The authors of this post are Leon Theimer (Humboldt University of Berlin) and Nicolas Dewitte (Humboldt University of Berlin).
Introduction

From 6 to 8 June, around 100 members of the EAPIL gathered in the captivatingly charming city of Wrocław in Poland for the 2024 EAPIL conference on ‘Private International Law and Global Crises’. Over the course of three days, academics and practitioners from 24 different countries engaged in discussions about private international law’s potential to respond to global crises. More specifically, the theme of the conference was addressed in four blocks, including war and armed conflict, the rule of law, climate change, and global supply chains. After an exploratory meeting in Berlin in 2018 and a successful inaugural conference in Aarhus in 2022, this was the second conference of the association, which celebrated its fifth anniversary this year. In addition, holding the 2024 EAPIL conference in Poland 20 years after the country’s accession to the EU – and thus the adoption of most EU private international law – represented a splendid connection to the association’s field of study.

Credit: P. Piotrowski
First Day
Keynote
In continuation of the tradition that the host country of the conference provides the keynote speaker, Mateusz Pilich (University of Warsaw) delivered a keynote lecture on ‘Cross-border Recognition of Personal Status and Gender Reassignment: Challenges for the European Private International Law’, a topic most recently put into the limelight by AG De La Tour’s Opinion in C-4/23 – Mirin. Pilich provided a succinct overview of gender reassignment in the EU, its (non-)treatment by EU private international law, as well as its fundamental rights dimension and place in the debate on the recognition method. In addition, he offered a thorough analysis of the issue in terms of jurisdiction, characterisation, and public policy. Concluding that EU private international law currently stands at a crossroads, he ultimately argued for methodological simplification in favour of fundamental rights-based substantive law solutions.
Reports from Strasbourg, Luxembourg, and Brussels
Prior to discussing the specific issues addressed by the panels, attendees were able to benefit from reports from Strasbourg, Luxembourg, and Brussels, which provided an overview of the numerous judicial and legislative developments in European private international law over the last two years. Raffaele Sabato (European Court of Human Rights) stressed that, due to the nature of the ECtHR, issues of private (international) law are brought before the Strasbourg Court only indirectly. As an example, he referred to Art 8 ECHR, the normative base for the circulation of personal status in Europe and the protection of private and family life. The provision has played the role of an ‘incubator’ in this regard, given that it touches upon many areas relevant to private law, such as surrogacy, parenthood, and recognition of same-sex marital status.
Moving north to Luxembourg, the CJEU has dealt extensively with private international law in the last two years, having rendered around 40 judgments in the field. From these decisions, Vincent Kronenberger (Court of Justice of the European Union) picked C-501/20 – MPA to discuss the definition of habitual residence in Art 3 and 8 Regulation No 2201/2003 as well as the various issues relating to forum necessitatis. He noted that the Court based its assessment on a broad understanding of that condition of forum necessitatis whereby proceedings outside the EU must be impossible or cannot reasonably be brought or conducted.
Andreas Stein (European Commission) closed the first day of the conference with a dive into the past, present, and future of the Commission’s work. He reported that the Civil Justice Unit is looking back on an extremely productive period, having finalised four legislative proposals between 2022 and 2024, namely on the harmonisation of insolvency law, parenthood, the protection of adults, and on strategic lawsuits against public participation (SLAPP). Out of these instruments, Stein considered the Anti-SLAPP Directive to be the most innovative, given its approach of harmonising substantive law and establishing procedural safeguards rather than relying on private international law. Regarding the ‘big accomplishment’ of the EU Directive on Corporate Sustainability Due Diligence (CSDDD), which became a recurring topic at the conference, he indicated that the near-complete exclusion of rules on jurisdiction and choice of law was a deliberate choice. The Commission decided against introducing special rules of private international law and in favour of the general framework, particularly the Recast Brussels I Regulation, thus avoiding fragmentation. Looking ahead, Stein explained that the Commission will be preparing for a new mandate in the transitional period after the European elections. Notably, both a revision of the Recast Brussels I Regulation and a revision of the Rome II Regulation are currently under consideration. More specifically, the inclusion of defamation and privacy into the Rome II Regulation could be on the table, given that the UK as its most fundamental opponent has now left the EU. Lastly, Stein noted that third party litigation funding (TPLF) is picking up in practical economic and regulatory relevance and may be of legislative interest in the future.

Second Day
Revisiting the Functions of Private International Law
Patrick Kinsch (Luxembourg Bar/University of Luxembourg) and Verónica Ruiz Abou-Nigm (University of Edinburgh) kicked off the second day by revisiting the functions of private international law on the quest for answers to the question ‘Can Private International Law respond to crises and if yes, how?‘. Putting forward an ‘Old-Fashioned View’, Kinsch responded with ‘essentially no’ and presented three arguments in support of his claim. First, most international crises cannot be resolved by law at all. Secondly, while some international crises have legal aspects, the legal rules involved will typically be rules of substantive law, not of private international law. As an example, he referred to the recently adopted CSDDD. Thirdly, Kinsch conceded that private international law has an auxiliary role to play in the response to global crises. This role lies in the application of its traditional rules. An invention of new rules, he argued, can often be misguided, as is evidenced by the unconstitutionality of Art 13(3) no1 Introductory Act to the German Civil Code on the invalidity of certain child marriages. Moreover, private international law should not be conflated with public law, like in the reciprocity requirement in § 328(1) no5 German Civil Code of Procedure.
In response, Ruiz Abou-Nigm presented her view on ‘Private International Law and the Calling of Global Responsibilisation in our Polycrisian Age?’. Drawing on the concept of self-reflexivity, she emphasised the strengths of private international law in responding to global crises, in particular as a method containing ‘techniques for plurality’. At the same time, she addressed private international law’s pitfalls and its role as part of the problems it is attempting to solve. Taking the food crisis as an example, Ruiz Abou-Nigm revisited the coordinative, facilitative, and regulatory function of private international law and identified ‘sites of tension’ in terms of jurisdiction, applicable law, and the recognition and enforcement of foreign judgments. She concluded with urging attendees to ‘walk the walk’ in private international law, engage with other fields, immerse themselves in global crises, carry out interdisciplinary research, and have an ethical responsibility to unveil what private international law can contribute to responding to global crises.

Private International Law, War and Armed Conflicts
The next panel took up the regrettably topical issue of War and Armed Conflicts. Iryna Dikovska (Taras Shevchenko National University Kyiv) dealt with family law aspects and discussed the law applicable to parental responsibility in cases relating to war-induced migration. She explained that the particularity of this type of migration lies in its floating and spontaneous nature where people and especially unaccompanied children often face difficulties in providing documents and proof of their family status. Against this background, Dikovska advocated for a sensitive approach and pleaded for a distinction between unaccompanied minors and minors subsequently left alone as well as the harmonisation of rules on habitual residence in migration law and the 1996 Hague Convention.
Addressing the economic side of the crisis, Tamasz Szabados (ELTE Eötvös Loránd University) held a presentation on ‘Dealing with war-induced effects: Economic sanctions in EU Private International Law’. Drawing on the Art of War by Sun Tzu, he identified the aim of sanctions as ‘breaking the enemy without fighting’. While sanctions have a public law character and origin, they have a direct impact on contractual relations and therefore also on private international law. Economic sanctions are overriding mandatory rules under Art 9 Rome I Regulation. As such, they can only be considered as part of the lex fori or the law of the place of performance if they render the performance unlawful. Outside of these scenarios, the Rome I Regulation remains silent. Moreover, some of the Russian countermeasures also touch upon matters of jurisdiction. For example, the Russian Commercial Procedural Code has been amended and now includes an exclusive head of jurisdiction for Russian courts in cases involving economic sanctions. This raises questions both in terms of parallel proceedings and on the recognition and enforcement level.
Private International Law and the Rule of Law
In the third panel of the day, Alex Mills (University College London) and Matthias Weller (University of Bonn) devoted themselves ‘Private International Law and the Rule of Law’, dealing with jurisdiction and applicable law as well as enforcement and mutual trust respectively. Mills began by distinguishing three aspects of the much-disputed notion of the rule of law. The formal notion, whereby law must be accessible and clear, can help to assess conflict rules from the perspective of its end users. The procedural notion, in turn, can assist in dealing with the independence of the judiciary, while the substantive notion, being the most contentious, can help to address discriminatory rules. As an example, Mills referred to the forum non conveniens doctrine often being framed as an expensive and inconvenient delay by its critics. As an alternative, he put forward a rule of law-based framing, enquiring whether the parties know what the law requires of them. In this sense, forum non conveniens creates uncertainty for the parties, given that they cannot be sure as to where to bring their claims. In light of this, forum non conveniens could be considered a bad rule in the formal sense of the rule of law. More generally, Mills argued that the rule of law perspective should induce scholarship and practice to refocus on the individual persons affected by the law rather than the courts or other legal actors. The rule of law could also help to reframe the objectives of private international law.
Turning to enforcement and mutual trust, Weller pointed out that private international law is missing from the Commission’s ‘rule of law toolbox’ and advocated for filling this lacuna: private international law can and should do more in the field than most realise. Crucially, he identified three relevant perspectives on the recognition and enforcement level. First, national rules from a Member State which deal with judgments from a third state in violation of the rule of law. Here, the public policy exception comes into play and the values under Art 2 TEU should step in if national law does not provide for adequate protection of the values (referring to the ‘Reverse Solange Doctrine’ by von Bogdandy et al). Secondly, enforcement under international treaties to which the EU is a contracting party, namely the 2019 Hague Judgments Convention. Here, the question of protection against foreign judgments in violation of the rule of law arises as well. In this scenario, Member States could reject the judgment of a non-independent foreign court as a non-judgement. Finally, the scenario of intra-EU relations, where mutual trust, the raison d’être of European integration, applies. To this end, Weller suggested that courts of the Member States could, in light of the values in Art 2 TEU, be obliged to limit mutual trust and suspend judicial cooperation in exceptional circumstances.
Private International Law and Climate Change
Eduardo Alvarez Armas (Universidad Pontificia Comillas) and Olivera Boskovic (Université Paris Cité) concluded the second day with a joint presentation on the topic ‘Climate change litigation: jurisdiction & applicable law’. Conceptually, their analysis stressed the distinction between actions for damages (such as the Dutch Shell case) and preventive actions (such as the German RWE case). Moreover, they argued that the dynamic nature of climate change leaves a lot of questions unanswered, referring to the CSDDD as an example. Notably, a head of jurisdiction for non-EU defendants is missing in the newly adopted directive, thus creating a jurisdictional gap despite their inclusion of into the scope of the Directive. In light of this, they advocated for a forum legis as a subsidiary rule based on the CSDDD as a European overriding mandatory provision. With regard to applicable law, Alvarez Armas and Boskovic rejected the idea of a company law characterisation of the directive, arguing instead for a tort characterisation in light of the CSDDD being a measure to prevent and cease damage.

Third Day
Private International Law and Global Supply Chains
In the last panel of the conference, Rui Dias (University of Coimbra), Klaas Eller (University of Amsterdam), and Laura Carpaneto (University of Genova) presented their perspectives on the ‘Protection of human rights in global supply chains’. Addressing the jurisdictional dimension of the question, Dias placed the protection of human rights into the context of the CSDDD and highlighted the absence of rules on jurisdiction from the instrument. Against this background, he provided a detailed analysis of the different heads of jurisdiction for claims based on the violation of human rights in global supply chains. These included a forum legis on the basis of the personal scope of the CSDDD, as suggested by Michaels and Sommerfeld, as well as a forum legis based on any European overriding mandatory provision, as suggested by Boskovic and Alvarez Armas in their presentation on the previous day. Moreover, Dias discussed the de lege lata application of as well as de lege ferenda proposals for the Recast Brussels I Regulation, ultimately arguing for a revision of Art 7(5) Recast Brussels I Regulation in parallel with Art 24 CSDDD.
Turning to applicable law, Eller advanced three claims relating to the importance of private international law in the context of global supply chains. First, due diligence is a novel type of uniform law that makes the question of applicable law less relevant. Secondly, the alleged lack of legal certainty is in-built in due diligence which is evolutive and persistently ‘in the making’. It is against this background that the proposal for the plaintiff’s right to choose the law applicable to business-related human rights claims in Art 6a Rome II Regulation, which has been criticised as legally uncertain, must be viewed. Thirdly, due diligence uses ‘impact’ (as a factual criterion) to overcome the parcellation of value chains into different regimes of applicable law and hence neutralises some of the private international law-based corporate techniques in value chains.
Concluding the panel, Carpaneto focussed on public policy and overriding mandatory provisions. To that end, she carried out an in-depth examination of the scope and structure of the CSDDD, in particular the civil liability scheme in Art 29, its procedural safeguards, as well as its provision on overriding mandatory provisions. Drawing attention to the functions of public policy as a ‘shield’ and overriding mandatory provisions as a ‘sword’, she argued for the latter as the more suitable mechanism to protect human rights. Moreover, she investigated a reform of the Rome II Regulation, specifically its Art 4, 16, 26, and raised the question of whether a transition to sustainability should take precedence over certainty and predictability.
How Can Private International Law Contribute to a More Sustainable Life?
In the ultimate event of the conference, Hans van Loon (University of Edinburgh/formerly Hague Conference), Verónica Ruiz Abou-Nigm, and Patrick Kinsch convened for a roundtable on ‘How Can Private International Law Contribute to a More Sustainable Life?’. Kicking off the discussion, van Loon noted that efforts towards sustainability are all too often focussed on public international law only, citing the UN Development Goals as an example. It is, however, sensible not to depend exclusively on state action. Instead, bottom-up approaches should be embraced, including private international law. In this sense, private international law forms part of the ‘missing private side’ to many international treaties. The former Secretary General of the Hague Conference called on EAPIL members to work on suggestions for a future world, engage with other academic institutions, and develop proposals to discuss with legislators. Echoing his remarks and building on them, Ruiz Abou-Nigm offered insights into her involvement in a new project which explores private international law and the transition to a circular economy. Finally, Kinsch added an important reminder not to forget the existence of more sceptical views regarding the transformative role of private international law, which are held outside the largely academic community present at the conference, particularly in the business world.
Conclusion
Three days filled with rich and intense discussions have left the lasting impression that private international has something to contribute to responding to the different crises of our time. It is up to private international law scholars and practitioners to work out and critically assess what exactly that contribution is or should be. In particular, the recently adopted CSDDD proved to be a constantly recurring topic which sparked a lot of debate about the role of private international law in protecting and promoting the regulatory objectives of the Directive. More generally, the different panels served as a reminder that, in evaluating the role of private international law in global crises, one cannot shy away from revisiting and scrutinising its different functions in light of newly emerging challenges. Closing the conference, the EAPIL’s president, Gilles Cuniberti, emphasised the open nature of the association’s work and invited all members to develop ideas for projects within the association’s framework. The next conference will take place in Geneva. It will be most interesting to observe how the role of private international law will develop until then.