The book, available in open access here, focuses on the emergence of new legal personality for environmental features; protection of children; alternative dispute resolution; protection of the internal market and access to justice; SLAPPs; onlice activities and private international law; jurisdiction and choice of court agreements, and tax arbitrability.

Contributions include:

Michał Kućka: Rivers and Other Elements of Nature as Legal Persons: On the Use of Private Law Instruments in Environmental Protection (Polish Perspective)

María González Marimón: Mediation in International Child Abduction Cases in the Brussels II ter Regulation

Francesca Maoli: The EU Legislation on SLAPPs and its First “Stress-Tests” in Lawsuits Between Environmental NGOs and Corporations

Simone Carrea: Arbitrability of Tax Matters in the Context of Inter-private Dis-putes

Stefano Dominelli: Lex fori prorogati and Brussels I bis

Luana Matoso: Choice of Court Agreements and Service Out of the Jurisdiction: The Influence of the Brussels I bis Regulation on English Law After Brexit

Rosa Pla Almendros: The Relevant and Complex Role of Private International Law in the Private Enforcement of the DSA

Felix D. Pollmann, Jonathan L. T. Chu: Standard Terms in Business-to-Business Contracts under English and German Law: Comparative Assessment and Strategies for Avoiding the Application of §§ 305-310 BGB

Kai Hüning: The Hearing of the Child in Child Abduction Cases under the 1980 Hague Convention

Amber Boes: Judicial Powers in Promoting Mediation: A Paper Tiger or a Wolf in Sheep’s Clothing?

Lise Van den Eynde, Ruth Sander: Conflict of Interest in Representation: Belgian ‘Novelty’ versus German Tradition

Jonathan L. T. Chu, Felix D. Pollmann: Debt, Judgment, and Security: English and German Approaches to Preclusion

Sofia Caruso: Access to Justice for Consumers and SMEs: A Competition Law Problem?

Eden Smith: Origins and Aspects of Mitigation in the Law of Damages in England and Germany

Paula Granell: Transfer Pricing and the Role of Contractual Terms in the Post-BEPS Era

Monika Chmielowiec: Towards a Framework of Tort Liability for AI: Insights from Legal Scholarship

Monika Naumovski: Consumer Safety in the Internal Market: The Harmonisation of EU Product Liability

Some readers may not be familiar with Schedule A litigation in the United States.  The two leading scholars who write about it are Professors Sarah Fackrell and Eric Goldman, whose work on the topic I recommend.  Citing their work, however, I did mention the phenomenon in my recent book Wrongful Patent Assertion:  A Comparative Law and Economics Analysis (Oxford Univ. Press 2026), where at page 103 n.160 I wrote that the majority of Schedule A cases

involve allegations of trademark or design patent infringement, though some allege violations of copyrights or of utility patents. The typical case involves an owner who files a complaint and a motion for an ex parte temporary restraining order, often under seal, against multiple, often foreign, defendants, who are identified in an accompanying list, often referred to as “Schedule A.” The papers allege that the defendants are offering allegedly infringing products for sale online. Over the past decade or so, several U.S. judges have granted these motions, notwithstanding the difficulties (especially in design and utility patent cases) of determining on the basis of ex parte, preliminary evidence that the accused products infringe. The orders are then forwarded to the online platforms on which the defendants are offering merchandise for sale, after which the platforms typically make the accused products,and sometimes all of a defendant’s products, unavailable, sometimes for longer than the fourteen days that a temporary restraining order is supposed to last. Judges also have issued asset-freezing orders, sometimes in cases in which such orders are not permitted under U.S. law. . . . Given the cost of litigation, the end result is often that defendants either settle or default. Plaintiffs may voluntarily dismiss their claims against those who do not settle or default, and those parties may be eligible for compensation in the amount of the injunction bond; but they are not automatically awarded their fees, and U.S. courts can be reluctant to award litigation sanctions.

Anyway, a precedential decision handed down yesterday, Shenzhen Jisu Tech. Co. v. The Entities and Individuals Identified in Annex A, is an appeal from the dissolution of an earlier-granted preliminary injunction in one such case (majority opinion by Judge Hughes, joined by Judge Prost; partial dissent by Judge Stoll).  The appellant Shenzhen owns U.S. Design Patent No. D886,982, for a design for a foldable fan.  Shenzhen asserted the patent against several entities identified in a Schedule A and obtained a TRO; but some of the defendants appeared to oppose converting the TRO into a preliminary injunction, arguing that Shenzhen was unlikely to succeed on the merits of proving infringement.  The district court nevertheless granted the preliminary injunction.  The defendants thereafter moved for reconsideration, pointing to the recent issuance to a third party of U.S. Design Patent No. D1,046,104, for a foldable fan.  Specifically, defendant

Zhouty argued that because novelty is a requirement for patentability, the patent examiner must have concluded that the ’982 patent’s design did not anticipate the ’104 patent’s design—otherwise, the ’104 patent would not have issued. And, because the test for design patent infringement and the test for anticipation are identical, the conclusion that the ’982 patent does not anticipate the ’104 patent would suggest that products practicing the ’104 patent’s design do not infringe the ’982 patent. Together with the representation that the ’104 patent protects the exact design of Zhouty’s accused product, Zhouty argued that the ’104 patent’s issuance suggested there is some material and patentable difference between the design of its accused product and the design protected by the ’982 patent. Zhouty suggested that this undermined the likelihood Shenzhen would succeed in its infringement action, which in turn undercut its entitlement to a PI (pp. 4-5).

The district court denied the motion for reconsideration, after which Shenzhen added some five defendants to the litigation and moved for another TRO.  The new defendants appeared and made the same argument that Zhouty had made in its motion for reconsideration.  This time, the district court was persuaded, and it dissolved the already-issued PI.

On appeal, Shenzhen argues that collateral estoppel should have precluded the district court from reconsidering the matter, but the Court of Appeals rejects that argument to the ground that collateral estoppel does not apply to earlier, nonfinal decisions within a continuing case (p.7).  The court also rejects the argument that the district court had applied a rule requiring the owner to prove the invalidity of a relevant, later-issued patent; “[r]ather, we understand the district court to have assessed the strength of Shenzhen’s infringement claim via an analysis rooted in this court’s caselaw holding that anticipation and infringement are the same inquiry for design patents” (p.9).  More specifically:

To assess the likelihood Shenzhen would succeed on its infringement claim, the district court was required to preliminarily apply this court’s test for design patent infringement—the ordinary observer test. This test asks whether, “in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same.” Gorham, 81 U.S. at 528. As noted, the district court was correct when it observed that, in the case of design patents, the test for anticipation and infringement are the same. . . . Thus, if an ordinary observer would view two designs as substantially the same, the later design is anticipated, and an accused product practicing its design would infringe any patent claiming the earlier design. See Peters v. Active Mfg. Co., 129 U.S. 530, 537 (1889) (“That which infringes, if later, would anticipate, if earlier.”). By extension, when a design patent issues over an earlier one, the presumption of patent validity suggests that the later claimed design is not anticipated by—i.e., not substantially the same as—the earlier patented design. . . . Indeed, by statute a patent is presumed valid once issued, and included within that is a presumption that its claimed design is novel and thus not obvious or anticipated. . . .

We see no abuse of discretion in the district court’s application of these themes to the facts before it as an aid in estimating the likelihood that Shenzhen would succeed in its claim for infringement. Because the accused products were purported to be coextensive with the later-issued ’104 patent, the district court was within its discretion to note that the ’104 patent’s issuance may suggest that an ordinary observer would not find the accused products substantially similar to the design claimed by Shenzhen’s ’982 patent (p.10). 

Judge Stoll dissents on this last issue, writing that “the district court applied a shortcut to its analysis by assuming that, because the relevant defendants asserted that their accused product practices another, later-issued design patent (which is presumptively valid), Shenzhen had failed to who a likelihood of infringement of its asserted patent” (dissent p.3).  Judge Stoll would vacate and remand for the lower court to apply the three-way test “comparing the accused product, the patented design, and the prior art” (id.).

1. Kung-Chung Liu and Rui Li have published A Critique on WT/DS611 Panel and Arbitration: To Better Understand Chinese Courts, Anti-Suit Injunction, and TRIPS, 2026 GRUR Int. (Advance Access Publication June 25, 2026).  Here is the abstract: 

More and more often, parties and national courts are resorting to anti-suit injunctions (ASIs) to deal with the issues caused by parallel proceedings disputing the fair, reasonable, and non-discriminatory licensing of standard essential patents. Recent and sporadic ASIs issued by Chinese courts have led to a dispute between the EU and China before the WTO. The Panel report and arbitration award touch upon the term ‘give effect’ Art. 1(1), first sentence of TRIPS, and the territoriality principle embedded in intellectual property treaties, and therefore can be consequential for the dispute settlement mechanism of the WTO and the understanding of TRIPS. The arbitration also reveals alarming misperceptions about how Chinese courts, especially the Supreme People’s Court (SPC) and its IP Tribunal, operate. This Opinion will address these three issues. It will first summarize the findings and reasonings of the Panel and the arbitration to set the stage, explain how the SPC, not its IP Tribunal, normally regulates through written policies to dispute the existence of a so-called ‘unwritten’ ASI policy, and persuade that even there were such an ASI policy, it is an autonomous judicial policy, well grounded, non-binding on lower courts, defensively applied, well-reasoned, settlement-conducive, and should be welcomed. This Opinion then argues that the ordinary meaning of ‘give effect’ does not allow the expansive reading by the arbitration; and that such a reading would also be an unacceptable deviation from the territoriality principle. 

2. Peter Slowinski and Fabian Hoffmann have posted a paper on ssrn titled Third-Party Determination of Interim Licenses and Security Payments: A German Approach to the Huawei Framework.  Here is a link to the paper, and here is the abstract:

Litigation of Standard Essential Patents (SEPs) takes place in Europe within the framework provided by the CJEU in its landmark decision Huawei v. ZTE. However, Courts in Europe are still struggling to find the best approach for the resolution of these disputes. German courts and the UPC rely on competition law and a determination of whether the parties have been willing to conclude a license. British courts focus on the setting of license terms but their approach is not entirely convincing, either. This article shows an alternative way forward based on instruments from German civil law that use third-party determination of contract terms. It combines these instruments with a preliminary calculation of a security and down-payments to provide parties with an interest-oriented way forward. The proposed third-party determination of FRAND terms is deliberately not a final determination but limited to the interim period before a final agreement. This preserves the autonomy of the parties while supporting them in the settlement process and it does not affect the right to be heard in court. Moreover, the obligation to demonstrate willingness to grant or take a license entails the necessity not to reject the other party's proposal for a third-party determination for the interim period. And in infringement proceedings it increases the pressure to negotiate constructively to reach a FRAND compliant agreement. While the method is based on German civil law, it is transferable to other legal systems and can be equally applied in the Unified Patent Court. 

3.  Enrico Bonadio and Arjun Solanki also have posted a paper on ssrn, titled Reinvigorating Competition Law in SEP Litigation: Towards a More Balanced UK Framework for Standard Essential Patents.  Here is a link, and here is the abstract:

The United Kingdom has become a leading forum for adjudicating standard essential patent (SEP) and fair, reasonable and non‑discriminatory (FRAND) disputes, yet competition law has played a strikingly marginal role in this jurisprudence. Despite EU enforcement practice on SEPs and abuse of dominance, no UK court has issued a standalone competition law decision in a SEP case and the Competition and Markets Authority (CMA) has not opened any SEP‑focused investigation. This article offers a systematic account of this “competition silence”, showing how institutional incentives, evidential burdens and post‑Brexit doctrinal uncertainty have channelled disputes into contractual FRAND rate‑setting and left Chapter II of the UK Competition Act effectively dormant. It argues that FRAND adjudication is an incomplete substitute for competition enforcement: retrospective, bilateral and ill‑suited to addressing market‑wide harms such as supra‑FRAND royalties, coercive injunctions against willing licensees and exclusionary licensing practices. Against the backdrop of the withdrawn EU SEP Regulation, the pending Supreme Court appeal in Optis v Apple and the CMA’s expanded powers under the Digital Markets, Competition and Consumers Act 2024, the article contends that the UK is at an inflection point in SEP governance and advances a calibrated reform agenda to reinvigorate competition law’s role while complementing judicial FRAND. 

Written by Hadrien Pauchard (

The second issue of the Revue Critique de droit international privé of 2026 was just released and is accessible online. It contains two articles, eight case notes, as well as five book reviews. In line with the Revue Critique’s recent policy, the doctrinal part will soon be made available in English on the editor’s website (for registered users and institutions).

The first article by Prof. Étienne Farnoux (Université de Strasbourg/Université Saint-Joseph de Beyrouth) scrutinizes the French Supreme Court’s recent case law pertaining to the Localisation du préjudice financier sur le compte bancaire de l’investisseur en France, une nouvelle doctrine de la Cour de cassation pour la compétence juridictionnelle et la loi applicable ? (The Localisation of Financial Losses on the Investor’s Bank Account in France: A New Doctrine from the Cour de Cassation Regarding Jurisdiction and Applicable Law?). Beyond the innovative solution in the particular cases (outlining a unitary connection of the financial loss centred on the investor’s bank account), this series of six rulings tackles some fundamental questions raised by the localisation of purely immaterial damages, which materialize broader concerns in contemporary private international law scholarship and judicial practice. The author identifies these trends as follows:

In four judgments delivered on October 1st and two further judgments on 26 November 2025, the Cour de cassation located the financial loss suffered by an investor at that investor’s domicile, within the framework of a unitary approach common to both the determination of jurisdiction and the identification of the applicable law. Beyond the outcome – favourable to the investor – the methodology adopted is noteworthy: the Cour de cassation applies a sophisticated connecting-factor, based on a multifactorial and case-by-case analysis, thereby rationalising the complex case law of the Court of Justice of the European Union concerning financial loss in the context of the European forum delicti. This article analyses these rulings, emphasising three significant methodological developments: the alignment of forum and jus, the disaggregation of the connecting rule, and the personalization of the connecting factor.

In the second article, Prof. Véronique Carole Ngono (Université de Douala) ponders over Les Principes africains sur la loi applicable aux contrats commerciaux internationaux : un modèle pour l’Afrique ? (The African Principles on the Law Applicable to International Commercial Contracts: A Model for Africa?). Informed by a large survey of legislative practices in numerous African jurisdictions and regional bodies, the author’s critical appraisal of the 2024 African Principles provides an informed glimpse into the main issues and challenges of modern codification within the field. Her inquiry is summarized as follows:

African private international law has been enriched by a flexible legal text: the African Principles on the Law Applicable to International Commercial Contracts, which were officially launched in 2024. While the objective of harmonising solutions for the choice of law in international commercial contracts in Africa is commendable, despite the fact that they are, in principle, an extension of the 2008 Rome I Regulation on the law applicable to contractual obligations and the Hague Principles on the choice of law applicable to international commercial contracts, the question of their impact arises. The answer is nuanced: while these principles constitute a necessary model given the unsatisfactory state of African legislation on the issue, their impact could be hampered by certain shortcomings.

The full table of contents is available here.

Previous issues of the Revue Critique (from 2010 to 2025) are available on Cairn.

Recently, an article I wrote about adoption in the proposal for a European Parenthood Regulation was published in the Dutch Journal of Family and Youth Law (Tijdschrift voor Familie- en Jeugdrecht, 2026/3). This article examines the uncertainties and gaps in the regulation of adoption and argues for an autonomous European Adoption Regulation to adequately govern international adoptions. Below is a summary in English of the article.

Introduction

On 7 December 2022, the European Commission submitted a Proposal for a European Parenthood Regulation to govern jurisdiction, applicable law, and the recognition of decisions and authentic instruments relating to parenthood (COM(2022) 695 final). Although adoption is mentioned in the proposal, it remains to a significant extent unclear which types of adoption are covered by the proposal and how these adoptions are regulated. The proposal refers to adoption in three provisions—articles 1(2), 3(2)(e) and 66(3)—while explicitly excluding international (Dutch version) or intercountry (English version) adoption from its scope (article 3(2)(e)). This raises questions concerning the proposal’s formal scope, since the terms ‘international adoption’ and ‘intercountry adoption’ are not synonymous.

Furthermore, it is initially unclear which substantive forms of adoption are governed by the proposal, since this is not explicitly stated in the provisions. The explanatory memorandum and recitals provide some guidance, but in certain cases it is necessary to consult additional documents to fully understand the material scope, and even then, some aspects remain ambiguous.

The unclear formal and material scope in relation to adoptions is indicative of the inadequate regulation of international adoption law in the proposal. The proposal also remains unclear, incomplete, or even entirely silent on several other essential points. The article addresses the scope of the proposal, and then three questions: whether the proposed international jurisdiction rules and conflict-of-laws rules also apply to adoptions (point 2 below), what the legal consequences are of recognising a foreign adoption (point 3 below), and whether the proposal also governs the (recognition of) conversion of a “simple” or “weak” adoption, i.e., an adoption which does not cut off the legal family ties between the child and the family of origin, into a “strong” or “full” adoption, i.e. an adoption which does cut off these ties (point 4 below).

1 Scope of the proposal with respect to adoption

 1.1 Formal scope

a) Domestic adoptions (non-intercountry adoptions)

The proposal distinguishes between domestic adoptions (non-intercountry adoptions), and intercountry adoptions. Domestic adoptions, where the child and the adoptive parent(s) reside in the same Member State, fall implicitly within the scope, whereas intercountry adoptions—where the child is transferred across borders due to or with the purpose of the adoption—are excluded (article 3(2)(e)). This creates uncertainties, for example, in situations where one adoptive parent resides in another Member State. It is therefore recommended that the regulation explicitly apply to non-intercountry adoptions, after which this term should be clearly defined. In my view, this definition should include situations where one adoptive parent resides in another Member State, as long as there is no cross-border transfer of the child. Furthermore, for the sake of clarity, the regulation should also define precisely what is meant by an excluded ‘intercountry adoption’.[1] However, the proposal is criticised for excluding intercountry adoptions that fall outside the 1993 Hague Adoption Convention, which could lead to “limping adoptions’ within the EU, i.e. adoptions that are valid in one Member State, but not in another.

b) Adoptions from a Member State

Furthermore, the proposal is limited to the recognition of non-intercountry adoptions from a Member State and excludes adoptions from third countries (article 3(3)). However, I argue that it is conceivable that a European regulation could include recognition rules for decisions from third countries, as the EU appears to have the competence to do so.[2] A uniform recognition policy would increase legal certainty within the Union by providing a clear framework for when (adoption) decisions from outside the EU should or should not be recognised. This would eliminate the need for Member States to rely on national recognition rules and would generally prevent “limping” third-country adoptions.[3] However, the political feasibility of such rules remains questionable.

The article questions whether the proposal requires Member States to recognise a decision from another Member State that recognise a third-country adoption. The proposal does not explicitly address this issue. However, expert group reports suggest that such recognitions would not automatically circulate between Member States.[4] Since the proposal does not clearly regulate this matter, it is recommended that the Regulation specify whether it applies to these cases. Several authors, including Barth,[5] and Kohler and Pintens,[6] oppose the application of European recognition rules to recognition decisions made by Member States. In principle I oppose them too, as this could make the public policy of one Member State decisive for the others.[7] For this reason, a common European recognition policy for third-country adoptions is preferable,[8] although its political feasibility is questionable.

1.2 Material scope

a) Legal parent-child relationship

Only adoptions that establish a legal parent–child relationship are implicitly included in the proposal, so it does not seem to cover forms of care such as kafala or foster care.

Recital 26 refers to adoptions that establish a permanent parent-child relationship. This raises the question of whether the proposal only covers irrevocable adoptions, meaning adoptions that cannot be undone in the Member State where they were established. However, I believe this is not the case; rather, the intention seems to be that a genuine legal filiation bond must have been created. It is preferable that this be explicitly clarified in the proposal, as is done in het Hague Adoption Convention of 1993 (Article 2(2)), to avoid any misunderstandings.

Recital 26 further indicates that the proposal covers both “full” adoptions—which sever legal ties with the biological family—and “simple” adoptions, where those ties remain. However, this is not expressly regulated. The recitals refer to whether the “legal relationship” between the child and the family of origin is ended or maintained, but since the term “legal relationship” can be interpreted more broadly than “family-law relationship,” it would be preferable to use the latter term.

The proposal is silent on whether family-law relationships are created between the child and the legal relatives of the adoptive parent(s), even though this is essential given the distinct legal consequences of adoption compared with regular parentage. The absence of any mention regarding these relevant forms of establishment might suggest that, for the purposes of the proposed regulation, it is immaterial whether they are used. However, this is not certain, and an explicit provision on this point would be preferable.

b) Judgments and authentic instruments with binding effect

According to Article 1, the proposal covers the recognition of both judicial decisions (Article 24 et seq.) and authentic instruments with binding legal effects (Article 36 et seq.). However, there is considerable uncertainty regarding the distinction between these two types of instruments, particularly as authentic instruments with binding effects presumably do not exist within the European Union.[9] With respect to adoptions, the proposal does not apply to purely contractual adoptions or those established automatically by law. However, such forms do not occur in the European Union.

c) Minor and adult adoptions

Article 4(2) indicates that the proposal covers both minor and adult adoptions, as the term ‘child’ is defined as ‘a person of any age whose parentage must be established, recognised or proved’. While the provision primarily focuses on regular parent-child relationships, if it is accepted that the proposal also applies to adoptions, then the age of the child at the time of adoption appears to be irrelevant.[10]

d) No requirements regarding the adoptive parent(s)

Finally, the proposal does not impose specific requirements regarding the status of adoptive parents. Article 4 refers to “a particular parent or parents” and “any parent”. This indicates that the proposal covers single-parent adoptions—including stepparent or partner-of-parent adoptions—as well as adoptions by two persons jointly, without setting requirements relating to the marital status or sexual orientation of the adoptive parent(s). The European Commission has thus opted for the broadest possible material scope of application in this regard.[11]

2. International jurisdiction and applicable law

Although the proposal clearly provides for the recognition of domestic adoptions from Member States, it remains unclear whether the rules on international jurisdiction and conflict-of-laws are applicable to adoption.

The explanatory memorandum and Recital 25 indicate that the proposal does not apply to parentage in purely domestic situations without cross-border elements, such as a domestic adoption that takes place entirely within a single Member State. In this respect, the European Commission appears to assume that non-intercountry adoptions are, by definition, domestic cases without any cross-border aspect. However, this assumption is demonstrably incorrect. In fact, a non-intercountry adoption may well have an international character, for example, where the adopted child and/or the adoptive parent(s), though habitually resident in the same Member State, hold the nationality of another Member State or a third country.  In such cases, there is in fact an international non-intercountry adoption, which raises questions about whether the court addressed has international jurisdiction to decide on the adoption request and which law should be applied. These questions of jurisdiction and applicable law seem to be left out, however.

Nevertheless, scholars suggest that the proposed international jurisdiction and conflict-of-law rules do apply to adoptions.[12] However, some of them argue that these rules are unsuitable for adoptions, as they are not primarily designed to prioritise the best interests of the child or to grant jurisdiction to the court best placed to assess those interests.[13]

The prevailing opinion in the literature thus seems to be that the proposed international jurisdiction and conflict-of-law rules do indeed apply to adoptions but are nevertheless unsuitable. In my view, however, this position cannot be reconciled with the wording of the regulation, its explanatory memorandum and the recitals. My conclusion is therefore that these rules are not applicable to adoptions. They are clearly drafted solely for regular parentage relationships. Although the European Commission sought to regulate the recognition of non-intercountry adoptions from a Member State under the regulation, it has otherwise left international adoption law untouched. Since there appears to be differing views on this matter, clarity is needed on this point.[14] There should be specific private international law rules on adoption.

3. Legal effects of recognising foreign adoptions

The proposal does not explicitly address the legal effects of recognising a foreign adoption, leaving unclear what exactly is recognised. Case law of the Court of Justice of the European Union suggests that a recognised decision must be granted the same authority and effect as in the Member State of origin (Hoffman/Krieg; Apostolides/Orams; Prism Investments/v/d Meer; Gothaer Allgemeine Versichering/Samskip; BNP Paribas SA/TR). But what does this mean for the recognition of an adoption?

It goes without saying that recognition should at the very least include the legal parent-child relationship between the child and the adoptive parent(s), since establishing such legal relationships is the fundamental aim of the proposal. Nevertheless, it seems desirable that this be explicitly clarified, so that there can be no doubt—especially in the case of simple adoption.

But does it end there? Should the creation of new family-law ties between the child and the legal relatives of the adoptive parent(s), as well as the possible severance of the original family-law relationships, also be recognised under the proposal, or are these legal consequences left to the ordinary law of the Member States? Perhaps the previously mentioned principle of the Court of Justice can or should be interpreted broadly, so that these legal consequences must also be recognised when they have arisen in the Member State where the adoption was pronounced. However, whether this is the case remains uncertain.

The foregoing leads me to conclude that an explicit provision is necessary, clearly stating the legal consequences of recognising either a full or simple adoption for the legal parentage of the individuals concerned. This is essential to prevent Member States from taking divergent approaches, which could result in inconsistent or limping family law relationships across borders. In my view, it should simply be stipulated that the recognition of a foreign adoption means that all legal consequences for the lineage of those concerned are recognised—no more, no less. Such a provision is not only essential for achieving the objectives of the proposal, namely legal certainty and predictability—but is also dogmatically necessary.[15] By its very nature, adoption concerns both the creation of new family-law relationships and the possible dissolution of existing ones, and, consequently, the recognition of a foreign adoption also pertains to these aspects.[16] In short, if new family-law ties have been established between the child and the legal relatives of the adoptive parent(s) in the Member State where the adoption took place, or if the original family-law relationships have been severed there, then not only should the legal parent-child relationship between the child and the adoptive parent(s) be recognised, but these additional legal consequences should be recognised as well. Other possible legal consequences, such as those relating to parental authority, maintenance, name and inheritance, do not fall within the scope of the concept of adoption and therefore remain governed by their own private international law rules. This aligns with Article 3(2) of the proposal, which states, among other things, that the regulation does not apply to parental responsibility (subsection b), maintenance obligations (subsection f) and succession (subsection g).

4. Conversion of simple adoptions into full adoptions

The proposal does not explicitly address the conversion of simple adoptions into full adoptions, an important issue in adoption law whereby original family-law ties are severed. Although the EU lacks competence to regulate substantive family law, it may be able to adopt at least recognition rules for conversion decisions. The absence of such rules may lead to legal uncertainty about a child’s legal parentage across Member States, which may also affect the child’s identity development. Greater clarity and regulation in this area are therefore necessary.

By way of conclusion: argument for an autonomous European Adoption Regulation

In the article I argue that the current proposal insufficiently accounts for the special nature and legal consequences of adoption. International adoptions merit an autonomous and clear regulation within European private international family law. A separate European Adoption Regulation would provide space to address adoption-specific issues such as recognition, conversion, jurisdiction, and conflict-of-law rules. Common recognition rules are necessary to prevent “limping adoptions” and to enhance legal certainty for all parties involved. Although political feasibility poses challenges, a separate regulation is seen as the most effective way to regulate international adoptions within the EU.

In sum, the proposed European Parenthood Regulation insufficiently regulates adoption and fails to acknowledge the unique legal consequences associated with it. International adoptions require an autonomous European Adoption Regulation that offers room for careful and effective governance, with the aim of ensuring legal certainty and predictability for all involved, in particular the children.

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[1] See also European Group for Private International Law (EGPIL), Observations on the Proposal for a Council Regulation in matters of Parenthood, 2023, https://gedip- egpil.eu/, p. 2, no 7, and C. Budzikiewicz e.a., The Marburg Group’s Comments on the European Commission’s Parenthood Proposal, Cambridge: Intersentia 2024, https://epub.ub.uni- muenchen.de/, pp. 10- 11.

[2] See also A. Bonomi, ‘European private international law and third states’, IPRax 2017, pp. 190- 191; D. Martiny, ‘The recognition and enforcement of court decisions between the EU and third states’, in: A. Trunk & N. Hatzimihail (red.), EU civil procedure law and third countries. Which way forward?, Baden- Baden: Nomos Verlagsgesellschaft 2021, pp. 129- 130 en 138.

[3] Compare Bonomi 2017, pp. 190- 191, and Martiny 2021, p. 132 (note 3). See also S.M. Carbone, ‘What about recognition of third states’ foreign judgments?’, in: F. Pocar, I. Viarengo & F.C. Villata (red.), Recasting Brussels I, Milaan: Cedam 2012, p. 301 en W. Hau, ‘Unified European rules on the recognition and enforceability of third- country judgments’, Law & Criminology Journal 2025, par. 3.

[4]  Minutes of 7 February 2022, of the 5th Meeting of the Expert Group on the recognition of parenthood between Member States, 2 December 2021, and Minutes of 20 February 2022, of the 6th Meeting of the Expert Group on the recognition of parenthood between Member States, 9 February 2022.

[5] M. Barth, ‘Parent in every country? – Der Kommissionsvorschlag einer EU Abstammungs- VO mit Europäischem Elternschaftszertifikat’, Studentische Zeitschrift fur Rechtswissenschaft Heidelberg Wissenschaft online 2023, p. 26.

[6] C. Kohler & W. Pintens, ‘Entwicklungen im europäischen Personen-, Familien- und Erbrecht 2022- 2023’, FamRZ 2023, p. 13, note 15.

[7] Compare C.G. van der Plas, A.F. Veldhuis & B.H.B. Verheul, ‘Automatische erkenning en tenuitvoerlegging van vonnissen in het Europa van nu: de noodzaak van een nieuwe blik op wederzijds vertrouwen na J/H Limited’, NIPR 2024, p. 263.

[8] See also C. González Beilfuss & I. Pretelli, ‘The proposal for a European Regulation on Filiation Matters – Overview and Analysis’, Yearbook of Private International Law 2022/2023, p. 292.

[9] Marburg Group 2024, p. 77 (note 1); C. Mayer, ‘Keine verfahrensrechtliche Anerkennung von beurkundeten oder registrierten familienrechtlichen Rechtsgeschäften innerhalb der EU’, RabelsZ 2025, p. 753 et seq.

[10] See also P. Twardoch, ‘Regulating international filiation law at the EU- level. Comments on applicable law under the European Commission’s Proposal’, European Review of Private Law 2024, p. 276.

[11] See also D. Danieli, ‘“Third- state connections” in the proposal for an EU Regulation on parenthood: More than a regime of circulation of status between member states?’, Cuadernos de Derecho Transnacional 2023, p. 1392- 1393.

[12] González Beilfuss & Pretelli 2022/2023, p. 291 en 296 (note 8); A. Fillers, ‘Proposal for the Regulation in matters of Parenthood: A critical overview of jurisdiction and conflict- of- laws rules’, in: Revisiting the limits of freedom while living under threat. I, Collection of research papers in conjunction with the 9th International Scientific Conference of the Faculty of Law of the University of Latvia, 2024, p. 227; Marburg Group 2024, p. 50-51 (note 1); Twardoch 2024, p. 275- 276 (note 10); I. Queirolo, ‘The proposed EU Regulation on Parenthood: A critical overview of the rules on jurisdiction’, The European Legal Forum 2024, p. 3.

[13] Beilfuss & Pretelli 2022/2023, p. 291 (note 8); Observations EGPIL 2023, p. 1, No 4 (note 1); Fillers 2024, p. 228 et seq. (see note 12); Marburg Group 2024, p. 50-51 (note 1).

[14] See also Twardoch 2024, p. 289 (see note 10).

[15] A. Mens, Erkenning en omzetting van buitenlandse adopties in Nederland. Over de betekenis van beide fenomenen in het Nederlandse internationaal privaatrecht’, diss. 2024, par. II.3.2.2.1.

[16] Ibid, par. II.1.3.2, II.3.2.2.1, III.1.3.2, III.4.3.2, and III.6.3.2.

In a precedential decision handed down yesterday, 4DD Holdings, LLC v. United States, opinion by Judge Hughes joined by Judges Prost and Stark, the court reaffirmed its understanding that so-called “book of wisdom” evidence can be used in estimating the hypothetical bargain the parties would have negotiated as of the date of infringement, but not to alter the terms of the bargain they would have struck in view of ex post evidence.  The distinction is subtle, but this holding is consistent with the view the Federal Circuit has expressed in other cases (though it is inconsistent with a proposal Norman Siebrasse and I made in a 2016 article, as discussed below).

The present case is actually a copyright dispute, filed against the federal government under 28 U.S.C. § 1498.  As I stated in my recent book Remedies in Intellectual Property Law, § 1498 is a federal statute that “authorizes the U.S. government to take a nonexclusive compulsory license for the use of any such invention or work, subject to the obligation to pay “reasonable and entire compensation.  The U.S. Court of Federal Claims, in which actions are litigated, typically will award a reasonable royalty calculated largely in accordance with the methodology that would be applied in awarding a reasonable royalty for infringement.”  In the present case, the plaintiff 4DD negotiated a license with the government in 2013 for the use of its TETRA software.  The government, however, “regularly exceeded the scope of the government’s license by making ‘thousands’ of unauthorized copies” (p.4).  4DD found out about this, and the parties negotiated a “true-up” agreement in 2015.  That agreement was based on the assumption that the government had made 168 additional “core” copies—but as it turned out, the government had made many more copies, which were deleted.  The government thereafter terminated its license with 4DD.  4DD filed suit, and while that litigation was pending it discovered the government’s destruction of TETRA copies and sought sanctions (which were awarded, in the amount of $1.1 million).  The Court of Federal Claims also awarded over $12 million in compensation.

Without going into more detail than necessary, the issues on appeal all relate to damages, and the Federal Circuit cites a good deal of patent damages law along the way.  The court rejects 4DD’s argument that its licenses with the government created an established rate that the Court of Claims was obligated, as a matter of law, to apply, and affirms the lower court’s decision instead to apply the “hypothetical bargain” framework using the Georgia-Pacific factors.  (Under 4DD's rule, the alleged damages would have been over $5 billion.) Nevertheless, the court agrees that the trial court misapplied the “book of wisdom” and remands for a redetermination of damages:

4DD contends that the trial court adopted an overexpansive view of the book of wisdom. That is, the trial court constructed the hypothetical negotiation with the knowledge that the government would later cancel its work with TETRA before it could be successfully implemented. 4DD suggests this amounts to legal error.

The Supreme Court has made clear that factual developments that occur after the date of the hypothetical negotiation may nonetheless still inform a court’s damages analysis. Sinclair Refin. Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 698 (1933) (“Here is a book of wisdom that courts may not neglect. We find no rule of law that sets a clasp upon its pages, and forbids us to look within.”). Thus, this so-called book of wisdom allows courts to consider later-occurring events when appraising the value of a patent or copyright at an earlier point in time. . . .

Further, this court has specifically incorporated the book of wisdom into the hypothetical negotiation framework. . . . As already explained, the hypothetical negotiation seeks to ascertain “what a willing licensor and licensee would bargain for at hypothetical negotiations on the date infringement started,” which is then used to assess damages owed for infringement. . . . And while the date of the hypothetical negotiation is the date that the infringement began, LaserDynamics, Inc. v. Quanta Comput., Inc., 694 F.3d 51, 75 (Fed. Cir. 2012), some later-arising information, including “evidence of usage after infringement started,” can be helpful in assessing the royalty’s reasonableness, because “[u]sage (or similar) data may provide information that the parties would frequently have estimated during the negotiation,” Lucent, 580 F.3d at 1333–34. Therefore, as the government suggests, the trial court’s decision to conduct the hypothetical negotiation with knowledge of the details of SMS’s process for adapting TETRA to the government’s networks, which resulted in the infringing copies, was not legal error. Nor was its consideration of the number and type of copies created in that process. . . .

But the book of wisdom is not without limits. Its use in correcting uncertainties in the hypothetical negotiation “is not to charge the offender with elements of value nonexistent at the time of his offense.” Sinclair, 289 U.S. at 698. Rather, it is meant “to bring out and expose of light the elements of value that were there from the beginning.” Id. (emphasis added). This accords with the key element in setting a reasonable royalty via hypothetical negotiation: the need to conduct the negotiation from the date the infringement began to avoid an after-the-fact assessment of the hypothetical license’s value. See Unisplay, S.A. v. Am. Elec. Sign Co., 69 F.3d 512, 518 (Fed. Cir. 1995).

The purpose of the book of wisdom is to provide insight and reduce uncertainty as to the elements of a license the parties are hypothetically negotiating. See Lucent, 580 F.3d at 1333–34. It may not, therefore, be used to impute knowledge of later-occurring events affecting the value of the license that were unforeseeable at the time of negotiating, such as the government’s change in leadership and resulting decision to end its work with TETRA before implementation. Cf. Sinclair, 289 U.S. at 698. Such facts are wholly inconsistent with determining the “reasonable needs and expectations” of the parties at the time of licensing and are improper for consideration in a hypothetical negotiation. . . . Thus, the trial court’s construction of the hypothetical negotiation with knowledge of TETRA’s future cancellation amounts to legal error in its application of the book of wisdom. See, e.g., 4DD Holdings, 169 Fed. Cl. at 187.

Because we cannot say with confidence that this error is harmless, we must vacate the trial court’s judgment. When assessing the relative strength of the parties’ bargaining positions in the hypothetical negotiation, the trial court relied on its knowledge of TETRA’s future cancellation (which was neither known nor knowable by the parties at the time) to emphasize that the project “never made it beyond the development stage and, as a result, never solved the government’s interoperability problem.” Id. The trial court considered this fact “most damaging to 4DD’s bargaining position.” Id. (emphasis added). The trial court then found that this fact, alongside two others, resulted in the conclusion that the government possessed a “substantially superior bargaining position.” Id. Because we cannot separate the court’s error in applying the book of wisdom from its assessment of the parties’ respective bargaining positions, which has implications for the outcome of the hypothetical negotiation, we must vacate and remand for further proceedings.

. .  (pp. 12-15).

The court also holds that the Court of Claims was wrong to consider the maximum statutory damages award, under the Copyright Act, for willful copyright infringement ($150,000 for each infringing work) as a constraint on the bargain the parties would have reached:

As a threshold matter, the trial court’s grant of increased statutory damages for willful infringement is legal error. Section 1498(b) makes clear that recovery is available in the amount of the copyright owner’s “reasonable and entire compensation,” which includes “the minimum statutory damages as set forth in section 504(c) of title 17.” 28 U.S.C. § 1498(b) (emphasis added). And given section 1498’s roots in eminent domain, punitive damages available in a private suit under title 17, including the increased statutory damages for willful infringement, are not available in a suit against the government under section 1498. See Gaylord II, 678 F.3d at 1343 (noting copyright owner is entitled to “compensatory damages, including the minimum statutory damages, but not to noncompensatory damages”)

The court rejects the plaintiff’s other arguments, and remands for a new trial on damages.  The lower court might reach the same figure, but it will be constrained by the above considerations.

I mentioned at the beginning that Norman Siebrasse and I have argued that the optimal rule is not the “orthodox” hypothetical bargain contract that the Federal Circuit applied here (and has applied in other cases, such as Aqua Shield v. Inter Pool Cover Team, 774 F.3d 766 (Fed. Cir. 2014), see previous posts here and here), but rather what we referred to as the “contingent ex ante” approach.  Under this approach, a court see its task as estimating the hypothetical bargain the parties would have reached ex ante, with full knowledge of all relevant events ex post.  In our view, this rule would avoid patent holdup (because it’s an ex ante construct) while better aligning patent (and copyright) damages with the plaintiff’s contribution to the state of the art (by authorizing a higher reward where the invention or work turns out, ex post, to be more successful than anticipated, and a lower one where it is less successful).  See Norman V. Siebrasse & Thomas F. Cotter, A New Framework for Determining Reasonable Royalties in Patent Litigation, 68 Fla. L. Rev. 929 (2016); see also Thomas F. Cotter,  Thomas F. Cotter, John M. Golden, Oskar Liivak, Brian J. Love, Norman Siebrasse, Masabumi Suzuki, & David O. Taylor, Reasonable Royalties, in Patent Remedies and Complex Products:  Toward a Global Consensus 6, 31-33 (Brad Biddle, Jorge L. Contreras, Brian J. Love & Norman V. Siebrasse eds., Cambridge Univ. Press 2019)).  Of course, in this case, the hypothetical bargain the parties would have negotiated ex ante knowing that (ex post) the government would terminate the project might be very low, reflecting only the value of whatever knowledge the interim use of the software enabled the government to obtain.   

The CJEU’s recent copyright decision in Anne Frank endorses state of the art geo-blocking as an effective way of shielding a website from the different copyright laws of another EU Member State. Although the result on the facts is welcome, the potential implications of the Court’s underlying reasoning are less so. At a principled level, the judgment creates post-Brexit divergence with the UK courts’ targeting approach to cross-border online copyright infringement.

The EU Position

The Anne Frank case concerns a scholarly digital edition of the Anne Frank diaries made available free of charge on a website in Belgium, a country in which copyright in the full diaries has expired. The website owner geo-blocked countries, including the Netherlands, in which parts of the diaries are still in copyright.

Geo-block notwithstanding, the owner of copyright in the diaries (the Anne Frank Fund) sued those involved in the Belgian website project (the Anne Frank Foundation, the Dutch Royal Academy and a Belgian association) in the Dutch courts for infringement of Dutch copyright (specifically, the communication to the public right). The Dutch Supreme Court (Hoge Raad) referred three questions about cross-border copyright infringement to the CJEU.

The Hoge Raad’s first question raised the issue of whether a targeting test, familiar from CJEU caselaw on other territorial intellectual property rights, should be applied to the copyright communication to the public right:

“Is Article 3(1) of [Directive 2001/29] to be interpreted as meaning that the publication of a work on the internet is only to be regarded as a communication to the public in a particular country if the publication is addressed to the public in that country? If so, what factors must be considered in assessing that?”

(The unfamiliar term ‘addressed’ in the first question looks like a quirk of translation. The Dutch language originals use ‘gericht’, which appears to translate readily into the familiar ‘directed’ or ‘targeted’.)

The CJEU, however, did not give a direct answer to that question. By dint of the time-honoured device of reframing and combining the referring court’s questions, it rolled the territoriality question into the labyrinth of its previous substantive jurisprudence on communication to the public. None of that case law was concerned with a cross-border question.

The operative part of its judgment concluded that where a work is in the public domain in some EU Member States but is still in copyright in another, and is published free of charge on a website that implements state of the art geo-blocking designed to prevent access by users from that other Member State, there is no communication to the public under the copyright law of that other Member State. That is the case even if internet users can circumvent the geo-blocking by means of a VPN or similar service.

That is a highly fact-specific formulation. What of the corollary? Does it follow that a website that does not implement geo-blocking necessarily engages the communication to the public right in another Member State? That would imply that mere accessibility of a website on the internet is sufficient to engage the communication to public right of another country; or, which comes to the same thing, that targeting is to be inferred from not geo-blocking.

The CJEU addresses the fact-specific corollary at para 42:

“Indeed, where a work is protected by copyright in only one Member State but is in the public domain in other Member States, any person who knows or ought reasonably to have known that to be the case … and who publishes the work on a website must ensure that that work is made accessible only to internet users who are liable to access that website from Member States in which the work is in the public domain, so as not to infringe the exclusive and inexhaustible [communication to the public] right of the copyright holder … in the Member State in which the work is still protected.”

It goes on:

“It follows that such a person is under an obligation to adopt effective technological measures to restrict access to the website solely to those internet users, failing which, given the freely accessible nature of websites, that person would be giving access to the work concerned to all internet users and would thus be infringing that right.”

That starts from either mere accessibility or targeting inferred from lack of geo-blocking, but with the added condition of actual or constructive knowledge of continuing copyright protection in the other Member State. The Court borrowed the knowledge requirement from its CTP jurisprudence on hyperlinks to infringing material on the internet (G S Media).

It is unclear whether an equivalent knowledge condition (or indeed some other condition or factor plucked from the CJEU’s voluminous CTP caselaw) would apply in other cross-border factual situations. Nor is it clear whether the CJEU’s approach would apply to websites located in countries outside the EU.

What can be said is that the Court did not apply the conventional targeting test. Targeting requires evidence of positive conduct directed towards the country in question before its local law can be engaged. To the extent that mere accessibility, or targeting inferred from lack of geo-blocking, underlies the CJEU’s reasoning, that either rejects or inverts the targeting test.

The UK position

The Anne Frank judgment opens up a post-Brexit divergence of principle with the UK. Five years ago the Court of Appeal in TuneIn [2021] EWCA Civ 441 applied the CJEU’s well known intellectual property targeting caselaw to the copyright CTP right:

“…the internet is global and users in the UK can, in the absence of geo-restriction, access websites hosted, and content posted on or streamed from such websites, from anywhere in the world. Intellectual property rights, however, are territorial. At least in the case of copyright and similar rights and trade marks, the CJEU has held that accessibility of a website from a Member State is not sufficient to give rise to an infringement of rights conferred by the law of that State, and that the relevant act must be targeted at that State: see [L’Oréal v eBay [2011] (trade marks), Donner [EU:C:2012:370] (copyright) and Football Dataco v Sportradar [EU:C:2012:642] (database right)]. This case law has been applied in this jurisdiction to communication to the public: EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch).

The principle is clear: mere accessibility is not sufficient. Nor, it follows, can a website be inferred to be targeting a country by reason of not geo-restricting. That would be mere accessibility in a different guise. (The Donner case, to be clear, concerned the copyright distribution right, which is separate from the communication to the public right.)

The status of targeting as a prior threshold condition is well illustrated in Birss J’s (as he then was) first instance judgment in TuneIn:

“I will address [targeting] first because if TuneIn does not target the UK then UK copyright is not engaged at all.” [15]

That fundamental territoriality point (subsequently endorsed by the Court of Appeal) is obscured in the CJEU’s approach of combining the Hoge Raad’s first question with consideration of substantive CTP law. None of the CJEU caselaw on targeting and the territoriality of IP rights relied on by the Court of Appeal is mentioned in the Anne Frank judgment.

In the context of trade marks, the UK Supreme Court in Lifestyle Equities v Amazon [2024] UKSC 8 summarised the rationale for the targeting test:

“Led by the CJEU, EU jurisprudence has sought to chart a safe course between the Scylla of watching trade mark protection become entirely illusory in the context of internet marketing and sale, and the Charybdis of creating an exorbitant and unprincipled extension into the international sphere of the territorial jurisdiction to protect trade marks. It has done so by reference to two separate concepts. The first is by treating the advertisement and offering for sale of branded goods in a way which is targeted at a protected territory as a use of the mark in the targeted territory. …”

The CJEU in Anne Frank justified its conclusion in para 50:

“a [state of the art geo-blocking] measure serves to ensure a fair balance between, on the one hand, the interest of the rightholder in his or her work not being freely accessible in the Member States in which he or she still has an exclusive and inexhaustible right to authorise or prohibit any communication of the work to the public under Article 3(1) and (3) of Directive 2001/29 and, on the other hand, the interest of any third party in making the work freely accessible online free of charge in the Member States in which the work is in the public domain as well as the public’s interest in enjoying such access in those Member States, in accordance with both the freedom of expression and the freedom of information.”

However, that recitation of balancing factors appears to assume the conclusion that the legitimate interest of the rightholder is in restraining mere accessibility cross-border. In any event it does not explain why an approach that the CJEU has applied to other territorial intellectual property rights is not appropriate for the copyright CTP right.

Whatever the precise reasoning that may underlie it, the CJEU judgment in Anne Frank is for the moment the leading authority on the cross-border aspects of the communication to the public right within the EU. As for the UK courts, as a general matter they are not bound to follow new CJEU judgments although they may have regard to them. However, in any event the formal precedential status of the Court of Appeal judgment in TuneIn applying targeting is not altered by the CJEU judgment.

Graham Smith is writing in his personal capacity and opinions expressed are his personal opinions.

I.    Support in principle

The German Judges Association supports, in principle, the idea of an international instrument on parallel proceedings. This corresponds to the broad overall support for the project identified in our earlier overview. A uniform framework could promote legal certainty and predictability in cross-border litigation beyond the Brussels Ia Regulation.[1]

At the same time, the response is cautious as to whether the current Draft Text can actually meet these expectations, not least in view of constitutional and European standards of access to justice and the right to be heard before the competent court.[2] Its concern is therefore not directed against international coordination as such, but against a coordination mechanism that may rely too heavily on discretion.

II. The core concern: discretion instead of predictability

The central point of the response concerns the relationship between predictability and discretion. From the perspective of German judicial practice, the Draft Text risks replacing the predictability of jurisdiction with judicial discretion. The Association stresses that German and European civil procedure have traditionally relied on clearly defined jurisdictional rules. These rules allow the parties to know in advance which court is competent. According to the Association, this predictability is closely linked to legal certainty, litigation costs, time efficiency and the parties’ right to be heard before the court determined by law.[3]

Against this background, the Association views the proposed mechanism of Articles 9 and 10 of the Draft Text with particular scepticism. The “more appropriate court” test is seen as introducing a forum non conveniens-type assessment into a legal environment in which such a discretionary displacement of jurisdiction is not familiar.[4] From this perspective, the concern is also constitutional in nature: jurisdiction should be sufficiently determined by law and should not depend too heavily on a later judicial balancing exercise.[5]

The Association therefore points out that the assessment of the more appropriate forum could establish a time- and cost-consuming preliminary procedure and significantly slow down proceedings, since several examination steps would precede the court’s review of the merits.[6] This concern is reinforced by the practical uncertainty surrounding the connecting factors, which are new to German judicial practice and whose application would first have to be developed by the courts.[7] The Association also warns that the connecting factors in Article 10 may lead to an inequality of arms between natural and legal persons, especially in light of changing business relations, complex corporate structures and increasingly globalised transnational operations.[8] Against this background, the Association sees a risk that the mere possibility of another forum being considered more convenient could lead to more satellite litigation and forum shopping than today.[9]

III. What should be done instead?

The German Judges Association therefore pleads for a more rule-based solution. The Draft Text should not replace jurisdictional rules with a broad assessment of the “better” forum, but should preserve the predictability of clear jurisdictional criteria.[10]

In particular, the Association welcomes the idea that the court first seised should generally be the court to proceed where Articles 6 to 8 of the Draft Text do not resolve the conflict.[11] More specifically, it suggests examining whether the court first seised could be treated as a clearly appropriate forum where its jurisdiction is based on established jurisdictional rules.[12] This would come closer to the Brussels Ia model, which combines priority with foreseeability.

At the same time, if connecting factors are retained, they should be framed narrowly and precisely. The suspension of proceedings under Article 9 should also not be mandatory.[13] Connecting factors should guide the allocation of proceedings, not open the door to a general forum non conveniens-style balancing exercise.

In short: legal certainty should remain the rule; discretionary correction should be limited and exceptional.

IV.  Concluding remark

The response of the German Judges Association usefully complements our earlier overview. It confirms support in principle for an international instrument on parallel proceedings, but adds a note of caution from the perspective of German judicial practice. Its central concern is that coordination should not come at the expense of legal certainty and foreseeability. This is particularly relevant for Articles 9 and 10 of the Draft Text, which should remain sufficiently rule-based and compatible with constitutional and European procedural standards.

[1] See Submission by the German Judges Association, Response to Question 1.1.

[2] Ibid.

[3] Ibid.

[4] Ibid., Response to Question 8.1.

[5] Ibid.

[6] Ibid., Response to Question 7.2 and 8.1.

[7] Ibid., Response to Question 1.1 and 8.2.

[8] Ibid., Response to Question 7.3.

[9] Ibid., Response to Question 13.3.

[10] Ibid., Response to Question 1.1 and 8.3.

[11] Ibid., Responses to Questions 7.1.

[12] Ibid., Responses to Questions 8.1.

[13] Ibid., Responses to Questions 8.1 and 8.3.

Much has been in the news about governmental endeavours to protect children from the ills of social media, which has partially eclipsed the equally important issue of social media being used to cause online harms to both the young and not so young alike. The Online Safety (Relief and Accountability) Act 2025 (OSRAA) came into effect in Singapore on 29 June 2026, with the objective to strengthen the protection of victims against various types of emerging online harm, including intimate image abuse, image-based child abuse, doxxing, online harassment, and online stalking. The statute established the Online Safety Commission that can make orders to hold accountable those who post harmful content (Communicators), control the hosting of the harmful content (Administrators), or host the harmful content (Platforms).

In addition to regulatory orders, the OSRAA provides civil law relief to victims by imposing duties on: (a) Communicators (not to communicate, publish or engage in conduct relating to specified online harm); (b) Administrators (not to create, set up, or administer online locations that facilitate the conduct of online harm with intention or knowledge that such harm would ensue, and to take reasonable measures to address such harms upon notification); and Platforms (to take reasonable measures to address specified online harms upon notification). Victims can seek civil remedies, including damages and injunctions, from the Singapore court.

Online harms inevitably happen in the borderless world of electronic communications. Of significance to private international law are the following provisions in the OSRAA:

Tort treated as taking place in Singapore

101. For the purposes of any proceedings for a tort under Part 10, 11 or 12, that tort is to be treated as having taken place in Singapore if any act or omission or any part of an act or omission that is an element of the tort —

(a)         was initiated or occurred in or from Singapore;

(b)         is perceived by one or more persons in Singapore; or

(c)         caused damage, loss or harm suffered in Singapore.

 

Limits to exclusion of liability

102.—(1)  This Act has effect despite any provision or term to the contrary in any contract, agreement or notice and any provision or term in a contract, agreement or notice is void if and to the extent that —

(a)         it is inconsistent with Part 11 or 12;

(b)         it purports to exclude or limit the jurisdiction of the courts of Singapore for a  claim made under Part 11 or 12; or

(c)         it purports to prevent a person from making a claim under Part 11 or 12.

(2)  Subsection (1) does not apply to a provision or term of a contract, agreement or notice that is fair and reasonable having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract, agreement or notice was made.

(3)  In determining for the purposes of subsection (2) whether a provision or term of a contract, agreement or notice is fair and reasonable, the court is to take into consideration the prescribed matters.

(4)  To avoid doubt, section 26(1) of the Electronic Transactions Act 2010 (which relates to the limitation of liability of network service providers) does not apply in relation to any liability under the provisions of Part 12 or 13 in relation to the liability of an online service provider.

Section 101

Section 101 is clearly intended to affect private international law, since the concept of the place of the tort has no legal significance within Singapore domestic law. The substantive tortious duties are enumerated in Parts 10 (Communicators), 11 (Administrators) and 12 (Platforms). Section 101 situates the relevant statutory tort within Singapore upon the occurrence of any one of the disjunctive connections in subsections (a), (b), and (c). The connections in (a) and (c) are standard ways to measure the connections of a tort to a particular jurisdiction, but there is no weighing of these factors against countervailing factors pointing elsewhere. Further, the connection in section 101(b) can be pretty tenuous. There is clear intention to locate the tort in Singapore so long as there is some connection with Singapore. Section 101 has significant implications for both jurisdiction and choice of law analysis.

The Singapore court has in personam jurisdiction over defendants who are served in Singapore, or who are served outside Singapore with the permission of the court. Permission for service out of jurisdiction may be granted when: (a) the claim has sufficient nexus with Singapore; (b) Singapore is the forum conveniens; and (c) there is a serious issue to be tried on the merits. Locating the tort in Singapore immediately secures a sufficient nexus with Singapore by reinforcing the tort gateway (which strictly only requires a tort to occur partially in Singapore), although sufficient nexus can already be established simply by invoking a power of the court under a Singapore statute (which will be the case here). Moreover, it triggers a presumption that Singapore is forum conveniens. This is not a legal presumption but a factual one arising from the likelihood of the location of the events, evidence and witnesses as well as the applicable law (more on this below) being of significance in the evaluation of the forum conveniens question. Thus, this presumption may not be a high hurdle to the defendant who wishes to object to the Singapore court exercising jurisdiction if the connections to Singapore are otherwise fragile. The legislative intention of the scope of protection of the administrative measures (ie, orders made by the Online Safety Commission) is clear: only Singapore citizens, permanent residents, and persons with a prescribed connection with Singapore (eg, legal migrant workers in Singapore) can raise a complaint to the Commission. It is indicative, however, that even though there is no express limitation in the statutory tort provisions, the primary legislative target of protection by the tortious duties are people connected with Singapore. Forum conveniens becomes the critical tool for the Singapore court to sieve out cases with minimal connections with Singapore, in particular cases where a foreigner is opportunistically seeking to take advantage of the Singapore statute to make OSRAA tort claims against another foreign entity.

Under Singapore private international law, the choice of law rule for torts is double actionability subject to a flexible exception. The claim must succeed as a tort under domestic law (in this case, OSRAA), and civil liability in respect of the same claim must also be made out under the law of the place of the tort. Where section 101 applies to deem Singapore to be the place of the tort, the second limb of double liability will be tested under Singapore law. The result is that Singapore law will apply exclusively to the tort so long as one of the connections under section 101 is made out under the general rule of double actionability. Given especially the span of section 101(b), it will be a rare case brought before the Singapore court that will not trigger section 101. In such a rare case, the common law test of substance of the tort will determine where the tort occurred instead. This requires an evaluation of the connections of the events constituting the tort to determine where in substance the tort occurred. If even the section 101 connections are not satisfied, then it is highly unlikely that the tort will be found to have occurred in substance in Singapore. In the eventuality that the tort is found to have occurred outside Singapore (assuming it is not already filtered out through forum non conveniens), double actionability will require civil liability to be satisfied under the foreign law of the place of the tort in addition to the OSRAA under Singapore law (as the law of the forum), and it will be unlikely that Singapore law can displace foreign law under the flexible exception given the paucity of connections with Singapore. The result is that the claimant can only recover the common denominator between the law of the forum and the law of the foreign place of the wrong.

Insofar as the tort is located in Singapore, there remains the possibility of the flexible exception being invoked to apply the law of a foreign country with the closest connection to the parties and the tort, displacing Singapore law. The flexible exception will be invoked only in exceptional circumstances where the connections with Singapore are so fortuitous that the application of the general rule of double actionability will lead to serious injustice to the parties. Thus, in most cases involving victims with connections in Singapore, the Singapore court is likely to have and exercise jurisdiction, and to apply OSRAA to the facts.

This is consistent with the intention of Parliament to protect residents of Singapore. The operation of section 101 appears to have the practical effect of imbuing the OSRAA torts with the character of overriding forum mandatory rules that will apply to all cases with specified connections to Singapore, albeit under the cloak of connecting factor design. This technique, rather than a straightforward forum mandatory rule approach, leaves a safety valve for the courts to apply foreign law in exceptional cases. Thus, the important work of drawing the limits to the extraterritorial reach of the OSRAA is left to the judiciary applying private international law, at both the jurisdictional (forum conveniens) and the choice of law (exception to double actionability) levels.

This deliberate general overriding effect over otherwise connected foreign legal systems arises from a powerful legislative concern to protect victims of online harms, as well as a legitimate concern that foreign laws may not have adequate rules to protect victims of online harm given the novelty and scale of such harms committed using new technologies. However, one problem that could emerge in the future is where a connected foreign law provides stronger protection to the victim than the OSRAA. In such a case, Section 101 will result in the lower level of protection under Singapore law being afforded to the victim, even if the foreign law would be applicable under the common law if the section had not existed (provided the law of the place of the wrong applies to the exclusion of the law of the forum under the flexible exception, or if the Singapore court decides to excise the law of the forum limb of double actionability in an exercise of judicial law reform). The simple solution is to sue outside Singapore, but this type of choice of law arbitrage requires wherewithal beyond the means of most victims. Second, in endorsing – albeit impliedly – the place of the wrong as the connecting factor for torts, the legislation may impede further judicial development of this aspect of the common law choice of law rule. It will not be an obstacle to the removal of the law of the forum limb (as the Canadian and Australian courts have done), but it may prevent further consideration of alternatives to the place of the tort as a connecting factor (even though it remains as the sole connecting factor in Canadian and Australian torts choice of law). A connecting factor relying on the concept of locating a tort in a physical place appears increasingly out of touch with the realities of human interactions in the modern world.

Another possible interpretation of section 101 is that it sets out the connecting factors for a unilateral choice of law rule for the application of the OSRAA torts, displacing the common law multilateral approach to the extent that the statute applies. This will also lead to the application of Singapore domestic law once any connection in section 101 is found. However, there is no flexible exception in this statutory choice of law rule. The language of the provision does not direct the application of Singapore law; it modifies the meaning of the connecting factor of the place of the tort by replacing the common law test of the substance of the tort with a statutory test, a connecting factor which has been clearly established as part of Singapore private international law for torts. The statutory language is more consistent with legislative intention to ride on the common law multilateral choice of law approach, and there is nothing in the Parliamentary materials to suggest the contrary.

Section 102

Section 102 is directed at the issue of Administrators and Platforms excluding or limiting potential liability under the OSRAA by the use of contractual terms or non-contractual notices. Beyond standard exclusion of substantive liability clauses and notices, the section also catches exclusions practically effected by means of an arbitration clause, an exclusive choice of foreign court agreement or even a mediation agreement that takes the dispute out of the reach of the Singapore courts (section 102(1)(b)). Whether this is indeed the effect will depend on what remedies are available in the alternative forum, and whether mediation agreements which normally only impose temporary restraint on recourse to courts will have that effect may depend on the terms of the agreement and the underlying factual matrix. Exclusion cannot, however, be done using a choice of foreign law clause as party autonomy is not recognised under the Singapore torts choice of law rule in its present form. Section 102 also prevents Administrators and Platforms from invoking the protection, found in the Electronic Transactions Act, against liability as a network service provider. Nevertheless, section 102 allows for exclusion or limitation of liability where it is fair and reasonable in the circumstances at the time of the contract or notice, taking into account the relative bargaining positions of the parties and the extent to which the term or notice makes it more convenient or cost-effective to resolve the dispute between the parties (as prescribed pursuant to section 102(3)).

The question arises whether Section 102 applies when the contract containing the relevant term excluding or limiting liability is governed by foreign law. Nothing in Section 102 expressly renders the provision to be an international or overriding mandatory rule that will apply irrespective of the relevance of foreign law by choice of law analysis. The concept of evasion has very limited application in Singapore private international law. A contract is governed by the law expressly or impliedly chosen by the parties provided the choice is legal, bona fide and not against public policy. In the absence of party choice, a contract is governed by the system of law objectively most closely connected with the contract. Circumvention has a residual role in contract choice of law where a choice of law by the parties may not be given effect to if the sole purpose of the choice is to evade the rules of the otherwise applicable foreign law (ie, a non-bona fide choice). This limitation has never been applied in Singapore law, as it is improbable that parties’ choice has only a single and evasive purpose. In any event, the likely consequence is that the contract will be governed by the objective proper law rather than the law of the forum.

The choice of law approach to contractual defences against tortious liability lacks clarity under Singapore private international law. The general approach to the contractual exclusion or limitation of tort liability was advocated in O. Kahn-Freund, “Delictual Liabiity and the Conflict of Laws” (1968) 11 Hague Recueil 1 at 142-145 and endorsed in P.M. North, “Contract as a Tort Defence in the Conflict of Laws” (1977) 76 ICLQ 914 at 922 et seq: whether tort liability allows for exclusion or limitation at all is a question of admissibility of the contract defence which is a tort issue, while the validity of the contract term in question raises a contract issue. On the premise of Singapore law applying to the substantive tort liability, whether liability under the OSRAA can be limited or excluded raises a question of tort governed by Singapore law, so Section 102 is engaged as the applicable law to the issue. This is clearly the correct approach when it is a notice rather than a contract term that is the agent of exclusion or limitation. However, in the case of contractual exclusion or limitation, the applicable law of the contract is still relevant to govern the validity of the clause. This in turn raises the further characterisation question: do the conditions of validity under section 102 (reasonableness) raise questions of admissibility or validity? That they set limits to party autonomy might incline towards a contractual characterisation, but the limits are dictated by policies in tort law. Arguably they go to the admissibility of the defence to the extent that they are designed to safeguard the principles of tort liability (Kahn-Freund, supra, at 144). On this view, foreign law has limited significance under section 102. The only role for foreign law would be to determine contractual validity per se (ie, whether subject to duress, misrepresentation, etc), and there is no need to resort to forum mandatory rule reasoning to apply section 102.

On the other hand, the Singapore court may take a leaf from the majority of the English Court of Appeal in Sayers v International Drilling Co NV [1971] 1 SLR 1176 to characterise the contractual defence to tort liability as a contractual issue, and apply the proper law of the contract. This may be a compelling argument in the case of a dispute resolution clause because the exclusion will clearly arise from a contractual promise not to sue in the Singapore court. It is uncontroversial under Singapore private international law that the validity of a choice of court or arbitration clause is governed by the law applicable to the clause as a contract issue (except under the Hague Convention on Choice of Court Agreements 2005 where the private international law of the chosen court applies). On this approach, Administrators and Platforms might rely on dispute resolution clauses governed by foreign law to take themselves out of the reach of OSRAA by taking the case out of the Singapore jurisdiction. Outside of international conventions, two responses are possible. First, the effect of a jurisdiction agreement on the jurisdiction of the Singapore court is a matter of procedure governed by the law of the forum and thus section 102 applies. Second, section 102 may be interpreted as a mandatory and overriding provision, or as a source of fundamental public policy, in order to give effect to the strong protective policy of the OSRAA. Thus, the Singapore court is likely to test any dispute resolution clause that has the practical effect of limiting or excluding tort liability under the OSRAA for enforceability under Section 102, in addition to assessing its contractual validity under the law applicable to the clause.

Finally, international conventions may also be engaged in the application of Section 102. The Singapore Convention on Mediation (2018) is not relevant at this point because it only applies to the resulting settlement agreements and not to the validity or enforcement of mediation agreements. The Hague Convention on Choice of Court Agreements (2005) is unlikely to be activated by a choice of court agreement in this context because consumer contracts are out of scope. Singapore did not make a reservation to exclude non-commercial cases in acceding to the New York Convention (1958), so it can apply. In the rare case that the Hague Convention should apply, and in a case where the New York Convention applies, recourse will likely be made to Singapore public policy to justify applying section 102 to determine whether the clause is null and void. Non-arbitrability arguments may be also invoked in the case of the New York Convention, but it is unlikely that Parliament intended to exclude arbitration of OSRAA tort disputes altogether given the possibility of upholding the clause within the bounds of Section 102. In any event, under Singapore private international law, arbitrability at the jurisdiction stage is governed by the law applicable to the arbitration agreement and the law of the seat (though non-arbitrability may also arise as a defence at the subsequent enforcement stage). For a foreign-seated arbitration agreement governed by foreign law, the only practical argument for the victim is that the agreement is null and void for contravention of the public policy of the forum. Statute can be a source of common law public policy. Whether Singapore public policy is actually contravened on the facts will however depend on the parameters in section 102.

I. The Apostille Convention

The HCCH has recently announced that “[o]n 9 July 2026, the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (1961 Apostille Convention) entered into force for the People’s Democratic Republic of Algeria following the deposit of its instrument of accession on 5 November 2025.” With Algeria’s accession, the 1961 Apostille Convention now has 130 Contracting Parties, making it by far the most successful of all HCCH Conventions in terms of global participation.

The reason for this success appear to be straightforward: the Convention replaces the cumbersome and often costly chain of diplomatic and consular legalisations with a single formality: the issuance of an Apostille by the competent authority of the State from which the public document originates. Therefore, by considerably simplifying the circulation of public documents across borders, the Convention reduces both the time and expense involved in having documents recognised abroad, and significantly contributes to facilitating international mobility and cross-border legal transactions for individuals, businesses, and public official documents, including judgments, notarial deeds and authentic instruments alike.

2. The situation in Africa

However, a closer look at the list of Contracting Parties reveals that only 17 African States have so far ratified the Convention. These are, Algeria, Botswana, Burundi, Cabo Verde, Eswatini, Lesotho, Liberia, Malawi, Mauritius, Morocco, Namibia, Rwanda, Sao Tome and Principe, Senegal, Seychelles, South Africa and Tunisia (countries in bold characters are HCCH Member States). In other words, only about 31% of the continent’s 54 sovereign States currently benefit from the simplified authentication procedure established by the Apostille Convention. This is the lowest rate in the world, as the following table clearly shows (AI generated table):

Yet, a closer look at judicial practice across Africa demonstrates beyond doubt the practical need for wider adherence to the Convention. Courts throughout the continent are frequently confronted with issues relating to the authentication and legalisation of foreign public documents, often resulting in delays, additional costs, and, in some cases, the refusal to admit or give effect to such documents because the applicable formal requirements have not been satisfied. Indeed, in a number of African states, particularly civil law jurisdictions, proof of the authenticity of a foreign judgment is one of the requirements for its enforcement. This is particularly the case in countries including Benin, Burkina Faso, Burundi, the Democratic Republic of Congo (DRC), Rwanda, and Mozambique, where authenticity is an independent requirement for the enforcement of foreign judgments. In some other African countries, notably Cameroon, Gabon, Guinea, Mali, and Senegal, while authenticity is not listed among the requirements for the enforcement of foreign judgments, reference to it is included in the list of documents to be submitted in support of the application for enforcement. More importantly, available case law shows that, where the Apostille Convention is not applicable, authentication is likely to become an issue in many jurisdictions.

III. Examples of judicial practice – The Rwandan High Commercial Court’s decision on the enforcement of a Congolese judgment

The difficulty stemming from the absence of a simplified method of authentication can be illustrated by a case decided by the High Commercial Court of Rwanda decided on 18 November 2021, which shows how how formal authentication requirements may become decisive in enforcement proceedings^(*).

^(*) Many thanks to Boris Awa (Kigali Independent University ULK, Kigali, Rwanda) for kindly sharing the text of the decision

1) Underlying facts

This case concerns the enforcement in Rwanda of a Congolese judgment. The background is rather complex, involving proceedings in both the DRC and Rwanda. It began with a successful action brought by X against his sister, Y, in the DRC, in which the court ordered Y to pay X a certain amount of money. X subsequently sought to enforce that judgment in Rwanda. Y opposed the enforcement on the ground that she had never been notified of the proceedings and had only become aware of the judgment when enforcement proceedings were initiated against her assets in Rwanda. The Rwandan courts, however, rejected her challenge and allowed the enforcement of the Congolese judgment (Judgment 1). Y then challenged the original judgment before the Congolese courts and succeeded in having it set aside in its entirety. She subsequently sought to enforce this second Congolese judgment in Rwanda so that the original judgment could no longer be enforced there.

2) Parties’ allegations

X eventually challenged the enforcement of the second Congolese judgment on the ground, inter alia, that it did not satisfy the requirement of authenticity. Y argued that there was no issue as to the judgment’s authenticity, since it bore the Congolese enforcement formula, certification by the Congolese Ministry of Foreign Affairs, certification by the Rwandan Embassy in the DRC, notarisation, certification by the Congolese Embassy in Rwanda, and authentication by the Rwandan Ministry of Foreign Affairs. According to Y, these certifications clearly established the authenticity of the judgment.

For his part, X argued that the copy of the judgment was not authentic because not all of its pages bore the required signatures and official stamps, as required by the standard practice in Rwanda. In particular, he maintained that affixing signatures and stamps only to the last page of a judgment of more than ten pages did not satisfy the applicable legal requirements.

3) The Court’s reasoning

The High Commercial Court refused to enforce the foreign judgment, holding that there was no proof that the chain of diplomatic certifications actually related to the judgment submitted for enforcement. In reaching this conclusion, the Court compared the judgment with another Congolese judgment in the case file (Judgment 1) and noted that every page of that judgment bore the complete chain of legalisation, including certification by the court, the Congolese Ministry of Foreign Affairs, the Rwandan Embassy, a Congolese notary, the Congolese Embassy in Rwanda, and the Rwandan Ministry of Foreign Affairs. The Court regarded this as the ordinary practice for Congolese judicial documents. Since the appellate judgment had not been authenticated in the same manner, it concluded that the applicant had failed to establish its authenticity.

IV. Insights

The Rwandan case is a good illustration of the practical difficulties associated with the traditional chain of legalization and authentication, particularly where questions arise as to whether the chain of authentications was physically attached to, and clearly identifiable with, the judgment itself. The decision illustrates the burden that the traditional system of diplomatic legalisation places on litigants. Had both Rwanda and the DRC been parties to the HCCH Apostille Convention, the lengthy chain of diplomatic and consular certifications that became the central issue in this case would likely have been replaced by a single Apostille certificate. This could have avoided the type of formal dispute that led to the refusal of exequatur.

The importance of authentication for the enforcement of foreign judgments is also illustrated by the available judicial practice in Mozambique, although the case law reflects a less rigorous approach. Indeed, according to the available decisions of the Mozambican Supreme Court, the authenticity of a foreign judgment is generally verified through the process of legalisation required by Article 540 of the Code of Civil Procedure. Where the required legalisation is not included in the initial application, the Supreme Court generally allows the applicant to submit the necessary documents at a later stage (see eg the Mozambican Supreme Court, Ruling of 5 October 2011, in which the Mozambican Supreme Court held that an English judgment could not proceed to review (recognition and enforcement) because it had not been recognised or authenticated by the Mozambican consular authorities in the United Kingdom, as required by Article 540 of the Code of Civil Procedure. The Court accordingly invited the applicant to cure the defect, but the proceedings were later dismissed after the applicant failed to comply).

Such practices vividly illustrate why African States should give greater consideration to joining the 1961 Apostille Convention. The increasing movement of persons, investment, trade, and family relationships within Africa and beyond requires foreign public documents to be produced before domestic authorities and courts with growing frequency. Yet, the traditional system of diplomatic and consular legalisation remains cumbersome, costly, and prone to disputes over formal requirements, often delaying or even preventing the recognition of documents whose authenticity is not genuinely in doubt. By replacing this complex chain of authentications with a single Apostille certificate, the Convention enhances legal certainty, reduces costs and delays, and facilitates access to justice. Wider adherence to the Convention would therefore represent a significant step towards improving cross-border judicial cooperation and promoting legal and commercial integration, both within Africa and with the rest of the world.

This situation also highlights the important role that the HCCH should continue to play in promoting the Convention across Africa. Much has already been done, but further efforts are needed to encourage wider adherence to the Convention.

S. Frederick Liu has published The “Last-Patent Problem” in Patent Portfolio Licensing, 106 J. Pat. & Trademark Off. Soc’y 107 (2026) (available on Westlaw).  Here is the abstract:

Companies often license patents in portfolios because doing so can reduce transaction costs and infringement uncertainty. However, some companies include static royalty rates in their patent portfolio licenses, requiring licensees to pay the same royalty rate until the last patent in the portfolio expires or is invalidated. Such a practice turns the last remaining patent in the portfolio into a lever and imposes a “public-domain tax” that inflates prices, depresses output, and stifles innovation. This Article introduces and analyzes the problem created by such a practice as the “last-patent problem.” Part I explains why companies transact in patent portfolios and how patent portfolio licenses with static, non-diminishing royalty rates, though often efficient ex ante, become distortionary as the patents in the portfolio expire or are invalidated. Part II formalizes the last-patent problem with several simple economic models showing that a static portfolio royalty rate magnifies price-cost wedges over time relative to a proportional step-down rate tied to the share of remaining value-bearing patents. Part III situates the analysis in the history of the U.S. patent system. Part IV shows that the patent-misuse doctrine, narrowed by statute and case law, does not reach the last-patent problem, and that because relief under antitrust’s rule of reason is costly, under-deterrence follows. Part V proposes structural and behavioral remedies that administrative agencies, legislatures, and courts can adopt or mandate to alleviate the last-patent problem. The goal of the remedies offered in this Article is to preserve the efficiencies of patent portfolio licensing while restoring fidelity to the mandate of the Constitution's Intellectual Property Clause to “promote the Progress of Science and useful Arts.”

This is an interesting paper.  One question I have, however, is whether patent owners with sufficient market power to impose portfolio licensing contracts of the type the author objects to would respond to his policy recommendations by charging higher (albeit diminishing over time) licensing rates during the earlier years of the portfolio license’s term (as suggested by Scheiber v. Dolby Labs., Inc., 293 F.3d 1014, 1017 (7th Cir. 2002), cited at p.145 n.233).  I tend to agree with the author’s proposal for greater transparency in licensing (e.g., restricting the use of “Black Box” licensing, see p.143).   

EDITORIAL

New Governance Structure and Double-Blind Peer Review, pp 225–228, https://doi.org/10.1628/rabelsz-2026-0020

ESSAYS

Sören Segger-Piening,Grundstrukturen des Kollisionsrechts der Digitalisierung am Beispiel von DSGVO, Data Act, DSA, DMA und KI-VO. „Europe Rules the Waves?“, [The Private International Law Dimensions of Digitalization. »Europe Rules the Waves?«], pp 229–292, https://doi.org/10.1628/rabelsz-2026-0012

The private international law of the digital single market is characterized by unilateral scope rules. This article analyses multiple pieces of legislation from the perspective of both private and public international law. In terms of substantive law, there is a substantive duality between private law and public law. With regard to connecting factors and principles, the market location principle dominates, but there are considerable differences in the details of each piece of legislation, particularly between the GDPR, the Data Act, and the AI Regulation on the one hand and the DSA and the DMA on the other hand. From the perspective of public international law the goal of a global regulation can be identified, even though the hoped-for »Brussels effect« may have the opposite impact. While the scope rules do have an impact in private international law, they hardly fit into the existing system; recognized goals such as decisional harmony and party autonomy are not being achieved. De lege ferenda, there are options for achieving justice under private international law while also attaining global applicability.

Tobias Lutzi, Arvid Kerschnitzki, Streitgegenstand und Rechtskraft. Perspektiven für einen autonomen Streitgegenstandsbegriff in der EuGVVO [Subject-Matter and Res Judicata. The Prospects of an Autonomous Concept of Subject-Matter under the Brussels Ibis Regulation], pp 293–322, https://doi.org/10.1628/rabelsz-2026-0011

While the debate on the reform of the Brussels Ibis Regulation is well underway, the concepts of lis pendens and res judicatahave thus far received little attention, despite constituting some of the Regulation’s core mechanisms. In fact, there has long been a structural mismatch between the autonomously defined »subject-matter« of a dispute – underpinning the rules on lis pendens and the grounds for refusal of recognition – and a concept of res judicata that remains determined by national law. This incongruence may lead to unsatisfactory outcomes, e.g. where the lis pendens rules successfully prevent parallel proceedings but the resulting judgment produces only a limited preclusive effect, creating the potential for (further) decisions that will be incapable of circulation within the EU. Against this background, the present article explores the prospects of developing an autonomous concept of subject-matter under the Brussels Ibis Regulation. It advocates harmonization based on the doctrine developed by the ECJ in its interpretation of Art. 29 Brussels Ibis. A more far-reaching harmonization – one which could include an extension of the rules on lis pendens – would also seem useful, but for now it appears unlikely to receive sufficient support.

Saloni Khanderia, From Domestic Courts to Transnational Justice. An Examination of India’s PIL within a Comparative Asian Framework, pp 323–358, https://doi.org/10.1628/rabelsz-2026-0018

India, with its vast population, economic presence, and historical prominence in constitutional and human rights jurisprudence, has profoundly shaped international legal discourse. However, it has lagged in developing its PIL rules, chiefly due to its particularistic views favouring national law and its focus on international commercial arbitration. Judicial efforts striving to pace the country’s economic policies post-liberalization are insufficient without concomitant efforts by the Parliament and the Law Commission of India. Using Singapore, China, Japan, and South Korea as examples, the study suggests that modernising India’s framework predominantly involves relaxing restrictions on foreign legal practitioners, empowering the judiciary to investigate foreign law ex officio, and overhauling the recognition and enforcement regime to align with international standards. Pending comprehensive codification, interim guidelines drawn by the highest court should encapsulate case law to ensure consistency. The author contends that India’s PIL cannot be internationalized by courts alone. Rather, the effort will require a collective of institutional perspectives – spanning the legislature, the Law Commission, and the judiciary – to foster sustainable growth.

Jürgen Samtleben, Das Internationale Privatrecht Kolumbiens. Tradition und Vision, [The Private International Law of Colombia. Tradition and Vision], pp 359–384, https://doi.org/10.1628/rabelsz-2026-0019

The private international law of Colombia follows in the territorialist tradition of the Chilean Civil Code of 1855, which Colombia adopted in 1873/1887. But Colombia opted for an even more rigid territorialist conception, under which Colombian law applies to all domestic transactions. Colombian nationals abroad continue to be subject to Colombian law as their personal statute inasmuch as their activities have effects in Colombia. Foreign law is entertained only as an exception under a vested-rights theory for transactions concluded abroad. Subsequent legislation has done hardly anything to alter this archaic system despite unabated criticism in the Colombian legal literature. Two recent proposals by Colombian scholars have breathed new life into the discussion. These proposals are based on a bilateral conception of the domiciliary principle and show the influence of modern tendencies in the conflict of laws. This article compares and contrasts the current law with the newly proposed rules and thereby shows the deficits of the existing rules. The new proposals so far have not elicited any official response.

BOOK REVIEWS

This issue also contains several reviews of literature in the fields of comparative private and private international law and on related topics (pp. 385–409).

Professor Christopher F. Forsyth is undoubtedly one of the leading figures in private international law in Africa, particularly in Southern Africa, where his scholarship has had a profound and lasting influence. His seminal work, Private International Law – The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts (5th ed., Juta, 2012), is not only an indispensable reference for scholars and researchers, but also an authoritative work before Southern African courts, where it is frequently cited with approval.

It is therefore a great pleasure to bring to readers’ attention the publication of the Festschrift in honour of Professor Forsyth, celebrating his remarkable scholarly legacy: Commercial Private International Law in Southern Africa – Comparative and International Perspectives: Essays in Honour of Professor Christopher F. Forsyth KC, edited under the able guidance of Professor Jan L. Neels and Professor Easa A. Fredericks, with the assistance of Dr Solomon Okorley. Thanks to the generosity of the editors and the approval of the publisher, UJ Press, the volume is available in open access, making this outstanding collection of essays freely accessible to readers around the world.

The book’s blurb reads as follows:

This book contains a collection of essays in honour of Professor Christopher F Forsyth KC, emeritus Sir David Williams Professor of Public Law, sometime Professor of Private International Law, and Life Fellow of Robinson College, University of Cambridge.

The essays focus on Professor Forsyth’s contribution to the development of commercial private international law in Southern Africa, particularly through his monograph Private International Law. The Modern Roman-Dutch Law (five editions between 1981 and 2012). This standard text is authoritative in Botswana, Eswatini, Lesotho, Namibia, South Africa, Sri Lanka and  Zimbabwe.

The essays are written from a variety of comparative and international perspectives, but all focus on the further development of commercial private international law in the Southern African region. The authors are from Austria, Belgium, Botswana, Canada, China, the Democratic Republic of the Congo, Germany, Ghana, Japan, Malawi, Mauritius, the  Netherlands, New Zealand, Nigeria, Portugal, South Africa, Switzerland, Tunisia, the United Kingdom and the United States of America.

One aspect of Professor Forsyth’s scholarship that I have found particularly stimulating is his emphasis on the “comparative ethos”, including his observation that English courts do not engage sufficiently in what he called “comparison as virtue” (CF Forsyth, “The Value of the Comparative Ethos to the Judicial Process in the Conflict of Laws”, in C. Visser (ed.), Essays in Honour of Ellison Kahn (Juta, 1989), 154). Equally noteworthy is his emphasis on the theoretical foundations of private international law and his commitment to pursuing the objective of decisional harmony, an objective that, regrettably, seems to have been relegated to the background in more recent years. This is particularly reflected in his frequent citation of a remarkable passage from Professor Otto Kahn-Freund’s General Problems of Private International Law (1976), 323–324 (also published in Collected Courses of the Hague Academy of International Law, 1974-III, 469–470), a passage that appears to serve as a reminder of one of the primary objectives of private international law:

 “The pursuit of harmony is the principal task of those who make it their concern to think about private international law …. An immense intellectual effort has been invested in this discipline for many centuries. If any result commensurate with this effort is ever to be achieved, a clear vision of the ideal of harmony must be combined with an equally clear insight into the social facts which will ever prevent it from being attained. Only those advance society – this is a commonplace – who combine the qualities of Don Quixote with those of Sancho Panza. Many will never be able to see more than a tilt at windmills …. Sometimes they may even be right. But one hopes that there will always at least be some who can see that these hazards are giants of injustice, and who will, as best they can, try to overcome them.”

Readers will also greatly enjoy the heartfelt tributes paid to Professor Forsyth in Part I (Laudatio) and Part II (Personal Reflections). These chapters highlight many dimensions of his outstanding contribution to legal scholarship while sharing personal anecdotes that reflect not only his enduring academic legacy but also his warmth, generosity, and cheerful personality.

The table of contents include the following:

Preface

Redson Edward Kapindu

Part I: Laudatio

The Contribution of Professor Christopher F Forsyth KC to the Development of Southern African Private International Law: A career in a world of influence rather than power

Jan L Neels, Eesa A Fredericks

Part II: Personal Reflections

Tribute to Christopher Forsyth

Tom Bennett

Gulliver’s (Conflicts of Law) Travels: The Act of State Doctrine as a Source of Private International Law in Canada and South Africa

George Douvelos

A Time to Remember

Rajendra Parsad Gunputh

“Our England is a Garden”: Some Reflections on Christopher Forbes Forsyth in Cambridge

Ivan Hare KC

Christopher Forsyth’s Links to an African University

Letlhokwa George Mpedi

Personal Tribute to Christopher Forsyth

Nicola Peart

Christopher Forsyth: A Good Friend and a Man of Many Talents

J T Pretorius

A Diceyan Contribution to Scholarship across Fields and Continents: A Personal Tribute to the Work of Christopher Forsyth

Geo Quinot

Reflections on the Conceptual Reasoning of Christopher Forsyth

Johann Schiller

Christopher Forsyth: An Outsider’s View

James Weinstein

An Unforgettable and Beautiful Memory of Professor Forsyth

Weidong Zhu

Part III: Academic Essays

Party Autonomy in South African Private International Law: A Comparison with Article 2 of the Hague Principles on Choice of Law in International Commercial Contracts

Faadhil Adams

Expanding Jurisdiction for Fundamental Rights Violations by Businesses: South African Law and the Role of an International Treaty

David Bilchitz

Tacit Choice of Law in International Commercial Contracts: The Position in Ghanaian, Kenyan, Nigerian and South African Private International Law

Garth J Bouwers

The African Principles and Mauritian Private International Law: What Lessons to be Learned?

Robin Cupido

The Law Applicable to Arbitrability in Lusophone Legal Systems

Rui Dias

Developing the Forum Non Conveniens Doctrine in South African Law: A Comparative Perspective

Sieg Eiselen

The African Principles on the Law Applicable to International Commercial Contracts: Proposal to Include a Provision on the Ex Officio Application of the Foreign Law

Beligh Elbalti

Enforcing Trade-Related Contractual Claims in South Africa

Gerhard Erasmus

Contractual Capacity in South African Private International Law

Eesa A Fredericks

Mixed Dispute Resolution Clauses in International Commercial Transactions

Daniel Girsberger

From Louisiana, to India, to Africa: The Strange Journey of India’s Foreign Judgments Rules

Christopher Jenkins

Reforming Party Autonomy in African Private International Law: The Need for Clear and Effective Exceptions

John Kiggundu

Jurisdiction in International Civil Cases: How Many Links are Enough?

Thalia Kruger

The IncotermsR 2020 by the International Chamber of Commerce (ICC): Evolution and Practical Application with Specific Reference to Containerisation

Michael G Martinek, Eesa A Fredericks

Unmitigated Exorbitance of Assumed Jurisdiction under Malawian Private International Law

Richard Mlambe

Direct International Jurisdiction under OHADA Law

Justin Monsenepwo

Novel Aspects of the Proposed African Principles on the Law Applicable to International Commercial Contracts

Jan L Neels

Commercial Private International Law in Mozambique, Angola and Beyond: The Portuguese-Speaking States in Southern Africa Compared to Brazil

Carl Friedrich Nordmeier

The Sheriffs and Civil Processes Act Does Not Apply to the National Industrial Court of Nigeria

Chukwuma Samuel Adesina Okoli

Reforming Private International Law in African Countries: Looking Inward and Outward

Richard Frimpong Oppong

Arbitration, Court Adjudication or Via Media?: The Eruption of Hybrid Bodies for the Resolution of International Commercial Disputes – A Path for Southern Africa?

Marta Pertegas Sender

Prospects and Options for Recovery of “Heritage Art” in the Oeuvre of Irma Stern

Christa Roodt

Forum Selection Clauses and the Waning Legacy of The Eleftheria

Genevieve Saumier

Online Defamation in the Conflict of Laws

Sierd J Schaafsma

The Spiliada in South Africa: Sailing into the Future

Elsabe Schoeman

The New South African International Arbitration Act: Signalling the End of the Road for the Protection of Businesses Act?

Marlene Wethmar-Lemmer

Part IV: In Memoriam Professor Christian Schulze

Jan L Neels, Eesa A Fredericks

Part V: African Principles on the Law Applicable to International Commercial Contracts

African Principles on the Law Applicable to International Commercial Contracts

Jan L Neels

Arabic Translation of the African Principles on the Law Applicable to International Commercial Contracts

Jan L Neels, translated by Beligh Elbalti

Arabic Translation of the African Principles on the Law Applicable to International Commercial Contracts (with references)

Jan L Neels, translated by Beligh Elbalti

Part VI: List of Publications by Prof C F Forsyth

Compiled by Jan L Neels, Solomon Okorley

Photo Section

So, I must confess—on Friday, January 16, I published a short post about my newly-published book, Remedies in Intellectual Property Law.   I also stated that “this morning the Federal Circuit released a 59-page nonprecedential (!) opinion in Sunoco v. Powder Springs Logistics dealing with, among other things, damages; I'll probably have something to say about it next week.”  I then, apparently, forgot entirely about Sunoco until this morning, when I saw that Dennis Crouch had published a post titled Whole or Apportioned: Sunoco Asks the Supreme Court to Rethink Lost Profits, concerning Sunoco’s petition for certiorari.  The petition poses the following two questions:

1. Whether the Federal Circuit’s standard for recovery of lost profits damages violates 35 U.S.C. § 284.

2. Whether Rule 702 requires courts to exclude expert testimony when record evidence is contrary to a critical fact upon which the expert relied, as the Federal Circuit holds, or whether juries should determine whether facts upon which an expert relied are true, as all other Circuits have held.

The principal issue presented by Question 1 is whether the district and appellate courts erred in holding that Sunoco was not entitled to present its lost profits argument to the jury.

The basic facts are these.  Sunoco and Powder Springs both competed for a contract to be awarded by Colonial Pipeline Company, relating to the provision of services pertaining to the blending of gasoline with butane.  Sunoco offered its standard contract, the Butane Supple Agreement (BSA), under which it obtains either a 40/60 or 50/50 share of the profits a customer earns on sales of gasoline gallons created.  Under those contracts, as described by the Federal Circuit, “Sunoco (1) constructs and operates its patented system at a licensee's gasoline terminal, (2) supplies butane needed for the system, and (3) grants a limited license to its patents, all in exchange for sharing the licensee's profits from selling the extra gasoline created using the patented inventions. Also under the BSAs, Sunoco performs services related to (1) making and using the patented inventions, such as designing, engineering, constructing, and maintaining the blending systems; and (2) providing regulatory oversight support, maintenance and support services, risk management, customer services, and financial services related to butane hedging, among others. Additionally, Sunoco's BSAs include the use of its proprietary blending algorithm with its patented system.”  (Slip op. at 13-14.)  Powder Springs won Colonial's business, however, but ultimately was found to infringe one of Sunoco’s patents.  While there were other issues on appeal, both substantive (patent eligibility) and damages-related (e.g., whether the lower court erred in not awarding a damages enhancement), the principal damages issue of interest here is whether Sunoco was entitled to present expert testimony that it would have made a profit on the Colonial business, in the amount of at least $150.3 million, but for the infringement.  (Instead, based on the district court’s evidentiary rulings, the jury awarded a reasonable royalty in the amount of about $12 million.)

The Federal Circuit held that it was not an abuse of discretion to exclude Sunoco’s evidence pertaining to its lost profits theory, because Sunoco (1) had not apportioned these purported damages to account for the other services provided under the BSA, or shown that the patent in suit drove the demand for a BSA contract; and (2) did not satisfy what is sometimes thought of as an alternative method of apportionment under Mentor Graphics Corp. v. EVE-USA, Inc., 851 F.3d 1275 (Fed. Cir. 2017), under which proof of the four Panduit factors suffices to satisfy apportionment.  (The Panduit factors, as originally set forth in Panduit Corp. v. Stahlin Bros. Fibre Works Inc., 575 F.2d 1152 (6^th Cir. 1978), and subsequently adopted by the Federal Circuit for use in establishing lost profits, are “(1) demand for the patented product, (2) absence of acceptable noninfringing substitutes, (3) his manufacturing and marketing capability to exploit the demand, and (4) the amount of the profit he would have made.”)

So perhaps I should say a word first about Mentor Graphics.  In fact, I’ll just quote what I say about that case in my aforementioned book at pages 146-47:

The plaintiff and defendant were the only two competitors in the market for a type of emulator system for which there was one single customer, Intel.  The plaintiff had a patent on a process and apparatus essential to the functioning of its emulator systems, and for which there were no noninfringing alternatives (although the emulator systems incorporated “thousands of [other] hardware and software features” as well).  The defendant’s emulator systems infringed the patent; and, the defendant conceded, but for that infringement, the plaintiff would have sold Intel additional emulator systems on which the plaintiff would have earned approximately $36 million.  The defendant argued, however, that the patentee was obligated to “further apportion its lost profits to cover only the patentee’s inventive contribution.”  Rejecting this argument, the Federal Circuit affirmed the judgment in favor of the plaintiff, stating:

            While there may have been other features of the emulator that were important to Intel, only Mentor could sell Intel an emulator with all the features it required. Because Mentor had proprietary rights to the only means of satisfying this demand by Intel, because no other party could sell Intel an emulator with those two components, no one else had the right to sell emulators to Intel that satisfied all of Intel's requirements. In short, for these particular sales, no other party could satisfy the Panduit factors, making it impossible for multiple patentees to obtain lost profit damages for the same sales.

The court cautioned, however, that cases like this may be rare:  “[w]ith such multi-component products, it may often be the case that no one patentee can obtain lost profits on the overall product—the Panduit test is a demanding one.”  Nevertheless, “when the Panduit factors are met, they incorporate into their very analysis the value properly attributed to the patented feature.”  Simply put, the but-for principle controls in the (perhaps unusual) cases in which infringement of a single component deprives the IP owner of sales of a multicomponent product.

In affirming the district court, the Federal Circuit panel in relevant part wrote (slip op. pp. 49-53):

Sunoco contends that Dr. Ugone established a prima facie case of “but for” causation for lost profits by opining on how the Panduit factors were met. As part of these opinions, Dr. Ugone calculated that Sunoco would have averaged a per-gallon profitability that ranged from $0.25/gallon (from a 40/60 profit-share) to $0.28/gallon (from a 50/50 profit-share) but for infringement, resulting in lost profits of $150.3 to $166.7 million. . . .

The district court did not abuse its discretion in striking Dr. Ugone's lost profits opinions under the Panduit factors for the same reasons discussed above related to his opinion on reasonable royalty and comparable licenses. Dr. Ugone used the full profit-share of the unapportioned BSAs to calculate Sunoco's lost profits. While Sunoco may be able to show demand for its BSAs, the BSAs are not coextensive with the asserted patents and instead encompass more services and products than the patented inventions. Thus, there was no prima facie showing under Panduit factor one—demand for the patented product—or Panduit factor four—the amount of profit Sunoco would have made— without apportioning the value of the patents from the other services. . . .

In [Mentor Graphics], we acknowledged that “apportionment is an important component of damages law generally, and we believe it is necessary in both reasonable royalty and lost profits analysis.” We then narrowly held (1) that “[i]n this case, apportionment was properly incorporated into the lost profits analysis and in particular through the Panduit factors,” and (2) “that on the undisputed facts of this record, satisfaction of the Panduit factors satisfies principles of apportionment: Mentor's damages are tied to the worth of its patented features.” Id. at 1288. We also emphasized that Mentor was “a highly factual case, and [the defendant] did not appeal any of the jury's fact findings relating to damages.” Id. at 1289.

There are no undisputed facts on the Panduit factors here. Indeed, Magellan contests both Panduit factors one and two. And again, as to factor one, Dr. Ugone did not start his analysis with demand for the claimed inventions; instead, he and Sunoco sought to conflate demand for the claimed inventions with the demand for the BSAs as a whole. But they cannot start with the demand for undisputedly more than the patented inventions—indeed, for an entire basket of services—to base patent damages on. See, e.g., VirnetX, 767 F.3d at 1326 (“[A] patentee must take care to seek only those damages attributable to the infringing features.”).¹⁰

^10/ As to factor 2, Magellan points out that following the jury's verdict of infringement, Powder Springs switched to a non-infringing manual blending operation, indicating that there were acceptable non-infringing alternatives.

My take on this is that there were two possibilities at the time the parties were vying for the Colonial contract.  First, it may be that Colonial would have considered an offer from Powder Spring that contemplated the use of a noninfringing manual blending operation to be more attractive than signing a BSA with Sunoco, at the price and for the services Sunoco was offering.  In that case, the infringement didn’t cost Sunoco a sale, but Sunoco should get a reasonable royalty that reflects some portion of the benefit Powder Spring derived from the use of the infringing method.  Alternatively, it may be that Colonial would have rejected such an offer and gone with Sunoco, in which case the infringement did cost Sunoco a sale, and Sunoco should recover the entire profit it would have made on that BSA, even though the BSA included more than just a license to the one patent that ultimately was in suit.  What I can’t tell from the Federal Circuit opinion alone is what the state of the evidence was on noninfringing alternatives before the jury verdict. If there was conflicting evidence on this issue, I would be inclined to think that the plaintiff’s expert’s opinion should have been admissible; but otherwise, not.  In other words, in my view, from an economic perspective the presence of an acceptable noninfringing alternative should be dispositive on the issue of whether the infringement caused the plaintiff to lose the contract with Colonial. Also relevant, however, as a practical matter, is the burden of proof.  Under U.S. law, it’s the patentee’s burden to come forward with evidence of the absence of acceptable noninfringing alternatives.  In that sense, I guess, one could say that we presume that there are acceptable NIAs, absent evidence to the contrary—though if the plaintiff does prove that there are no acceptable NIAs on the market, the burden shifts to the defendant to prove that an NIA nevertheless would have been available (see my book, p.143; one could debate, moreover, where the burden of proof should lie, as a matter of policy).   

For this reason, I tend to think that all of the discussion about apportionment and “demand for the patented invention” tends to obscure the relevant economic question.  Again, consider Mentor Graphics.  That case was correctly decided, in my view, because the patentee was able to prove that but for the infringement, Intel would have selected Mentor Graphics over EVE-USA.  Mentor therefore was entitled to the entire profit it would have earned on that lost sale, without any apportionment or reduction, even though the Mentor Graphics emulator incorporated many other valuable components.  And while you could say, as the Federal Circuit did, that in a case like Mentor Graphics apportionment is already taken into account by the Panduit factors, I actually think it might be more accurate, or at least less confusing, simply to say that the relevant question is whether the patentee has adequately proven that but for the infringement it would have made the sale in question.  I therefore have disagreed with critics of Mentor Graphics who would have required some further apportionment of the lost profit awarded in that case.  In Sunoco, on the other hand, I would tend to conclude that if (but only if) the patentee didn’t adequately carry its burden of proving the absence of NIAs, the case was rightly decided.      

Following up on my post from Wednesday (with update), I though I should note a recent article by Katarina Foss-Solbrekk, titled Delay-and-Pay:  Prolonging Pharmaceutical Patent Proection Without Paying the “Price”, 56 IIC 1684 (2025).  Here is the abstract: 

This article argues that actors use the patent system as part of a “delay-and-pay” strategy to preserve drug prices for as long as possible by delaying generic/biosimilar market entry – and that they have a significant financial incentive to do so. This strategy is based on the notion that it is much more profitable for patentees to delay generic/biosimilar market entry by way of a patent infringement claim and ensuing injunction, then pay damages to the enjoined party should the infringement claim be defeated. Indeed, patentees have much to gain and little to lose under “delay-and-pay”. My analysis establishes that the money national health bodies spent purchasing the more expensive, patented drug whilst the interim injunction remained in effect is not usually compensated following a patent revocation and discharged injunction. That is neither just, nor fair: the losses of national health bodies ought to be recovered. 

Dr. Foss-Solbrekk’s thesis is based on the economic reality that the patentee’s gain from a wrongly-issued preliminary injunction often will exceed the loss suffered by the enjoined party; and she makes a compelling argument that national health services, who also often suffer substantial harm, also should be reimbursed for their interim losses.  The topic of how the law should respond to wrongly-issued injunctions is one that I too discuss, in chapter 4 of my recent book Wrongful Patent Assertion:  A Comparative Law and Economics Analysis (Oxford Univ. Press 2026), at pages 85-104; and I regret that Dr. Foss-Solbrekk’s paper came out too late for me to engage with there—though I do cite one of her other papers, The Divisional Game: Using Procedural Rights to Impede Generic/Biosimilar Market Entry, 53 Intʼl Rev. Intell. Prop. & Comp. L. 1007 (2022), in chapter 7, and I look forward to reading more of her work in the future. 

I also discovered, in reading Dr. Foss-Solbrekk’s recent paper, a typographical error in my book, where I cited Professor Uri S. Hacohen’s paper Evergreening at Risk, 33 Harv. J.L. & Tech. 479 (2020), but spelled his name “Haconen”.  My apologies to Professor Hacohen.  Perhaps the three of us will all meet some day at some conference on wrongly-issued injunctions—a topic that really does deserve increasing scrutiny! 

Janaína Albuquerque Azevedo Gomes is an attorney admitted in Brazil and Portugal focusing on international family law. She has experience across numerous countries and sectors, including the Brazilian government and the Hague Conference on Private International Law (HCCH).

Gustavo Ferraz de Campos Monaco is professor of private international law at the University of São Paulo, where he works at the intersection of private international law and general legal theory.

We are looking forward to their contributions.

The webinar will feature contributions from multiple members of the firms arbitration practice as well as a Q&A.

More information and an option to register can be found here.

On 8 September 2026 Andrea Bonomi and the Centre for Comparative, European and International Law of the University of Lausanne are organizing a conference titled „Wills substitutes” in comparative and private international law.

Speakers include: Michael W. Galligan (New York), Edward Reed (London) and Jeffrey Talpis (Montreal), Charlotte Wendland (Munich), Sophie Lambert (Aix-Marseille), François Derème (Mons), Angelo Chianale (Turin), Francesco Schurr (Liechtenstein) and Julien Perrin (Lausanne).

Discussions will be held partly in French and partly in English.

The full programme is available here.

Participants may join onsite in Lausanne or online. The registration form can be found here. University scholars may contact the organizer for discounted rates (at andrea.bonomi@unil.ch).

I. Introduction
International enforcement regarding the performance of actions that may be taken by others pursuant to Section 887 of the German Code of Civil Procedure (ZPO) raises complex questions within the Brussels Ibis Regulation. These issues concern the correct classification of such enforcement measures, the legal status of a third-party debtor in the context of the enforcement of monetary claims, and potential grounds for refusing enforcement that may arise with respect to international jurisdiction and any defects in service of process. Currently, French courts are seized of the question as to whether a German judgment—in which the German creditor of a Russian debtor was awarded an advance on costs pursuant to Section 887(2) ZPO—can be fully enforced in France by means of a garnishment order directed against a French third-party debtor.

II. The facts of the case
The Creditor (C) is Germany’s largest gas importer and supplies energy providers as well as major industrial customers nationwide with gas. Pursuant to long-term contracts, it sources a significant portion of its imports from the Debtor (D), a company belonging to a corporate group controlled by the Russian state. The agreed place of delivery in each instance was located in Bavaria. However, on June 14, 2022, D largely suspended its gas deliveries to C. On July 22, 2022, the Regional Court of Weiden ordered D to continue supplying C with gas for a further three months. The Regional Court rejected a motion filed by C seeking authorization to have the existing contracts fulfilled by a third party of its choice. Following an immediate appeal lodged by C, the Higher Regional Court (OLG) of Nuremberg issued a ruling on September 12, 2022, authorizing C to have the performance owed by D—within the scope of fulfilling the contracts concluded between the parties—rendered by a third party of C’s choice at D’s expense; furthermore, pursuant to Section 887(2) ZPO, the Court ordered D to make an advance payment to cover the costs incurred in rendering said performance. Subsequently, on November 17, 2022, the Higher Regional Court of Nuremberg issued a certificate regarding this decision pursuant to Art. 53 of the Brussels Ibis Regulation, in which the order for the advance payment was classified as a decision on the substance of the matter (Field 4.6.1). On May 9, 2023, C initiated the garnishment of claims held by D against a French third-party debtor (F) in order to recover a partial amount of the advance payment owed by D. Notice of this attachment was served upon D on May 17, 2023, by means of a letter addressed to the competent authority of the Russian Federation, pursuant to the Hague Service Convention; a copy thereof was sent via registered mail with return receipt requested. On December 21, 2023, F filed a lawsuit against C before the Tribunal Judiciaire de Nanterre seeking the lifting of the measures taken against it. This lawsuit was dismissed on December 20, 2024. D subsequently lodged an appeal against this decision with the Cour d’appel de Versailles, which was granted on January 8, 2026. Cassation proceedings are currently pending before the Cour de Cassation.

III. Enforcement by Substitute Performance
The compulsory enforcement of claims requiring an act, toleration, or forbearance is governed under German law by Sections 887 et seq. ZPO. These provisions apply to all acts that do not relate to the settlement of a monetary claim, the surrender of a specific object, or the submission of a declaration of intent. Specifically, a distinction is drawn between actions that may be taken by others—to which Section 887 ZPO applies—and actions where this is not the case, the enforcement of which is governed by Section 888 ZPO. Actions may be taken by others if they can be performed not only by the debtor personally but also by a third party. This clearly applies to the gas deliveries at issue in the present case. In such instances, the creditor is not compelled to force the debtor personally to render the performance owed. Rather, pursuant to Section 887(1) ZPO, the creditor may apply to the court of first instance for authorization to have the act performed by a third party at the debtor’s expense. Concurrently, the creditor may request that the debtor be ordered to make an advance payment to cover the costs that will be incurred in performing the act (Section 887(2) ZPO). In the case at hand, the OLG Nuremberg granted such an advance payment of costs to the creditor.

IV. A “judgment” within the meaning of Art. 2(a) of the Brussels Ibis Regulation
“Judgments” within the meaning of Art. 2(a) of the Brussels Ibis Regulation—as distinguished from mere enforcement measures—are characterized by the fact that they do not yet result in the final satisfaction of the creditor but rather still require compulsory enforcement. Already in 2009, the Federal Court of Justice (BGH) held that the granting of an advance on costs pursuant to Section 887(2) ZPO constituted a decision within the meaning of Art. 32 of the Brussels I Regulation, which could be recognized and enforced abroad. This view is further supported by the fact that the BGH compared the enforcement of fungible acts under Section 887(2) ZPO with the cross-border enforcement of coercive fines which today is governed by Art. 55 of the Brussels Ibis Regulation. Notwithstanding the position of Section 887(2) ZPO within German procedural law, it should be noted that the rule is structured identically to comparable obligations to make advance payments for substitute performance under substantive law (e.g., under the law of contracts for work and services). Such claims may, of course, be recognized and enforced pursuant to the Brussels Ibis Regulation. Moreover, in the well-known Realchemie case, the CJEU ruled that a decision imposing a coercive fine to enforce an obligation to act or to refrain from acting (Section 890 ZPO) may be enforced pursuant to the Brussels I Regulation. However, the distinction between Section 887(2) ZPO and Section 890 ZPO can, in individual cases, prove quite difficult. Particularly in the case of continuing obligations—such as the ongoing supply of parts or raw materials—the boundary between a substitutable act (Section 887 ZPO) and an obligation to refrain from acting (Section 890 ZPO) is fluid: depending on the wording of the operative part of the judgment, the same factual situation can be framed either as a positive obligation to perform or as an obligation to refrain from interrupting delivery, and enforced accordingly. This practical interchangeability of enforcement methods illustrates how inappropriate it would be to treat the resulting enforcement orders differently at the European level.
In addition, an argumentum a fortiori applies: since, according to the case law of the CJEU (Realchemie), an order imposing a coercive fine under Section 890 ZPO –which constitutes merely a sanction without a compensatory function – qualifies as a “judgment” within the meaning of the Brussels Ibis Regulation, then this must apply all the more to an order for an advance on costs under Section 887(2) ZPO, because the latter decision is based on a judicial assessment of the anticipated costs of substitute performance and thus qualifies as a judgment on the merits unlike a mere coercive fine. It would therefore be inconsistent to characterize a decision imposing a coercive fine as an enforceable “judgment” within the meaning of Art. 2(a)(1) of the Brussels Ibis Regulation, while denying this classification for a decision ordering an advance payment pursuant to Section 887(2) ZPO.
Nor does Art. 2(a)(2) of the Brussels Ibis Regulation preclude the classification of this ruling as a “judgment”; this provision contains specific stipulations regarding the classification of provisional measures as judgments within the meaning of Chapter III of the Brussels Ibis Regulation. Pursuant to this provision, where a decision has been rendered without the defendant having been summoned, the decision embodying the measure must have been served on the defendant prior to enforcement. In this regard, it is important to emphasize that an order to pay an advance on costs does not constitute a mere ancillary ruling to the preceding provisional injunction, but rather a procedurally independent order to pay, possessing its own distinct substantive content. In particular, following the issuance of the decision regarding the advance payment, a distinct enforcement proceeding is conducted pursuant to Section 794(1) No. 3 ZPO in conjunction with Sections 803 et seq. ZPO; this proceeding adheres to the provisions governing the enforcement of monetary claims and is independent of the enforcement of the preliminary injunction.
Furthermore, in the present case, the French courts—with regard to the classification of the Nuremberg decision as a “judgment” within the meaning of Art. 2(a) of the Brussels Ibis Regulation—must observe the binding effect of the certificate issued pursuant to Art. 53 of the Brussels Ibis Regulation, in which the decision on the advance payment was characterized as a judgment on the substance (Field 4.6.1). Art. 53 of the Brussels Ibis Regulation provides that the court of origin shall issue a certificate to enable the enforcement of the judgment in the requested Member State. This certificate confirms that the judgment is enforceable and must be submitted to the courts of the requested Member State (see, in particular, Art. 37(2), Art. 42(1)(b), and Art. 43(1) of the Brussels Ibis Regulation). In this respect, the Cour d’appel de Versailles rightly held that the classification of the decision at issue as a judgment on the merits within the meaning of Art. 2(a)(1) and Art. 39 of the Brussels Ibis Regulation may not be called into question by the French court. In order to clarify the binding nature of the Art. 53  certificate, the Federal Court of Justice recently referred this question to the CJEU. In light of the pertinent conclusions of the Advocates General in preceding cases, a positive answer is expected. As AG Bobek explained in the Salvoni case, “[t]he purpose of the Art. 53 Certificate is to authoritatively [!] state that the judgment is enforceable. […] Whereas, in the system established by [the Brussels I Regulation], production of the certificate in question was not required, it became obligatory with the entry into force of [Brussels Ibis]. That is because the new regulation, doing away with the need for an exequatur, provides for a simplified procedure based on the principle that a decision issued in a Member State should be treated as if it had been issued in the Member State addressed.” And AG Pikamäe was even more explicit in the case of J v H Limited: “[I]t is common ground that the court of origin drew up and issued the certificate on the basis of its order of 20 March 2019, which therefore falls within the scope of Regulation No 1215/2012. Under these circumstances, there is indeed, a priori, an enforceable judgment given in a Member State within the meaning of Art. 2(a) and Art. 39 of Regulation No 1215/2012 that comes within the system of direct enforcement laid down in that regulation, a factual reality that is binding upon the court addressed.”

V. The Legal Status of the Third-Party Debtor in the Enforcement of Claims
Enforcement proceedings may also—particularly in cases of attachment of claims—involve third-party debtors. In this regard, the question arises as to whether such parties can avail themselves of the mechanisms provided by the Brussels Ibis Regulation for the refusal of the enforcement of a judgment. In this context, a distinction must be drawn between the refusal of recognition (Art. 45 Brussels Ibis Regulation) and the refusal of enforcement (Art. 46 Brussels Ibis Regulation). With regard to the refusal of enforcement of a foreign judgment, Art. 46 of the Brussels Ibis Regulation stipulates: “On the application of the person against whom enforcement is sought, the enforcement of a judgment shall be refused where one of the grounds referred to in Art. 45 is found to exist.” The German version of Art. 46 is even clearer, unequivocally speaking of “an application of the debtor” (“auf Antrag des Schuldners”). The wording of this provision thus excludes third-party debtors or other interested third parties. Consequently, based on a grammatical interpretation, standing to apply is vested exclusively in the debtor—i.e., the person against whom enforcement is sought —or, where applicable, their legal successor.
The legislative history corroborates this interpretation. Already under Art. 43 of the Brussels I Regulation, all remedies that national procedural law made available to interested third parties against the authorization of enforcement were excluded. While the enactment of the Brussels Ibis Regulation did indeed abolish the requirement for exequatur—and thus the separate procedure for declaring a judgment enforceable in the requested Member State (Art. 39 of the Brussels Ibis Regulation)—this reform was intended solely to further facilitate and expedite the cross-border enforcement of claims (see Recital 26 Brussels Ibis). Conversely, this measure was not intended to expand the powers of third parties to invoke grounds for refusal of enforcement pursuant to Art. 46 of the Brussels Ibis Regulation. This is evidenced by the fact that a proposal submitted by the Spanish delegation—seeking to extend the scope of Art. 46 of the Brussels Ibis Regulation to cover “any interested party”—was not adopted during the legislative process.
Finally, when interpreted systematically, this is also confirmed by an a contrario argument based on the wording of Art. 45 of the Brussels Ibis Regulation, given that it refers there not solely to the debtor, but to “any interested party”. Since Art. 46 of the Brussels Ibis Regulation was deliberately drafted more narrowly than Art. 45 of the Brussels Ibis Regulation with regard to standing to apply, it is impermissible to allow a third-party debtor to invoke the grounds for refusal of recognition under Art. 45 of the Brussels Ibis Regulation in the guise of national enforcement law. To do so would allow national enforcement law to frustrate the clear intention of the European legislature. In this respect, the principle remains that the procedure for the refusal of enforcement under the Brussels Ibis Regulation constitutes an autonomous and self-contained system. Consequently, Art. 46 of the Brussels Ibis Regulation precludes legal remedies that national law makes available to interested third parties against the authorization of enforcement.

VI. The International Jurisdiction of German Courts
A potential ground for refusing enforcement could arise under Art. 46 in conjunction with Art. 45(1)(e)(ii) of the Brussels Ibis Regulation. This would be the case under two conditions: First, international jurisdiction to decide an advance on costs (Section 887(2) ZPO) would have to derive from the exclusive jurisdiction established in Art. 24(5) of the Brussels Ibis Regulation; and second, that provision would have to preclude the recovery, in another Member State, of an advance on costs awarded in Germany. However, the decision rendered pursuant to Section 887(2) ZPO does not, in itself, exert any coercive effect upon the debtor. According to the Federal Court of Justice, such an effect would be a prerequisite for classifying the advance order as an enforcement measure. Even in a purely domestic context, a decision regarding an advance on costs constitutes merely an enforceable judgment within the meaning of Section 794(1) No. 3 ZPO—one that is enforced, like an ordinary monetary claim, in accordance with Sections 803 et seq. ZPO. The exclusivity of international venues in the matters specified in Art. 24(5) of the Brussels Ibis Regulation applies invariably only to the adjudicatory proceedings, and not to the subsequent enforcement of a resulting judgment regarding a monetary claim. Furthermore, this would result in an objectively unjustified disparity in the treatment of obligations to advance costs, depending on whether such obligations are governed by substantive law (e.g., Section 637(3) of the German Civil Code – BGB) or by the respective procedural code (e.g., Section 887(2) ZPO).

VII. Effective Service
A further ground for refusing enforcement could arise from Art. 46 in conjunction with Art. 45(1)(b) of the Brussels Ibis Regulation. In this regard, the Versailles Court of Appeal based its reasoning on the following findings: The debtor D had not been formally summoned to appear before the Nuremberg Higher Regional Court; instead, this Court had dispensed with formal service via mutual legal assistance “for reasons of expediency” and had simply transmitted the documents by email on 9 September 2022; D had been granted a period of only three days (including a weekend) to submit a response, even though the matter involved a claim amounting to € 5.7 billion; and the certificate issued under Art. 53 of the Brussels Ibis Regulation noted that the decision had been rendered in default proceedings but left blank the field for the date of service of the document instituting the proceedings.
The CJEU has recognized that service by public notice, effected in accordance with national law, does not infringe Union law, provided that the requested court has satisfied itself that all inquiries required by the principles of diligence and good faith have been carried out to locate the defendant. This reasoning also applies to a situation where, despite the creditor and the court of origin knowing the debtor’s address, it is practically impossible to effect service in the debtor’s State due to a lack of cooperation from local authorities. This is the case where the court of origin has attempted to effect service on the debtor in accordance with national and international law (specifically the Hague Service Convention) and where—as in the present case—the success of that service was thwarted by the authorities of the State that exercises legal and economic control over the debtor company. The effective protection of a creditor who has obtained a judgment enforceable within the EU against a debtor established in a third State would be disproportionately jeopardised if the mere refusal—potentially in bad faith—of a third State to effect service were to prevent any enforcement within the Union in a State other than that of the court of origin.
Moreover, since the debtor company had become aware of the content of the order in good time, it could also have lodged an objection based on a breach of the right to be heard pursuant to Section 321a ZPO. However, it failed to do so; consequently, refusal of enforcement on the grounds of a defect in service is precluded under Art. 46 in conjunction with Art. 45(1)(b), final clause, of the Brussels Ibis Regulation. According to established case law of the CJEU, this ground for refusal is excluded if the defendant could have challenged the decision in the State of origin but failed to do so. The concept of a legal remedy is to be interpreted autonomously and broadly; it encompasses any measure capable of subsequently affording the defendant the right to be heard, expressly including an application for restoration of the status quo ante.

VII. Summary
German judgments regarding the payment of an advance on costs for a substitute performance pursuant to Section 887(2) ZPO—much like decisions concerning cost advances based on substantive law—may be enforced abroad pursuant to Art. 39 Brussels Ibis Regulation; these constitute “judgments” within the meaning of Art. 2(a) Brussels Ibis. If the court of origin has certified, pursuant to Art. 53 Brussels Ibis, that the original decision falls within the scope of Art. 2(a) in conjunction with Art. 39 Brussels Ibis, the requested court is bound by that certification; this is likely to be confirmed by the CJEU in the reference proceedings initiated by the German Federal Court of Justice. The exclusive jurisdiction established under Art. 24(5) Brussels Ibis does not preclude the cross-border enforcement of a judgment regarding an advance on costs by means of the attachment of claims.
The fact that Art. 46 Brussels Ibis limits the standing to invoke grounds for refusal of enforcement solely to the debtor is based on a deliberate legislative decision to expedite the cross-border enforcement of claims. This underlying policy must not be undermined by third-party debtors invoking grounds for refusal of recognition under Art. 45 Brussels Ibis while ostensibly acting under the guise of national enforcement law. This applies in particular to grounds for refusal intended solely to safeguard the principal debtor’s right to be heard (Art. 45(1)(b) Brussels Ibis).
Furthermore, when examining potential defects in service, it must be taken into account whether a third state has delayed or frustrated service requested by the creditor pursuant to the Hague Service Convention; this behaviour must not operate to the detriment of a creditor seeking to enforce, under the Brussels Ibis Regulation, a judgment regarding an advance on costs obtained within the EU. If the mere refusal of judicial assistance by a third state were to result in a judgment validly obtained in Germany being incapable of full enforcement in other EU Member States, the effectiveness of European enforcement law vis-à-vis debtors in third states would be at stake.

Save the Date: 4 November 2026

Online Book Launch – Choice of Law or Consumer Contracts in Theory and Practice

We are pleased to announce an upcoming virtual book launch for Dr. Benedikt Schmitz’s new monograph, Choice of Law for Consumer Contracts in Theory and Practice (Edward Elgar Publishing). The event is hosted by the WEAKER PIL research line (weakerparties.eu).

• Date & Time: 4 November 2026, 15:00 – 17:00 CET, online
• Topic: The event will examine cross-border consumer protection and the complex conflict-of-laws frameworks regulating the global surge in online shopping. Panelists will discuss many aspects of Article 6 Rome I Regulation, including the historical dimensions of consumer protection in applicable law, the targeting test and consumer definition, the restriction to party autonomy, its ex officio application, and the US American approach to cross-border consumer contracts.

Featured Speakers

• Benedikt Schmitz, Assistant Professor of Private International Law and Comparative Contract Law (University of Groningen, the Netherlands)
• Beatriz Añoveros Terradas, Full Professor of Private International Law (University of Barcelona, Spain)
• Zhen Chen, MSCA Postdoctoral Fellow (University of Edinburgh, United Kingdom)
• Jerca Kramberger Škerl, Full Professor of Civil and Commercial Law (University of Ljubljana, Slovenia)
• Stephen Ware, Frank Edwards Tyler Distinguished Professor of Law (University of Kansas, United States of America)

Registration
Registration details for the online event will be posted here closer to the date. In the meantime, you may sign up to be notified the moment registration opens (click here) and/or the monograph is available for purchase at Edward Elgar Publishing.

The case is Otsuka Am. Pharm., Inc. v. Hetero Labs Ltd., opinion by Judge Bryson.  Judge Stoll joins the opinion in its entirety.  Judge Dyk dissents on the principal issue in the case—whether the district court, in granting the preliminary injunction, properly construed the claim at issue—but he joins the majority on the bond issue.

The patent in suit—which is due to expire on August 13, 2026—is for a method for treating emotional lability in patients with (e.g.) certain neurodegenerative diseases, and involves the administration of two drugs, dextromethorphan and quinidine.  The FDA approved the defendant’s ANDA for a generic version of Otsuka’s drug, after which Otsuka filed suit and moved for a temporary restraining order (later converted to a preliminary injunction).  The principal issue on appeal, as noted above, is whether the district court properly construed the claim in suit. (The claim requires a weight-to-weight ratio of dextromethorphan to quinidine of 1:0.5 or less, and the question is whether a product in which the weight ratio of the salt forms of these drugs is less than 1:0.5, but the weight ratio of the free bases is greater than 1:05, falls within the scope of the claim.  The majority holds that it does.)  The majority concludes that the answer is yes, which apparently points to a likelihood of success on the merits, and there is no discussion of any of the other issues relevant to granting a preliminary injunction in the appellate opinion.  The issue that does come up is whether the district court should have waived the bond requirement.  From the opinion:

According to Federal Rule of Civil Procedure 65(c), a court “may issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” The Third Circuit has recognized limited exceptions to the Rule 65(c) bond requirement, but has noted that waiver is “so rare that the requirement is almost mandatory.” Frank’s GMC Truck Ctr., Inc. v. Gen. Motors Corp., 847 F.2d 100, 103 (3d Cir. 1988).

The Third Circuit has held that the bond requirement may be waived if “there is no risk of monetary loss to the defendant.” Id. (citing Sys. Operations, Inc. v. Sci. Games Dev. Corp., 555 F.2d 1131, 1145–46 (3d Cir. 1977)). The court has also held that the bond requirement may be waived under circumstances such as those described in Temple University v. White, 941 F.2d 201, 219–20 (3d Cir. 1991). That case explained that a court may excuse compliance with the bond requirement “at least in non-commercial cases . . . [upon] consider[ing] the possible loss to the enjoined party together with the hardship that a bond requirement would impose on the applicant.” Id. at 219 (quoting Crowley v. Local No. 82, Furniture & Piano Moving, 679 F.2d 978, 1000 (1st Cir. 1982), rev’d on other grounds, 467 U.S. 526 (1984)). An exception to the bond requirement may also apply in “suits to enforce important federal rights or public interests, arising out of comprehensive federal health and welfare statutes.” Id. at 220 (quoting Crowley, 679 F.2d at 1000) (citation modified).

Applying the first Temple exception, the district court found the risk to financial harm to Hetero “speculative at best” and expressed concern regarding “a chilling effect on access to justice” if a multi-million-dollar bond were required in this case. J.A. 31 (citation omitted). Thus, the court waived the requirement for Otsuka to post security under Rule 65(c). J.A. 32. We are bound to follow the Third Circuit’s narrow exceptions to Rule 65(c). And the Third Circuit has “never excused a [d]istrict [c]ourt from requiring a bond where an injunction prevents commercial, money-making activities.” Zambelli, 592 F.3d at 426. Hetero’s attempt to enter the market with its generic pharmaceutical product is clearly a commercial, money-making activity. Accordingly, we vacate the Rule 65(c) bond waiver and remand the bond issue to the district court for reconsideration.

On remand, the district court may exercise its discretion in determining an appropriate amount to require as a security in light of the limited time remaining before the ’282 patent expires. With regard to the district court’s concern about imposing a large expense for a bond on the plaintiffs, we note that under the Local Rules for the United States District Court for the District of Delaware, the “reasonable premiums or expenses paid on bonds or security stipulations shall be allowed” as taxable costs when those amounts are “furnished by requirements of the law or rule of Court . . . or where required to enable a party to receive or preserve some right accorded the party in an action or proceeding.” D. Del. R. 54.1(b)(10) (pp. 18-20).

This seems right to me.  As I discuss in chapter 4 of my new book Wrongful Patent Enforcement:  A Comparative Law and Economics Analysis, I think it is important to ensure that the defendant who is temporarily excluded from the market on the basis of a patent that turns out, ex post, to have been either invalid or not infringed (or otherwise unenforceable), is compensated for the interim losses it suffers.  (Indeed, arguments are sometimes made that even compensatory damages may be insufficient from a policy standpoint, because the temporary exclusion may leave a monopolist plaintiff better off than it otherwise would have been, even if it has to compensate the defendant for the loss of the latter’s duopoly profit.  Nevertheless, I wouldn’t advocate requiring  the plaintiff to disgorge its profit, for reasons I discuss in the book.)  In some countries, moreover, the wrongly-excluded defendant is presumptively entitled to full compensation, in whatever amount is ultimately proven, though in the U.S. compensation is almost always limited to the amount of the bond; and concerns are sometimes voiced that.the amount of the bond as set by the court sometimes turns out to be less than fully compensatory.  (For that reason, I think courts should be permitted to award proven damages in excess of the bond.)  That said, I agree that there may be some exceptional situations where the balance of equities weighs in favor of dispensing with a bond or any form of compensation; but the Federal Circuit’s application of the law to the facts of this case seems correct to me.  One thing that puzzles me, however, is the district court’s implication, as stated in the Federal Circuit opinion, that the defendant’s harm was speculative and that, absent a waiver, the plaintiff might have to post a multimillion dollar bond.  At first blush, these two concerns seem to point in opposite directions--if the defendant’s expected harm is low, then you would think that the amount of the bond should be low too--though perhaps on the facts of this case, the defendant faces a low probability of harm, while at the same time the amount of the harm, should it come to pass, would be substantial, thus inclining the court to require the posting of a multimillion dollar bond just in case; I don’t know. 

Update:  Further to the above, the 7/2026 issue of GRUR includes an editorial by Dr. Ruth Janal, titled Entschädigung wegen ungerechtfertigter Durchsetzung eines Einheitspatents?  (meaning, "compensation for unjustified enforcement of a Unitary Patent?").  The editorial notes that the UPC has yet to decide any cases addressing this issue, but suggests that the court has jurisdiction over claims for compensation for wrongly granted provisional measures.  Dr. Janal recommends, inter alia, that the court apply a strict liability standard, as permitted by the CJEU's Mylan decision.

This post was written by Matthias Weller and Achim Czubaiko-Güntgen, both at the University of Bonn, Germany. Matthias is a Director of the Institute for German and International Civil Procedural Law. Achim is a PhD Student there who works on the HCCH Conventions on judicial cooperation in civil and commercial matters.

Recently, the Hague Conference on Private International Law (HCCH) published the responses to the public consultation issued in November 2025 (all available on hcch.net here). Whilst each of the 72 reports is valuable in its own right, when viewed collectively they also provide an insight in the general perception of the HCCH’s Jurisdiction Project, as it is currently standing. We would like to take this opportunity to highlight certain aspects that are widely agreed upon, as well as others that still remain subject to further debate.

I. Broad Overall Support for the Project (in principle ….)

In principle, the Draft Text received broad support (75% of the responses), but little to none unreserved approval. Roughly 14 submissions are clearly supportive (19.44%),[1] whereas the majority of the positive responses (55.56%), while sharing the view that there is a need for a multilateral instrument on the coordination of concurrent court proceedings in general, nonetheless call for further substantive amendments to the Draft Text.[2] In contrast, only seven contributions express serious skepticism towards the project (9.72%)[3] with seven responses being effectively opposed to its continuation (9.72%).[4] Finally, six responses do not take a clear overall stance on the Draft Text (5.56%).[5]

II. Consensual Points

1. Geographical Scope (Art. 1 (2) Draft Text)

Almost complete consensus prevailed against the adoption of habitual residency as a further criterion for the geographical scope in Art. 1 (2) Draft Text. It was widely perceived as unjustified, scope-narrowing and impractical. Both, the Austrian Bar and CCBE, draw the comparison with the difficulties of interpretation regarding the Centre of Main Interest (COMI) in the European Insolvency Regulation. Notably, however, the response from the Doshisha University (Japan) defends the requirement as “(1) enhancing the effectiveness and ratifiability of the Convention, and (2) ensuring the predictability for the defendant.”

We share the majority position: As with the HCCH 2019 Judgments Convention, an additional element of habitual residence should be dispensed with. Moreover, it would be counterproductive, as it could jeopardise the applicability of the Draft Text in relation to International Commercial Courts (ICC) as potential proponents of the HCCH Conventions, which regularly promote themselves as neutral dispute resolution centres for non-residents (SIDRA Report 2024, pp. 55 and 57 et seq.).

2. Alignment with HCCH 2019

There is also broad agreement that frictions with the HCCH 2019 Judgments Convention should be avoided, although views differ on the appropriate extent. For example, Mrs. Justice Julia Dias (High Court of England & Wales) warns that “any deviation from the Judgments Convention [creates] further complexity and scope for tactical litigation.” In the same vein, the submission from the PIL Department of the Autonomous University of Madrid reminds us that the possible future instrument would establish „un sistema internacional completo de Derecho procesal civil transfronterizo.” At the same time, PEOPIL states that “[i]t is vital that international legal instruments do not exclude vulnerable parties from the legal certainty that is afforded to commercial parties through international legal instruments and the Hague Convention regime”.

For our part, we read the consistency with the HCCH 2005 and 2019 Conventions as a strength, but consider some of the exclusions premature: in particular, the exclusions of intellectual property and consumer and employment matters should be reconsidered, so that the instrument does not fall short of the very situations in which conflicting decisions often arise. In addition, the jurisdictional filters of Art. 5 HCCH 2019 Judgments Convention cannot simply be transplanted into the framework of Art. 8 (2) Draft Text, but must rather be adapted to the new regulatory context that simultaneously assumes the perspective of two or more courts involved, e.g. through explicit rules on the burden of prof and applicable law for this assessment.

3. Addressing Anti-Suit Injunctions

Furthermore, a significant number of respondents strongly encourage the HCCH to address explicitly anti-suit injunctions in the management of concurrent proceedings under the Draft Text. Yet, while the German Council on Private International Law advocates for a complete ban of anti-suit injunctions between Contracting States, Mr. Justice Andrew Henshaw (Commercial Court of England & Wales), to the contrary, wants to preserve the ability of the courts to issue such injunctions as an “important means of protecting party autonomy”. As a more nuanced middle ground, the EAPIL proposes a provision under which anti-suit injunctions would be excluded only if they conflicted with specific treaty obligations, but would otherwise be permissible (for example, as a procedural remedy in the event that another court itself fails to fulfil its treaty obligations).

In our own response, we suggested an express exclusivity clause. The use of anti-suit injunctions reflects a deep mistrust in the administration of justice in foreign courts, which is unwarranted between the Contracting States, if not a kind of unilateral judicial  “imperialism”. Hence, all Contracting States should be required to refrain from interfering with the functioning of the coordination mechanism – most notably through anti-suit injunctions – thereby putting an end to escalation circles (“ping pongs”) of ASIs, responding AASIs, and again responding AAASIs, which is reality already, and potentially AAAASIs and more in the future. Instead, we should strive for cooperation, perhaps even an adequate degree of mutual trust. A provision implementing such a policy could inter alia draw on Art. 13 (2) HCCH 2019 Judgments Convention and Principle 7.1 of the Leuven/London Principles.

4. More Precise Definitions of “Parallel Proceedings”/”Related Actions” (Art. 3 (1) Draft Text) 

Perhaps the most frequently point highlighted in the responses concerns the definitions of “parallel proceedings” and “related actions”. Most commentators are concerned that the drafting of these terms is not precise enough to reliably fulfill their role as gateway questions for the application of the whole legal instrument. For instance, the ASADIP and Özçelik suggest the inclusion of a “triple identity test” that would also require the existence of the “same object”. With regard to the “same parties”, Hess points to the difficulties in the application of that narrow concept in collective redress proceedings. Meanwhile, Knoll stresses that a broad wording risks infringing on the privity of contract. Furthermore, the Australasian Association of Private International Law (AAPrIL) asks for more clarification on the expression of the “same subject matter”, explicitly, in contrast to the test on “relatedness” test provided for in Art. 3 (1) lit. b) Draft Text. More generally, the Law Society of Scotland and Dasser/Oreiller emphasise the benefits a formal body vested with the power of authoritative interpretation would bring to the uniform interpretation of the Draft Text.

Here, we agree with most of the arguments put forward. Although the decision to adopt the broader notion of ‘subject matter’ rather than that of the same ‘cause of action’ is to be welcomed, this undoubtedly requires substantial guidance in a future Explanatory Report – potentially, and cautiously, inspired by the case law of the CJEU (Gubisch, C-144/86) – so that domestic courts do not simply fall back on the national concepts with which they are familiar. However, given the ambiguities surrounding the interpretation of these gateway terms, we would go one step further and recommend at least considering replacing the specific frameworks for ‘parallel proceedings’ and ‘related actions’ with an umbrella scheme for ‘concurrent proceedings’ (see below in more detail).

III. Contentious Aspects

1. Need for a Special Instrument

Some respondents strongly advise against the adoption of an international instrument at all. This sentiment appears to be particularly strong with respondents from common law jurisdictions. For example, Fentiman casts serious doubts on whether the issue of concurrent proceedings truly poses a pertinent problem in practice, and argues that, in these rare cases, the provisions existing in national legal systems are more effective than a uniform legal instrument. In this regard, Rt. Hon. Lord Hamblen of Kersey (UK Supreme Court) perceives an “increased incentive for parties to instigate tactical litigation”. Complementary, Dias expresses the opinion that “all states have their own rules […] which seem to operate perfectly well in practice”. But commentators from civil law countries, e.g. Castro (Mexico) and Dasser/Oreiller (Switzerland), also question whether the volume of cases warrants the implementation of a complex instrument. Despite his/her general support for the Draft Text, the Judge from Korea also raises the questions whether the project should not better take the form of a protocol to the HCCH 2019 Judgments Convention.

In our view, a binding multilateral instrument is needed precisely to hedge in unilateralistic “weapons” – anti-suit injunctions and torpedo actions – that currently drive unproductive satellite litigation in cross-border disputes. We do, however, share the concern that the practical relevance of the issue should be significant enough to justify yet another HCCH Jurisdiction Convention.

2. Limitation to Contracting States Only (Art. 1 (1) Draft Text)

Some of the respondents also voiced strong criticism regarding the scope of application. Fentiman points to the “incoherent and unacceptable outcome” that the Convention resolves any conflict of jurisdiction “as one between the Contracting States alone […] without reference to the claim of the non-Contracting State to be the preferable forum”. In addition, Henshaw cautions that “[b]ecause the Convention would apply only where parallel proceedings exist in Contracting States, it would be liable to result in proliferation of litigation”.

In our view, both points of criticism are valid: The second aspect relates primarily to the decision against not to regulate direct grounds of jurisdiction. Nonetheless, a responsible party can still make use of the proposed framework by proactively bringing about a situation of double pendency with another, presumably more appropriate court, thus enabling at least a second-best solution in this regard. The first aspect appears reasonable in the light of the ‘forum non conveniens’ doctrine, which takes into account all potential jurisdictions universally, but is nevertheless applied in a unilateral manner by the court seised. In contrast, the Draft Text strives for the implementation of a common cooperative mechanism that probably requires some degree of reciprocity. Furthermore, the Draft Text, so far, relates only to positive conflicts of jurisdiction. Hence, the courts are not prohibited from declining jurisdiction in favour of a Non-Contracting State under their own rules of procedure.

3. Reworking of the List of Connections (Art. 8 Draft Text)

Few provisions attract such diverse and polarized comments than the list of connections in Art. 8 Draft Text. As this is a “complex provision covering two full pages” that also “entails a double-check of jurisdiction”, Hess advocates its complete deletion in favour of a more streamlined version of the mechanism in Art. 9 and 10 Draft Text. Furthermore, McIntosh and Pitel reject the underlying assumption that a listed connection makes a court the more appropriate forum. Meanwhile, the Canadian Bar Association notes that the connection requirements constitute a clear departure from the real and substantial connection test for court to assume jurisdiction. Similarly, Teo (Singapore) and Henshaw, believe that the list “should certainly be wider”.

For our part, we would retain the list but reconceive its function. The ‘bases for proceedings’ in Art. 8 (2) Draft Text could be drafted to revive Arthur von Mehren’s model of a ‘mixed convention’, operating as a ‘white list’ of admissible grounds. Such an approach would remain consistent with the HCCH 2019 Judgments Convention if the catalogue of ‘bases for proceedings’ in Article 8(2) of the draft text were attributed the presumptive effect of being an ‘appropriate jurisdiction’ for the dispute, which could then be rebutted if the parties or the foreign court proved that their jurisdiction was also or even ‘clearly more appropriate’.

4. Determination Framework of the “More Appropriate Court” (Art. 9 Draft Text)

Given that the HCCH itself explicitly recognised the need to ask which of the two mechanisms for determining the more appropriate court was preferred, it is not surprising that the responses differ significantly. First, a plurality leans towards primarily giving the determination to the court first seised, whilst the other courts are reserved the option to depart from that determination under certain conditions at a later stage [Approach 1]. Proponents of this view, such as Gomaa and Tsirat, underline legal certainty and the avoidance of forum shopping as their reasons. Second, a smaller group prefers to allow any court to primarily carry out that determination while the court first seised is not required to deal with this question at any time [Approach 2]. Among others, the Pontifical Catholic University of Rio de Janeiro considers this approach to be more consistent with the principle of sovereign equality of States. Scholars from the Dalian Maritime University (China) also warn that the criteria are “very likely to be ‘localized’ interpreted by domestic courts”. Third, a substantial part consider both approaches flawed, as they either embed an ‘irrational’ preference for the court first seised or permit continued parallel determinations. The Law Reform Institute (USA) also stresses that the first approach creates tactical incentives to file suit in a slow forum. For these reasons, the EAPIL proposes a hybrid approach that combines the strong features of both approaches.

Our own position comes down clearly in favour of the first approach. In our view, it is crucial to the success of the instrument that the courts involved be encouraged to discuss the situation of parallel proceedings pro-actively, and the passive role assigned to the court first seised under the second approach would be detrimental to precisely that objective. On this reading, the court first seised would not enjoy any priority of outcome, but merely the advantage of being the first to give its opinion on the ‘more appropriate court’ – a benchmark with which the other courts would then have to contend. That court should, however, expressly retain the option of concluding that allowing the concurrent proceedings to continue is in the best interests of the administration of justice, subject to a certain threshold so as to prevent its misuse as a simple way out.

IV. Outlook

The HCCH Council on General Affairs and Policy (CGAP) has deliberately decided to make the future of the Jurisdiction Project contingent on the outcome of the public consultation (as reported on col.net here). In our opinion, the responses received show that there is still considerable interest from various parts of the world in continuing the project, whilst also indicating that the Draft Text still requires in-depth discussion and substantial amendments before it is finalised. At present, the overall sentiment can probably best be described as: “Yes, in principle, but not quite there yet…”

[1] See Submission by María Susana Najurieta (University of Buenos Aires – Argentina), Question 13.2: “No todas las normas, pero una buena parte de ellas mejorarían el status quo”; Submission by the Austrian Bar (ÖRAK – Austria), Question 14; “in most instances, a step towards enhancing legal certainty, predictability, and access to justice”; Submission by Mohamed Gomaa (Ministry of Justice – Egypt), Question 13.2: “Yes, significantly.”; Submission by the German Council on Private International Law (PIL Council – Germany ), para. 10: “limitations of the existing EU rules highlight the advantages of a multilateral instrument” (Authors: Martin Gebauer, Wolfgang Hau); Submission by Odín Alberto Guillén Leiva (National Autonomous University – Honduras), Question 13.1: “La intención de la Convención está bien plasmada y desarrollada en el proyecto”; Submission by Teresa Sergi (Attorney at Law – Italy), Question 14: “it is hoped that the Draft Text will be implemented”; Submission by Takasugi Naoshi/Choi Jaewon/Kawato Yuriko/Shinohara Rena/Yamamoto Taiga (Doshisha University – Japan), Question 13.1: “[T]his draft Convention ensures legal clarity”; Submission by M.F.J.N. (Tijn) van Osch (IAJ/UIM – The Netherlands), Question 1.1: “I think it is a good and honest effort”; Submission by the Nigerian Group on Private International Law (NGPIL – Nigeria) (Authors: Onyoja Momoh, Chukwuma Okoli, Abubakri Yekini, Pontian Okoli, Chukwudi Ojiegbe); Submission by the Judge from Panama I (Judge – Panama), Question 13.2: “El Proyecto ayudaría porque ofrece una metodología más clara para identificar el tribunal más apropiado, favorece la coordinación entre tribunales, y refuerza la predictibilidad para las partes”; Submission by Rosa Lima (High Judicial Council – Portugal), Question 1.1: “Very positive opinion”; Submission by Lai Lai-Kuan (Private International Law Association – Taiwan), Question 1.2: “This integrated approach, which incorporates diverse national legislative practices, is a highly commendable model for international legislation”; Submission by Gennadii Tsirat (Attorney at Law/National University of Kyiv – Ukraine), Question 13.1: “The rules provided for in the Draft should achieve the goals of the future instrument.”; Submission by Eduardo Vescovi (Universidad de la República – Uruguay), Question 14: “Corresponde en primer lugar felicitar a la Conferencia de la Haya por el abordaje de un tema de importancia primordial, y cada vez más frecuente en la realidad actual”.

[2] See Submission by the American Association of Private International Law (ASADIP – Americas); Submission by IntLaw LLP (Argentina); Submission by María Blanca Noodt Taquela/Carolina Daniela Iud (University of Buenos Aires – Argentina); Submission by Australasian Association of Private International Law (AAPrIL – Australasia); Submission by Burkhard Hess (University of Vienna – Austria/Germany); Submission by Dorothée Vermeiren (Clifford Chance LLP – Belgium); Submission by Lotte Vanfraechem (Business lawyer – Belgium); Submission by the Brazilian Federal Judge (Judge – Brazil); Submission by Nadia de Araujo/ Daniela Vargas/ Lauro Gama/Theophilo Miguel/Lidia Spitz (Pontifical Catholic University of Rio de Janeiro – Brazil); Submission by Dalian Maritime University (DMU – China); Submission by Chinese legal professional (Legal professional – China); Submission by Guojian Xu (Shanghai University of Political Science and Law – China); Submission by Du Tao (East China University of Political Science and Law – China); Submission by the Council of Bars and Law Societies of Europe (CCBE – Europe); Submission by the European Association of Private International Law (EAPIL – Europe); Submission by Philippine Blajan/Sandrine Clavel/Fabienne Jault-Seseke (Paris-Saclay University/UVSQ – France); Submission by Matthias Weller (University of Bonn – Germany); Submission by Stephan Madaus (Martin-Luther-University Halle-Wittenberg – Germany); Submission by Hungarian Judge (Judge – Hungary); Submission by David Knoll (AYR – Israel); Submission by Gaetano Vitellino (Università Carlo Cattaneo – Italy); Submission by Vilnius University / MOTIEKA (Lithuania); Submission by María Virginia Aguilar (Practitioner – Mexico); Submission by Aarushi Sahrawat (Practitioner – Netherlands); Submission by Vesna Lazic (Utrecht University / T.M.C. Asser Institute – Netherlands); Submission by the (Anonymous) Judge from Panama II (Judge – Panama); Submission by Associação Ius Omnibus (AIO – Portugal); Submission by Korean Judge (Judge – Korea); Submission by Iuliana Boghez (Legal adviser – Romania); Submission by Vladimir Kostsov/Ivan Zinovich/Mikhail Galperin (ICLRC – Russia); Submission by the Faculty of Advocates (FOA – Scotland); Submission by Alan K Koh/Shouyu Chong (Nanyang Technological University/University of Leeds – Singapore); Submission by Marcus Teo (NUS – Singapore); Submission by the Department of Private International Law, Autonomous University of Madrid (UAM – Spain) (Members: Pilar Dominguez Lozano, María Jesús Elvira Benayas, Laura García Gutiérrez, Francisco José Garcimartín Alférez, Iván Heredia Cervantes, José Ignacio Paredes Pérez, Elena Rodríguez Pineau, Elisa Torralba Mendiola y Jaime Vázquez Garcia); Submission by Gülüm Özçelik (Bilkent University – Türkiye); Submission by Law Reform Institute (NPO Organisation – United States); Submission by Stutee Nag (Cross-Border Family Law practitioner – United States); Submission by William Sullivan (Practitioner – United States); Submission by Eugenio Hernández-Bretón/Claudia Madrid Martínez/José Antonio Briceño Laborí (Academia – Venezuela); Submission by Tung Xuan Le (Legal researcher – Vietnam).

[3] See Submission by Stephen Pitel (Western University – Canada); Submission by the Canadian Bar Association (Canada); Submission by Leonel Pereznieto Castro (Retired academic – Mexico); Submission by Maura McIntosh (Herbert Smith Freehills Kramer – United Kingdom); Submission by Academic (Academia – United Kingdom); Submission by Sir Andrew Henshaw (Commercial Court of England and Wales – United Kingdom); Submission by Sarah Garvey/Sarah Shearman (Mayer Brown International LLP – United Kingdom).

[4] See Submission by Janet Walker (Osgoode Hall Law School– Canada), Question 13.3: “The race to judgment might merely be replaced by a race to the courthouse.”; Submission by Pan-European Personal Injury Lawyers (PEOPIL – Netherlands), Question 13.3: “We are concerned by the scope for tactical and satellite litigation which would be introduced by this Convention”; Submission by Felix Dasser/Sébastien Oreiller (University of Zurich/Homburger – Switzerland),Question 14 (3): “In sum, the project should be discontinued. We are surprised and frankly dismayed that such notoriously inefficient common-law concepts should be adopted for a global convention. The Hague Conference should know better.”; Submission by Richard Fentiman (University of Cambridge – United Kingdom), Question 14: “The avoidance of parallel proceedings may be an issue which is inevitably best left to national law.”; Submission by Julia Dias (High Court of England and Wales – United Kingdom), Question 13.1: “The draft convention seems to be a solution in search of a problem.”; Submission by the Rt. Hon. Lord Hamblen of Kersey (UK Supreme Court – United Kingdom), Question 13.2: “Regrettably I am of the view that the convention would not improve the status quo and potentially be to its detriment”; Submission by Stewarts Law LLP (United Kingdom), Question 13.2: “[W]e do not think the proposed Convention would improve the status quo.”.

[5] Submission by Chinese Judge (Judge – China); Submission by SUN Jin (Legal professional – Hong Kong SAR); Submission by Family Law Bar Association (England and Wales – United Kingdom); Submission by Law Society of Scotland (United Kingdom).

International colleagues are warmly invited to join the afternoon programme, which features the following speakers:
Stefania Bariatti of the University of Milan,
Hans van Loon, former Secretary General of the Hague Conference of Private International Law,
Gilles Cuniberti of the University of Luxemburg and President of EAPIL,
Ivana Kunda of the University of Rijeka,
Marko Bošnjak, judge at the Court of Justice of the CJEU,
Ana Kerševan, State Attorney General of Slovenia, and
Judita Dolžan of the Permanent Representation of the Republic of Slovenia to the European Union.

The morning session (in Slovenian) with Vesna Rijavec, Aleš Galič, Jerca Kramberger Škerl, Andrej Bebler, Filip Dougan, Urban Vrtačnik, and Borut Leskovec, will focus on practical and doctrinal issues, such as the cross-border effects of enforceable notarial deeds, applicable laws in international commercial arbitration, strategic lawsuits against public participation (SLAPP), reinsurance contracts, the European Payment Order, cross-border property relations of couples, and international family law disputes.

More information is available in the Programme.

Registration: IPP-PF : Inštitut za primerjalno pravo – Registration form PIL conference

L. Schwannecke: Challenging the European Certificate of Succession: Prerequisites and consequences after the CJEU decision in Albausy [German]

According to Art. 67 of the EU Succession Regulation, a European Certificate of Succession shall not be issued if the elements to be certified are being challenged. In Germany, it was disputed whether the provision included challenges presented during the process for issuing the Certificate itself, or whether it referred solely to challenges pending in other proceedings. In its decision in Albausy, the CJEU addressed this question and clarified that all challenges must prevent the competent authority from issuing a European Certificate of Succession. While this has been implemented in the German literature and jurisprudence, the Higher Regional Courts as competent courts for the redress procedure governed by Art. 72 continue to differ on whether they are allowed to decide on the merits of said challenges during the redress procedures. This article provides an overview of the discussion in the German academic literature prior to Albausy and the subsequent treatment and implementation of the CJEU’s decision in the German jurisprudence. It places a particular focus on the scope of competence of the higher regional courts in dealing with redress procedures under Art. 72 EU Succession Regulation.

A. Masser/Y. Chatard: Anti (anti) suit injunctions of German courts? [German]

Anti-suit injunctions carry the potential to produce effects that ripple across jurisdictions, to constrain the authority of foreign courts and to operate at the intersection of law and geopolitics. While neither the remedy nor its implications are novel, the recent wave of anti-arbitration injunctions issued by Russian Arbitrazh courts, arguably aimed at shielding Russian companies, has thrust anti-suit injunctions back into the spotlight. German procedural law does not recognize anti-suit injunctions as a remedy, yet substantive claims for injunctive relief may serve as their functional equivalent. This article examines the viability of such substantive claims as a response to the ongoing surge of Russian anti-arbitration injunctions.

W. Wurmnest: The economic unit doctrine and multiple defendants under Art. 8 Brussels I (Recast) Regulation [German]

In Athenian Brewery, the CJEU clarified that a parent company that was not directly involved in an antitrust law infringement of its subsidiary can serve as anchor defendant, so that the courts at the seat of the parent company have international jurisdiction for damages claims against both companies (Art. 8 (1) Brussels I (Recast) Regulation), even if the parent company was not the addressee of a prior decision of a competition authority. Basing jurisdiction on Article 8 (1) Brussels I (Recast) Regulation requires, however, that the two companies form an economic unit which can be assessed by applying the control presumption known from public enforcement. The convincing judgment strengthens the possibilities for plaintiffs to engage in forum shopping.

J. Richter: The limits of Article 8(3) Brussels Ibis: No application by analogy to non-EU defendants [German]

After several German courts had declined jurisdiction in a cross-border dispute (between Germany and Liechtenstein), the Bavarian Highest Regional Court (BayObLG) had to determine jurisdiction. The ruling on local jurisdiction – which lay at the heart of the conflict due to an exclusive choice of court agreement – was in line with established case law and was therefore hardly surprising. Of broader general interest and significance was the issue (only briefly addressed by the ruling) whether Article 8(3) of the Brussels Ibis Regulation, concerning jurisdiction on counter-claims, applies to Non-EU Defendants. With regard to this contentious question the BayObLG has now articulated a rejecting position.

R. de Barros Fritz: The localization of the place of injury regarding claims to recover losses incurred in connection with participation in online games of chance under the Rome II Regulation and the application of the doctrine of double-relevant facts (“Lehre von den doppelrelevanten Tatsachen”) under the Brussels Ibis Regulation [German]

In Wunner, the CJEU had its first opportunity to rule on the law applicable to a claim to recover losses incurred in connection with participation in online games of chance offered by a Maltese gambling company not holding a gambling licence. The questions referred to the Court addressed the substantive scope of the Rome II Regulation and its general conflict-of-laws rule on torts. The importance of the preliminary ruling procedure in Wunner goes, however, well beyond the interpretation of Articles 1 and 4 of the Rome II Regulation. An analysis of the procedural history leading to the request for a preliminary ruling provides an opportunity to address one of the general principles of international civil procedure, namely the “Lehre von den doppelrelevanten Tatsachen”.

J. P. Schmidt: Habitual residence and applicability of the Hague Convention on child abduction in cases of shared custody [German]

In cases where, despite living in different countries, parents share the custody of their child and take turns in its exercise for extended periods of time, the determination of the child’s habitual residence poses difficulties. In court practice and legal writing, three different approaches have been adopted or proposed: according to the first, the child acquires two habitual residences simultaneously; according to the second, the habitual residence alternates each time the child moves to the other parent; according to the third view, the habitual residence remains where it was before the parents separated. The decision on this matter becomes particularly relevant if the child is removed or retained by one parent in breach of the custody agreement and the return of the child is requested by the other parent under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. In that situation, further disputes come to light, namely whether the Convention also applies in case of simultaneous habitual residences and whether conflicts of the above-mentioned kind should be covered at all by the Convention. A decision of the Court of Appeal Nuremberg from 2024 highlights the danger of creating unjustified asymmetries between the parents by “locking-in” the child’s habitual residence at the place where it was prior to the separation. Whereas this approach will usually lead to adequate results with regard to the law governing custody, simultaneous habitual residences should be admitted for the purposes of the 1980 Hague Convention in order to treat the parents equally.

D. Messner-Kreuzbauer: Jurisdiction for disclosure claims against platform operators [German]

Those affected by violations of personality rights on social media often require information from the platform operators regarding the identity of anonymous tortfeasors when pursuing their claims. The Austrian Supreme Court makes it easier for victims of online abuse to force disclosure of this information: it considers Austrian courts to be competent where claimants pursue substantive rights to information against platforms based in other EU jurisdictions, provided that the centre of interest of those seeking relief is located in Austria. The Austrian Supreme Court bases this special jurisdiction on Article 7(2) of the recast Brussels I Regulation, as interpreted by the CJEU. While the present case note criticises the Austrian Supreme Court’s reasoning for classifying substantive disclosure claims as tortious, it welcomes the result and offers an alternative doctrinal argument in its defence.

F. Niggemann: Concurring claims under the CISG and product liability – a decision of the French supreme court of 17.5.2023 [German]

The decision of the French Cour de Cassation of 23.5.2023 gives rise to analyse the question whether the application of the CISG excludes product liability claims. Whereas the French supreme court holds in favor of an exclusive application of the Convention and thus adopts an opinion so far only once expressed in international cases having applied the CISG, two decisions of the same court, rendered just a month earlier, come to the opposite result when applying national sales law and product liability. The exclusion of product liability claims under the CISG leads to a critical appraisal of the currently prevailing opinion. The legal situation created by the decision of the French Supreme Court additionally entails surprising possibilities for choice of law clauses of French law.

M. Uitz: Examining the validity of foreign forced child marriages in Austria – comparative remarks on the German and Austrian private international legal regimes [German]

Child marriages and forced marriages present multifarious challenges to the private international legal systems of many states. A recent decision by the Austrian Supreme Court of Justice on the potential validity of the forced marriage of a fifteen-year-old Afghan girl to her twenty-year-old cousin under Austrian private international law has generated new momentum in the ongoing discourse. First, this article analyzes the consequences of this decision for the adjudication of cases of forced child marriage brought before Austrian courts enjoying international jurisdiction. Second, this investigation compares the Austrian and German provisions of private international law on forced child marriage in order to illuminate the commonalities and discrepancies between both legal systems.

K. Bälz: Arbitration according to Sharia law? [German]

May an arbitral tribunal render an award on basis of the principles of Islamic law (Sharia), if the parties so agree? This is the subject matter of a decision of the Regional Court of Vienna of 2 May 2025. The court approved a respective choice of law and denied a violation of public order.

M. Gebauer/W. Hau: Statement by the Special Commission of the Second Commission of the German Council on Private International Law on the draft text of a future Hague Convention on parallel proceedings and related actions [English]

S. Grundmann: 100. Geburtstag International Academy of Comparative Law: Weltkongress 2026 in Berlin im Zeichen fundamentaler Pluralität [German]

On Tuesday, July 7, 2026, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 03:30 p.m. – 05:00 p.m. (CEST).

Christopher Whytock (University of California) will speak, in English, about the topic

“Conflict of Laws Through a Human Rights Lens”

The relationship between human rights and conflict of laws (private international law) is the subject of extensive scholarship in Europe, but almost entirely neglected in the United States. Inspired by European scholarship, this project attempts to extend human rights-oriented analysis to conflict of laws in the United States. It proposes a conceptual framework for understanding the relationship between human rights and conflict of laws in the abstract, applies the framework to conflict of laws in the United States, and offers comparative insights.

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

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

This post was kindly prepared by Sai Ramani Garimella, Associate Professor, Faculty of Legal Studies, South Asian University.

A judgment-creditor is often concerned about the enforcement of foreign court orders, and that concern is not completely misplaced in India. The Supreme Court’s decision in Messer Griesheim v Goyal MG Gases is a useful illustration of the law governing the enforcement of foreign court orders and of the discussion of their finality and binding nature. Twenty-three years after the underlying loan transaction, and after much litigation, the Court has finally closed the chapter, refusing to enforce a 2006 English court’s summary judgment for roughly USD 5.8 million. Along the way, it has also clarified two recurring questions that often come up whenever a foreign money decree is sought to be executed in India:

• (i) When does a summary or “leave to defend” judgment qualify as a judgment “on the merits” under Section 13(b) of the CPC, and
• (ii) What is the real effect of a conditional RBI/foreign-exchange approval on the enforceability of a decree?

A JV was contracted between a German company, Messer Griesheim GmbH (hereinafter, Messer Griesheim) and Goyal MG Gases (hereinafter, Goyal), an Indian company engaged in the industrial gases business, in 1995. To fund capital expenditure, Goyal arranged an External Commercial Borrowing (ECB) of USD 7 million from Citibank, London, with Messer Griesheim standing as guarantor. The Foreign Exchange Regulation Act, 1973 (FERA), required both the Government of India and the Reserve Bank of India (the Central Bank) to approve borrowing and guarantees. The RBI’s approval letter dated 3 September 1997 imposed conditions, amongst others, that “in case of invocation of guarantee, no liability whatsoever will extend to the Indian company.” When Goyal defaulted, Citibank invoked the guarantee in 2001, and Messer Greisheim paid USD 4.78 million. It then sought reimbursement from Goyal by way of contractual subrogation. Goyal refused, asserting that the payment had been adjusted against its own unrelated claims against Messer (arising from alleged breaches of the JV and non-compete arrangements), claims it said were worth roughly Rs. 500 crore. Unable to recover amicably, Messer Greisheim sued in England.

The English Court Proceedings

1. 2003: Messer Greisheim obtained an ex parte default judgment after Goyal failed to appear.
2. Ill-advised on the difficulty of enforcing such orders in India, Messer Greisheim applied to have it set aside and sought a summary judgment instead.
3. Goyal responded that it had genuine defences, including three alleged oral side-agreements under which Messer Greisheim had supposedly agreed not to seek recourse against Goyal or to absorb the loan liability as part of a settlement.
4. On 7 February 2006, the English Court rejected Goyal’s defences as lacking a “real prospect of success” and entered summary judgment for approximately USD 5.8 million, plus interest and costs. Goyal did not appeal.

The Indian Execution Proceedings

Messer Greisheim applied to the Indian court for execution of the said order under Section 44A of the Code of Civil Procedure, 1908. The journey through the Indian courts was itself convoluted:

1. The Single Judge of the Delhi High Court (2013) held the judgment enforceable.
2. The Division Bench (2014) of the DHC ruled against jurisdiction as per the requirements of Section 44A.
3. The judgment-creditor appealed to the Supreme Court, which held that the DHC possessed jurisdiction in its original civil capacity and sent the matter back for a decision on the merits.
4. On remand, the DHC’s Division Bench finally refused enforcement, holding that the English court’s order violated Section 13 of the CPC, both for failing to be a judgment “on the merits” and for disregarding the RBI’s conditional approval.

5. On appeal, the Supreme Court agreed with the Division Bench of DHC (though for partly different reasons), bringing the saga to a close.

The Statutory Framework: Section 13 read with Section 44A, CPC

Under Section 44A CPC, an order from the competent court of a “reciprocating territory” (the UK is one such) can be applied for execution before a district court in India. However, such enforcement may be denied if it is hit by the exceptions listed in CPC, S 13: absence of jurisdiction, judgment not on merits, incorrect view of international law or refusal to recognise Indian law, violation of natural justice, fraud, or a claim founded on breach of Indian law.

The Supreme Court reaffirmed that these exceptions must be construed narrowly, in keeping with the principle of comity of courts; such a narrow construction may not be interpreted as against scrutiny at all.

Issue I: Was the English Summary Judgment “On the Merits”?

Pivoting upon jurisprudence from the Privy Council (Daniel Thomas Keymer v P. Viswanatham Reddi (AIR 1916 PC 121) and L. Oppenheim and Co. v. Hajee Mahomed Haneef Sahib (AIR 1922 PC 120)) as well as Indian decisions such as International Woollen Mills v Standard Wool (UK) Ltd, Middle East Bank v Rajendra Singh Sethia (AIR 1991 CAL 335), and K.M. Abdul Jabbar v Indo-Singapore Traders Pvt Ltd. (1980 SCC OnLine Mad 186) the Supreme Court held that a judgment entered merely because a defendant was refused leave to defend, without any real investigation into the rival contentions, cannot be treated as a judgment “on the merits” within Section 13(b).

Significantly, the Court did not treat “summary judgment” as a dirty word. It referred to the English law on summary judgment (Civil Procedure Rules 24.2, and the decisions in Easyair v Opal Telecom and Swain v Hillman). The Court noted that the English law required the defence to lead evidence of only a “realistic,” not a “fanciful,” prospect of success, and that a court should hesitate to finally decide a case without trial wherever a fuller investigation of the facts could affect the outcome. The point of the analysis was not that English procedure is somehow defective, but that this very test, properly applied to Goyal’s defences, should have led to a trial rather than summary disposal.

The Court found that Goyal’s defences were not fanciful:

1. There were contemporaneous statutory documents, board-approved Balance Sheets for FY 2001-02 and FY 2002-03, and Minutes of Board Meetings recording that Goyal owed nothing to Messer and that the loan repayment had instead been adjusted against Goyal’s own claims. These were signed by Messer Greisheim’s own nominee director, Mr Winfrid Schmidt, who had also seconded the relevant resolutions. Under Sections 194, 210, 211, and 215 of the Companies Act, 1956, such board-approved financial statements carry presumptive evidentiary value.
2. An e-mail dated 20 February 2003, in which Goyal disputed the claimed liability, did not appear to have been placed before or weighed by the English Court at the summary stage.
3. Goyal’s defence rested on disputed oral agreements, exactly the kind of factual controversy that, in the Court’s view, calls for cross-examination and a full trial rather than summary adjudication.

Importantly, the Supreme Court was careful to state that it was not adjudicating the merits of these defences itself; it addressed only whether they crossed the threshold of being “triable.” Having found that they did, the Court held that denying Goyal leave to defend amounted to a denial of fair trial, attracting both Section 13(b) (not on merits) and Section 13(d) (violation of natural justice) of the CPC. This alone was sufficient to dismiss the appeal and refuse enforcement.

86. […] The adjudication by way of summary judgment in the presence of bona fide triable issues renders the judgment one not delivered on merits within the meaning of Section 13(b).

The Court also revisited the Indian “leave to defend” jurisprudence under CPC, Order XXXVII (IDBI Trusteeship v Hubtown; B.L. Kashyap v JMS Steels), reiterating that denial of leave to defend is meant to be the exception, reserved for cases where the defence is frivolous or vexatious — not the default response to a contested claim.

Issue II: The FERA Angle; Adjudication vs Enforcement

1. Section 47(1)/(2): A contract that evades FERA cannot be enforced, but a contract conditioned on obtaining RBI/Government permission is not itself invalid merely because permission is pending.
2. Section 47(3): This provision states that nothing prevents legal proceedings from being brought in India to recover sums otherwise due; however, “no steps shall be taken for the purpose of enforcing any judgment or order” except to the extent permitted by the RBI/Central Government.

The Court  interpreted Section 47 as creating a clear two-stage scheme:

1. Stage 1-Adjudication: Courts may determine liability and order a decree without any prior RBI clearance. There is no bar on access to justice at this stage.
2. Stage 2-Enforcement: Before the execution of such a decree under Order XXI CPC, the RBI/Government permission becomes a precondition.

The Court held that the 1997 RBI condition operated as a regulatory precondition to execution, not a substantive defence that extinguishes the underlying liability. To that limited extent, the Court reversed the Division Bench’s reasoning on this specific point of law.

The Takeaways from Messer Greisheim

1. Summary and default judgments travel poorly across borders. A foreign judgment valid in its home jurisdiction could fail the Section 13(b) “merits” test in India only if the foreign court did not substantively engage with a defendant’s documented, triable defences. Foreign claimants strategising for default-to-summary judgments (switching from default judgment to summary judgment to improve enforceability) are alerted to the risk of failure. However, Messer Greisheim rejected the idea of inherent suspicion against summary judgments, the Court held that a 13(b) hit applies only when the record of the case establishes an unfair truncation of a legitimate dispute.

40. At the same time, the jurisdiction to grant summary judgment is not intended to convert the proceeding into a “mini-trial”, but rather to enable cases where there is no real prospect of success to be disposed of summarily.

1. Contemporaneous corporate records can defeat a foreign decree at the enforcement stage, even years later.
2. Foreign exchange regulatory permissions regulate execution, not adjudication. The judgment offers welcome clarity that conditional RBI approvals do not operate as a permanent shield against liability. They instead govern the timing and quantum of actual remittance once a decree is to be executed, a sensible accommodation between access to justice and India’s exchange-control regime.

Conclusion

Does the Indian law appear to allow a merits examination, a revision au fond? Messer Greisheim answered that in the negative. It was observed that by relying strictly on a summary procedure to dismiss a genuinely triable defence, the English court bypassed a full trial on the merits. A reading of CPC, S 13, indicates that Indian courts are prohibited from conducting a revision au fond.

• The executing court cannot act as an appellate court.
• It cannot re-examine the substantive facts, reweigh the evidence, or substitute its own view on the merits for that of the foreign judge.

Messer Griesheim is ultimately a cautionary tale about procedure trumping substance. Messer Greisheim may have had a sound claim under the loan agreement’s subrogation clause. But by obtaining a summary judgment that bypassed Goyal’s triable defences instead of testing them at trial, it ended up with a decree that, twenty years and several rounds of litigation later, wasn’t enforceable in India. For foreign judgment creditors eyeing Indian assets, the lesson is unambiguous: a decree obtained without the Indian defendant being allowed a genuine opportunity to contest disputed facts is a fragile asset in the Indian execution courts, however efficiently it may have been obtained abroad. Section 13(b) thus speaks loud and clear – such summary judgment becomes suspect when it appears to have been entered solely to bypass a highly contested matter. Courts in India can review the record, as Messer Greisheim observed, only to identify whether the decision related to a summary procedure was indeed based upon sound reasons and wasn’t aimed at truncating an otherwise triable dispute.

Last week I published the first half of a post on those portions of the UPC Court of Appeal’s decision in Kodak GmbH v. Fujifilm Corp. in which the Court expresses its understanding of when it is appropriate for the UPC to exercise jurisdiction over a claim for the infringement of the portion of a European Patent that pertains to a non-UPC, non-EU, non-Lugano Convention country (such as the U.K.).  Here are the remaining headnotes on this topic (corresponding to decision paragraphs 301-23), followed by a brief discussion:

Exercising international jurisdiction

11. A court which has jurisdiction to hear an alleged infringement of a patent validated outside of its own territory, is not only required to apply the law applicable to that patent, but must also apply international law principles such as comity.

12. In situations where the Court has jurisdiction to decide on the alleged infringement and remedies requested by the patentee based on a non-UPC designation of a European patent (EP), and where the defendant has – as a defence – asserted that the EP relied on is invalid, then:

- where designations in the territories of Members States of the European Union (EU) and Signatories to the Lugano Convention (LC) are concerned (‘EU/LC EPs’), it follows from Art 24(4) Br I bis and Art. 22(4) LC that the Court shall not consider the validity of such patents, but as decided in BSH v Electrolux the Court does not lose jurisdiction to decide the infringement action based on such patents;

- where designations in territories of non-EU and non-LC States are concerned (‘non-EU/LC EPs’), it follows from BSH v Electrolux that the Court can consider the validity of such patents in inter partes proceedings and the Court may on that basis decide the infringement action based on such patents.

13. The Court of Appeal considers the following approach regarding actions based on EU/LC European patents and/or non-EU/LC European patents to be in line with BSH v Electrolux and international principles of law, including comity, for the following situations (I, II and III respectively):

I. when a revocation action is lodged with the Court with respect to (a) EU/LC EP(s) and/or non-EU/LC EP(s)

14. The Court shall declare that it lacks jurisdiction to decide the action.

II. in an infringement action which is also based on (a) EU/LC EP(s) and/or non-EU/LC EP(s), and the patent in force in the UPC territory is considered invalid, but the attacked embodiment or process would infringe if it were valid

15. It will be appropriate for the Court to first offer the patentee the opportunity to withdraw the infringement action insofar as based on (a) EU/LC EP(s) and/or non-EU/LC EP(s) within an appropriate period of time.

16. Where it concerns EU/LC EPs:

a. if the patentee does not wish to withdraw the infringement action, and insofar a revocation action is not already pending with the relevant competent national court(s), it is appropriate to give the defendant the opportunity to file a revocation action with the relevant competent national court(s) within an appropriate period of time.

b. if and to the extent that (a) revocation action(s) is pending, or the defendant has lodged such action(s), it is generally appropriate for the Court to use its discretion and/or case management powers (cf R. 295(l) and (m) RoP) to stay the infringement proceedings insofar as based on that EU/LC EP(s) until a final decision has been rendered in the revocation action(s) by the competent national court(s).

c. if and to the extent that the defendant does not lodge such action(s) within the given time period, the Court must assume that the patent(s) is/are valid and shall decide the infringement action on that basis.

17. Where it concerns non-EU/LC EPs:

a. if the patentee does not wish to withdraw the infringement action, the infringement action shall be dismissed, unless there are specific reasons not to do so (e.g. because the claim(s) of an extra-territorial part is different and may be considered valid – in such a situation the next paragraph applies)

III. in an infringement action which is also based on (a) EU/LC EP(s) and/or non-EU/LC EP(s), and the patent in force in the UPC territory is considered valid and infringed in the UPC territory

18. Where it concerns either EU/LC EPs (in view of Art. 24(4) Br I bis and 22(4) LC) or non-EU/LC EPs (in view of comity):

a. the Court may – where appropriate and in order to avoid undue delay – consider there is a reasonable, non-negligible possibility that the patent will be held valid by the competent national court and issue a decision including its orders under the condition subsequent that the patent is not held to be wholly or partially invalid to the extent the infringement is based thereon in first instance or appeal proceedings before the national court competent to hear the revocation case in relation to such an EP (R. 118.2 RoP and Solvay v Honeywell (C-616/10) mutatis mutandis).

b. if such a competent national court holds the patent to be valid, then the decision including its orders stays in place with the condition subsequent; if the decision is final, the injunction becomes permanent.

c. if such a competent national court at first instance or on appeal holds the patent to be wholly or partially invalid to the extent the infringement is based thereon then the condition under which the decision, including its orders, was issued is not fulfilled and it falls away.

d. In the case under c. the patentee may request the Court for orders consequential on such a decision within two months of the decision of such a competent national court (R. 118.4 RoP), including a request for a stay of the proceedings until a final decision is rendered by the competent national court. 

For the people outside [our] civilisation, if infringements occur between those of the same kind, they will be judged by their customary law. If they are of different kinds, then the law [of our empire] shall be applied.
諸化外人, 同類自相犯者, 各依本俗法; 異類相犯者, 以法律論

There has long been a debate of whether this is a true conflicts rule, much of which rests on how broadly to define what conflict of laws actually is and presupposes (for earlier discussion see, e.g. Qingkun Xu, The Codification of Conflicts Law in China: A Long Way to Go, 65 Am. J. Comp. L. 919, 925-6 (2017) with references).  Thảo Anh Hoàng (Huế University, Vietnam), in a new article, sides with those who view this as a true conflict of laws rule and also discusses its reception and application in Vietnam and elsewhere in Asia. (Thảo Anh Hoàng, Early conflict-of-laws rules: Vietnam’s Lê Code (1483) in East Asian and global contexts, 14 Comp. Leg. Hist. 29–54(2026). In addition, she  provides a fascinating and enlightening discussion of the risks of applying modern concepts to ancient phenomena that is instructive to everyone interested in private international law beyond its black letters. Based on parts of her doctoral thesis currently being written at Montpellier under the supervision of Carine Becharef Jallamion, the article is a tribute to both the productive potential of comparison beyond Europe and North America, and the promising young researchers from Asia.

Thảo Anh Hoàng, Early conflict-of-laws rules: Vietnam’s Lê Code (1483) in East Asian and global contexts, 14 Comp. Leg. Hist. 29–54 (2026).

In 2020, China began asserting judicial authority in ways that encroached upon the legal sovereignty of other jurisdictions around the world, including the United States. The front line of this incursion was an unprecedented wave of “anti-suit injunctions” issued by Chinese courts: judicial orders preventing non-Chinese litigants from suing, or continuing to sue, in other jurisdictions. Many scholars appear to regard these injunctions as reasonable, legitimate tools to protect the integrity of Chinese adjudication. Even those few critics who have raised concerns tend to frame such injunctions as unique features of transnational patent litigation in the telecom sector.

This Article argues that the wave of anti-suit injunctions should be understood, instead, as both the starting point and a crucial element of China’s grand strategy of jurisdictional maximalism: that is, the aggressive expansion of control by Chinese courts over litigation implicating China’s overseas interests. This strategy extends beyond critical patents in the telecom sector to embrace a broader set of international commercial disputes. Drawing on a review of Chinese judicial opinions, official statements, and trends in legal doctrine—most of which are unavailable in English translation—the Article reveals the scale of the emerging jurisdictional paradigm.

The Article also draws out the practical implications, for courts and firms outside China, of seeing jurisdictional maximalism clearly. Above all, non-Chinese courts are justified in taking defensive measures to protect their own jurisdiction. Such measures could include the issuance of “anti-anti-suit injunctions” that prohibit parties from seeking anti-suit injunctions from Chinese courts. Moreover, non-Chinese firms should appreciate the heightened litigation risk presented by the new maximalist program and request that foreign courts decline to recognize selective Chinese judgments.

As the author notes within the body of the paper, the WTO arbitration panel last year ruled against China's ASI policy, though he argues that it "did not categorically preclude the issuance of ASIs in FRAND cases"; and the paper discusses other issues as well, including Chinese courts' determinations of global FRAND royalties and Chinese antitrust enforcement. I might suggest reading the paper in conjunction with the recently-published Regulations of the People's Republic of China on Countering Improper Extraterritorial Jurisdiction by Foreign States, which state, inter alia, both that China reserves the right to take measures to counteract improper extraterritorial jurisdiction undertaken by other states (article 3), and “to exercise extraterritorial jurisdiction over acts having an appropriation connection with China” (article 4).  These regulations which have been noted in several other sources (and are available in translation from China Law Translate here, though I am using a machine translation myself), but I may have more to say about them soon.

More information can be found on the conference website.

The facts of the case (which was given the entirely fictitious name Idzinski) are eerily similar to those of the Court’s 2021 decision in Case C-800/19 Mittelbayrischer Verlag. Just like in that earlier case, they involved a claim by Polish claimants against a German media outlet regarding the correction of, and damages for, the publication of content that allegedly violated their personality rights, including their national dignity. Only two elements of the facts were different: first, the content complained of was broadcasted on television, in addition to being published online; second, the claimants were (1) a private person who was part of a Polish military unit during World War II, which the German broadcaster had allegedly portrayed as ‘anti-Semitic and nationalistic and as having collaborated with the Nazis in the Holocaust’, and (2) an association bringing together members of that unit.

After two decisions against the defendants (to varying degrees), the Polish Supreme Court had submitted two questions relating to the international jurisdiction of the Polish courts.

Centre-of-Interests Jurisdiction

First, the court wanted to know whether the claimants could rely on Art 7(2) Brussels Ia in the interpretation developed by the CJEU in eDate to establish the (full) jurisdiction of the Polish courts as the courts of the claimants’ centre of interests, even with regard to the content broadcasted on television and even though neither of the claimants had been named in the broadcast.

Dismissing the claimants’ argument that any distinction between online content and a TV broadcast would be largely meaningless given how much the lines between the two formats have blurred, the CJEU reaffirms the narrow scope of the centre of interests criterion (see already eDate, [48]), which remains only available with regard to online content:

[44] That said, the television broadcast of audiovisual content in several Member States must be distinguished from the dissemination of such content on the internet. The placing online of content on a website is to be distinguished, generally, from the regionalised distribution of media in that it is intended, in principle, to ensure the ubiquity of that content. That content may be consulted instantly by an unlimited number of users throughout the world, irrespective of any intention on the part of the person who placed it as regards its consultation beyond that person’s Member State of establishment and outside of that person’s control […].

[45] Those considerations do not apply to the broadcasting of audiovisual content on television. Such broadcasting is not, in principle, available instantly and worldwide, but is regionalised, limited to the geographical area in which the television signal is received.

Regarding the fact that neither of the two claimants had been mentioned by name in the broadcast in question, which could be seen as falling short of the requirement for centre-of-interests jurisdiction developed in Mittelbayrischer Verlag, namely that the content complained of must containt ‘objective and verifiable elements which make it possible to identify, directly or indirectly, [the claimant] as an individual’, the CJEU draws a distinction between the two claimants. The first claimant did not pass the threshold of identifiability as the broadcast

[54] […] does not make it possible to identify individually the applicants in the main proceedings inasmuch as it is a work of fiction which recounts the conduct of a group of soldiers – members of unit X – without it being possible to ascertain the true identity of the members depicted in the series.

The second claimant, however, whose members were all part of that group of soldiers, passed the test and could thus bring a claim at its centre of interests, as far as the online publication of the series is concerned.

Mosaic Jurisdiction

As a second question, the referring court also inquired (again – see also Cases C-194/16 Bolagsupplysningen and C-251/20 Gtflix Tv) about the extent to which jurisdiction could be based on the mosaic approach to Art. 7(2) Brussels Ia. Indeed, for all claims of the first claimant as well as for the claims of the second claimant regarding the TV broadcast, jurisdiction could only be based on the fact that the content had been made available in Poland, which traditionally only creates jurisdiction for a proportion of the overall harm. In Bolagsupplysningen, the CJEU had essentially restricted this type of jurisdiction to damage awards.

In Idzinski, the CJEU simply reiterates its earlier decisions (see [63]). In particular, it confirms that mosaic jurisdiction remains unavailable for any kind of injunction requiring the defendant to display specific information before the series (both online and on TV) – a remedy, of course, with limited chance of being enforced in Germany anyway (for reasons explained here).

Conclusion

Ultimately, the CJEU simply reaffirms its previous case law. While any revirement de justice in that area would have been highly surprising, especially after the decision in Gtflix Tv, the decision may well be seen as another indication that the area is ripe for legal reform.

The University of Coimbra Institute for Legal Research (UCILeR), in collaboration with the Associação de Estudos Europeus de Coimbra (AEEC – Coimbra Association of European Studies), is organizing the International Symposium “Crossing Dialogues, Disciplines and Borders: How far can Private International Law go?”, to be held on 9 and 10 October 2026 at the Colégio da Trindade, Coimbra, Portugal.

Organised by Dulce Lopes and Afonso Patrão , the event brings together leading scholars, early-career researchers, and practitioners to debate the evolving role and limits of Private International Law (PIL) in novel situations that increasingly challenge its traditional scope.

About the Symposium

Private International Law is undergoing a period of deep transformation. The boundaries between substantive and procedural law have become more fluid and porous; fundamental rights and freedoms permeate classical conflict-of-laws reasoning; and adjacent disciplines — constitutional law, human rights law, immigration law, and register law — are reshaping the very foundations of PIL doctrine and methodology.

The symposium is structured around five thematic panels:

• Constitutional Law(s) and PIL — exploring the constitutionalisation of conflict-of-laws rules and comparative approaches to the interface between national constitutionalism and PIL;
• Human Rights Law(s) and PIL — examining the role of regional human rights frameworks, the recognition of same-sex unions, and the treatment of personal status in cross-border disputes;
• Immigration Law(s) and PIL — addressing unilateralist trends in migration regulation, the PIL status of migrants, and new developments in cross-border family relations;
• Procedural and Register Law(s) and PIL — covering matrimonial property regimes, gender identity and self-determination, and the human rights dimensions of cross-border litigation;
• Call for Papers session — open to contributions from scholars and researchers (see below).

Confirmed speakers include  Ilaria Viarengo (University of Milan), Stéphanie Francq (UCLouvain), Yuko Nishitani (Kyoto University), Laura Carballo Piñero (University of Vigo), Rosario Espinosa Callabuig(University of Valencia),  Guillermo Palao Moreno (University of Valencia), Gustavo Monaco (University of São Paulo), Antonia Duran Ayago (University of Salamanca), Dário Moura Vicente (University of Lisbon), Luís de Lima Pinheiro (University of Lisbon), Rui Moura Ramos (University of Coimbra), and many others.

The full program is accessible on-line: https://ucpages.uc.pt/fduc/ij/agenda-ij/crossing-dialogues-disciplines-and-borders-how-far-can-private-international-law-go/

Attendance, whether in person or online, is free of charge but subject to registration: https://ls.uc.pt/index.php/395373?lang=pt&

Call for Papers

The organising committee invites abstract submissions from scholars and practitioners wishing to present papers at the symposium. Contributions may address any of the following themes (non-exhaustive):

• The role of PIL in addressing emerging forms of personal and family status
• Intersections between PIL and Human Rights Law
• The impact of constitutionalisation on conflict-of-laws rules
• The interplay between procedural mechanisms and substantive outcomes
• The relationship between immigration law and PIL
• The relevance of register law in cross-border legal situations
• The limits of traditional PIL doctrines in atypical or innovative cases

Submission requirements:

• Abstract of no more than 250 words
• Short bio with contact details (max. 100 words)
• Submissions must be sent through the following link: https://ls.uc.pt/index.php/263595?lang=en&

Key dates:

Presentations will take place in a hybrid format on 9 October 2026. A peer-reviewed publication of the proceedings is planned following the event.

We look forward to welcoming submissions from researchers working at the intersection of PIL and the many disciplines with which it increasingly dialogues.

Earlier this week I briefly mentioned the UPC Court of Appeal’s recent decision in Kodak GmbH v. Fujifilm Corp., in regard to whether, on the facts presented, a German defendant was liable as a joint tortfeasor with a related U.K. entity under U.K. law.  (The answer was no).  The decision also addresses questions pertaining to, among other things, claim construction and the prior user defense under German law, but the most important aspect of the decision is the Court’s rather detailed statement of principles pertaining to its international jurisdiction, under the UPCA, the Brussels I bis Regulation, and the CJEU’s 2025 decision in BSH v. Eletrolux.  Here, the lower court had exercised jurisdiction over claims made against three related Kodak defendants domiciled in Germany pertaining to both the German and U.K. designations of a European Patent, and had entered permanent injunctive relief in favor of the patent owner Fujifilm.  The Court of Appeal reverses, finding that the German designation is invalid under Germany’s prior user exception, and as I mentioned the other day that the U.K. portion was not infringed by the German defendants.  On the way to reaching the latter conclusion, the Court spells out its understanding of when it is appropriate for the UPC to exercise jurisdiction over a claim for the infringement of the portion of a European Patent that pertains to a non-UPC, non-EU, non-Lugano Convention country (such as the U.K.).  Below are the introductory headnotes on this topic, which are based on paragraphs 274-291 of the decision, followed by some portions of the decision and a small amount of commentary from me.  I plan to write something up about the remaining portions next week.   

International jurisdiction

5. Art. 34 UPCA states that “Decisions of the Court shall cover, in the case of a European patent, the territory of those Contracting Member States for which the European patent has effect”. It is not meant to confine the UPC’s jurisdiction to its own territory. Art. 34 UPCA clarifies that as a rule – unless a more limited scope is requested (cf Art. 43, 76 UPCA) – decisions of the UPC shall cover the territory of all Contracting Member States where a European patent has effect.

6. There is no indication that the Contracting Member States when entering into the UPCA wished to confer a more limited jurisdiction to the UPC – confined to its own territory – in situations where the national courts would have extra-territorial jurisdiction.

7. The UPCA is expressly not limited to European patents insofar as validated for the UPC territory only. As such, European patents validated in territories outside the UPC territory is ‘matter governed by the UPCA’.

8. Art. 24(3) UPCA specifically leaves open the possibility that there is a need for the UPCA to apply national law, including that of non-contracting States. The use of ‘in particular’ makes clear that the areas of application of such foreign law is not limited to the matters referred to in the articles mentioned.

9. Where a court has jurisdiction under Article 4 Br I bis because the defendant is domiciled in its territory, as is the case in the present proceedings, the Regulation precludes that court from declining jurisdiction on the ground that a court of a non-Member State would be a more appropriate forum for the trial of the action, even if the jurisdiction of no other Member State is in issue, or the proceedings have no connecting factors to any other Member State (CJEU, judgment of 1 March 2005, Owusu, C-281/02, ECLI:EU:C:2005:120, paras 36 ‒ 46). This approach has recently been endorsed by the CJEU in BSH v Electrolux.

10. Accepting jurisdiction in the infringement action vis-à-vis a defendant domiciled in the UPC’s territory based on Art. 4 Br I bis as such cannot be considered contrary to the TRIPS Agreement.

This last headnote is interesting, in that the corresponding portion of the decision (paras. 288-291) gives short shrift to the defendants’ argument that the TRIPS Agreement precludes courts from adjudicating claims for the infringement of foreign patents (which, if it were so, would substantially undermine BSH).  Here are those paragraphs in their entirety:

Accepting jurisdiction is not incompatible with the TRIPS Agreement.

288. Kodak’s argument that this would be contrary to the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights, signed in Marrakesh, Morocco on 15 April 1994) cannot be accepted. Kodak refers to the WTO appeal in case DS611 between the EU and China, published on 21 July 2025, concerning China’s policy of granting anti-suit injunctions against SEP holders. Kodak argues that a TRIPS Member court would inevitably risk undermining the protection and enforcement of IP rights implemented by the other TRIPS Member in its territory by either (i) imposing inappropriate relief in the territory of that other Member or (ii) not granting the relief actually due in the territory of that other Member, and either way potentially preventing the proper and proportionate enforcement of patent rights in the other Member’s territory due  to res judicata issues.

289. Kodak also referred to the reasoning of the MLD in the InterDigital v Amazon proceedings (MLD 30 September 2025, UPC_CFI_936/2025), where it held that the determination of an interim licence encroaches on the patent rights of EU Member States and on the judicial sovereignty of other states.

290. These arguments must also be dismissed.

291. Accepting jurisdiction in the infringement action vis-à-vis a defendant domiciled in the UPC’s territory based on Art. 4 Br I bis as such cannot be considered contrary to the TRIPS Agreement. The CJEU has clarified in BSH v Electrolux that a court which has jurisdiction to hear an infringement action under Article 4 Br I bis does not subsequently lose that due to a later invalidity defence (para 41). Kodak is right in saying that the UK courts have taken a different approach to this, but it is the case law of the CJEU that binds the UPC, not that of the courts of the UK.  Accepting jurisdiction if and when conferred on it by Article 4 Br I bis, must be distinguished from how this jurisdiction is subsequently exercised by the Court in view of all the circumstances of the case.

The decision does not mention the EU’s other, pending, action against China, which argues that China’s practice of establishing global FRAND royalties violates Paris Convention article 4bis as incorporated into TRIPS (see here).  Nevertheless, as I will be discussing in my pending essay on extraterritoriality and IP rights, I think the UPC Court of Appeal is correct on this issue—as a general matter, the Paris Convention and TRIPS do not preclude courts of member states from adjudicating claims for the infringement of foreign patent rights—though for now I remain open to the possibility that there may an argument against asserting jurisdiction to establish global FRAND royalties on an “as-applied” basis (that is, where doing so is not sufficiently justified on the facts).  More to come on this in due time.

The Procedural Law Unit is a research unit within the School of Law at the University of Nicosia, focusing on civil procedure, private international law, and broader developments in judicial process and court reform. Each year, the Unit hosts its Annual Courts and Justice Conference, which brings together academics, practitioners, judges, and policymakers to discuss contemporary issues in procedural law and justice systems.

This year’s conference, the Annual Courts and Justice Conference 2026, is themed “The Algorithmic Courtroom: Trust, Accountability, and the Future of Justice”, and will examine the implications of artificial intelligence in adjudication and court processes.

Section 271(b) of the U.S. Patent Act states that “[w]hoever actively induces infringement of a patent shall be liable as an infringer.”  Earlier this month, the U.S. Supreme Court issued its decision in Hikma v. Amarin, a case that elaborates on what it means to induce an act of patent infringement under U.S. law.  As summarized by Justice Jackson in her unanimous opinion in Hikma, previous case law has established that a plaintiff asserting a claim under § 271(b) must prove (1) that there was “direct infringement by a third party”; (2) that the defendant knew that “the induced acts constitute patent infringement”; and (3) that the defendant took “active steps . . . to encourage direct infringement.”  Hikma, slip op. at 4-5 (internal citations omitted).  In this specific case, Hikma had obtained authorization from the U.S. Food and Drug Administration (FDA) to market a generic drug, subject to a carve-out for Amirin’s patented method of using the drug “to reduce cardiovascular risk in hypertriglyceridemia patients who already take statins” (id. at 5).  Hikma then marketed the drug with a so-called “skinny label” that included only the indication for a different use of the drug, but which otherwise (in accordance with FDA requirements) was identical to Amarin’s label.  Himan also described its product as “generic” Vascepa (the brand-name drug) in press releases, and its website “listed the drug’s therapeutic category as ‘[h]ypertriglyceridemia’, a category that includes but is broader than” the unpatented method of use (id. at 6).  The Federal Circuit held that this conduct was sufficient to sustain a finding of inducement, because it was “at least plausible that a physician could read the label, website, and press releases ‘as an instruction or encouragement to prescribe’” the generic drug for any approved use, including the use that still remained under patent.  The Supreme Court reversed, however, holding that a defendant can be liable for inducement only if it expressly or implicitly provides clear and affirmative encouragement to infringe.  It is not enough that it may be “plausible” or “possible” that third parties might read the defendant’s statements in such a way that will cause them to infringe; for liability to attach, the statute requires active, not passive, inducement.  See id. at 8-12.

The reversal was not surprising, especially in view of the Court’s recent restrictive reading of indirect infringement in the context of copyright law in Cox v. Sony, also decided this term; and in my view the Hikma decision is correct as a matter of policy as well.  For purposes of this blog, however, I want to highlight a couple of remedies-related questions pertaining to induced infringement that may deserve further attention.

First, there is the question of how damages should be assessed when a defendant is found liable for induced (or contributory) infringement.  To my knowledge, the late Dmitri Karshtedt’s article Damages for Indirect Patent Infringement, 91 Wash. U. L. Rev. 911 (2014), previously noted on this blog here, remains the leading piece addressing the conflicting case law on whether royalties for induced infringement should be limited to “proven, enumerated acts of direct infringement of the asserted patents (‘the atomistic approach’),” or instead whether “the extent of directly infringing use of the patent should be viewed as one of many pieces of evidence for measuring the extent of damages (‘the evidentiary approach’).”  Professor Karshtedt argued in favor of the latter standard, noting inter alia that, but for the infringement, practical evidentiary considerations might motivate the hypothetical bargainers to agree, ex ante, to a royalty that depends on estimates of third parties’ direct use of the patented technology, rather than atomistic, ex post calculation of such use.  I am inclined to think he was right, for reasons Norman Siebrasse and I discussed in our New Framework article in evaluating Federal Circuit cases such as Hanson v. Alpine Valley Ski Area (a case Professor Karshtedt cited with approval in his article as well).  But given the renewed focus on matters relating to indirect infringement, I would like to give the matter some more thought over the coming weeks, and may have more to say about it then.  

Second, a question that I am planning to address in my current paper on extraterritoriality is the following.  Suppose that an entity outside the U.S. induces an entity within the U.S. to infringe a U.S. patent, and that the patentee wants to sue the inducer for damages.  The Federal Circuit has held on more than one occasion that an extraterritorial act that induces the domestic infringement of a U.S. patent is actionable under U.S. law, notwithstanding the general presumption against extraterritorial application of U.S. law.  The court has yet to address, however, whether this rule is consistent with the Supreme Court’s WesternGeco v. ION decision, under which (absent a clear indication that Congress intended to displace the presumption against extraterritoriality) a court should consider whether the “conduct relevant to the focus” of the statutory provision at issue is domestic conduct.  Here—though I am still thinking through the issue—my initial take is that it seems more natural to think of the “focus” of § 271(b), and conduct relevant to that focus, as the inducing act, rather than the direct infringement.  But if that is right, then it would seem to follow that extraterritorial inducement is not actionable after all, notwithstanding the Federal Circuit case law to the contrary.  See Robert H. Stier, Jr., Extraterritoriality and the Active Inducement of Infringement, 19 UIC 204 (2024) (essentially making this argument).  And yet this result seems kind of odd.  In WesternGeco, although the infringing conduct was domestic (the act of supplying a component from the United States), the sales the plaintiff lost were foreign; nevertheless, because the conduct relevant to the focus was the domestic act of supplying components, the plaintiff could recover the profits it lost on those sales outside the U.S.  (I happen to think this was the correct outcome, for reasons I have explained on numerous occasions elsewhere, but I also can understand how someone might reach the opposite conclusion.)  The hypothetical with which I began this paragraph can be thought of as the mirror image of WesternGeco, in that the financial impact, if any, would be domestic, while the relevant conduct would be foreign activity that had (and was intended to have) effects within the United States; but if the conduct relevant to the focus of § 271(b) is that foreign conduct, then those effects might not be sufficient to render the foreign actor liable under U.S. law.  (Of course, the patentee could, in principle, seek to recover from the domestic direct infringer(s); but that is not always a practical option, which is precisely why indirect liability exists.)  This thought experiment makes me wonder whether, in such a case, excluding the foreign actor from liability would amount to an overly wooden interpretation of WesternGeco.  One way to avoid such an interpretation would be to consider the inducing act and the direct infringement to be coequal focuses of § 271(b), though I wonder whether that would be a plausible extension of the Supreme Court’s current extraterritoriality jurisprudence.

The preceding analysis also calls to mind the UPC Court of Appeal’s recent decision, also handed down while I was away earlier this month, in Kodak GmbH v. Fujifilm Corp.  I should probably blog about this decision at length sometime soon, but for now I will note only that one of the questions presented was whether the UPC could find the German defendant Kodak Graphic Communications GmbH liable for infringing the U.K. portion of the European Patent at issue.  Under the CJEU’s 2025 decision in BSH v. Electrolux, the Court holds, the lower court had jurisdiction to consider this issue—but under U.K. substantive law, there could be no liability unless the German defendant was a joint tortfeasor with the relevant (non-party) U.K. entity, Kodak Ltd.  For this to be the case, the Court of Appeal states:

Under UK law, merely supplying outside the jurisdiction goods to a party in the UK who later sells them within the jurisdiction is not enough for joint tortfeasorship, even if the supplier knows his customer intends so to sell in the UK (Generics v Lundbeck [2006] EWCA Civ 1261, para. 25). As Fujifilm acknowledges, joint tortfeasorship arises when multiple entities jointly commit a tort by acting pursuant to a common design.

. . . [E]ven though liability for patent infringement is strict and does not require any awareness of its unlawfulness, for a person to be liable as a joint tortfeasor it is necessary to show (1) that he had procured the company to infringe or been joined in common design with the company; and (2) knew of the essential facts which make the act done wrongful (because a person cannot be allowed to escape liability by relying on ignorance of the law it, knowledge of patent infringement cannot be required). As such, knowledge of the existence of the UK designation of the Patent and that the attacked embodiments disclose all the features of the claim(s) of the Patent would be required. . . . [I]t is not evident – and Fujifilm has not shown – that such knowledge actually existed with any of the Kodak companies prior to Fujifilm’s allegation that the attacked embodiment infringes the UK designation of the Patent (paras. 326-27).

For these reasons, among others, the lower court erred in granting an injunction against the German defendants with respect to sales within the U.K.

Assuming that the above interpretation of U.K. substantive law is accurate (which it appears to be, based upon the cited cases), the standards for indirect liability under U.K. and U.S. law post-Hikma seem not so far apart.  Moreover, if I am understanding correctly, in a case (unlike the present one) in which the prerequisites for liability under U.K. substantive law were present neither the UPC nor the U.K. would have a problem in finding a German entity liable for inducing a U.K. entity to infringe a U.K. patent within the U.K.  In this respect, then, the UPC and U.K. case law would seem to align with the Federal Circuit’s current understanding of § 271(b) of the U.S. Patent Act.  Whether that current understanding itself aligns with WesternGeco is nevertheless unclear, though as suggested above perhaps the “conduct relevant to the focus” test should be applied with some degree of flexibility to the tort of induced infringement, in view of the potentially substantial domestic effects of foreign inducement.  

If readers have any thoughts they would like to share on these issues, please let me know. 

The main features of the Act are:

• it inserts a new chapter in the Judicial Code on the “Protection of Persons involved in Public Debate against Manifestly Unfounded Claims or Abuse of Procure” (Part IV, Book IV, new Chapter XXVII);
• it allows the court to, upon request by the defendant or of its own motion, oblige the plaintiff to provide security for costs in the case of a SLAPP;
• it provides for early dismissal of a SLAPP (at any time during the procedure);
• it makes such early dismissal possible at the introductory session or at a speedy date;
• it places the burden of proof on the plaintiff to show that the claim against public participation is not manifestly unfounded;
• it inserts an extra basis of jurisdiction in the Private International Law Code (echoed in the Judicial Code) to allow persons residing in Belgium who were subjected to a SLAPP outside the EU to bring a claim for damages and costs at the place of their residence in Belgium (new Art. 96/1);
• it adds a ground for refusal of judgments from States outside the EU if the judgment was based on a procedure that falls in the definition of a SLAPP (Art. 25 §1, 10°);
• it reaffirms the role of the Belgian Federal Institute for Human Rights (IFDH / FIRM) as the central contact point for SLAPP cases. This institute can intervene in cases by simple letter to the registrar of the court.

Despite earlier discussions about the matter, the Act is limited to civil proceedings, and not extended to criminal proceedings, which the IFDM / FIRM regrets.

The new extensive Volume Status and Family Relationships in Private International Law was just published by Edward Elgar Publishing.

Edited by Silvia Marino (University of Insubria, Como), Anna Wysocka-Bar (Jagiellonian University, Kraków) and Javier Carrascosa González (University of Murcia), the volume, builds on the presentations delivered at the 2024 EAPIL Winter School, held in Como in February 2024. It is the second book in the European Association of Private International Law series.

The chapters discuss current and future challenges and issues in the field of personal and family status in European private international law.

Opened by a contribution by Camelia Toader and Ioan-Luca Vlad on the development of the competence of the European private international law in the field, the book includes two chapters on the relationships between human rights and cross-border families, considered also in the frame on the European Convention of Human Rights (written by Paula Poretti and Satu Heikkilä). The following contributions focus on specific sensitive status, whose recognition and circulation risk being impaired, such as reassignment of sex assigned at birth (Anna Wysocka-Bar) and vulnerable adults (Katja Karjalainen). A particular attention is devoted to the status of the children in cross-border situations, such as children born following an international surrogacy agreement (Laura Carpaneto), parenthood (Cristina González Beilfuss), adoption (Chiara Ragni), international child abduction (Nadia Rusinova). An overview on the methods of recognition and acceptance of civil status is also offered (Etienne Pataut). Finally, the volume focuses on cross-border divorces (Máire Ní Shúilleabháin) and on the relevance of tort in family life (Nadia Rusinova)

The blurb reads as follows:

This timely book examines the personal and family status of the natural person in cross-border situations, within the framework of the fundamental rights. Featuring eminent scholars in private international law and internationally known European judges and practitioners, the book includes critical analysis of key topics and case studies. Authors adopt both a theoretical and practical perspective to assess the emerging challenges facing transnational families, from evaluating human rights in cross-border family situations to detailing different kinds of status and their related challenges. They address topics including the recognition of rainbow families and gender identity, the parent–child relationship and cross-border recognition of international and foreign adoptions. Presenting an in-depth analysis of ongoing issues and developments, this book strengthens understanding and research of cross-border family status in Europe.

The table of contents can be accessed here. The book may be purchased or accessed online here.

I. Introduction

Sometimes, reading court decisions leaves a strange sense of confusion, especially when the decision rendered not only contradicts a well-established line of case law, but also when the court, in the very same decision, reveals internal contradictions. Several months ago, I critically discussed on this blog a rather unusual decision of the Egyptian Supreme Court (محكمة النقض/maḥkamat an-naqḍ), in which the enforcement of a Canadian judgment was denied on the ground that reciprocity had not been established with Canada. In my comments on that decision, I expressed “significant concerns” regarding the incoherent manner in which reciprocity was addressed by the Supreme Court.

Well, surprises never end, and reciprocity strikes back in a new case, with an even more puzzling effect, as the shift signalled in the previous decision appears to be confirmed in the case commented on here. This new position of the Supreme Court is hardly reassuring. The manner in which the Court addressed such a controversial issue suggests a troubling move towards an increasingly stringent and confusing approach, which consists in affirming that the establishment of reciprocity does not depend on the existence of a treaty with the rendering State on the one hand, while nevertheless denying reciprocity on that very ground on the other.

II. The Case

The case concerns an action brought by X (the judgment creditor) seeking the enforcement in Egypt of an American judgment rendered in its favor by a California court, ordering Y (the judgment debtor) to pay a certain sum of money, together with interest, costs, and attorneys’ fees. The court of first instance granted the application and declared the Californian judgment enforceable in Egypt, with the exception of the portion awarding interest at a rate of 10%. That decision was subsequently upheld on appeal.

Dissatisfied with the outcome, Y lodged an appeal before the Egyptian Supreme Court arguing that the Californian judgment had been declared enforceable without establishing the existence of legislation in the rendering State allowing the enforcement of Egyptian judgments, as required by the principle of legislative reciprocity (مبدأ التبادل التشريعي/mabdaʾ at-tabādul at-tashrīʿī) and actual reciprocal treatment (المعاملة الفعلية بالمثل/al-muʿāmala al-mithliyya bil-mithl) between the two States with respect to the enforcement of judgments, in accordance with to Article 296 of the Egyptian Code of Civil and Commercial Procedure (ECCCP)^(*).

^(*) Article 296 reads as follows:

Foreign judgments and decisions may be declared enforceable under the same conditions as those laid down by the law of the rendering State for the enforcement therein of Egyptian judgments and decisions.

III. The Ruling

In its decision of 20 January 2026, the Court admitted the appeal, ruling as follows (a detailed summary with modifications):

First, the Court recalled – as is usually the case – the general applicable framework.

It noted that, pursuant to Article 296 of the ECCCP, the legislature has adopted the principle of reciprocity or mutual treatment (مبدأ المعاملة بالمثل أو التبادل / mabdaʾ al-muʿāmala bil-mithl aw at-tabādul), meaning that foreign judgments shall be treated in Egypt in the same way as Egyptian judgments are treated in the rendering State. In this respect, the legislature has only required legislative reciprocity (التبادل التشريعي / at-tabādul at-tashrīʿī), as opposed to diplomatic reciprocity (التبادل الدبلوماسي / at-tabādul ad-diblūmāsī), which is established by a treaty or convention (emphasis added).

The Court further recalled that it is required, courts are required to verify ex officio that the condition of legislative reciprocity is satisfied […].

Notwithstanding this premise, the Court went on to censure the lower court’s reasoning, considering that, in the present case, the court of the appealed decision had declared enforceable the Californian judgment after finding,  – by reference to Articles 1713 and 1714 of the California Code of Civil Procedure, that mutual legislative treatment [legislative reciprocity (التبادل التشريعي / at-tabādul at-tashrīʿī)] was sufficiently established to satisfy the reciprocity requirement (شرط المعاملة بالمثل / sharṭ al-mu‘āmala bil-mithl) between Egypt and the State of California.

However, according to the Supreme Court, by deciding as it did without determining whether any convention exists between Egypt and the United States of America concerning the enforcement of judgments providing for reciprocity or mutual treatment, the lower court failed to provide a legal basis for its decision under Article 296 of the ECCCP (emphasis added).

IV. Comments

To my knowledge, this is the second decision in which a foreign judgment was refused enforcement in Egypt solely on the basis of a lack of reciprocity (on the earlier case, see my comments here). In both cases, the Supreme Court ruled almost exactly in the same manner and quashed the lower courts’ decisions admitting reciprocity with the rendering State on the ground that the judges failed to show whether there exists a convention between Egypt and the rendering State dealing with the enforcement of judgments that embodies the principle of reciprocity. This position is hardly consistent with the principle affirmed by the Court according to which what matters is legislative reciprocity, not diplomatic reciprocity established by treaty or convention. The comments made on the previous case regarding this aspect are therefore fully applicable here.

What is particularly remarkable, however, is the position taken by the lower courts, which appears to be fully in line with the traditional approach of the Egyptian Supreme Court. Adhering to the principle of legislative reciprocity as traditionally developed (on this practice, see my comments here), the lower courts seem to have concluded that reciprocity existed with the State of California after comparing the enforcement requirements applicable there with those applicable in Egypt. This point is important, as it also shows that, in the view of the lower courts, where judgments emanate from federal States such as the United States, reciprocity should be assessed by reference to the particular State in which the judgment was rendered. The Supreme Court, by contrast, appears to have rejected this approach, placing decisive weight on the existence of a convention between Egypt and the United States.

In any event, the recent developments concerning reciprocity in two successive cases rendered by different panels of the Supreme Court in Egypt are indicative of a shift away from a principle of reciprocity that requires a comparative analysis of the enforcement requirements under the law of the State of origin and under Egyptian law (legislative reciprocity), towards an approach that makes the existence of an international convention a prerequisite for its establishment. This new approach raises the threshold against the enforcement of foreign judgments to a considerable degree, as it would be sufficient for the judgment debtor to argue that reciprocity is not established whenever there is no treaty with the rendering State, bearing in mind that Egypt has concluded a little over 20 conventions, mostly with Arab countries with which it has already concluded regional conventions, and only around 10 with non-Arab countries, including some EU Member States (Germany, Romania, Italy, France, Cyprus, Hungary, Poland) as well as Turkey, Russia, and China. Should such a development be confirmed in future cases, this would mean that judgments rendered in roughly 88% of countries worldwide would be denied enforcement in Egypt.

This backward development stands in striking contrast to recent trends in comparative law, notably in China, where a considered shift has taken place from a traditionally restrictive approach (on this traditional approach, see my comments here), towards a more moderate approach that places emphasis on de jure reciprocity, presumptive reciprocity, and other forms that do not necessarily depend on the existence of a formally concluded treaty between China and the rendering State (see the illustrative cases discussed on this blog here and here). A comparatively more liberal approach has also been followed in Tunisia, where Tunisian courts now consider that, in the absence of an international convention, reciprocity must be presumed and that it is for the party contesting this presumption to provide evidence of its non-existence. (for details, see  Béligh Elbalti, “La réciprocité en matière d’exequatur: Quoi de nouveau? Observations sous l’arrêt de la Cour de cassation n° 6608 du 13 mars 2014” Arab Law Quarterly (2025) online-first publication).

The Egyptian Supreme Court would do well to draw lessons from such comparative developments and reconsider both its position and the negative signal this sends; otherwise, the consequences may prove drastic for holders of Egyptian judgments, which may be denied recognition and enforcement in States requiring reciprocity.

(※) Related posts on this blog on the recognition and enforcement of foreign judgments in Egypt:

• Reciprocity and the Enforcement of Foreign Judgments in Egypt – A Critical Assessment of a Recent Supreme Court Decision
• Enforcing Foreign Judgments in Egypt: A Critical Examination of Two Recent Egyptian Supreme Court Cases
• Egyptian Supreme Court on the Enforcement of Foreign Judgments – Special Focus on the Service Requirement

This post was kindly prepared by Dr. Meng Yu, lecturer at China University of Political Science and Law, and co-founder of China Justice Observer.

[ABSTRACT]

Recent Australian case law clarifies that the “double interest” mechanism in the People’s Republic of China (hereafter ‘PRC’) monetary judgments functions as a compensatory post-judgment interest framework rather than an unenforceable penalty. This consolidates Australia’s position as a highly attractive and creditor-friendly forum for enforcing Chinese judgments. See Zhengzhou Lvdu Real Estate Group Co v Shu [2024] NSWSC 58 (6 February 2024), Fu v Pang [2025] VSC 597 (16 September 2025), and Shanghai Chenggong Industrial Co Ltd v Zhihua Chen [2025] NSWSC 1112 (27 October 2025).

Key takeaways:

• Australian courts have astutely recognized that PRC “double interest” does not actually double the contractual rate, but operates as an additional statutory post-judgment rate (0.0175% per day) to compensate for delayed performance.
• Across three recent decisions, Australian courts in New South Wales and Victoria firmly ruled that Article 264 interest under China’s Civil Procedure Law is not penal, as it aims to compensate rather than punish, and it vindicates a private right and lacks a state-enforced punitive purpose.
• The willingness to enforce this Article 264 interest mechanism was significantly enhanced by its functional equivalence to Australia’s own post-judgment interest rules under the UCPR.

In recent decades, Australia has increasingly become a top creditor-friendly jurisdiction for PRC judgment creditors. In just two years (2024-2025), six Chinese judgments have been recognized and enforced by Australian courts,[i] mainly in two states – New South Wales and Victoria.

Like in other common jurisdictions, as previously reported, the grounds that judgment debtors frequently use in challenging such recognition and enforcement in Australia are denial of procedural fairness and natural justice, often arising from the service of process in Chinese court proceedings. See Zhou v Jing [2023] NSWSC 214 (procedural fairness); Yin v Wu [2023] VSCA 130 (natural justice).

Related Posts:

• A Chinese Judgment Denied Enforcement by Court of NSW Australia, Due to Defective Service by Post?
• A Chinese Judgment Denied Enforcement in Australia, As “Public Announcement” against Natural Justice?

More interestingly, Australian courts have been dealing with a newish defense in a series of three recent cases – Zhengzhou Lvdu Real Estate Group Co v Shu [2024] NSWSC 58 (6 February 2024), Fu v Pang [2025] VSC 597 (16 September 2025), and Shanghai Chenggong Industrial Co Ltd v Zhihua Chen [2025] NSWSC 1112 (27 October 2025). The common issue at heart is whether the “double interest”, an element commonly seen in PRC monetary judgments, is penal, and hence renders the judgments wholly or partially unenforceable in Australia.

As misleading as the term “double interest” may appear, the way Australian courts endeavor to understand a term absolutely unique in a foreign country is admirable. The courts not only correctly pointed out that “double interest” is a misnomer, as it has nothing to do with “double”, but also concluded that such “double interest” is not penal in nature.

For the avoidance of doubt, the so-called “double interest” refers to the double part debt interest of the “Article 264 interest” (also known as “double part debt interest of delayed performance interest” (/ chiyan lvxing lixi de jiabei bufen zhaiwu liyi), the interests payable under Article 264 of China’s 2023 Civil Procedure Law (CPL) (formerly numbered Article 253 of 2017 CPL, Article 260 of 2021 CPL), which applies in in circumstances where a judgment debtor fails to pay the judgment debt within the period as specified in a judgment.

The method to calculate the Article 264 interest is governed by the 2014 Interpretation by China’s Supreme People’s Court (SPC) on Several Issues concerning the Applicable Law for Calculating the Interest of Debt on Delayed Performance in Enforcement Procedures” (hereinafter the “SPC Interpretation”).[ii] Article 1 of the SPC Interpretation provides that Article 264 interest – delayed performance interest (the debt interest during the period of delayed performance)- is composed of the ‘general debt interest’ and the ‘double part debt interest’, the former (if any) is specified by the judgment, and the latter is calculated via the formula as follows: Double part of debt interest = the outstanding monetary debt of the debtor other than general debt interest specified by effective legal document x 0.00175 per day x delayed performance period.

“Double Interest” Not Double

The term “double interest” is “something of a misnomer”, indicated the Supreme Court of New South Wales (the “NSW Supreme Court”) in Zhengzhou Lvdu Real Estate Group Co v Shu, a case where a judgment of Zhengzhou Intermediate People’s Court of Henan Province (hereinafter the “Zhengzhou Judgment”) for RMB 318,827,295.13 was ruled enforceable.

Like a koala bear is not a bear, the double interest is not double. By nature, it is an “additional” interest, in addition to general debt interest specified by judgment (if any), when the judgment debt was not paid within the period specified in the judgment.

In the Zhengzhou Judgment, the judgment debtors – both the borrower and the guarantor- were found liable for the all the payment obligations, i.e. 1) to repay to the lender (judgment creditor) the principal of the loan in the amount of CNY 170 million and its interest (based on principal of CNY 170 million, calculated on an annual interest rate of 12% for the period between 12 June 2019 and 11 May 2020; and calculated on an annual interest of 18% for the period from 12 May 2020 until the date when the debt is fully repaid) within ten days after this judgment takes effect; and 2) to pay the Article 264 interest, if the payment obligation is not performed within the period specified in this judgment, which is “within ten days after this judgment took effect on 20 September, 2020” (at [42]-[43]).

Clearly, Article 264 (formerly Article 253 of 2017 CPL) does not double the interest rate provided for under the Loan Agreement (which was 12% per annum from the date of the advance until the date of maturity, and then 18% per annum from the date of default until repayment). Instead, there is “double” interest only in the sense that, from the date when the judgment debt was required to be paid until the date of actual payment, there is a second interest rate applicable, in addition to the contractual interest rate of 18% which was found to apply in the Zhengzhou Judgment (at [65]).

Given the calculation method above, Article 264 Interest is calculated based on “the “outstanding monetary debt of the debtor other than general debt interest specified by effective legal document” is, in this case, the amount of the principal (CNY 170 million). The rate of Article 264 interest is a statutory rate, set at 0.0175% per day (around 6.3875% per annum). The “delayed performance period” starts from 29 September 2020 (ten days after this judgment took effect on 9 September) until repayment.

“Double Interest” Not Penal

In Zhengzhou Lvdu Real Estate Group Co v Shu, the NSW Supreme Court considered whether “Double Interest” could be regarded penal in nature, but did not reach any determination, given that “it is the Defendant who bears the burden of showing that any element of the Zhengzhou Judgment is penal in nature and that “no evidence and no submissions have been advanced to this effect” (at [68]).

Similarly, in Fu v Pang, the Victoria Supreme Court reviewed an application to enforce a Chinese judgment of Qingxiu District People’s Court of Nanning City, Guangxi Zhuang Autonomous Region, and this time, the defendant did seek to persuade the court that the double interest was penal in nature.

With detailed reasoning, however, the Victoria Supreme Court rejected the defendant’s submission and concluded it is not penal, ruling that

“there is no public interest element. The double part interest arises out of the exercise of a private right and it has no connection with the state, nor is the plaintiff here acting as a common informer. There is no basis on which it can be concluded that the payment of the extra interest component is imposed for public purposes to punish the defendant for non-compliance with the judgment, rather than being an additional compensation for the plaintiff for the detriment of being kept out of the judgment sum.” (at [30])

Just one month later, in Shanghai Chenggong Industrial Co Ltd v Zhihua Chen, where two PRC judgments were enforced, the NSW Supreme Court reached the same conclusion. In this case, the double interest is the only issue that the defendant disputed, and the court held firmly that Article 264 interest is not penal.

As the NSW Supreme Court revealed, the question at heart is the purpose and nature of Article 264 interest: “does it punish for non-compliance with Court orders, or is it more appropriately considered a legislated post-judgment interest rate?” (at [18]) The court opined the correct answer is the latter.

To start with, it is not akin to a contractual penalty by any comparison. There are also no authorities decided after Schnable v Lui [2002] NSWSC 15 that punitive damages will always be considered penal in Australian law. In other words, punitive damages are not necessarily penal.

More importantly, Article 264 interest aims “to compensate, and not to punish”, because Article 264 is triggered where there is late or deferred payment, and it is “appropriate to compensate a plaintiff for being held out of money, just the way the Uniform Civil Procedure Rules (UCPR) provides for post-judgment interest on judgment debts”. (at [31])

Comments

Not long after, by following the same stance on the “non-penal” nature of Article 264 interest in Shanghai Chenggong Industrial Co Ltd v Zhihua Chen, the same court, the NSW Supreme Court, enforced a PRC judgment of Zhangjiagang People’s Court of Jiangsu Province for RMB 24,256,223.86 and interest in Kai Yuan v Jian Hua Zhou [2025] NSWSC 1469 (5 December 2025).

By clearing the name of “double interest”, the series of recent Australian court decisions have pointed out that the double interest is not double, but additional; and its purpose is to compensate, rather than to punish.

At the end of the day, it is practically difficult to ascertain the purpose behind remedies ordered in foreign judgments. The “compensate or punish” question matters so much that taking on one side over the other can render the part containing such interest either enforceable or unenforceable. There seems to be no room for a mixed purpose, which might as well be a third way of interpretation (if taking into account the views of China’s legislature and judiciary).[iii]

Moreover, behind the “compensate or punish” question lies a further question that has yet to be fully tested: what ‘penal’ actually means in the rule against enforcement of a foreign penal law, when discussing the relevant jurisprudence regarding recognition and enforcement of foreign judgments.

One thing is clear though: when evaluating a foreign concept like PRC “double interest”, the existence of a similar domestic mechanism—such as Australia’s statutory post-judgment interest under the UCPR—makes the concept far easier for local courts to understand and accept. Conversely, courts in jurisdictions like Hong Kong, which lack such a domestic equivalent, may find it much more challenging to conceptualize and enforce.[iv]

————————————————————————-

[i] See Zhengzhou Lvdu Real Estate Group Co v Shu [2024] NSWSC 58, Fujian Rongtaiyuan Industrial Co Ltd v Zhan [2024] NSWSC 1318, Yangpu Huigu Pharmaceutical Corporation Limited v He [2025] NSWSC 28, Fu v Pang [2025] VSC 597, Shanghai Chenggong Industrial Co Ltd v Zhihua Chen [2025] NSWSC 1112, Kai Yuan v Jian Hua Zhou [2025] NSWSC 1469.

[ii] Interpretation by China’s Supreme People’s Court on Several Issues concerning the Applicable Law for Calculating the Interest of Debt on Delayed Performance in Enforcement Procedures, Fa Shi (2014) No. 8, 7 July 2014.

[iii] See Legislative Affairs Commission of the Standing Committee of the National People’s Congress (ed.), Explanation of the Civil Procedure Law of the People’s Republic of China (Beijing: Law Press China, 2^nd edition, 2012), p. 590; Civil Law Office of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress (ed.), Explanations of Articles, Legislative Rationale, and Relevant Provisions of the Civil Procedure Law of the People’s Republic of China (Beijing: Peking University Press, 2^nd edition, 2012), p. 398; and the Official from the Enforcement Bureau of the Supreme People’s Court Answers Reporters’ Questions, People’s Court Daily, 31 July 2014, available at https://www.chinacourt.cn/article/detail/2014/07/id/1354917.shtml.

[iv] See Hung Fung Enterprises Holdings Ltd v The Agricultural Bank of China [2012] HKCA 251, Foshan Nanhai Branch of Industrial and Commercial Bank of China Ltd v Foshan Ruifeng Petroleum and Chemical Fuel Co Ltd [2019] 2 HKLRD 478, Tianjin Financial Investment Services Group v Jinan Muhe Enterprise Management Co Ltd & Ors [2025] HKCFI 6182, Industrial Bank Co., Ltd., Ningbo Branch v Ningbo Baifeng Mineral Processing Co., Ltd. & Ors [2026] HKCFI 2455, and Letui (Shanghai) Cultural Communication Co., Ltd. v. Shenzhen Mega Combine Technology Co.,Ltd & Ors [2026] HKCFI 3204.

Many thanks to Boris Awa (Kigali Independent University ULK, Kigali, Rwanda) for the tip-off 

The birth of a new academic journal is always good news, especially when its stated aim is “to become one of the leading scientific publications on international law” and when it is “primarily intended as a forum for African international lawyers’ reflection and research on issues of interest to Africa.” This is precisely the ambition pursued by the newly launched African Review of International Law (ARIL) / Revue africaine de droit international (RADI), published by the African Society of International Law (AfSIL).

The inaugural issue features several very interesting contributions, not only on the practice of international law in Africa and Africa’s contribution to international law, but also on private international law. Notable contributions include:

• Giuditta Cordero-Moss, “The Legal Framework for Arbitration in Africa: Issues of Applicable Law”;
• Yuko Nishitani, “Private International Law and Child Protection from the Perspective of Africa”;
• Grégoire Jiogue, “La réception des règles de droit international privé français en Afrique noire francophone”.

Another contribution of particular relevance from a private international law perspective is by August Reinisch and Maria José Escobar Gil, “The Wealth of Regional Courts in Africa: An Outsider’s Perspective”. This piece is especially timely in light of ongoing discussions concerning the recognition and enforcement of decisions rendered by regional and international courts in Africa, and the adaptability of domestic regimes on foreign judgments to such decisions.

The full table of contents also includes contributions by Maurice Kamto, Makane Moïse Mbengue, Yves Daudet, Bing Bing Jia, Mario J. A. Oyarzábal, Namira Negm, Laurence Boisson de Chazournes, Nilüfer Oral, Linos-Alexandre Sicilianos, and Dire Tladi, covering a wide range of themes in contemporary international law.

The inaugural issue concludes with a call for papers inviting submissions, in both English and French, in the fields of public international law, private international law, and comparative law.

These contributions are intended for publication in the first regular issue, scheduled for release in the second half of 2026.

Proposed articles, case notes, and book reviews must be submitted by September 2026 via the Review’s email address: aril.info25@gmail.com.

The full table of contents, detailed information on the call for contributions (in English and French), as well as the Review’s stylistic guide (in English and French), are available in the inaugural issue.

Needless to say, African private international law scholars, as well as scholars interested in African private international law, are very warmly encouraged to take advantage of this new forum and to contribute to making it a successful one, for the benefit of all.

The seminar is organised on the occasion of the publication of European Civil Procedure, edited by Xandra Kramer, Stefaan Voet and Adriani Dori, and published by de Gruyter in 2026. The book offers a comprehensive overview of the main developments shaping civil justice, including EU instruments on jurisdiction, recognition and enforcement, service of documents, taking of evidence, and collective redress.

The seminar will be held at KU Leuven, Faculty of Law and Criminology, Tiensestraat 41, Leuven, Facultaire Raadzaal. Participation is free. Registration for in-person attendance is available by email at anne-marie.cuypers@kuleuven.be. Registration to attend online is available via Eventbrite: https://www.eventbrite.com/e/online-european-civil-procedure-seminar-tickets-1991345046640

The seminar will bring together a number of the book’s authors to reflect on and discuss various topics within the field of European civil procedure.

Programme

Thursday 25 June 2026

12.45
Welcome
Xandra Kramer, Stefaan Voet, Adriani Dori

13.00
Innovations in EU Civil Procedure: Novel Concepts, Regulatory Mechanisms and Technology
Anna Nylund [online]

13.40
Mariana after Magnitsky: How Global Sanctions and Litigation Funding Politicize Private International Law
Eduardo Silva de Freitas

14.20
Three to Tango: Lawyers Ethics in Collective Litigation with Third Party Funding
Jos Hoevenaars

15.00
Coffee break

15.30
“No Mini-Trials at the Jurisdictional Stage”: Brussels Ia and Engagement with the Merits
Geert Van Calster

16.10
CJEU Case Law on Delineating the Scope of Application Between the Insolvency and Brussels Ibis Regulations: Challenges of Uniform Interpretation
Vesna Lazic

17.00
Taking of Evidence: Cross-Border Aspects and EU Influence
Wannes Vandenbussche and Jachin Van Doninck

17.40
End of day one

Friday 26 June 2026

9.00
Simplicity is the Ultimate Sophistication
Willem Visser

9.40
Judicial Cooperation in Civil Enforcement
Patrick Gielen

10.20
The Revision of the ADR Directive 2013/11 and the Amendments in the ADR Directive 2025/2647: The use of Evidence
Emma van Gelder

11.00
Coffee break

11.20
EU law and National Civil Procedure: A Slightly Larger Area Than It First Appears.
Bart Krans

12.00
Elusive DigitalJustice@2030: Can the Promise Be Fulfilled?
Alan Uzelac [online]

12.30
Closing
Xandra Kramer, Stefaan Voet, Adriani Dori

End of day two

For further information, please contact kramer@law.eur.nl and stefaan.voet@kuleuven.be.

For practitioners, the issue is not merely doctrinal. It concerns the enforceability of outcomes and, therefore, how disputes should be structured at the drafting stage.

Under Section 13 of the Civil Procedure Code 1908, Indian courts are formally empowered to refuse enforcement where a foreign judgment is not “on the merits.” Read literally, this suggests a willingness to reassess the correctness of the decision. In most jurisdictions today, that approach has been abandoned. Refusal of enforcement is typically confined to procedural defects: jurisdiction, fraud, natural justice, or public policy, not the substance of the decision.

In practice, Indian courts have taken a far more restrained approach. They do not reopen the correctness of the foreign judgment. Instead, they ask whether the decision reflects a genuine adjudication: was there evidence, was there a real opportunity to be heard, and is the decision reasoned? In effect, what appears to be révision au fond operates as a proxy for natural justice.

The difficulty lies in how this framework is perceived externally. Courts in jurisdictions that condition enforcement on reciprocity or substantially similar standards, such as Germany, Japan, South Korea, and, increasingly, China, do not necessarily engage with the nuances of Indian case law. The statutory text continues to signal that India permits merits review. That signal alone may be sufficient to deny enforcement of Indian judgments abroad.

This gap between doctrine and practice creates a set of risks that practitioners should factor into both litigation strategy and transactional drafting.

First, forum selection cannot be approached in isolation from enforcement.
Where assets are likely to be located outside India, the portability of an Indian judgment becomes a central concern. If enforcement is anticipated in reciprocity-based jurisdictions, the choice of an Indian court may introduce avoidable uncertainty.

Second, arbitration retains a structural advantage in this context.
India’s alignment with the New York Convention and the prohibition on merits review in the enforcement of arbitral awards offers a level of predictability that litigation currently does not. Where enforcement abroad is critical, arbitration may continue to be the safer route.

Third, dispute resolution clauses should be drafted with enforcement geography in mind.
This may involve:

• Selecting a forum whose judgments are more readily enforceable in the jurisdictions where assets are located
• Considering hybrid approaches, such as arbitration with carefully chosen seats
• Avoiding assumptions that a favourable judgment in one jurisdiction will translate into effective recovery elsewhere

Fourth, expectations around default and summary judgments should be managed carefully.
Indian courts place emphasis on whether the judgment reflects a substantive evaluation of the dispute. Orders that appear purely formal or insufficiently reasoned may face resistance in India, and this in turn feeds into how Indian judgments are assessed abroad.

The broader point is that India’s REFJ framework is not out of step in practice, but it appears to be so in form. Until that dissonance is addressed, whether through legislative clarification or greater international alignment, the enforceability of Indian judgments will continue to depend as much on perception as on doctrine. The article is available open-access here.

Introduction

In May 2026, the Court of First Instance of the Astana International Financial Centre (AIFC) recognised and enforced a Swiss ICC arbitral award rendered in favour of Naftogaz against Gazprom. The award arose out of the disputes between the parties concerning the transit of Russian gas through Ukraine after the start of the war.

The decision was followed by public comments from Kazakhstan’s Minister of Justice. According to press reports, the Minister stated that the award would not be enforced in Kazakhstan because neither Gazprom nor Naftogaz were participants in the AIFC and because the dispute had no connection to the Centre. He further suggested that the AIFC should not become a “transit platform” for the enforcement of foreign decisions unrelated to its activities.

The controversy raises an interesting private international law question that extends well beyond the particular dispute between Gazprom and Naftogaz. Can the AIFC Court function as a conduit jurisdiction for the recognition of foreign arbitral awards and their subsequent enforcement in Kazakhstan, i.e. outside the AIFC?

The Jurisdictional Problem

The AIFC occupies a unique constitutional position. Established in 2018, it operates under a separate common-law framework within Kazakhstan and possesses its own court system staffed by international judges. Article 13(2) of the AIFC Constitutional Statute on the AIFC expressly provides that the AIFC Court is not part of the judicial system of the Republic of Kazakhstan.

The difficulty is that the Constitutional Statute does not expressly address whether the AIFC Court may recognise foreign arbitral awards that have no connection to the Centre.

The Court relied principally on Article 45(1) of the AIFC Arbitration Regulations, which provides that: “An arbitral award, irrespective of the State or jurisdiction in which it was made, shall be recognised as binding within the AIFC.” The Court also relied on Article 40(3) of the AIFC Court Regulations, which refers to the enforcement of “other judgments and arbitration awards”.

Whether these provisions actually confer jurisdiction to recognise foreign arbitral awards remains debatable. The AIFC Constitutional Statute itself is largely silent on the matter. The dispute therefore raises a classic question of institutional competence: can jurisdiction be inferred from subordinate regulations where the constitutional instrument neither expressly grants nor expressly excludes it?

The New York Convention Argument

One possible justification for the Court’s approach lies in Kazakhstan’s obligations under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.

The AIFC is located within the territory of Kazakhstan. Under Article 29 of the Vienna Convention on the Law of Treaties, treaties bind the entire territory of a state unless a contrary intention appears. Nothing in Kazakhstan’s ratification of the New York Convention suggests that the Convention does not apply within the territory of the AIFC.

Article III of the Convention requires contracting states to recognise foreign arbitral awards. However, the Convention itself does not allocate jurisdiction among domestic courts. It does not specify whether recognition must be sought before an ordinary state court, a specialised commercial court or a court located within a financial centre. It may therefore be argued that once Kazakhstan created the AIFC Court and granted it powers relating to arbitration, the Court became one of the institutions through which Kazakhstan fulfils its Convention obligations.

The contrary argument is equally plausible. Kazakhstan may comply fully with the Convention while reserving recognition proceedings to its ordinary courts. The Convention requires recognition; it does not dictate which court must provide it.

An Exequatur of an Exequatur?

The dispute also raises a more traditional private international law concern.

If a Swiss arbitral award is recognised by the AIFC Court and the resulting AIFC judgment is then enforced elsewhere in Kazakhstan, one might ask whether this effectively amounts to an “exequatur of an exequatur”. Scholars have long expressed reservations about attempts to circulate recognition judgments relating to arbitral awards. Such practices may circumvent the grounds for refusal contained in Article V of the New York Convention by converting an arbitral award into a court judgment before seeking enforcement elsewhere.

Whether that objection applies here depends in part on how one characterises the relationship between the AIFC and Kazakhstan. Although the AIFC forms part of Kazakhstan’s territory, it possesses a distinct legal system and separate courts. Therefore it is, properly speaking “another jurisdiction”, if not another state.

Lessons from Dubai and Abu Dhabi

The most illuminating comparison comes from the Gulf financial centres, which the AIFC openly tries to emulate.

The Dubai International Financial Centre (DIFC) Courts have long been associated with the concept of a conduit jurisdiction. Under the DIFC framework, parties have sought recognition of foreign judgments and arbitral awards before the DIFC Courts even where neither the parties nor the dispute had any connection to the DIFC. Once recognised, the resulting DIFC judgment could potentially be enforced through the ordinary Dubai courts.

The leading authorities include X1 and X2 v Y1 and Y2 and Banyan Tree Corporate Pte Ltd v Meydan Group LLC. In both cases, the DIFC Courts adopted a broad understanding of their recognition jurisdiction.

The Abu Dhabi Global Market (ADGM) followed a different path. Following legislative reforms in 2020, it became clear that the ADGM Courts could not be used as a conduit jurisdiction for the recognition of foreign judgments and arbitral awards. Abu Dhabi thus deliberately rejected a model that Dubai had largely embraced.

The AIFC now appears to stand somewhere between these two approaches. Unlike the DIFC legislation, the AIFC framework contains no clear statement granting recognition jurisdiction over foreign arbitral awards irrespective of any connection to the Centre. Unlike the ADGM legislation, however, it contains no express prohibition.

Conclusions

The Minister’s remarks announcing that the AIFC Court judgement would not be enforced in Kazakhstan may be understood as reflecting a legitimate policy concern: whether an international financial-centre court should be used to bypass ordinary domestic recognition procedures. Yet, they also concern a matter that is arguably for the courts themselves to determine. The Constitutional Statute repeatedly emphasises the independence of the AIFC Court and grants it exclusive authority to interpret AIFC law.

The broader issue therefore concerns institutional design rather than merely arbitration enforcement. If Kazakhstan does not wish the AIFC Court to function as a conduit jurisdiction, the appropriate solution may be legislative clarification. Conversely, if the AIFC is intended to replicate aspects of the DIFC model, greater certainty regarding its recognition jurisdiction would be desirable.

Facts

Jonathan Edward Allen (Father) and Petronella Gerline (Van Oosterom) Allen (Mother) were married in Colorado in 2009. Father is a United States citizen. Mother is a dual citizen of the United States and the Netherlands. Their child (R.A.A.) was born in 2015. In 2020, the family moved from Colorado to Montana.

In August 2023, after Father and Mother began having marital difficulties, Mother and R.A.A. relocated to the Netherlands. In February 2024, Mother filed a petition for divorce and custody with the District Court of Central Netherlands (Netherlands District Court).

In January 2025, Father filed a petition with the District Court of The Hague seeking the return of R.A.A. pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. This petition was denied. Although the court held that R.A.A. had been wrongfully removed from the United States, the court reasoned that the one-year automatic return period had passed and that R.A.A. had become settled in her new environment in the Netherlands. This decision was affirmed on appeal.

In September 2025, Father filed an Emergency Motion for Temporary Custody and Petition for Permanent Parenting Plan in Montana state court. That court dismissed the petition on the grounds that it lacked subject-matter jurisdiction. Specifically, it held that it lacked the power to adjudicate the dispute because Montana was no longer the “home state” of R.A.A. Father, acting pro se, appealed to the Montana Supreme Court.

Analysis

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) assigns exclusive subject-matter jurisdiction to courts located in the child’s “home state” when it comes to matters relating to child custody. The “home state” is “the state in which a child lived with a parent or a person acting as parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.” The UCCJEA specifically provides that courts “shall treat a foreign country as if it were a state of the United States” for purposes of resolving these disputes.

On the facts presented in Allen v. Allen, the Montana Supreme Court correctly held that it lacked subject-matter jurisdiction to consider Father’s emergency motion. Mother and R.A.A. relocated to the Netherlands in August 2023. Six months later—in February 2024—R.A.A.’s home state shifted to the Netherlands. The Dutch courts—not the Montana courts—now had exclusive subject-matter jurisdiction to resolve custody disputes involving R.A.A. Father did not file his motion in Montana until September 2025, which was nineteen months too late.

Conclusion

If Father had filed his suit in Montana before February 2024, he could have shown that Montana was R.A.A.’s “home state” because the child had not yet resided in the Netherlands for six months. The suit was, however, not filed until September 2025.

If Father had filed suit in the Netherlands before August 2024, he could have argued that R.A.A. should be returned to the United States pursuant to the Hague Convention on the Civil Aspects of International Child Abduction because the child had not yet resided in the Netherlands for a year. The suit was, however, not filed until January 2025.

The takeaway of Allen v. Allen is the need for speed in international child custody cases. The timelines baked into the relevant laws and treaties mandate that the left-behind parent move quickly to assert their rights. If they are slow off the mark, they be forced to litigate in foreign courts under less favorable legal rules.