives are to streamline legal processes, enhance judicial efficiency, and promote consistency in civil and family litigation. This article contains a study of the main rules that adjust the goals of the Code to cross-border cases. Some of those rules introduce significant innovations compared with previous bodies of procedural legislation in force in Mexico. It sets direct rules for international jurisdiction as well as novel provisions on foreign law, rules on international cooperation and recognition and enforcement of foreign judgments, and provisions on international child abduction. Furthermore, the Code promotes digital justice and thus expressly allows and promotes the use of technological resources in international cooperation. All these rules are expected to improve access to justice in private international law cases.

Jürgen Samtleben, Mexiko: Nationales Zivil- und Familienprozessgesetzbuch 2023 (Auszug) ( Mexico: National Code of Civil and Family Procedures 2023 [German Translation, Excerpt].) (Open Access)

The table of contents is available here.

Javier Carrascosa González (University of Murcia) and Esperanza Castellanos Ruiz (University Carlos III of Madrid) kindly accepted the invitation of the editors of the EAPIL blog to prepare a post as special editors of Vol. 16 No. 2 (2024) of Cuadernos de Derecho Transnacional, issued as a special edition dedicated to Studia Amicorum Alfonso-Luis Calvo Caravaca.

The multifaceted personality of Alfonso-Luis Calvo Caravaca has been honoured in Vol. 16 No. 2 (2024) of Cuadernos de Derecho Transnacional. The volume covers more than eighty works and more than 90 authors, as it can be seen in the table of contents.

Not only is the Curriculum Vitae of Alfonso-Luis Calvo extraordinarily extensive and profound but it also covers all areas, without exception, of private international law and international economic law. On the occasion of his 70th birthday, this volume pays tribute to his outstanding work.

Alfonso-Luis Calvo has devoted more than forty years of his life to private international law with astounding dedication and vocation. Professor Alfonso-Luis Calvo obtained his doctorate at the University of Bologna, Italy, in May 1978 with a brilliant doctoral thesis on the doctrine of “l’intérêt national“. After teaching at the Autonomous University of Madrid and the University of Murcia, he obtained the position of Full Professor of Private International Law at the Carlos III University of Madrid, which he currently holds. Alfonso-Luis Calvo is a first-rate teacher, an astonishing and meticulous researcher, an excellent communicator and a magnificent and inspiring mentor. He is also a lawyer and has acted as an arbitrator in international disputes.

The volume brings together contributions from friends, colleagues, peers, followers and protégées. Readers interested in national as well as in European private international law will certainly find everything they are looking for in this volume of Cuadernos de Derecho Transnacional. The volume is an impressionist puzzle which pays tribute to Professor Calvo Caravaca and offers a collection of carefully selected papers inspired on the matters and topics Professor Alfonso-Luis Calvo has dealt with during his professional life so far. From international family law to international business law through international civil procedure, almost every topic of private international law has been examined in this volume.

The world of private international law has been the oyster of Professor Calvo Caravaca. He has had the talent and the opportunity, he has worked superlatively hard, and, above all, Professor Calvo Caravaca is an excellent person, generous, extremely kind and with a fine sense of humour. Thus, a great and very well deserved welcome should be given to this new volume of Cuadernos de Derecho Transnacional.

Strength and honour are the clothing of Professor Alfonso-Luis Calvo Caravaca and the volume of Cuadernos de Derecho Transnacional is the clear evidence that what we do in life echoes in eternity.

The fourth issue of the Journal du droit international for 2024 has been released. It contains four articles, two of which might be of interest for the purposes of private international law. It also contains several case notes and a survey of the most important judgments addressing private international law issues delivered by the CJEU in 2023.

In the first article, Francesco Seatzu (University of Cagliari) examines the international responsibility of the Holy See concerning instances of pedophilia committed by members of the Catholic clergy (L’ouverture de la jarre de Pandore).

The aim of this study is to examine the international responsibility of the Holy See concerning instances of pedophilia committed by members of the Catholic clergy. This topic presents intricate legal challenges, particularly the differentiation between the Holy See and the State of the Vatican City, as well as the function of clerics as de facto representatives of the Holy See. Despite being a non-state entity, the Holy See has ratified various international treaties, including the Convention on the Rights of the Child, thus incurring obligations. Members of the clergy, though not diplomats, exert effective control, which strengthens the Holy See’s accountability for illicit actions. Additionally, the reservations expressed by the Holy See regarding the convention’s application raise concerns, as they cannot nullify its international responsibilities. This study underscores the imperative to clarify the Holy See’s accountability within the context of human rights.

In the second article, Magali Boucaron-Nardetto (University of Nice Côte d’Azur) discusses the concept of deforestation-free (“Zéro déforestation” : protéger les forêts sous pression).

The full table of contents can be found here.

The third issue of 2024 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out.

Along with recent case law and materials, it features an article, a collection of debates contributions, and a comment.

Article:

Cristina Campiglio, Linguaggio e tecniche redazionali nel diritto internazionale privato italiano [Language and Drafting Techniques in Italian Private International Law]

Like other legal lexicons, the international-private lexicon is a specialized lexicon, which can be defined as sub-sectoral, specifically relating to private situations with transnational implications. However, it is much less technical than others, since the conflict rules do not aim at fully regulating the matter under consideration but limit themselves to directing towards the legal system from which the regulation of a specific category of legal situations can be deduced. This simplicity in form, however, hides complexity in practice: the very absence of a monoreferential technical vocabulary determines application difficulties. In the law 31 May 1995 No 218 (Reform of the Italian system of private international law) itself, semantic and expression ambiguities are found, as well as inconsistencies of various types: between the rubric and the provision of the law, and even between rules. This contribution, after reporting the semantic, syntactic and pragmatic aspects of these ambiguities/inconsistencies, focuses in the last part on the legislative technique of referral, which in law No 218 of 1995 is used to refer not to a different Italian regulatory text, but to sources of other systems: foreign rules (of private international law), international and European sources.

Debates: Teaching and Research in International Law Today: Challenges and Methods

Cristina Campiglio, L’insegnamento del diritto internazionale privato [Teaching Private International Law]

In Italy, private international law is mostly subject of free-choice teaching. However, some degree courses offer a module dedicated to our subject within the teaching of international law. Depending on the degree course and the year of teaching, the teaching approach varies: the traditional, dogmatic one is now often accompanied by a purely practical approach, focused on the European discipline. As with other subjects, innovative teaching strategies are also being tested for private international law subjects, which involve the active participation of students. Finally, as regards the contents, we cannot ignore the challenges of globalization and the digitalisation of daily life and legal relationships: both in university courses (and manuals thereof) and in the courses held at the Hague Academy.

Giuseppe Nesi, Challenges and Methods in Teaching, Researching, and Practicing International Law: A Few Reflections

This paper provides personal insights into a career characterized by experiences as a researcher, a legal adviser and a teacher. It evidences how while these different functions can enter into conflict with each other, most often synergies prevail. This autobiographical report can be interpreted as an encouragement to teachers to gather practical experience beyond the “ivory tower”. The experience of working as a legal adviser is presented as a conduit to overcome cynicism, acquire greater credibility and better convey enthusiasm for international law to students. At the same time, practice can profit from academic experience by providing a greater depth of knowledge as well as all the structural thinking this activity demands.

Attila M. Tanzi, Teaching and Learning International Law in Troublesome Times

The article addresses the changes occurred over the last fifty years in the research and teaching of international law, which have sensibly increased their complexity and difficulty. In particular, the following multiple changes are illustrated and emphasized: the increased number of bodies of material international law, parallelled by the multiplication of international jurisdictional fora; the accelerated evolution of the political configurations of the international society since the Cold War, up to the contemporary demise of multilateralism and the upsurge of nationalism; the quest for reform and change of the international regulatory setting, so as to meet new social, climatic and technological challenges; increased diversity of methodological approaches to international legal research, in terms which find no comparator in the differences between legal methodologies existing in the last quarter of the last century; and, finally, the ensuing cleavage between the international law scholarship and the international legal profession.

Giuditta Cordero-Moss, The Private/Public International Law Divide: Is It Still Relevant?

The traditional divide between public and private international law is increasingly challenged. This article pleads for maintaining the division between the two disciplines, but in the awareness that the borders are relative, and that a mutual understanding is necessary.

Massimo V. Benedettelli, Teaching ‘‘International Law’’ to ‘‘International Lawyers’’: The Epistemological Challenge in the Era of Global Law and Legal Pluralism

At the dawn of the III Millennium, the areas regulated by international law have expanded as globalisation has expanded the interconnections among nations, with the consequence that international law is being used by an ever-wider community of legal practitioners. “International lawyers”, however, sometimes blur international law stricto sensu (i.e., public international law as the legal system of the international community) with other sources which may also be relevant for the regulation of crossborder matters (private international law, “a-national” or “transnational” laws, whether or not expression of private customs or non-State autonomous legal systems), with the consequence of being unable to establish correct relations between such different dimensions of normativity. This happens at times when the authority and effectiveness of international law is challenged both politically, by the opposite but converging narratives of “antiglobalisation” and “sovereigntism”/populism, and theoretically, by “global law without a State” doctrines, according to which a plurality of self-standing and possibly colliding regimes exists in a “post-Westphalian” international community, where international law has become more and more “fragmented” and States are less and less powerful in exercising their regulatory function. Against this backdrop, the importance of international law must be reasserted. If it is a fact that legal pluralism is a feature of our world, lawmaking is not an exclusive prerogative of States, and the concurrence and possible conflict of sources may pose problems of coordination among overlapping regimes jeopardising the effectiveness of their regulations, it is also a fact that the world remains divided into distinct national communities over which State exercise regulatory powers, keeping the monopoly in the use of coercion when needed to enforce the relevant regimes, as it is a fact that the worldwide recognition of party autonomy is accompanied by different limits and conditions that sovereign States may fix in the pursuit of different policies for the well-being of their nations. Thus, the “scientific revolution” somewhat implied in the “global law” construct does not seem justified. Legal pluralism certainly causes problems, but such problems can be managed through traditional instruments, under the condition that the syntax and grammar of international law (and private international law) are not subverted. Indeed, “international lawyers” should be well versed in both disciplines, and their education should be oriented by four basic considerations. First, in the contemporary world, overlapping regimes may result from the interplay between different legal systems, and legal systems may contain different rules regarding their mutual coordination, which may give rise to contradictory regulations as well as forum/law shopping opportunities. Second, the framework within which such interplay takes place is ultimately governed by international law to the extent that international law protects State sovereignty, limits its exercise, offers States tools by which they can cooperate in the implementation of their laws and may react to forms of private ordering inconsistent with their policies. Third, private international law may be used beyond its original remit as a reservoir for sophisticated techniques, through which issues of coordination among legal systems can be addressed also in the regulation of matters other than private cross-border relationships. Fourth, the emergence of a “cosmopolitan” uniform law elaborated by private actors and displacing State and international law altogether is a chimera since, on the one hand, harmonisation is limited or non-existent in important areas of legal practice (a gap which cannot be filled by lawmaking activities of entities lacking legitimacy, particularly when third party or public interests are at stake), on the other hand, private actors still rely on State laws and institutions to enforce their deals, leading to “jurisdictional touchdowns” in the context of which States have are able to enforce their mandatory laws and react to opportunistic normative arbitrages.

Verónica Ruiz Abou-Nigm, Private International Law’s Inter-Systemic Thinking in Global Legal Education

Private international law is key to cultivate legal professionals equipped for global legal practice. The field is a platform for honing advanced technical and critical legal skills. It requires inter-systemic thinking, pluralist approaches, and intercultural dialogues. The Hague Academy has nurtured these capabilities, fostering the development of the discipline globally for the last century.

Comment:

Anna Facchinetti, Immunità dalle misure di esecuzione, Fondo di ristoro per le vittime del Terzo Reich e diritto di accesso alla giustizia davanti alla Corte Costituzionale [Immunity from Enforcement Measures, Compensation Fund for Victims of the Third Reich, and Right of Access to Justice before the Italian Constitutional Court]

The article comments on Judgment No. 159/2023 of the Italian Constitutional Court from three points of view. First, it considers the Constitutional Court’s distinction between immunity from jurisdiction and immunity from enforcement measures, which finds confirmation in international law. Second, it addresses the alternative remedies argument, noting that in international and national jurisprudence the argument is not applied to immunity from enforcement measures, but only to immunity from jurisdiction. Finally, the article focuses on the fate of Greek claimants who have obtained an exequatur in Italy, who seem to suffer an unfavourable treatment compared to Italian victims of the Third Reich due to the lack of access to the Compensation Fund. The article concludes by pointing out that, among the three aspects discussed, the open and most important question remains that of immunity from jurisdiction, both in the Italian-German dispute and in the light of possible developments in customary international law.