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

Title: An Analysis of Free Movement Regimes Globally

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

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

GE 250/251 will be given for full attendance.

The event will be held in English.

About Guest

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

Abstract

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

I. Introduction

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

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

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

II. International Judicial Jurisdiction

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

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

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

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

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

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

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

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

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

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

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

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

8) matters of personal status where

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

9) dissolution of the marital bond where

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

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

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

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

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

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

III. Recognition and Enforcement of Foreign Judgments

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

1. Necessity of exequatur

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

2. Enforcement requirements

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

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

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

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

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

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

3. The reciprocity requirement

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

4. Instruments eligible to enforcement

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

IV. Comments

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

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

1. International jurisdiction

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

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

2. Enforcement of foreign judgments

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

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

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

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

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

V. Concluding Remarks

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

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

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

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

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

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

One group of such issues, of course, relates to standard-essential patents; among the relevant issues are whether courts can or should award global royalties, with or without consent of the parties, and whether they can or should award interim relief such as antisuit injunctions, anti-antisuit injunctions, or declarations concerning interim licenses.  In connection with antisuit injunctions, as readers are by now aware, a WTO arbitration panel last year ruled in favor of the EU's appeal from the original panel decision, in finding that China’s antisuit injunction policy violated TRIPS articles 28.1 and 28.2, read in light of article 1.1 second sentence (see my post here).  It is therefore notable that, as has been reported elsewhere, on April 1 the EU published an announcement that China had announced its withdrawal of the antisuit injunction policy at the WTO Dispute Settlement Body meeting in September.  The minutes of that meeting are available here, and the EU-China dispute is Item 2 (pages 6-9).  China expresses its agreement with the original panel opinion and its disagreement with the arbitration panel, before stating in paragraph 2.4 that the Supreme People’s Court had issued a notice on September 25 “stating that the so-called ‘ASI policy’, to the extent it ever existed, had been withdrawn and had no continuing effect upon how Chinese courts evaluated requests for anti-suit injunctions in the context of SEP litigation.”  The aforementioned EU announcement states that “[a]fter some initial technical issues were resolved, this notice is currently accessible online from outside China too” (if any readers can point me to it, I would appreciate it), but that “[g]iven the unwritten nature of China’s anti-suit injunction policy, the European Commission will continue to closely monitor the situation to ensure China’s full compliance . . .  and take further action, if necessary.”

In light of these developments, it was interesting to read an article by Yao Jianjun (former vice president of the Xi’an Intermediate People’s Court) in an issue of China Patents & Trademarks, No. 4, 2025, that recently came my way.  The article, appearing in English translation at pages 12-22, is titled Application of Anti-Suit Injunctions in SEP Disputes.  It provides an overview of Huawei v. Conversant, which was the first of five cases from 2020 in which a Chinese court (here, the SPC) granted an ASI (here, against the enforcement of an injunction granted against Huawei in Düsseldorf).  The author discusses where ASIs fit within Chinese civil procedure law, as well as the five conditions specified by the SPC for granting an ASI (“the impact of the enforcement of foreign judgments on Chinese litigation,” “the necessity of ASIs as a preservation measure,” the “balance of interests of both parties,” “the impact of ASI on the public interest,” and “international comity”) and how they played out on the facts of Huawei v. Conversant.  The author agrees with the court’s decision, though he also notes some of the limitations of ASIs, and cautions against the sequence of lawsuits being a dispositive factor (insofar as this would encourage races to the courthouse).  Apparently the article was written before the EU-China matter was completed, since the author references its existence but not its conclusion.

One thing I found interesting in the article, and which I plan to discuss in the essay I will be contributing to the edited volume I mentioned at the beginning of this post, is the author’s emphasis on the perceived need to counteract the impact of proceedings initiated in another country which, he writes, may “impair[ ] the legitimate rights and interests of the applicant,” thus requiring “a remedy . . . to the party that has suffered damage to the injunction” (pp. 14-15).   In this regard, he writes, if Conversant had applied to enforce an injunction in Germany, the result would have been that Huawei either would have exited the German market or would have settled with Conversant (at a rate, he says, that would have been 18.3 times higher than the rate determined by the Chinese first instance court); and that "such potential damage . . . may substantially harm Huawei's legitimate rights and interests" (p.18).  This framing of the issues bears some resemblance the "effects" test (as used, for example, in U.S. antitrust litigation), under which courts sometimes justify the exercise of prescriptive jurisdiction directed against extraterritorial conduct when such conduct has effects within the prescribing jurisdiction.  From an economic perspective, the application of the effects test is akin to the concept of internalizing an externality—though in this context, the twist is that the externality is caused by the foreign jurisdiction’s toleration or authorization of conduct which the domestic court would like to forbid.  Relevant to this point, a generation ago Professor Joel Trachtman wrote an intriguing paper titled Externalities and Extraterritoriality: The Law and Economics of Prescriptive Jurisdiction, in Economic Dimensions in International Law 642 (Jagdeep S. Bhandari et al. eds., 1997), in which he posits that, if we think of nations participating in a market for prescriptive jurisdiction, and of (in some cases) even having the ability to engage in some measure of Coasean bargaining, there is a range of possible options for allocating the right to prescribe.  Some allocations may be more efficient than others, under the circumstances at hand.  An unavoidable aspect of this framework, however, is determining exactly what counts or should count as a harmful externality—that is, one that causes cognizable harm, a topic that my colleague Claire Hill also has written about.  In the context of ASIs, of course, the country against which the ASI is directed (in effect though not in form, since the form of the injunction is inter partes) presumably believes that it is doing nothing wrong by entertaining a case that is lawfully before it, or by issuing an injunction against the infringement of domestic patent rights in accordance with domestic law; and indeed, if the WTO arbitration panel approach prevails, such conduct is in general privileged and does not cause cognizable harm under international law.  But one could also imagine an alternative rule under which the right to issue an ASI to prevent the perceived negative domestic effect (suffered by a domestic firm or by a domestic court) of a foreign injunction prevails over the foreign court's right to entertain a case or enter an injunction.  Determining which rule makes more sense from a policy standpoint might perhaps depend on how absolute the prohibition on ASIs is under the first approach, and how substantial the domestic effect must be under the second.  (Thinking of these issues from a slightly different angle, as I mention in a discussion of Professor Christopher Drahozal’s game theoretic approach to ASIs in my forthcoming book Wrongful Patent Assertion, in a given case reasonable minds may differ whether it is the country issuing the ASI, or the country against which the ASI is issued, that is deviating from the "comity" norm under which nations are largely left to determine their own domestic policies.)  At this stage, I'm not sure exactly where my analysis is going to lead, but this seems like an interesting problem for analysis through a law-and-econ lens; and if readers have any thoughts or suggestions, I’d be delighted to hear them.     

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

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

Background

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

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

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

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

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

Topics

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

Project Finance Structure and Arbitration

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

Investor-State Disputes Involving Project Finance

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

Damages and Financial Analysis

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

Sector-Specific Issues

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

Procedural and Practical Considerations

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

Submissions

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

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

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

Guest Editors

Submission Guidelines

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

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

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

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

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

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

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

Moderator: Prof. Dr. Bilgin Tiryakio?lu

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

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

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

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

The conference will take place on 9 and 10 April 2027 at the Ludwig Maximilian University of Munich under the title ‘Crises in PIL – Crises of PIL’, which the organizers introduce as follows:

We are living in an age of polycrisis: war and environmental destruction are forcing thousands upon thousands to flee; growing social inequality and the concentration of economic power are undermining social cohesion; political polarization and the rise of renationalization threaten the project of European integration and international cooperation. At our conference, we aim to explore the implications of these crises for private international law (PIL). What new questions do the political, social, economic, and ecological crises of our time raise for PIL? How does PIL contribute to crisis management, or, conversely, to the exacerbation of crises? And might the discipline of PIL itself be in crisis?

The keynote speech will be given by Heinz-Peter Mansel (University of Cologne).

More information can be found on the conference website.

On 4 March 2026, Guatemala deposited its instrument of acceptance of the Statute, becoming the 93^rd Member of the HCCH. More information is available here.

Conventions & Instruments

On 1 March 2026, the 2019 Judgments Convention entered into force for Albania and Montenegro. At present, 33 HCCH Members are either bound by the 2019 Judgments Convention or a Contracting Party for which the Convention has not entered into force yet (Andorra). More information is available here (for Albania) and here (for Montenegro).

On 1 March 2026, the 2005 Choice of Court Convention entered into force for Monaco. At present, 38 States and the European Union are bound by the 2005 Choice of Court Convention. More information is available here.

Meetings & Events

From 3 to 6 March 2026, the Council on General Affairs and Policy (CGAP) of the HCCH met in The Hague. The meeting was attended by 560 participants joining both in person and online. During the meeting, the Members of the HCCH reviewed progress made to date and agreed on the work programme for the year ahead, taking important decisions on work relating to possible new legislative instruments, post-Convention work, and governance matters. More information is available here.

From 9 to 11 March 2026, the Regional Workshop on Sharing Experiences on the Effective Implementation of the 1993 Adoption Convention in Africa was held in Cape Town, South Africa. More information is available here.

On 24 March 2026, the first meeting for Central Authorities on the operation of the 1965 Service, 1970 Evidence and 1980 Access to Justice Conventions was held online, hosted by the PB of the HCCH.

Publications

On 3 March 2026, the Permanent Bureau announced the publication of the HCCH 2025 Annual Report. More information is available here.

Upcoming events

Registration is open for the 14th International Forum on the electronic Apostille Programme (e-APP), which will take place in hybrid format on 12 and 13 May 2026 in Marrakesh, Morocco. The registration deadline is Friday 1 May 2026, 5.00 p.m. (CEST). More information is available here.

Vacancies

Applications are now open for three- to six-month legal internships for the period from September 2026 to February 2027. The deadline for the submission of applications is 20 April 2026. More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Please save the date: 19 November 2026

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

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

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

The organizers plan a post-conference publication.

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

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

Submission deadline: 31 May 2026

Notification of acceptance: by 30 June 2026

Participation in the conference is free of charge.

We look forward to your contributions!

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

Adrian Rycerski, PhD
Assistant Professor at SWPS University in Poznan

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

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

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

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

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

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

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

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

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

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

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

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

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

Liberia

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

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

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

Kenya

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

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

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

However, in a more recent case, the Kenyan Supreme Court in Ingang’a & 6 others v James Finlay (Kenya) Limited, relying on Hilton v Guyot, applied the principle of comity in determining whether to recognise and enforce a locus inspection order from Scotland (see Anam Abdul Majid and Chukwuma Okoli). After quoting the key passage from Hilton v Guyot with approval, the Court stated at paragraph 60 that:

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

Uganda

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

At common law, the principle of comity, with key reference to Hilton v Guyot, also formed the sole basis of recognising and enforcing a US judgment in the earlier Ugandan case of  Christopher Sales v Attorney General.

More recently, Ugandan courts have justified the recognition and enforcement of foreign judgments by reference to the theories of obligation, comity, and reciprocity. In the very recent case of Brianna v Mugisha, Justice Nagawa, after a careful consideration of Ugandan case law authorities and Hilton v Guyot, stated that:

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

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

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

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

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

Tanzania

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

South Africa

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

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

Nigeria  

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

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

Conclusion

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

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

Kenya, Uganda and Tanzania apply the doctrine of obligation alongside the principle of comity.

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

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

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

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

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

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

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

As I note in my forthcoming book Wrongful Patent Assertion, in 2014 a Grand Panel of the IP High Court held, in Samsung Elecs. Co., Ltd. v. Apple Japan Godo Kaisha, Judgment of May 16, 2014, 2013 (Ne) 10043, that the owner of a FRAND-committed SEP may abuse its rights by seeking injunctive relief against a willing licensee; and “[i]n a subsequent decision, Imation Corp. Japan v. One-Blue LLC, Tokyo Dist. Ct., Feb. 18, 2015, Case No. 2013 (Wa) 21383, the court held that the defendant (the manager/operator of a patent pool that included some SEPs) had engaged in unfair competition by sending a warning letter to three retailers threatening injunctive relief, because under the Samsung v. Apple decision, the act of seeking an injunction for the infringement of a FRAND-committed SEP against a willing licensee is an abuse of right.  The [latter] decision therefore appears to read Samsung v. Apple as holding that it is an abuse of right per se to seek injunctive relief against a willing licensee for the infringement of a FRAND-committed SEP.  Cf. Yuzuki Nagakoshi & Katsuya Tama, Japan Without FRANDS?  Recent Developments on Injunctions and FRAND-Encumbered Patents in Japan, 44 AIPLA Q.J. 243 (2016) (critiquing Samsung v. Apple for arguably creating such a per se rule and for ignoring, as part of the abuse of rights calculus, the rightsholder’s subjective intent; and proposing that Japanese courts hearing FRAND cases instead consider whether the rightsholder has satisfied its statutory duty to negotiate in good faith).”  Other than these two cases, however, to my knowledge there hasn’t been much any Japanese case law involving FRAND-committed SEPs, until last year when three new district court decisions—all involving the same plaintiff, Pantech Corp.—came out.  Two of these have recently made available in translation on the IP High Court’s website; the third, not yet.  They all appear to agree, however, that it is an abuse of right for the owner of a FRAND-committed SEP to seek injunctive relief against a willing licensee.

The first of the three, Pantech Corp. v. ASUS Japan Co., 2022 (Wa) 7976 (Tokyo Dist. Ct., Apr. 10, 2025), involves Japanese Patent No. 4982653, titled “Method of transmitting and an apparatus for transmitting ACK/NACK information and a method of transmitting and receiving and an apparatus for receiving ACK/NACK signals.”  The court concludes that ASUS’ products infringe and that the claims in suit are valid.  On the issue of remedy, however, the court states that “a FRAND-encumbered standard essential patent holder's act to demand an injunction against a standard essential patent implementer based on the standard essential patent is impermissible as an abuse of right, unless there is a special circumstance where the standard essential patent implementer has no willingness to obtain a license under FRAND terms” (p.25).  After a review of the parties’ negotiating history (pp. 25-30), the court concludes that the defendant was a willing licensee, stating:

the reason for which the Plaintiff and the Defendant failed to reach an agreement on a FRAND rate in spite of prior consultations relating to the abovementioned findings and settlement talks in this lawsuit is that the FRAND rates presented by both parties were far too divergent, as explained in detail later (No. 7). According to both parties' assertions mentioned above and the entire import of oral arguments, the cause for this divergence is considered to be as follows: in major countries in the world, the Unwired Planet v. Huawei judgment, as presented by the Plaintiff, and other court precedents on FRAND rate calculation methods have developed internationally in response to changes of the times; on the other hand, in Japan, there have been no court precedents based on the abovementioned international development for about 10 years following the Apple v. Samsung Grand Panel judgment, and also, even taking into account various circumstances that appeared in this case, a FRAND rate calculation method has not necessarily been established in Japanese business practice (p.31).

Citing article 102(3) of the Japanese Patent Act (on reasonable royalties) and the IP High Court’s 2019 judgment in NeoChemir (see my blog post here), the court then sets out principles for calculating the FRAND rate:

In light of the global nature and the enormous number of standard essential patents implemented in the manufacturing of products conforming to a standard, when determining a FRAND rate, it is necessary [i] to take into consideration a royalty rate set in the actual license agreement for the standard essential patent, or if it is indefinite, a global average royalty rate in the industry; [ii] to presume the individual values of all standard essential patents to be the same because it is practically difficult to find the individual values of the enormous number of patents, and to calculate the value of a single standard essential patent by dividing the value of all standard essential patents by the total number of standard essential patents, while ensuring that the total amount of royalty obtained through aggregation of royalty rates of the standard essential patents remains  within a reasonable scope; and [iii] to also take into consideration, in such a case, possible contributions to sales and profits if all standard essential patents are used in the product. Furthermore, [iv] as a FRAND rate should fundamentally be agreed upon globally as soon as possible through good-faith negotiations between a FRAND-encumbered standard essential patent holder and a standard essential patent implementer, under the literally fair, reasonable, and non-discriminatory terms, a reasonable FRAND rate should be determined by comprehensively taking into account the negotiation process between the parties and the standard essential patent implementer's willingness to obtain a license under FRAND terms, and other circumstances appearing in the lawsuit, from the viewpoint of facilitating the agreement (p.35).

Ultimately, the court calculates a royalty for the one patent in suit by multiplying the sales revenue from the defendant’s products (redacted) by the aggregate royalty burden for LTE-standard-related patents (which the court figures at 9% for LTE products, based on an analysis of findings made in Unwired Planet, TCL v. Ericsson, and Huawei v. Samsung, and 8% for 5G products (p.39)), and then dividing by the number of LTE-standard-related patents (which the court estimates to be 1,300, taken into account likely validity, etc., see pp. 40-41)).  The rate itself is redacted.

The second and third decisions are both actions by Pantech against Google Japan G.K.  I understand that both cases involve the same patent, Japan Patent No. 6401224 (“Method for mapping a physical hybrid automatic repeat request indicator channel”), but different accused products (the Google Pixel 7, since discontinued, and the Pixel 7a, respectively).  In the first of the two, 2023 (Wa) 70501 (Tokyo District Court June 23, 2025), a translation of which is available here, the Tokyo District Court agreed that a FRAND-committed SEP owner’s demand for an injunction “is impermissible as an abuse of right, unless there is a special circumstance where the standard essential patent implementer has no willingness to obtain a license under FRAND terms" (p.39).  The court nevertheless held that Pantech was entitled to an injunction because Google’s conduct during the course of a court-supervised settlement negotiation (occurring in July 2024) demonstrated that Google was an unwilling licensee.  In dicta, however, the court found no fault with Google’s pre-settlement negotiations behavior and thus would not have found Google unwilling on the basis of that conduct alone (see pp. 47-50).  In the second one, however—according to the commentary cited below, since a translation has not been uploaded yet—the Osaka District Court on July 10, 2025 concluded that Pantech was not entitled to an injunction, because Google had shown itself to be a willing licensee through the end date of negotiations the court took into account (November 30, 2023).  The commentaries below do not say anything about the Osaka court actually determining the FRAND royalty, and some more recent commentary indicates that by early January (with other cases involving newer models of Google phones pending) Pantech and Google had settled on global terms, following a recommendation by the Tokyo district court.

For commentary that was helpful in drafting this post, see Masachi Chucho, Pantech v. ASUS: A Recent FRAND Judgment from Japan (available here); Takeshi Komatani, Japan’s First SEP Injunction:  Pantech v. Google and the High Bar for Establishing Unwillingness (available on AIPPI’s website here); and Kenji Tosaki, Takahiro Hatori & Yujiro Fukuhara, The Japanese court first judgment to grant an injunction based on a FRAND-committed SEP (available on Chambers and Partners’ website here; original, longer version available here).   

Meanwhile, as discussed elsewhere (see, e.g., here, here, here, and here), in early 2026 the Tokyo District Court also issued two new documents, Guidelines for Patent Infringement Litigation Based on Standard Essential Patents and SEP Mediation Procedures.  I may have more to say about these in due time.   

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

FACTUAL BACKGROUND AND LEGAL FRAMEWORK

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

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

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

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

The original text from Article 490 reads:

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

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

FINDINGS OF THE GREEK COURT.

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

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

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

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

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

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

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

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

Introduction

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

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

The Facts

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

Non-Qualifying Ceremonies and Private International Law

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

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

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

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

Commentary

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The decision is Fives ECL v. REEL GmbH, UPC_CFI_274/2023, issued on February 11, 2026.  The decision is the subject of a recent blog post on ip fray.  Last June, I blogged about an earlier decision (of the UPC Court of Appeal) in this dispute, writing that “the patent owner had obtained from a German national court a judgment of infringement, prior to June 1, 2023, and a declaration that the defendant would be liable for damages; but it thereafter pursued its damages claim before the UPC.  The UPC Court of Appeal held that the UPC was competent to hear the damages claim (but left open the question of whether national or UPC law would apply to that claim).”  The current decision holds that German domestic law applies to the damages claim, but that it wouldn’t matter in any event in view of the Intellectual Property Rights Enforcement Directive (paras. 100-10).  More interesting, however, is the court’s conclusion that, although the defendant was adjudicated to have made an infringing offer, it isn’t liable for any damages.  A copy of the original decision, in German, is linked to above; below, I use a machine translation that I have compared with the original.

The patent in suit is EP  c1 740 740 B1, for a “compact service module which is intended for electrolytic aluminium production plants.”  Plaintiff and defendant compete “in the market for special purpose cranes, which are used worldwide in various countries in aluminum furnaces as part of aluminum production” (para. 5).  In December 2016, the parties submitted competing bids for a project in Bahrain, which was to be built by Bechtel.  The first offers, dated December 2, were for twelve service modules and auxiliary bridges.  Defendant’s offer was higher than plaintiff’s.  Bechtel then requested that the parties provide a price “in the event these two parts were split and continued separately,” which the parties responded to on December 15.  Defendant offered a price reduction, while the plaintiff did not (para. 70).  Plaintiff didn’t get the contract; but then Bechtel decided to reopen the bidding process, and plaintiff submitted a new bid on February 21, 2017, which included a price decrease of €6,500,000.  Apparently plaintiff was then awarded the contract, but it (successfully) sued the defendant for having made an infringing offer, which it then followed up with this claim for lost profits.

The court rejects the claim for lost profits, for failure of proof as to amount and for lack of proof of causation.  From what I gather, the plaintiff didn’t proffer the December or February offers to the court (see paras. 18, 47), but rather sought to rely on evidence of (1) the defendant’s typical profit margin, according to the latter’s publicly available financial data from 2011-16, and (2) “projects implemented by the plaintiff in the past” (para. 51).  The former, however, is not sufficient proof, given that “defendant’s activities span multiple business segments,” and also that the submitted evidence reports the defendant’s gross margin (Bruttomarge), which may not be comparable to the profit margin for this project.  The latter as well is not sufficient, because the projects “predate the tender for the [present project] by eight to thirteen years,” “included contracts with a wide range of volumes,” and were reflective in part of both the greater market power enjoyed by the plaintiff at those earlier dates and a better economic environment generally for aluminum manufacturers and suppliers.  In addition, the court casts doubt on the technical advantage provided by the patented technology in comparison with alternatives (discussed further below), and concludes that in any event there is no evidence that any assumed advantage over the state of the art could justify the plaintiff’s alleged margin.  Moreover, the defendant’s bid included an “erection and installation concept” that Bechtel favored, to the point of requesting the plaintiff to include a similar concept in its proposal when bidding reopened—which “contradicts the assumption that the plaintiff would have prevailed in a hypothetical scenario without the defendant’s patent-infringing bid,” insofar as “the defendant had a competitive advantage over the plaintiff that was independent of the” machinery at issue (paras. 76-77).

Finally, we come to the causation issue.  The court begins this section by stating that it cannot “be ruled out that, even if the defendant had submitted an alternative offer that did not infringe the patent, the plaintiff would have had to reduce its offer of December 2/15, 2016” (para. 78).  Here, the analysis gets a bit confusing, with the court first seeming to indicate that the existence of a noninfringing alternative is irrelevant to the plaintiff’s entitlement to lost profits, and then appearing to walk it back:

79 As a general rule, the claim—in this case, the asserted loss of profits—cannot be countered by the defense of lawful alternative conduct (see BGH, GRUR 2024, 1201, para. 43 et seq. – Verdampfungstrockneranlage). According to the case law of the Federal Court of Justice (BGH), the defense that the damage would have occurred even if lawful conduct had been adopted may be relevant for the attribution of the damage. The relevance of the defense depends on the protective purpose of the respective infringed provision (BGH NJW 2017, 1104, para. 24; BGHZ 194, 194 = GRUR 2012, 1226, para. 35 – Flaschenträger).

80 In the case of a patent infringement, the defense that the same economic result could have been achieved through non-infringing acts cannot, in principle, lead to the exclusion of a claim for damages. A patent does not preclude third parties from competing with the right holder by offering non-infringing products. However, the offering and placing on the market of the protected subject matter is reserved to the right holder. A culpable infringement of this exclusive right must result in the infringer having to compensate for the resulting damage even if he could have offered other products. These principles also apply to the patent-infringing offering of a product.

81 These principles do not apply in the present case. This is because it is undisputed between the parties that the customer would always have requested a second offer in order to foster competition . . . .

82 If one therefore assumes that a non-infringing alternative offer must be included in the assessment, it cannot be definitively established that the plaintiff would certainly have been awarded the contract with its original offer.

The court then goes on to explain why the defendant’s Pavlodar model would have been both technically and economically more attractive than the proposals the plaintiff submitted in December 2016.  As a consequence, as stated above, the plaintiff fails to prove that it “would certainly have been awarded the contract with its original offer” (paras. 83-89).

I’ve noted (what I view as) similar inconsistencies in the German courts’ analyses of noninfringing alternatives before, for example in my June 2024 post on the Verdampungstrockneranlage decision cited above.  Maybe it’s fair to say, however, that under German law, the existence of a noninfringing alternative doesn’t necessarily preclude the plaintiff from recovering damages for infringement, but that the plaintiff still must present evidence as to the amount of those damages; and where, as here, it proceeds instead with an untenable lost profits theory, it gets nothing, though perhaps under other circumstances it would still be entitled a reasonable royalty—as may have been the case in Verdampfungstrockneranlage, where it is conceivable that there was some value to the defendant in making an infringing offer within Germany, as opposed to a noninfringing offer somewhere else, even if the end result would have been the same in that the defendant would have been awarded the contract (for a noninfringing project carried out outside of Germany).  If so, the German position may not be all that different from the U.S. position, under which (as reflected in cases such as Grain Processing Corp. v. Am. Maize-Prods. Co., 189 F.3d 1341 (Fed. Cir. 1999)), the existence of a noninfringing alternative means that the plaintiff can’t recover a lost profit (because it wouldn’t have made the allegedly forgone sales even absent the infringement), but the plaintiff may still recover a reasonable royalty reflecting the cost saving the defendant incurred by having used the patented technology over the noninfringing technology. 

In any event, my most recent effort to compare and contrast the law of noninfringing alternatives can be found at page 144 of my book Remedies in Intellectual Property Law, where I note that, although Canadian and French case law seems more or less consistent with the U.S. approach, the U.K. courts “continue to follow the House of Lords’ 1888 decision in United Horse-Shoe & Nail Co. v. John Stewart & Co., holding that the existence of noninfringing alternatives is irrelevant” to both lost profits and awards of infringer’s profits (though the U.K. courts recognize that noninfringing alternatives are relevant to reasonable royalties); and that “German courts also have held that the existence of noninfringing alternatives does not preclude an award of lost profits, though such evidence can affect the amount awarded,” citing both Verdampfungstrockneranlage  and Flaschenträger.

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

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

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

Here is link for the APILA meeting on 24 March:

Topic: APILA Monthly Online Meeting on Tuesday 24 March 2026

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

Join Zoom Meeting

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

Meeting ID: 899 6443 0222

Passcode: 670895

On Tuesday, April 7, 2026, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST). Chukwuma Okoli (University of Birmingham) will speak, in English, about the topic

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

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

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

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

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

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

Parentage/surrogacy project

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

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

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

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

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

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

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

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

Cross-border recognition and enforcement of protection orders

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

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

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

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

Jurisdiction project

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

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

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

We will keep you informed of any new developments.

A Note on the Trusts Convention

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

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

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

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

The case in Trustees of Columbia University v. Gen Digital Inc., precedential opinion by Judge Dyk (joined by Judges Prost and Reyna), published this morning.  This is a very complicated matter, involving among other things an inventorship dispute that devolved into a contempt order against trial counsel for the defense (which contempt order is reversed in a separate appellate decision also handed down today, which I need not address here), as well as two previous appeals on claim construction and validity (which I also will not address).  The current decision involves questions of patent eligibility, claim construction, and damages; and as is my typical practice for purposes of this blog, I will focus only on the last of these.

There are two patents in suit, both of which related “primarily to protecting computer systems from viruses and other malicious activity” (p.2).  The claims at issue consist of one system claim, two method claims, and a computer-readable medium claim, all of which allegedly are infringed by software marketed by the defendant under the Norton brand.  The district court denied a motion to dismiss for lack of patent eligibility.  Then jury then returned a verdict of willful infringement and awarded damages of $185,112, 727; the district court awarded enhanced damages and fees.  On appeal, the Federal Circuit reverses and remands for further proceedings on the issue of patent eligibility--but “[b]ecause other issues may arise on the remand,” the court addresses one remaining issue of claim construction as well as the issues pertaining to damages and fees.  As noted, I will address the damages and fees issues only.  The most interesting of these—at least in my view, since I’ve written a fair amount now about this topic—is whether, on the facts of this case and assuming the patents in suit are valid, the patentee is entitled to damages reflecting foreign sales of Norton software.

As readers may be aware, the general rule that seems to be emerging from Supreme Court, Federal Circuit, and district court case law over the last few years is that, although U.S. patents are territorial rights, if the defendant engages in the unauthorized manufacture, use, or sale of patented products in the United States, and this domestic infringement causes-in-fact and proximately causes either (1) the plaintiff to lose sales that the plaintiff would have made to foreign customers, or (2) the defendant to make sales abroad that the defendant otherwise would not have made, the plaintiff is entitled to recover, respectively, either its own lost profit on its lost foreign sales, or a royalty reflecting some portion of the profit the defendant would have expected to earn from the defendant's foreign sales, as of the date of the hypothetical ex ante bargain.  In view of this precedent, the district judge gave the jury the following instruction:

Columbia is entitled to damages based on sales to customers located outside of the United States if you find that the infringing product sold to those customers was made in or distributed from the United States, even if the infringing product is delivered to a customer and used by the customer outside the United States (p.23; emphasis added by the Federal Circuit).

The jury found that the defendant (referred to throughout the opinion as “Norton”) sold antivirus software abroad, and that “the infringing product” was made in or distributed from the United States.  (The jury did not find that the sales to foreign customers “substantially occurred in the United States,” (p.24 n.7)).  The appellate panel nevertheless agrees with Norton that “no reasonable jury could conclude that any infringing copies of Norton’s software that were sold to customers outside the United States were made in the United States or distributed from the United States” (p.24). 

This seems correct to me under the governing standards for determining what an infringing software product is, principally Microsoft Corp. v. AT&T Corp., 550 U.S. 437 (2006).  As the panel explains:

Microsoft establishes that software in the abstract—that is, software not physically encoded in a “tangible copy” like a CD or hard drive—is akin to a “blueprint” or “a schematic, template, or prototype.” Id. at 449–50. If someone abroad builds an infringing product based upon a blueprint that exists in the United States, for example, then the product was still made abroad. See id. at 442. So too, software is not tangible—or capable of infringing the asserted claims—until tethered in a particular copy of the software encoded in a computer-readable medium (p.25).

Applying this principle:

The system claim, ’322 patent, claim 27, includes a “processor.” Like the apparatus claim at issue in Microsoft, this claim is not infringed until a particular instance of software is installed onto a computer with a processor. See Centillion Data Sys., LLC v. Qwest Commc’ns. Int’l, Inc., 631 F.3d 1279, 1288 (Fed. Cir. 2011). Because the instances of software sold to customers located abroad are not installed on a computer in the United States, those instances were not made in or distributed from the United States.

The same conclusion follows as to the other claims asserted here. A method claim is only infringed when the claimed process is performed; it is not infringed by the mere existence of software that, if installed on a computer, could perform the method. See Ericsson, Inc. v. D-Link Sys., 773 F.3d 1201, 1219 (Fed. Cir. 2014). Because the infringing software is only capable of performing either of the claimed methods once installed on a computer, the versions installed abroad also cannot give rise to domestic infringement. In any event, “[t]here is no established recognition in patent law of direct infringement by ‘making’ a ‘method.’” See Brumfield, 97 F.4th at 879. The methods here were not “made” in the United States nor “distributed” from the United States.

This leaves only claim 11 of the ’322 patent, the computer-readable medium claim. Columbia argues that this claim must be treated differently, because it does not require that a particular version of software be first installed on a computer with a processor to be infringing. It is true that claim 11 does not require software to be installed on a device with a processor, but claim 11 does still require that the software be encoded in a particular “non-transitory computer-readable medium.” ’322 patent, claim 11. While a non-transitory computer-readable medium may be created on a server in the United States, that medium is not exported abroad. The computer-readable media sold to foreign customers are only created once the foreign computer encodes the software on its hard drive, which occurs outside the United States. These computer-readable media are—like the apparatuses in Microsoft—created outside the United States and therefore cannot be domestically infringing. Under the logic the Court applied in Microsoft, these cannot constitute infringing products that were made in or distributed from the United States (pp. 25-26).

Columbia tries a few additional arguments on appeal, but none of them work.  The one that might have worked, had it been presented at trial, was that “the jury could have found that the domestic infringement involved in creating its master copies, which enabled the foreign sales, were the cause of the foreign sales damages. However, the jury was not instructed, and Columbia did not seek an instruction, that they could grant a reasonable royalty for foreign sales based on this theory. We cannot reform the damages theory actually presented to the jury in favor of an alternative that was not, even if the alternative would have been legally valid. . . . We thus need not reach the question of whether Columbia’s theory of foreign damages was proper under the causation theory of Brumfield.” (p.25).  My initial reaction is that that theory probably wouldn’t have worked either, because the causal connection between the domestic manufacture of the master copies and the foreign sales is too tenuous to satisfy proximate causation, though I would want to know more about the underlying facts to assert that opinion with confidence.  (Alternatively, if the domestic manufacture of the master copies could have been outsourced, then in my opinion outsourcing should count as a noninfringing alternative, and any royalty awarded for the resulting foreign sales should reflect only the cost saving, if any, of domestic over foreign manufacture of the master copies.  Whether the courts would agree with me on this remains to be seen.)  The appellate court also rejects arguments that Norton could be liable as a joint infringer with the foreign customers, or that Norton could be liable under an inducement theory (pp. 27-28).

As for willfulness and enhanced damages, the court affirms the finding of willfulness, primarily on the basis of evidence that Norton was aware in advance of “‘the Columbia professors’ designs and work before the patents issued’ including the provisional application,” and the lack of evidence that, during the relevant time period, Norton was aware of and acted upon its subsequently asserted objectively reasonable defenses (pp. 21-22).  The court nevertheless vacates the district judge’s enhancement of actual damages (2.6 times the actual damages) and the award of attorneys’ fees, in part because the amount awarded and the finding of exceptionality were based on the vacated finding of contempt of court.  In addition, the case was close (on patent eligibility) and Norton’s assertion of allegedly “repetitive” arguments did not amount to litigation misconduct.

Early bird registration will close on 15 March 2026. You are welcome to register using this link.

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I’ve been busy the last several days reviewing the page proofs for my forthcoming book, Wrongful Patent Assertion:  A Comparative Law and Economics Analysis (Oxford Univ. Press 2026), which is due out in late spring or early summer.  Now that I have some time to resume blogging, I’ll start by discussing a short (but precedential) Federal Circuit decision from last Friday, Exafer Ltd. v. Microsoft Corp. (opinion by Chief Judge Moore, joined by Judges Taranto and Stoll).  It presents an interesting question relating to damages calculation. 

Exafer owns two patents in suit relating to “systems and methods for optimizing communication paths between virtual network devices by controlling data forwarding rules at intelligent switches” (p.2).  Exafer claims that “Microsoft’s Azure Platform, and specifically the Azure Smart Network Interface Cards (SmartNICs) and Virtual Filtering Platform (VFP) Fastpath technology (Accused Features),” infringe the two patents.  Exafer’s damages expert Mr. Blok was prepared to present an opinion concerning the hypothetical royalty the parties would have agreed to ex ante, using as the royalty base the value of certain noninfringing virtual machines (VMs).  The theory is that Microsoft’s use of the patented technology enabled “Microsoft to reduce the central processing unit (CPU) usage in Azure servers, freeing up CPU cores to host additional VMs” (p.6); and that the value to Microsoft of using the patented technology is therefore the revenue derived from hosting those additional VMs.  The district court agreed with Microsoft’s argument that it was impermissible to use the noninfringing VMs as the royalty base, but the Federal Circuit reverses and remands.

I think the Federal Circuit got it right, though I can understand the appeal of Microsoft’s argument that the royalty should not be calculated using the value of some other, noninfringing product.  (Going back in time, one might perceive a similar perspective in cases such as Zenith Radio Corp. v. Hazeltine Rsch., Inc., 395 U.S. 100, 135 (1969), which held that setting royalty rates on the basis of the licensee’s sales of unpatented products constituted patent misuse (while also holding that, if the licensee is not coerced into taking unwanted patents, but instead agrees for convenience to take a portfolio of patents, the arrangement is not misuse).)  The premise that the royalty must be related to the use of the patented technology is of course correct, but I think the Federal Circuit is right in finding a sufficient causal connection between that use and the increase in the number of VMs Microsoft can host; and as long as the revenue derived from that increase is a type of benefit that Microsoft would have anticipated ex ante, it stands to reason that the amount Microsoft would have been willing to pay ex ante would have reflected that expected benefit.  This is essentially the court’s view, as I read it:

[Exafer’s technical expert] Dr. Congdon opined that the network optimization and efficiency improvements achieved by the claimed inventions “would translate to, among other benefits, the ability to operate more virtual machines on a single CPU or host (i.e., increasing virtual machine density). Accordingly, by increasing virtual machine density, Microsoft would be able to sell more virtual machines without the need for additional network infrastructure.” . . . Mr. Blok’s VM-hour royalty base captured this incremental benefit of being able to offer additional VMs due to operation of the Accused Features within the Azure Platform. . . . This methodology is tethered to the patented invention and does not expand Exafer’s patent monopoly to unpatented technology. Mr. Blok’s testimony therefore satisfies the admissibility standards of Rule 702 (p.8).

Put another way, as long as the additional revenue associated with hosting more VMs was, ex ante, a foreseeable consequence of the use of the patents in suit, a willing licensee would have taken that added benefit into account in determining how much it was willing to pay for a license.  By contrast, requiring that the royalty be limited to the immediate benefit of the use (perhaps the cost savings associated with reduced CPU usage for purposes of powering the Azure platform, without any consideration of the next-best use of those otherwise idle CPUs) strikes me as a formalistic constraint lacking in economic substance.  That said, if the actual benefit derived ex post from freeing up some of the CPUs were of a type that would not have been foreseeable ex ante, then it should be excluded from consideration; but that is not my understanding of the facts here.

The case does make me think about the connections between the hypothetical bargain construct; the situations in which it might be rational for courts to make use of ex post information (which Norman Siebrasse and I wrote about a few years back); and the doctrine of proximate cause, which limits damages to those that are, inter alia, foreseeable.  I may have more to say about this in a future post.

After GEMA had already scored a famous victory against OpenAI in November 2025, when the same chamber of the Munich Court had held that the company had been violating the copyrights of several artists and composers by reproducing their song texts, the present proceedings differed not just in scope (focusing on the musical arrangement rather than texts) but also in its international dimension. For the first time, the claimant explicitly included the use of the protected works for training that had happened (according to both parties) exclusively in the US.

As far as those claims are concerned, the main obstacle to overcome for the claimant is the German court’s jurisdiction. As Germany has no (codified) law on international jurisdiction over non-EU defendants, international jurisdiction is established by extending the rules on local jurisdiction (venue) to international jurisdiction (so-called ‘double funtionality’; see Lutzi/Wilke, in Lutzi/Piovesani/Zgrabljic Rotar (eds), Jurisdiction over Non-EU Defendants (Hart 2024), 111 et seq). In the present case, this appears to provide an opportunity for the claimant to rely on a little-known norm of the German Verwertungsgesellschaftsgesetz (VGG; own translation and emphasis):

§ 131 Exclusive Jurisdiction

(1) For legal disputes concerning claims by a collecting society for infringement of a right of use or right of consent administered by it, the court of the district in which the infringing act was committed or in which the infringer has their general place of jurisdiction shall have exclusive jurisdiction. (…)

(2) If, pursuant to paragraph 1, sentence 1, different courts have jurisdiction for multiple legal disputes against the same infringer, the collecting society may bring all claims before any one of these courts.

While the provision is clearly aimed at allocating local jurisdiction within Germany, nothing in its wording seems to exclude an international understanding, similar to other norms on local jurisdiction. While this would create a clearly exorbitant forum actoris for German collecting societies in cases falling under paragraph 2, this might be justified by the peculiar nature of collecting societies, which are heavily regulated in German law and are required, for instance, to enter into licensing agreements under ‘appropriate’ conditions (§ 34 VGG). Indeed, the Munich court appeared rather amenable to the proposition of applying § 131 VGG internationally.

In the present case, this would raise further interesting questions.

For once, does paragraph 1, according to which the courts of the place of infringing and the courts of the defendant’s seat are competent, lead to ‘different courts’ being competent in the sense of paragraph 2? Traditionally, the provision was supposed to solve the problem of traveling showmen performing committing similar infringements in numerous places. As far as the training of AI is concerned, there might only be a single place of infringement, though. Then again, paragraph 2 only requires multiple competent courts for proceedings ‘against the same infringer’, which should allow other infringements, such as the streaming of allegedly copyright-violating output in Germany to be taken into account.

Assuming that the court would not consider this sufficient to trigger the forum actoris of paragraph 2, it would need to answer another question, namely if paragraph 1 as a rule of exclusive jurisdiction would also prevent the claimant from (subsidiarily) relying on § 23 of the Civil Procedure Code (ZPO), which creates jurisdiction at the location of the defendant’s property. In other contexts, authors have argued that provisions of exclusive local jurisdiction should not be understood as provisions of exclusive international jurisdiction so as not to render the recognition and enforcement of decisions from other fora impossible.

If the Munich court accepted its international jurisdiction on either of those bases, the applicable law would, of course, still be US copyright law (including its relatively far-reaching exceptions for ‘fair use’, which the defendants argue should apply here) pursuant to Article 8 Rome II. Thus, if the decision – which has been scheduled for 12 June – includes a positive decision on international jurisdiction regarding the US-based training, it might not yet include a decision on the substance in this regard, but could instead include an order for expert evidence on foreign law (§ 293 ZPO).

The claimants would understandably still consider this as a win, though, as it would provide a basis for future claims by German collecting societies against AI companies. In this sense, it would fit neatly into what Linda Kuschel and Darius Rostam have described, in reaction to the previous decision against OpenAI, as ‘the current popular narrative of a tightly regulating EU that protects rightsholders and a US that favors AI-friendly market solutions.’ While the Munich judges said rather little about their own preferred interpretation of the law at yesterday’s hearing, especially with regard to international jurisdiction, they also made no effort to dispel this narrative.

On February 24, 2026, the German Federal Court of Justice ruled on the Kingdom of Morocco’s claim against the German news portal “Zeit Online” (Case no. VI ZR 415/23). In 2021, the journal alleged that Morocco had spied on several lawyers, journalists, and high-ranking politicians, including French President Emmanuel Macron, using the surveillance software “Pegasus”. Morocco denied the allegations and sued the publication for damages, claiming an infringement of its general right of personality. The Federal Court of Justice of Germany, the highest court for civil and criminal matters, rejected Morocco’s claim, arguing that states do not have such a right. This decision is interesting because it lies at the intersection of private international law, national tort law, and public international law. The following article aims to present the main points of this decision in terms of both its international and substantive aspects.

I. Aspects of Private International Law: A too Easy Gateway into German Law?

First, the court had to determine if it was competent and which law should apply to this claim (Nos. 7 et seq.). Despite the claimant’s status as a Third State, the application of the Brussels Ibis Regulation (EU 1215/2012) was unproblematic here. Morocco’s claim was not made “in the exercise of State authority (acta iure imperii)” (Art. 1(1) Brussels Ibis), and the defendant is based in a European Union Member State (Hamburg, Germany).

However, the determination of the applicable law revealed some hesitation on the part of the Court (Nos. 11 et seq.). Surprisingly, the Court did not decide whether the Rome II Regulation or German autonomous private international law should apply to the case (no. 13). Although the court considered the possible application of the exception of Art. 1(2)(g) Rome II (“non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation.”), the Court did not address whether an infringement of a legal person’s reputation falls under this exception (nos. 15 and 16). However, infringements of rights relating to personality through the media clearly fall under the exception of Art. 1(2)(g) Rome II. The debate about applying this exception to legal persons is actually caused by the application of the Rome II Regulation to claims related to unfair competition (Art. 6(1) and (2) Rome II), not by their mere quality as legal persons (see CJEU, ECLI:EU:C:2017:766, Bolagsupplysningen and Ilsjan, mn. 38). However, the present case is not related to business matters or competition claims; therefore, the exception of Art. 1(2)(g) Rome II should clearly apply.

Therefore, German private international law should apply, which the Court also examined (nos. 18 et seq.). The Court found that the parties had made an implied choice-of-law agreement for German law (no. 19). The Court ruled that, throughout the entire procedure, the parties’ exclusive reference to substantive German law satisfied the conditions of such an agreement under Art. 14(1)(a) Rome II (no. 17) and Art. 42 of the Introductory Act to the Civil Code (EGBGB). This decision, if it can be understood, left some kind of an aftertaste of insecurity of the Court, as it appeared to be the simplest way to reach German law. Art. 40 EGBGB, relating to the applicable law for torts, allows the claimant to choose between the place where the harm arose (Erfolgsort) and the place where the event which gave rise to the harm occurred (Handlungsort). The eventual question of the claimant’s (Morocco) choice for determining where the harm occurred would have led to the well-known difficult question of the localization of such an infringement through the Internet and the possible application of Moroccan law. In such a case, the Court would also have had to consider the application of Art. 40(3)(2) EGBGB, which states that this law is inapplicable if the claimant’s purpose is not actually to seek compensation (e.g. to exert pressure on the defendant). The Court did not address these issues and concluded that German law applies.

II. Aspects of Substantive Law: A Panorama of Public International Law for the Benefit of Private Law

German tort law is based on a restrictive approach. The central norm, Sect. 823(1) of the Civil Code (BGB), lists the legally protected rights: Life, Body, Health, Freedom, Property and “other right”. This last category allows for the protection of interests comparable to those listed, such as the right to one’s personality, or the protection of victims from certain types of professional pure economic loss. Schematically, damages can only be granted for other interests if the tortfeasor infringed upon a protective law (Sect. 823(2) BGB) or if the harmful act is immoral (Sect. 826 BGB), which conditions are stricter.

Therefore, the claimant first tried to obtain damages based on the general case law regarding the infringement of personality rights under Sect. 823(1) BGB, and second, based on the infringement of criminal laws as protective laws under Sect. 823(2) BGB. However, the claims based on criminal legislation (Sect. 90a, 90b, 185 et seq., 102 to 104a of the Criminal Code, StGB) failed because foreign states are not subject to these norms (nos. 62 et seq.).

Therefore, the debate focused on Sect. 823(1) BGB and, logically, if such a right of personality also exists for states. After establishing that domestic law does not grant states such a right according to settled case-law (nos. 21 et seq.), the Court considered whether such a right exists as a general principle of public international law (nos. 23 et seq). In doing so, the Court examined an extensive body of case law (nos. 28 et seq.) from international courts and arbitral tribunals, the European Court of Humans Rights, diverse international and regional organizations (e.g. the Council of Europe, the European Union, the OSCE…) and national courts (USA, England, Scotland, France and Germany). The Court concluded that a protection of an alleged right of personality for states against private individuals does not exist. Most of the relevant decisions involve cases concerning diplomats or claims from state to state. In fact, the Court noted that many organizations encourage states to refrain from suing journalists regarding questions of the state’s reputation to guarantee freedom of speech and press freedom (cf. no. 54). Although the Court does not explicitly refer to it, the idea of extracontractual liability that does not “open the floodgates” of liability, as well as the weighing of interests, are typical to German tort law. The interest of a foreign state in protecting its honor against statements by private individuals is neither necessary nor worthy of protection under civil law.

III. Final remarks

By ruling that foreign states do not have a right of personality that can be enforced against private individuals, the German Federal Court aligned itself with the decision of the French Cour de Cassation. The highest French court for civil and commercial matters also decided on the very same case in 2024, i.e. a claim of the Kingdom of Morrocco against a French journal regarding the very same accusations. In this case too, the French Cour de cassation – without spending a word on the aspects of private international law – decided that “a foreign state is not entitled to bring a public defamation action against an individual” (no. 12). These decisions are certainly welcome, as they reinforce the independence of the press against foreign attempts to influence press freedom in Europe, especially in these troubled times.

C. Budzikiewicz/H.-P. Mansel/K. Thorn/R. Wagner: Europäisches Kollisionsrecht 2025: Im Windschatten der Weltpolitik [German]

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2025 until December 2025. It presents newly adopted legal instruments and summarizes current projects that are making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. The authors discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

P. Stenko: Employer’s Liability Towards Subcontractors in International Construction Disputes: Direct Claims of the Subcontractor Against the Employer in European Civil Procedure Law and the New Interpretation of the Term “Matters Relating To a Contract” [German]

This paper examines international jurisdiction for direct claims of subcontractors against employers (clients) in international construction disputes under the Brussels I Recast Regulation. In several European legal systems, subcontractors are granted a statutory direct claim for payment of remuneration against the employer, in addition to their claim against the general contractor. Central to the analysis is whether such direct claims may be qualified as “matters relating to a contract” within the meaning of Article 7(1) of the Brussels I Recast Regulation, even though there is no direct contractual relationship between the subcontractor and the employer. Traditionally, the CJEU required an “obligation freely assumed” for the application of the contractual jurisdiction under Article 7(1) Brussels I Recast Regulation. However, recent CJEU case law has relaxed this requirement: statutory claims arising in the context of a contractual relationship may also be treated as “matters relating to a contract” even if there is no direct contractual relationship between the parties. As a result of this change, the subcontractor’s claims against the employers may be qualified as “relating to a contract” and the subcontractor may sue at the contractual place of performance (Article 7(1) Brussels I Recast Regulation).

C. Wendland: The Jurisdiction of Member State Courts under the EU Maintenance Regulation in Cases Involving Third Countries [German]

While there have been repeated calls to extend the scope of the EuGVVO to third countries, the universal application of jurisdiction rules has been a reality in international maintenance law since the adoption of the EU Maintenance Regulation. The exhaustive nature of the jurisdiction rules in the Regulation was the focus of the ECJ’s ruling in the case Amozov, which is discussed here. While the court’s decision is hardly surprising, it nevertheless provides an opportunity to consider the challenges and opportunities of a conclusive jurisdiction system at the EU level.

S. Mock: Eligibility of US funds to apply for special court ordered audits under German corporate law [German]

The so-called Diesel-scandal has sparked interest, particularly among Volkswagen AG shareholders, in a comprehensive investigation into the responsibility for this scandal. Since the resolution of the annual meeting failed to achieve the required majority, several US shareholders applied for a court order for a special audit. Following several court decisions, including two successful constitutional complaints, the Court of Appeal Celle, in its decision of 27 November 2024, denied the US shareholders the capacity to participate in the proceedings, arguing that they were funds whose legal capacity was unclear. This article critically examines this decision and demonstrates that US funds are also eligible to participate proceedings in German courts.

J. Adolphsen: ECJ answers questions of jurisdiction of courts of the member states in patent infringement cases when patent infringers defend themselves with the argument the patent is not valid [German]

The judgment is the subsequent decision following a ruling from 2006. At that time, the European Court of Justice (ECJ) first addressed the question of the jurisdiction of courts of the member states in patent infringement cases when defending with the argument that the patent is not valid. It was established that any assessment of the validity of the patent is exclusively reserved for the courts of the granting state. Other questions remained unanswered. These are now answered by the present judgment. The infringement court may, but is not required to, stay its proceedings. It can also assume the validity of the patent and decide the infringement dispute accordingly. At the same time, the ECJ rejects the question of whether Article 24 Nr. 4 of the Brussels Ia Regulation also applies when a third country has granted the patent. In this case, the ECJ denies a reflexive effect of Article 24 Nr. 4 Brussels Ia Regulation and allows the infringement court to also examine the validity of the patent for the purpose of deciding the infringement dispute with inter partes effect. As a result, the judgment strengthens the possibilities for patent holders to take action against infringers at the defendant’s court, especially when multiple national patents are involved across different member states.

H. Roth: Possible Legal Remedies for Debtors in the Enforcement of Provisionally Enforceable EU Titles in Germany (Art. 39 Brussels I Regulation (recast)) [German]

In principle, the debtor is required to utilize the legal remedies against the provisional enforcement of a judgment that are available in the member state of origin, in this case before the Italian appellate court (Art. 283 of the Italian Codice di procedura civile [CPC]). Applications for enforcement protection by the debtor may only be submitted to German courts or enforcement authorities insofar as European law permits. This is the case, for example, under Article 44 (1) of the Brussels I Regulation (recast) in conjunction with Section 1115 (6) of the German Code of Civil Procedure (ZPO) and Article 44 (2) of the Brussels Regulation (recast) in conjunction with Section 1116 ZPO. If the conditions outlined in these provisions are not met, European law prohibits the debtor from seeking a suspension of enforcement based solely on German procedural law (e.g., by analogy to Sections 719 or 707 ZPO). The exhaustive regulation in Article 44 (1) and (2) of the Brussels I Regulation (recast) excludes additional legal protection under national law.

J. F. Hoffmann: Cross-border payment to the debtor after the opening of insolvency proceedings – continuation of the ECJ‘s restrictive rulings on Art. 31 EIR [German]

In its unambiguous scope of application, Art. 31 (1) of the European Insolvency Regulation protects a third-party debtor who has honoured his obligation to the benefit of the debtor in good faith after insolvency proceedings have been opened. The third-party debtor is protected from having to perform to the insolvency administrator for a second time. The ECJ had to decide whether the third-party debtor should also be protected if not only he had made his payment to the debtor after the opening of the proceedings, but also if the debtor had provided counter-performance belonging to the estate after the opening of the proceedings. A need for protection may also be apparent in this case, as the third-party debtor faces comparable economic losses. To achieve this, Art. 31 (1) EIR would need to recognise also the debtor’s counter-performance as being effective vis-à-vis the insolvency estate. However, national legal systems often do not grant any legal protection concerning asset dispositions made by the debtor after the opening of insolvency proceedings. The ECJ now continues its restrictive interpretation of Art. 31 (1) EIR, likely because the provision’s underlying regulatory purpose remains highly controversial.

K. Duden: From the principle of recognition in EU primary law to the replication of status: a doctrine decades in the making [German]

Since Grunkin-Paul, the principle of recognition based on primary EU law has – through the jurisprudence of the ECJ – gained increasing importance in international family law. The Cupriak-Trojan decision marks a milestone in this respect: the Court demands the comprehensive recognition of marriages concluded between Union citizens abroad. Not only characteristics of one’s individual status but also status relationships – at least between Union citizens – must be recognized as effective across borders. This makes the free movement of status the law in force for Union citizens. Although some open questions remain, Cupriak-Trojan, coupled with the previous Mirin decision, expands the jurisprudence on the recognition principle in a way that allows it to be consolidated into an independent doctrine of private international law. To describe this doctrine, I suggest the term “replication of status” (Statusnachvollzug), which distinguishes the replication of status from the recognition of judgments and from the referral method. Another differentiation is also necessary: between the replication of status as a doctrinal approach in conflict of laws and international civil procedural law on the one hand and the principle of recognition and the free movement of status as mandates of EU primary law on the other. While the latter currently provide their normative framework and basis, the replication of status could, in future legislation, be detached from this origin.

A. Schulz: Name and Gender: German Federal Court of Justice Ruling on a Name Change via UK Deed Poll [German]

A recent decision by the German Federal Court of Justice (BGH) addresses two key issues in Private International Law. First, the Court held that a name change effected through a British “deed poll” can be recognised as a change of birth name under German civil status law. In this respect, the Court clarified that it is irrelevant whether the change concerns a person’s “legal name” or their “conventional name”. However, the Court ultimately rejected the requested amendments in their entirety, as the requirements for recognizing the applicant’s new legal gender had not been fulfilled. In particular, the applicant had not completed the formal procedure as required by the applicable Gender Recognition Act 2004.

On 2 March 2026, the German Federal Court of Justice (Bundesgerichtshof; “BGH”) held an oral hearing in two proceedings concerning the civil liability of companies regarding climate change. The authors of this blog post attended the hearing as members of the audience.

The German NGO Deutsche Umwelthilfe (DUH) is suing the car manufacturers BMW and Mercedes Benz, requesting a legal order obliging both companies to refrain from placing combustion engine cars on the market beyond 2030. These two proceedings join the club of (strategic) climate change lawsuits in Germany. Crucially, they are the first of their kind based on tort law to reach the German Federal Court of Justice. Accordingly, the hearing was eagerly awaited by many. The decision, which will be rendered on 23 March 2026, will undoubtedly have an impact on future climate lawsuits.

While no issues of international jurisdiction or applicable law arose in the proceedings in question – as all Parties are seated in Germany –, the judgment of the BGH could further motivate foreign parties to bring claims against German companies, thereby giving rise to questions of international jurisdiction and the applicable law (see for more details Weller/Weiner, Corporate Climate Liability in Private International Law, in: Japanese Yearbook of Private International Law, Vol. 26 (2024), 2). In this context, one may refer to the deliberations of the Higher Regional Court (OLG) Hamm in Lliuya against RWE (OLG Hamm, 28. Mai 2025, 5 U 15/17).

1. Legal Framework

The climate goal of the German Constitution (Grundgesetz; GG) derived from its Art. 20a  was specified by the German Constitutional Court (Bundesverfassungsgericht) in line with the Paris Agreement, namely, to limit the rising global average temperature to well below 2°C and preferably to 1.5°C above pre-industrial levels. Combustion engine cars contribute to the global CO2 emissions and hence to the greenhouse gas effect and the global warming. Against this background, the question arises whether the constitutional climate goal can (additionally) be enforced through private lawsuits against companies, notwithstanding the fact – as emphasized in the present case – BMW and Mercedes are acting in accordance with the existing public regulatory framework in Germany.

In both proceedings, the claim of DUH relies on Section 1004(1) of the German Civil Code (Bürgerliches Gesetzbuch; BGB) in conjunction with Section 823(1) BGB.

Section 1004(1) BGB allows an owner of an absolute individual right (like property or health) to demand that a disturbing party (“Störer”) – i.e. the party interfering with the individual right – remove an interference or refrain from future interferences. Section 823(1) BGB provides claims for damages in the event of a violation of such a right.

DUH bases its claim – to prevent the manufacturers from placing combustion engine cars on the market from 2030 onwards – on an infringement of the so-called “General Right to Personality” (Allgemeines Persönlichkeitsrecht), which is provided for by the German constitution (Art. 2(1) in connection with Art. 1(1) GG) and which is recognized as protected right within the meaning of Section 823(1) BGB and Section 1004(1) BGB. Hence, infringements of that personality right can be stopped via an injunction based on Section 1004(1) BGB.

In the proceedings against BMW and Mercedes-Benz, the claimants want to activate an intertemporal dimension of that “General Right to Personality” called “Right to greenhouse gas-related freedom” (Recht auf treibhausgasbezogene Freiheit). This approach would be new in private law. It builds upon the famous “Klimaurteil” (climate judgment) of the Bundesverfassungsgericht from 24 March 2021. In this judgment, the Constitutional Court established a new legal figure called “eingriffsähnliche Vorwirkung”. It extends the basic rights protection to a protection against infringements by the state in the future that are grounded in present state omissions or insufficient actions (in the sense of a right to intertemporal freedom). By analogy to this legal concept in public law, DUH argues that the legal figure “eingriffsähnliche Vorwirkung” should also apply in tort law to actions by private companies (such as BMW and Mercedes).

The claims of DUH were rejected in the previous instances (LG München I, 07 Feb 2023, 3 O 12581/21, OLG München, 12 Oct 2023, 32 U 936/23 for the claim against BMW and LG Stuttgart, 13 Sept 2022, 17 O 789/21, OLG Stuttgart, 08 Nov 2023, 12 U 170/22 for the claim against Mercedes).

2. Inside the courtroom: key legal arguments

In the oral hearing before the BGH, the arguments focused on two legal aspects:

(1) Does the legal figure of intertemporal protection of basic freedoms in the form of an “eingriffsähnliche Vorwirkung” apply also to private actors if – as is currently the case in Germany – the national CO2 budget has not yet been attributed among industrial sectors, the federal states, or even single actors? According to the Constitutional Court, the state has the obligation to concretize the remaining national budget (“Konkretisierungsauftrag”) by assigning CO2 budgets to the different actors. What does this mean for the duties of private actors if the state fails to comply with this obligation by not assigning specific reduction targets? May civil courts assign specific reduction targets?

According to the claimant (DUH), the intertemporal protection of basic freedoms subsidiarily applies to such private actors that considerably contribute to global greenhouse gas emissions. The less reduction measures were taken now, the more strenuous reduction measures would be needed in the future, which would interfere in the basic rights freedoms more severely. CO2 budgets for private actors such as the car manufacturers could in that case be measured by scientific data (such as attribution science), so even without state-allocated CO2 budgets.

In the opinion of the defendants (BMW and Mercedes), it would exceed the competences of the courts if they were to allocate individual CO2 residual budgets to companies in such climate lawsuits. The counsels for the defendants relied on the argument of separation of powers and the complexity of climate change requiring multi-level solutions. Climate change would be a topic too complex to be solved by courts and by private law – instead, a mixture of legal instruments and a balancing of interests by the democratic legislator was needed. Any private law based litigation, being bilaterally restricted to the involved parties, would be arbitrary and could not solve the climate challenge which was a problem of societal scale. Courts would put themselves at the place of the legislator or at least thwart the legislator’s concept or solution. The defendants’ counsels also argued with the margin of appreciation granted by the German Federal Constitutional Court in its 2021 decision.

The defendants also raised the argument that a CO2-budget for civil actors would be ineffective, as the climate reduction goals could only be achieved globally – as such, if in other states major emitters did not comply with their obligations, the national emitters had to make “extra” efforts to make up for the gaps. Besides, “national solo runs” would endanger international cooperation.

(2) Can private actors, such as BMW and Mercedes, be treated as “disturbing” within the meaning of Section 1004(1) BGB for contributing to the risk of future state climate protection measures? The BGH raised the question whether the manufacturers could be qualified as indirect disturber by action (“mittelbare Handlungsstörer”). This was argued to result from an evaluative tailoring of the manufacturers’ responsibility (“wertender Zuschnitt von Verantwortungsbereichen”). A main point in the arguments in that respect revolved around the question if a private actor can be a disturber within the meaning of Section 1004(1) BGB if it complies with all legal requirements and duties. This was at least an indicator against a disturbance triggering liability under Section 1004(1) BGB.

The defendants argued that Section 1004(1) BGB as a bilateral claim was per se not suitable for resolving issues like climate change, which is a problem concerning our society as a whole, not only two parties in a civil proceeding. Civil law could not provide for protection if the threat caused concerned a mass of persons, not only another party.

Furthermore, according to the defendants, the disturber and the affected party would coincide since everyone contributed to climate change. It therefore would remain unclear where a distinction was to be drawn between who qualifies as a disturber and who does not. Besides, there was neither a general duty of care (“Allgemeine Verkehrspflicht”) nor specific CO2-budgets that the defendants are currently violating. Where the contested conduct was currently lawful, it could not be prohibited under civil law through the mechanism of Section 1004(1) BGB.

The claimant’s counsel argued that formal concerns against emitters being disturbers in the legal sense had to remain unapplied, as otherwise private law in general could not provide legal protection in the field of climate change.

The defendants relied finally on the argument that private law based litigation such as the given proceedings were arbitrary for the reason that (1) it was “random” which emitter would be the target of such litigation and (2) that there could be no redress in a bilateral two party relationship as this would lead to the same emission being litigated in several proceedings (e.g. car manufacturers, car rental agencies and car drivers).

III. Assessment and outlook

The final decision of the German Federal Court of Justice will be rendered on 23 March 2026. The Court will implicitly decide whether combating climate change primarily falls within the responsibility of the legislator, or whether civil courts can also play a meaningful role in addressing this global challenge.

VENUE: Ashurst Lawyers

Level 8, 39 Martin Place

Sydney, New South Wales 2000

AUSTRALIA

PANELS AND SESSIONS:

• Jurisdiction
• Private International Law and Digitalisation
• Regional and International Cooperation
• Arbitration
• Applicable Law

Attendance at conference sessions can be used for CPD; you will need to check local requirements.

REGISTRATION FEES:

If you are coming for both days, please select Friday. 

Non-member 2 days: $160

Non-member 1 day: $90

AAPrIL member 2 days: $120

AAPrIL member 1 day: $70

Student: Free to attend the conference only

Conference dinner: $110 for dinner and a selection of drinks

REGISTRATION INCLUDES:

Access to all conference sessions

Morning tea and coffee, morning teas and lunches

Access to purchase a conference dinner ticket at an additional cost of $110

As already announced in another post, there will be a Webinar organized by the European Law Institute (ELI) on March 12 to present and discuss the Project Report of the ELI Project “Enhancing Child Protection: Private International Law on Filiation and the European Commission’s Proposal COM/2022/695 final”

More information, esp. the possibility to register and possible updates, can be found on this website.

Jochen Herr, Nikita Alymov, and Martin Nothmann have published an article titled Can the UPC set global FRAND rates?, 1/2026 GRUR Patent 18-24.  Here is the abstract:

The Unified Patent Court (UPC) is emerging as a key forum for SEP and FRAND disputes, yet its authority to set FRAND rates remains only partly defined.  This article examines whether, and under what conditions, the IPC may determine global FRAND rates focusing on procedural hurdles such as the party disposition principle, judicial discretion, territorial scope and the Huawei/ZTE compliance.  Furthermore, a recent order by the Local Division Paris confirms jurisdiction for counterclaims but leaves critical questions unresolved including whether stand-alone FRAND rate-setting actions are admissible beyond counterclaims in infringement actions.  This article will shed light on how the UPC’s evolving role could reshape licensing practices and forum selection.

The authors begin with a brief survey of FRAND determinations (or non-determinations) in Germany, the U.K., the U.S., and China, before taking on the principal topic of whether the UPC has competence to engage in FRAND rate-setting.  As noted in the abstract, in October 2025 the Paris Local Division in Sun Patent Trust v. Vivo concluded that it had jurisdiction to consider Sun Patent Trust’s request that the court, as an incident to Sun’s infringement claim, whether its offer was FRAND or if not.  (That order is now before the UPC Court of Appeal.  As the authors note in the body of the article, the request is not technically a counterclaim, notwithstanding the description of it as one in the above abstract; and it is fairly limited in what it says, to wit "The claimant has merely anticipated the so-called 'FRAND defence' that the defendant is raising against this type of infringement action. This FRAND defence falls within the jurisdiction of the UPC, according to a consistent UPC CFI caselaw which indicates that the FRAND issue can be dealt with incidentally by the UPC . . . . [A] discussion of FRAND terms, at least as a defence raised by VIVO at the time of the statement of defence, will undoubtedly follow, as anticipated by both parties. In the present case, all facts and arguments relevant to the determination of FRAND terms, whether admissible or not, will have to be debated by the defendants.")  The article then discusses the UPC’s decisions in Panasonic/OPPO and Huawei/Netgear, both of which concluded that they were competent to consider a FRAND rate-setting counterclaim, but did not actually do so after finding the implementers to be unwilling licensees.  The authors also discuss the possibility of stand-alone FRAND rate-setting actions in the UPC, but describe it as “problematic” in view of the various legal and practical obstacles that would have to be overcome.  

Following the 20th Anniversary Conference in London (2025), we are pleased to announce that the Journal of Private International Law will be holding its 11^th Conference at the University of Zurich from 1 to 3 April 2027.

We are now inviting the submission of paper proposals for the conference. Please submit an abstract if you would like to make a presentation at the conference and you are willing to produce a final paper that you will submit for publication in the Journal. Abstracts should be up to 500 words in length and should clearly state the name(s) and affiliation(s) of the author(s). Participants are also welcome to propose collective panels. If the proposal is for a panel, it should include the names and affiliations of all proposed participants.

Presentations can be on any subject matter that falls within the scope of the Journal and can be offered by people at any stage of their career, including postgraduate students and practitioners. Presentation at the conference will depend on whether your abstract is selected by the Editors of the Journal (Professor Jonathan Harris KC, King’s College, London and Professor Paul Beaumont FRSE, University of Stirling) and the conference organisers (Professors Tanja Domej and Christiane von Bary, University of Zurich). The subsequent article should be submitted to either of the editors of the Journal before the end of 2027. Publication in the Journal will be subject to the usual system of peer review.

The Conference will be held at the University of Zurich. There will be a mixture of plenary and parallel panel sessions. Speakers will not be expected to pay a conference fee but will be expected to pay for their own expenses in relation to their attendance at the conference in Zurich. Non-speakers will be expected to pay a conference fee. A conference dinner will be held on Friday (2 April 2027), at additional cost and with limited places. Details about registration, the conference dinner and options for accommodation will be made available on the conference webpage: https://t.uzh.ch/1WV.

Please send your proposal to the following e-mail address by Tuesday, 30 June 2026:

jpil2027@ius.uzh.ch

We look forward to receiving your proposals, and to welcoming you to Zurich in April 2027!

At the University of Oxford, a conference on “Assimilated law – the role and future of retained EU law in the UK” will be held on 13 and 14 April 2026. It is jointly organised by Professor Anne Davies and Dr Johannes Ungerer; it is funded by the Institute of European and Comparative Law as part of its 30th anniversary events.

The concept, category or chimaera of assimilated law emerged in the UK after Brexit: when becoming a Non-Member State, the UK chose to retain many EU laws in its domestic legal system, and this body of law has since been labelled ‘assimilated law’. There is an urgent need to explore and understand how assimilated law operates and might develop in future in the UK. Pressing questions concern how assimilated law is to be applied and interpreted and how it and the underlying EU laws might develop and diverge over time. Courts in the UK and on the Continent already had to deal with complex matters arising with regard to assimilated law, so there is a real need to distil and disseminate academic insights. In Lipton, the UK Supreme Court dealt with some initial questions, but they only addressed a small portion of the underlying issues.

The conference will bring together legal scholars and practitioners to establish a common understanding of the practices and challenges regarding assimilated law. The conference will be structured in two parts over the course of one and a half days: first, general questions about assimilated law will be debated, so that common themes, trends, and topics can be explored. Secondly, particularly tricky issues will be addressed which pertain to assimilated law in specific areas.

Further information, including the conference programme, is available here.

The full advertisement reads as follows:

The Institute of Civil Procedure Law at the JKU’s Faculty of Law is seeking to fill a tenure-track position for a person with a doctorate/Ph.D at the earliest possible date. The position is full-time and limited to a period of six years in accordance with the collective agreement for university employees and the Austrian Universities Act (Universitätsgesetz, UG).

The position is open to highly qualified junior researchers holding a doctorate/PhD in the field of European and International Civil Procedure Law and includes the option of concluding a qualification agreement which could result in a permanent position as Associate Professor (Section 99 (5) (6) of the Austrian Universities Act (Universitätsgesetz, UG)).

The candidate should have a record of excellent publications and relevant teaching experience and is expected to be willing and able to teach courses in German and English. The prospective applicant is expected to possess a sound knowledge of Austrian civil procedure law or be willing to familiarize themselves with Austrian civil procedure law in a timely manner. The applicant should have completed their doctoral or PhD studies no more than five years prior to the date of application.

Detailed information regarding the position, responsibilities, and requirements is available at: www.jku.at/tenuretrack. The job description contains information regarding the position and its requirements and strategic direction of research, the areas of priority, the type of research expected, the expected scope of contributions to teaching/education, the required degree of professional experience, the key qualifications and objectives to be met during the course of employment, key information regarding the existing research infrastructure, and other position-specific conditions.

The annual minimum salary under the collective agreement is EUR 70,200.20 gross. The annual minimum salary under the collective agreement may be raised to EUR 82,656.00 after the possible conclusion of a qualification agreement (as of 2026). A higher salary is a matter of negotiation.

For further information, please contact Univ. Prof. Dr. Thomas Garber, +43 732 2468 3671,
E-mail: thomas.garber(at)jku.at.

When assessing the candidates’ accomplishments, performance, and future potential, the JKU will take the candidates’ individual background and personal history into account by acknowledging that academic and professional success and accomplishments can happen at different stages in life (and can include periods of reduced employment, or career interruption on account of having to provide care, childcare, etc.). In this regard, qualifications are assessed and evaluated in terms of equal opportunity, taking life-course factors, such as academic age, into account.

The Johannes Kepler University wishes to increase the proportion of academic female faculty and, for this reason, especially welcomes and encourages applications by qualified women. If applicants are equally qualified, a woman will be given preference for this position. The university welcomes applications from qualified applicants with disabilities. These applications will be given special consideration.

Prospective applicants interested in the position are requested to electronically send a complete application to the Rector of the Johannes Kepler University by no later than March 18, 2026, observing the three-week application deadline. Please submit the application electronically, in German/English, at: https://forms.jku.at/pm/tenuretrack, opens an external URL in a new window.

Please enclose the following documents with your application: A letter of application (addressing in particular your reasons for applying and suitability for the position), a current curriculum vitae, a list of publications (including a ranking of the three publications you consider to be the most important), a description of prior activities in education and lecturing, including any student evaluations, a description of research projects, studies, and collaboration efforts, a description of prior professional practices and activities related in content to the activities in research and teaching, an outline of prospective projects and objectives in the field of research and teaching.

More information is available here.

This monograph constitutes the first systematic treatment in Spain of international estate planning from the perspective of patrimonial private international law. Conceived for practitioners advising globally mobile families and cross-border wealth structures, the work offers a rigorous comparative analysis—particularly attentive to Anglo-American legal systems—of the legal instruments available to preserve, structure, and transfer family wealth efficiently across generations.

The study opens with an examination of the classical connecting factors that determine personal status in private international law—nationality, habitual residence, and domicile—and explores their practical implications in cross-border planning. It proceeds to address the preventive protection of vulnerable adults through enduring powers of attorney and related mechanisms, as well as the safeguarding of minors’ patrimonial interests.

A substantial portion of the book is devoted to matrimonial property regimes and their distinction from the financial consequences of divorce. Through comparative analysis, with particular emphasis on English and U.S. law, the author examines the interaction between these categories and the preventive structuring tools available to spouses, including marital agreements and prenuptial arrangements, as key instruments of wealth preservation.

At its core, the monograph provides an in-depth study of succession planning techniques. It distinguishes between lifetime planning devices—such as inter vivos gifts and trusts—and testamentary dispositions, including functional equivalents to wills (will-like devices). Special attention is given to the conflict-of-laws solutions offered by Regulation (EU) 650/2012 on international successions, particularly the role of the professio iuris and its potential to coordinate universal and territorially limited wills within a coherent cross-border strategy.

The final chapter addresses estate administration, focusing on the anticipatory design of executorial structures within the will, the appointment and confirmation of executors under Anglo-American probate procedures, and their capacity to act in respect of assets located in Spain.

Overall, the work offers a comprehensive and technically sophisticated framework for international estate planning, positioning patrimonial private international law as a central discipline for the structuring of global family wealth.

More information is available on the publisher’s website.

Bulat Karimov, “Arrest of Associated Ships from a Common Law Perspective”

The Arrest Conventions 1952 and 1999 provide for the arrest of ships owned by the person who would be liable for the claim in personam. The widespread use of one-ship companies has effectively circumvented these provisions. It has allowed shipowners to limit or avoid their liability by distributing their fleet between one-ship companies. The only country that has introduced separate associated ship provisions is South Africa. Other countries do not follow this example and generally deal with one-ship companies through beneficial ownership and piercing the corporate veil. The article examines the law and practice of arresting associated ships in South Africa, the US , England, Singapore and Australia. Particular focus is paid to the impropriety criterion, which is part of piercing the corporate veil but is irrelevant to the South African approach. It is concluded that the primary function of impropriety is preventing overreaching, which means subversion of the idea of separate legal personality of a shipowning company. The “objective” and “reasonableness” approaches are suggested as a middle ground to the problem discussed.

Steven Gee, “Enforcement of Judgments against Wealth Structures: Receivers, Trusts, Insolvency Act 1986, S.243 and Mareva Injunctions”

This article considers remedies leading to compelling satisfaction of a judgment, from assets in a wealth structure used by a judgment debtor, or assets produced by them, or from persons who have received such assets. These include (1) enforcement by equitable execution, (2) enforcement disregarding “sham” or invalid trusts or through an undisclosed legal power, (3) the effect of the Model Form of Freezing Injunction, and (4) use of the Insolvency Act 1986, s.423 to unwind transactions prejudicing creditors, including when to attribute to others a debtor’s purpose to prejudice creditors. It considers the relevance of a person having legal or de facto control of assets to the availability of these remedies.

Adrian Briggs, “The Death of Henry v Geoprosco“

Michal Hain, “Is a Foreign Judgment a Debt?”

Joseph Khaw, “Going Cherry Picking”

Paul MacMahon, “Pre-emptive Challenges to Recognition of Foreign Arbitral Awards”