The authors are all professors or emeritus-professors at the UCLouvain, as was the initial author François Rigaux. He involved Marc Fallon in the second and third editions, and Marc Fallon invided Jean-Yves Carlier and Stéphanie Francq to join for the latest edition.

Volume I contains the general part, discussing the history and method of private international law, as well as general approaches to jurisdiction, applicable law, recognition, enforcement and procedure. Volume II covers specific topics.

The authors aim to provide students with both solutions and tools to learn methods of finding solutions. They state this approach in their preface, and remain faithful to it. The book is not restricted to students, but aimed at practitioners, lawyers, judges, notaries, civil servants, legal advisors and researchers alike. Each of these groups will use the book with a slightly different expectation – to find the correct approach, the learn about the law as it is, where it comes from and why it is the way it is. The book offers all of this, at the same time bringing together national, EU and international law, as is indispensable in current-day private international law. The book is therefore not limited to Belgian private international law. As the authors have a deep foundation in EU law, their discussions of private international law are grounded in this broader context. And as Marc Fallon states in the preface, EU law has become “omnipresent” next to the conventions of the Hague Conference on Private International Law. He adds that EU law is now covering a major part of private international law, and that even the parts that are not yet the subject of EU legislation are heavily influenced by primary EU law. Therefore the case law of the Court of Justice of the EU is now a major source of private international law.

The approach is not article-by-article but a coherent discussion of the legal domains of private international law. It contains a thorough explanation of the particular terminology as well as the links to substantive law. It is balanced, providing on the one hand a global analysis of the real complexities of the discipline, and on the other hand clear and precise information and illustrations from case law. Each chapter or section starts with an extensive bibliography of Belgian and international legal literature and websites, divided into the categories relevant for the chapter or section that follows.

The first volume is dedicated to the general part of private international law. Its first chapter sets private international law in the context of international law, international human rights protection, EU law, and transnational legal orders such as religious laws and acts by sports federations. The authors discuss the place of state law in this plurality of legal orders, and the method of private international law to solve system conflicts. It is didactic in its explanation of core notions such as State jurisdiction and sovereignty, spatial limits of State law, territoriality, and nationality.

A rich account of the historical foundations of private international law and different schools make up Chapter 2. The following Chapters, 3 to 7, discuss the connecting factor, its applicability, application, and operation. Chapter 6 dedicates its full 93 pages to the determination of foreign law, including internal conflicts and temporal issues. Renvoi is set out in 23 pages, which explain meticulously the various forms and effects of this technique, and offering an evaluation from various perspectives. This analysis allows the reader to understand the technique, and invites us to view it in all its nuances, for all its advantages, vices and practical value. The Chapter also reviews various methods, such as the method of recognition, and complications such as the preliminary question. It investigates how foreign law must be applied – ex officio or invoked by the parties, and how a court should find such foreign law. The reader encounters again an admirable combination of theory and practice. On the fiction of jura novit curia the authors showcase the different approaches on determining foreign law, and they link this to the nature of the connecting factor (multilateral or unilateral).

Chapter 8 turns to the sources of international procedural law, including the methods to interpret these sources. It covers sources of the EU, international law as well as bilateral treaties. Chapter 9 is a general chapter on civil jurisdiction for international cases. Chapter 10 is the same for recognition and enforcement, called the “effect” of foreign judgments and authentic instruments. The name simultaneously indicates the breadth and depth – the authors cover the many potential effects, and again in detail. They for example delve into the evidentiary effect of foreign acts, a matter that is causing jurists and negotiators headaches during discussions of the EU’s parenthood proposal that is currently on the drawing table. They discuss the external and internal effects, and the factual effects of foreign decisions and authentic acts. The lucidity they bring is welcome in current private international law. Placing this discussion in the general part of their book allows them to draw from various of the so-called third generation private international law Regulations in the EU, i.e. the Regulations that cover jurisdiction, applicable law, recognition, enforcement, and cross-border cooperation.

Volume II, the thicker of the two, approaches the various domains of private law step by step. It contains chapters on the law of persons and family (including marriage, divorce, registered partners, cohabitants, matrimonial property, filiation, the protection of children and of adults, and maintenance obligations), property law (including trusts, intellectual property, insolvency, succession), contracts (general and specific contracts), tort (general and specific). Each of these sections discuss jurisdiction, applicable law, recognition, and where relevant enforcement. The authors include the specificities of each domain of the law, covering international conventions, EU legislation and its Belgian implementation, Belgian legislation, and case law of EU and Belgian courts. They showcase where mandatory laws, EU primary law (such as free movement), public policy or other exceptions or peculiarities come at play. Old law that could still extend to current situations is also included, for instance with respect to matrimonial property.

The structure of the two books is to a large extent in line with the Belgian Private International Law Code of 2004 (and the Swiss code). But perhaps it is the other way around: perhaps the code followed the initial Rigaux and Fallon structure, with all its didactic qualities. Yet, the Private International Law Code is now full of large holes, eaten out by EU law. The same cannot be said of this Précis.

My copy, which initially served for this book review, is already filled with post-its for my own teaching and research.

Thalia Kruger

On 29 May 2026, the WEAKER PIL research line at the Faculty of Law of the University of Groningen hosted the symposium ‘Digitalisation of Justice: Perspectives from Germany and the Netherlands’ at the House of Connections in Groningen. The symposium brought together scholars from both jurisdictions across four fields of law: private international law, civil procedure, criminal procedure, and administrative procedural law. They were joined by practitioners, emerging scholars, and more than 40 participants.

The symposium was guided by the central research question of the legal and institutional conditions under which the digitalisation of justice in Germany and the Netherlands can contribute to improved access to justice and to the quality of judicial decision-making, without undermining minimum standards of the rule of law and procedural guarantees.

The choice of a bilateral, cross-doctrinal design was deliberate: national legislators and courts are responding to digital transformation at remarkably different speeds, and innovative solutions to shared problems have often already emerged in the other legal system or in a neighbouring field of law. This report focusses on the conference’s discussions around private international law, summarizing the cross-cutting themes that emerged over the course of the day. A full report will be published in the Springer-volume ‘Digitalisation of Justice: Perspectives from Germany and the Netherlands’ in the course of 2027.

Opening and Keynote

The symposium was opened by Dr. Benedikt Schmitz (University of Groningen), who described the critical crossroads at which the ongoing digitalisation and our legal system find themselves, with the latter lagging behind when it comes to adjusting existing norms to changing realities. He raised central questions about the use of AI in the legal field and its relation to the rule of law and the principle of fairness. His opening was followed by welcome addresses by Prof. Dr. Wilbert Kolkman, Dean of the Faculty of Law, and Prof. Dr. Jouke de Vries, President of the University Board. In a humorous way, Kolkman criticised what the support of AI has done to the quality of academic legal papers by describing the evolution from the printing press, to pressing print on a computer, to the ‘depressing print’ that he called the papers of students, who are not the only ones handing in AI-generated texts that lack the meaning human-produced work entails. De Vries emphasised the importance of cross-border cooperation to tackle complex societal issues that cannot be approached from one discipline or jurisdiction alone. He further encouraged incorporating the knowledge of civil society organisations into academic debate through transdisciplinary research.

In his keynote address, Dr. Benjamin Grimm (Minister of Justice and for Digitalisation, Federal State of Brandenburg, Germany) offered the perspective of a Land justice ministry engaged in the practical implementation of digital justice. Even in an integrated European Union, he observed, judicial matters continue to reflect national traditions. Precisely for that reason it is necessary to look across borders and learn from one another. Brandenburg was the first German Land to combine the portfolios of justice and digitalisation in a single ministry – a deliberate pairing of a traditionally conservative judiciary with a policy field associated with progress, modernity and new ideas, a combination for which Estonia in particular served as a point of reference. In Brandenburg, responsibilities for digitalisation projects, including their funding, have been consolidated centrally – a choice Grimm defended while acknowledging the tension it creates with Germany’s federal structure.

Grimm placed these institutional choices in a sobering context: in a recent survey, only 15 per cent of citizens said that their expectations of the modern, digital administration were met, and only one in three people expressed trust in their government. Digitalisation, he argued, is therefore not merely a matter of efficient administration but of countering fears and proving that the State remains capable of being future-proof. The State, he insisted, must meet the expectations citizens bring from a world in which goods ordered online arrive the next day. This idea, however, would require central coordination beyond Brandenburg to ensure successful implementation.

For the judiciary, Grimm identified the digital availability of files as the indispensable foundation: the use of AI cannot be accepted, let alone succeed, while courts remain stuck with analogue files. The introduction of the electronic case file, imposed on a sometimes reluctant judiciary, is in his words not even digitalisation but ‘merely electrification’ and thus a first, but certainly not a last, step.

Grimm closed with a plea for coordination: the tools currently in use across the federal states are outdated and scattered, and all ministers of justice are working together towards a uniform software solution and unified architectural standards to fundamentally reform the judiciary’s use of digitalisation. The judiciary, he said, is standing at the dawn of a digital revolution. Several of his themes – the loss of citizens’ trust in a slow-moving administration and the question of how much decision-making may be delegated to machines – returned throughout the day, most directly in Panel 4 and in the closing plenary discussion.

First panel: Private International Law

The first panel, moderated by Benedikt Schmitz (Groningen) and sponsored by the Royal Netherlands Society of International Law, addressed the digitalisation of cross-border civil justice. Susanne Lilian Gössl (Bonn) opened with an assessment of digital justice and cross-border proceedings in Germany, where the progress of digitalisation is slow (and slower still in cross-border cases), marked by general scepticism and uncertainty. Alongside structural features of the field – the applicable law follows the lex fori, the strongest impulses come from EU law (which is nonetheless cautious to interfere with Member States’ procedural law), and the eCodex system provides decentralised, interoperable communication between Member State courts – she pointed to concrete hurdles such as the beA special electronic mailbox, which makes it difficult for foreign attorneys to file cases in Germany, and to courts’ initial resistance to online participation of parties abroad. However, what was once regarded as an affront to the other State’s sovereignty is now increasingly accepted if parties voluntarily participate. Gössl ended by briefly touching upon enforceable and non-enforceable mediation and arbitration agreements and the challenges Germany’s paper-based approaches pose in international settings.

Kirsten Henckel (Groningen) asked whether we can really digitalise justice – and whether courts can actually use the new technologies. EU digitalisation efforts, she argued, largely digitise existing processes while creating problems of their own, relating to, inter alia, privacy, AI, and non-EU service providers. Presenting collective actions as a Dutch tradition of forty years, most recently under the 2020 WAMCA (Dutch Act on the resolution of mass damages in collective actions), she made the Netherlands a case study for access to justice in a digitised world, and raised the question which law prevails when jurisdiction must be established under both the Brussels Ia Regulation and the GDPR as lex specialis.

Frederick Rieländer (Bremen) began his presentation from a comparative perspective: the most technologically advanced countries were at the forefront of digitalising justice, and the EU is now committed to digitalising cross-border proceedings, with the Commission wanting all relevant processes to be digital by the end of the decade. He emphasised that digital tools can reshape the handling and administration of cross-border litigation in the EU, but the legal framework needs to be refined through uniform European standards to unlock these transformative abilities without undermining the procedural rights of users. Rieländer distinguished between German pilot projects of organisational assistance systems, decision-support systems and (semi-)automated ‘case deciders’, the former two already in use, as illustrated by a tool that helps judges detect hallucinated citations in lengthy party submissions. He extended his analysis to immersive technologies (virtual, augmented and mixed reality) as new evidentiary possibilities across borders, not yet employed in most EU Member States. As a way forward, Rieländer pointed to the European Law Institute and UNIDROIT as potential drafters of a soft-law instrument to create rules on the use of AI that can set minimum standard while the digitalisation within the EU continues to move forward.

The ensuing discussion turned to international arbitration, which in some respects has moved faster than the courts: the Dutch Arbitration Act, it was noted, already allowed for digital hearings during the COVID-19 pandemic. On the use of AI in arbitration, a consensus emerged to remain cautious: because AI can never be impartial, decision-making should not be entrusted to it. As a tool, however, it is of great value and may eventually enable arbitrators to draw on more information than any human could; provided its (confirmation) bias is overcome. Two practical constraints were added: AI will only be integrated into practice if it is simple to use, whereas practitioners currently face a difficult choice between too many confusing tools. Moreover, most Member States are too small to gather sufficient data to train large language models on their own – an observation that led back to the panel’s emphasis on common standards within a European legal framework.

Second panel: Civil Procedure

The second panel, moderated by Patrick Koerts (Groningen), turned to domestic civil procedure. Gralf-Peter Calliess (Bremen) traced Germany’s history of digital false starts – from a digital signature too secure ever to be affordable to the repeatedly postponed electronic case file – and remained sceptical of the online-procedure pilots introduced in December 2025 in the new Book 12 of the German Code of Civil Procedure: digitalisation, he argued, requires a change of mindset from adjudication as an exercise of sovereign power (Hoheit) to adjudication as a judicial service (Dienstleistung). Pauline Ernste (Nijmegen) examined judicial fact-finding via Google and ChatGPT under Dutch procedural law: LLM-derived facts cannot qualify as facts of common knowledge, the duty to tell the truth requires parties to disclose their own use of AI, and AI literacy must be structurally embedded in legal training.

Third panel: Criminal Procedure

In the third panel, moderated by Glenn Thodé (Groningen), Hannah Ofterdinger (Hamburg) took stock of the digitalisation of German criminal procedure and its obstacles, concluding that the question is not whether, but how we digitalise. Dorris de Vocht (Tilburg) asked why the Netherlands treats remote hearings as a last resort and argued that the assumption that meaningful participation requires physical presence should itself be questioned: procedural fairness should not – and does not have to – depend on whether a hearing is physical or remote. Laura Peters (Groningen) presented the AIWITNESS project and the FAIR method, contending that criminal procedural principles must guide the design of AI systems from the outset She concluded that criminal procedural law is moving from ex post review to procedural design.

Fourth panel: Administrative Procedure

The fourth panel, moderated by Ida Varosanec (Groningen), addressed administrative procedural law. Sarah Rachut (Braunschweig) mapped Germany’s asymmetric regulation of administrative authorities and courts, presented survey evidence from the TITAN project on the use of AI within the administration, and identified a regulatory gap: fully automated administrative acts are regulated, AI-assisted decision preparation is not. Sofia Ranchordás (Tilburg/Rome) argued that the procedural safeguards of administrative law – the right to be heard, the duty to state reasons, the right of access, and judicial review – are built on the paper logic of the file, which digital transformation dissolves. She noted how discretion migrates from the decision to the design, and the task is not to retrofit, but to rethink. The following lively discussion closed on a question that hung over much of the day: what do we do with the law that was not made for digitalisation?

Closing Session and Outlook

The closing session opened with elevator pitches by five emerging scholars. Of most direct interest to readers of this blog, Mustafa Can (Groningen) turned to the law applicable to civil liability in EU token markets, contrasting public money with digital assets issued by private institutions. Individual proceedings are possible, but the cross-border setting creates an inherent foreign element, leading him to emphasise the importance of simplification. The remaining pitches ranged from a digital ‘zeroth instance’ for German civil proceedings and its constitutional tensions (Noelle Frick, Speyer), via automation bias and the limits of human oversight in AI-based evidence verification (Sabrina Pölle, Passau) and the missing mechanisms for reviewing the decision logic of administrative tools (Constanze Rothermel, Berlin), to algorithm-driven benefit sanctioning in Denmark and the Netherlands (Anne Spijkstra, Tilburg).

In the plenary discussion that followed, the threads of the day converged on a recurring theme: humans in the judiciary were not perfect before AI either. The discussion cautioned against measuring machines by a standard of perfection that humans have never met. A second observation reached back to the fourth panel: the digital is built on top of a long paper trail, and digital justice inherits the logic, and the legacy, of the file.

Viewed across the four panels, the relevant divide did not always run between Germany and the Netherlands, but frequently between fields of law: Germany’s infrastructure-first trajectory has repeatedly stumbled over its own thoroughness, while in the Netherlands the frontline questions lie further downstream: judges googling and parties submitting ChatGPT-written claims. The tension between efficiency gains and procedural guarantees returned in each panel in different ways. For private international law, it took the form of the question whether cross-border digitalisation can proceed without uniform European standards protecting the procedural rights of users – standards all the more necessary because most Member States are too small to develop trustworthy systems alone.

How much of legal decision-making can be left to AI was answered formally (any final decisions must remain human) but not substantively. Finally, the question what we do with the law that was not made for digitalisation remained open. Perhaps the day’s most consistent answer was voiced almost identically at its beginning and its end: the electronic case file is ‘merely electrification’, a first step but not a last (Grimm). Now, the task is not to retrofit, but to rethink (Ranchordás). An edited volume with contributions by the panellists and emerging scholars, taking up these questions in greater depth, will be published by Springer in the course of 2027 under the title ‘Digitalisation of Justice: Perspectives from Germany and the Netherlands’.

Registration link available here.

Further information on the series is available here: Civil Justice Conversations Planning

Last May, I published a post on Versata Software, LLC v. Ford Motor Co., a case in which a panel of the Federal Circuit held that, under the federal Defend Trade Secrets Act (DTSA) and the Michigan Uniform Trade Secrets Act, a plaintiff is entitled to recover “unjust enrichment” damages as a matter of statutory right.  The panel issued a modified opinion today, though only in respect of correcting its previous statement that Ford did not “claim” that certain costs should have been deducted from the breach of contract damages the plaintiff also sought (see p.15).  The holdings with regard to trade secret law therefore remain intact, in particular the panel’s conclusion that unjust enrichment is a remedy available at the plaintiff’s option (a position that, as noted in my previous post, some other courts have endorsed, while others have rejected it); and that an unjust enrichment award can exceed the royalty the parties would have negotiated, based on their licensing history.  (Compare this with the outcome of the recent Lucent v. Astronics case in the U.K., as discussed here.)  For now, I remain somewhat skeptical that disgorgement of profits or avoided costs should be available as a matter of course in trade secret litigation, but I am still thinking through the issues in anticipation of writing a paper on trade secret remedies sometime next year.  I'll just note, as I did in May, that U.S. courts are somewhat divided on the relevant issues, and that approaches to unjust enrichment outside the U.S. also reflect a range of perspectives.

Persons who are interested in delivering presentations at the APILA Conference are invited to submit abstracts of their proposals in English.  While proposals may be on any topic, they should (1) focus on private international law issues and (2) somehow relate to Asia (broadly defined).  Further, while every effort will be made to fit in as many presentations as possible, given the constraints of time, it may not be feasible to accept all proposals.  Inevitably, in that case, some selection may be necessary.  APILA apologises in advance for this.  Everything else being equal, priority will be given to proposals exploring cutting edge questions (albeit not necessarily definitively answering them) in one or more of the following areas: (1) international dispute resolution (especially international arbitration and mediation), (2) data protection and data privacy, (3) competition law (including within digital markets), (4) family law (including succession), (5) intellectual property rights, (6) Islamic private international law, (7) environmental issues (including climate change), (8) business and human rights, (9) cryptocurrency and the blockchain, (10) sanctions and counter-sanctions, (11) the economic analysis of private international law rules, and (12) artificial intelligence.

Abstracts are to be submitted by email to apilaconference@gmail.com by Saturday 24 October 2026.  Persons whose abstracts have been accepted will be so informed by Saturday 31 October 2026.  They are thereafter requested to submit their presentations in PowerPoint format or (if the presentation is in the form of a draft paper) in pdf format by email to apilaconference@gmail.com by Saturday 21 November 2026.  All PowerPoint presentations and draft papers received will be circulated in advance electronically among APILA Conference participants.  Participants will thus be able to read into the topics to be discussed in advance of the APILA Conference.  Oral presentations can then focus on succinct statements of key takeaways and more time can be allotted to discussion.

Please note that APILA’s available funding is limited.  Therefore, in the normal course of events, APILA regrets that it will not be able to provide funding for the travel and accommodation expenses of presenters and attendees.

This final installment of posts  on the Court of Appeals for England and Wales’ decision in Lufthansa Technik AG v. Astronics Advanced Electronic Systems, [2026] EWCA Civ 964, will discuss Lord Justice Arnold’s analysis of the correct method of apportionment, the double recovery issue, and interest, and the two short concurring opinions by Lord Justices Nugee and Lewison.  Familiarity with the first two posts (here and here) in the series is assumed.

On the issue of apportionment, the question is how to estimate the benefit that accrued to the defendants from their use of the patented invention.  Here, the defendants “had pleaded four alternative ways of apportioning their profits: (i) patent counting, (ii) the cost of the Components, (iii) the causative effects of the Patent and other factors and (iv) by reference to the 2014 Teaming Agreement [between Lufthansa and KID Systeme, a division of Airbus],” but “their primary case in closing submissions was based on the 2014 Teaming Agreement” (para. 71).  The trial judge therefore "used a royalty rate derived from the 2014 Teaming Agreement between Lufthansa and KID to determine the appropriate percentage of Astronics’ profits which were attributable to the Patent. He then applied the same percentage to Panasonic’s profits” (para. 194); further, “the judge had no alternative to the licence-based method of apportionment, because he had rejected the principal alternative method advanced by the Defendants at trial (patent counting) on procedural grounds and Lufthansa did not put forward any other method of apportionment” (para. 196).  Lufthansa argues, however, that a license typically allocates the expected benefit from the use of the invention between the licensor and the licensee, whereas the disgorgement remedy should entitle the patentee to 100% of the benefit accruing to the defendant from the use of the invention.  In response, Lord Justice Arnold writes that “the fact that a licence typically involves 25-50% of the expected overall economic benefits being received by the licensor is not inconsistent with using the royalty payable as a guide to the relative importance of the patent compared to other factors which contribute to the total profits generated by the licensee, particularly in the absence of any better guide” (para. 200); but while Lufthansa might have been entitled to some sort of “uplift to the royalty derived from the 2014 Teaming Agreement,” “the short answer to this is that Lufthansa did not invite the judge to apply any such uplift at trial,” and “[i]t is too late for Lufthansa to do so now” (paras. 198, 201). 

There are additional arguments Lufthansa makes against the trial court’s use of the implied royalty (which it calculated at 13% of net profits), but the court rejects these in fairly brief fashion (paras. 202-09), and I won’t belabor the details here.  There is one issue, however, with regard to which the Court of Appeal sides with the defendants, specifically the profits to be awarded on Astronics’ and Panasonic’s supply of “components for assembly by installers (such as Lufthansa’s competitors) or by seat manufacturers (such as Safran)" (para. 210).  Astronics and Panasonic’s argument is the following (para. 211):

i) KID was, pursuant to the 1998 Teaming Agreement, Lufthansa’s exclusive licensee under the Patent within the meaning of the 1977 Act in respect of at least the acts which Astronics and Panasonic carried out in infringement of the Patent i.e. the supply of components. This depends on whether the 1998 Teaming Agreement was an exclusive licence, as Astronics and Panasonic contend, or a sole licence, as Lufthansa contends (“the Construction Issue”).

ii) As outlined above, KID subsequently asserted a claim for infringement against Astronics’ predecessor, GD [General Dynamics], on the basis that it had a “right of exclusive use”. However, it compromised that claim for good and valuable consideration (a cross-licence) in the 2003 Settlement Agreement. That compromise included KID’s right to claim profits derived from infringement from Astronics and its customers (“the Compromise Point”).

iii) Astronics and Panasonic have the benefit of that compromise because it passed to Astronics and its customers when Astronics bought AES pursuant to the 2005 Asset Purchase Agreement (“the Succession of Benefit Issue”).

iv) The profits which Lufthansa is entitled to do not include the profits due to KID that were the subject of the compromise. Lufthansa’s claim to profits must therefore be reduced to account for KID’s (compromised) share of the profits (“the Single Pot of Profits Issue”).

v) That apportionment should be achieved by allocating to KID 50% of Astronics’ and Panasonics’ profits that were derived from the infringement, for the duration of the 1998 Teaming Agreement (i.e. until 31 December 2014), and reducing the sums payable to Lufthansa accordingly (“the KID Allocation Issue”).

The judge further notes that "the logic of Astronics’ and Panasonic’s argument is that Lufthansa’s profits should be reduced by 100% of the relevant profits. Nevertheless Astronics and Panasonic offered, if successful on the other two issues, to accept 50%. During the course of argument Lufthansa accepted that offer" (para. 213).  So the question then is whether, applying German contract law principles to interpret the 2003 Settlement Agreement, English law would consider the license Lufthansa granted KID under the 1998 Teaming Agreement to be an exclusive license; and if so, whether English law would therefore preclude Lufthansa from claiming any share of the profit that GD’s successors in interest were obligated to turn over the KID under the 2003 Settlement Agreement through December 31, 2014.  There follows a detailed discussion of the relevant legal principles, at the conclusion of which Lord Justice Arnold finds, contrary to the trial court, that the license was exclusive.  The question then “is what happens if a patent subject to an exclusive licence is infringed, and the exclusive licensee compromises its claim against the infringer. Can the patentee nevertheless claim all of the profits made by the infringer? Lufthansa contends that the answer to this question is yes, while Astronics and Panasonic contend that the answer is no. It is common ground that there is no authority which addresses this question. The answer to it depends on the proper interpretation of the statutory provisions” (para. 251).  To cut to the chase, Lord Justice Arnold determines that

Although the patentee and an exclusive licensee may each sustain different losses due to an infringement, which they can each recover as damages, there is only one pot of profits derived by the infringer from the infringement. It cannot be right for both the patentee and the exclusive licensee to have an equal claim to that pot of profits . . . .

The answer to this conundrum is in my judgment provided by the concluding words of [Patents Act] section 67(2): “the profits derived from the infringement, so far as it constitutes an infringement of the rights of the exclusive licensee as such”. To the extent that the rights conferred by the patent are subject to an exclusive licence, the exclusive licensee stands in the shoes of the patentee. To that extent, it is therefore the exclusive licensee which is entitled to the profits to the exclusion of the patentee. If the exclusive licence covers a sub-set of the rights conferred by the patent, then outside the scope of exclusive licence the patentee remains entitled to the profits. In such cases the patentee and the exclusive licensee are each entitled to a share of the profits. Thus it may be necessary to apportion the profits as between the patentee and the exclusive licensee after one has apportioned the total profits between those derived from the infringement and those derived from other factors.

This approach is in my view supported by the fact that an account of profits is an equitable remedy. A court of equity would surely take into consideration the rights of both the patentee and the exclusive licensee, and would not allow the patentee to scoop all of the profits derived from the infringement (paras. 256-58).

This issue, then, is resolved in favor of Astronics and Panasonic, who will be entitled to an appropriate reduction in the profits awarded.

The final two topics addressed by Lord Justice Arnold are double recovery and interest.  As noted in one of my earlier posts, there is still ongoing litigation between these parties in France and Germany, and this causes the defendants to be concerned about the prospect of double recovery.  Although Lufthansa “accepts that it is not entitled to double recovery in France or Germany where an award of the same profits has already been made in these proceedings in respect of the same physical products” (para. 264), the defendants want a recital in the final order to the effect that “the sums . . . found due in the Main Judgment were ‘provisional pending the final resolution of the Account involving the parties in France and Germany’. The purpose of this is to enable the Defendants to ask the English court to reduce the award of profits to Lufthansa in the event that the French or German courts award Lufthansa sums which the Defendants consider involve double recovery” (para. 265).  The trial court, expressing doubt over whether it had jurisdiction to make such an order, concluded that even if it did it would exercise its discretion not to do so here, because (among other things) “this should be a matter for [the French or German Courts] and not by the English Courts” (para.266).  The Court of Appeal agrees:

It is up to those courts to decide whether, and if so to what extent, Lufthansa’s claims involve double recovery, and if they do involve double recovery, what to do about it. It is not the function of the English courts to mark the homework of the French and German courts once they have undertaken that exercise. That would be a gross breach of comity (para. 268).

As for interest, Astronics and Panasonic argued that the High Court lacks authority “to award pre-judgment interest prior to the date on which the patentee elects for an account of profits . . . either in equity or pursuant to section 35A(1) of the Senior Courts Act 1981” (para. 270).  The court rejects these arguments, and makes the persuasive point that “the time value of money is just as relevant to an account of profits as to an award of damages” (para. 274).  Astronics and Panasonic also contest the judge’s decision to award interest by reference to the U.S. Prime Rate (specifically, Prime + 2%), as opposed to the Euribor rate; but the court rejects this argument as well, stating that  

As Lufthansa points out, Astronics’ and Panasonic’s approach involves converting the judge’s awards of profits, which were in US$, into euros using a conversion factor derived by averaging the exchange rate between US$ and euros over the period when each relevant sum of profits was made, then applying a Euribor-based rate of interest to the resulting euro sums and then converting the resulting amounts of interest into US$ using a conversion factor based on the exchange rate at the end of the period over which interest was to be awarded.

As Lufthansa submits, this approach is contrary to the principle that it is no part of the court’s function to allow for exchange rate fluctuations between the date as at which monetary awards are assessed and the date of judgment (paras. 307-08).

That concludes Lord Justice Arnold’s opinion, in which Lord Justices Nugee and Lewison concur.  Lord Justice Nugee writes one paragraph stating his “inclination” to interpret Patents Act section 67(1) (discussed in paragraph 259 of Lord Justice Arnold’s opinion) as referring to proceedings brought only by an exclusive licensee, but notes that “it is not necessary to resolve this point for the purposes of these appeal” (para. 312).  Lord Justice Lewison adds a longer concurring opinion focusing on accounts of profits, which takes a somewhat more negative view of the utility of the noninfringing alternative concept in awarding profits.  He writes that "In a simple case there may be no need to investigate a counterfactual non-infringing alternative. Suppose that the patent in suit is a patent for an inventive widget. The infringer makes widgets falling within the claims of the patent and sells them. In such a case, the court need do no more than assess what profit the infringer made from the sale of the widgets and order him to pay that amount to the patentee" (para. 320).  For reasons I’ve been discussing now for many years, I do not find this perspective to be persuasive--though as I noted in my previous post, I agree with the Lufthansa court to the extent that administrative costs often may counsel in favor of applying an apportionment analysis instead of the differential profits approach to calculating the profits attributable to the infringement.  Lord Justice Lewison then provides a short discussion of the Canadian Nova v. Dow decision, in which however he expresses his general agreement with Canadian Supreme Court Justice Rowe’s analysis (paras. 321-27), in particular Justice Rowe’s rejection of the argument that Nova should have been able to deduct the profits it would have made from selling “an entirely different kind of plastic.”  As indicated in my previous post, I concur in Professor Siebrasse’s view that the Canadian Court got this issue wrong.  Lord Justice Lewison’s opinion concludes with a discussion of the Australian Dart Industries case and other English decisions.  Toward the very end he adds this paragraph:

In relation to the apportionment exercise he noted that in some previous cases (Hotel Cipriani and Jack Wills Ltd v House of Fraser (Stores) Ltd [2016] EWHC 626 (Ch)) profits had been apportioned on the basis of a notional royalty, calculated by reference to actual royalties charged in the market. That was also one of the methods canvassed by Leggatt J in Marathon Asset Management Ltd v Seddon in a case where there was no non-infringing alternative. He decided that it was appropriate to use that method of apportionment. In so deciding, the judge accepted the evidence of Mr Bezant, the expert called by the Defendants, to the effect that the use of a royalty was a way of sharing the profit between the contribution made by the patent and the contribution made by other factors to the success of the Defendants’ products.

Mr Hall argued that the use of the licence was wrong in principle. A licence is designed to share profit between the right holder and the licensee, whereas the object of an account of profit is to transfer the whole of the profit from the infringer to the right holder. Although that argument was attractively put, it contains an unarticulated premise which, in my view, is wrong. The premise is that the share of profit for which a licence provides is a share of the profit derived from the right. But that is not (or at least not necessarily) so. The pool of profits which must be shared between licensor and licensee may be (and often is) the overall profit of the complex product into which the patented article is incorporated. If so, then the share of the overall profit for which the licence provides may well be the entirety of the overall profit attributable to the patented article (paras. 348-49).     

Lord Justice Lewison is of course correct that “[t]he pool of profits which must be shared between licensor and licensee may be (and often is) the overall profit of the complex product into which the patented article is incorporated”; and I can't disagree that “the share of the overall profit for which the licence provides may . . . be the entirety of the overall profit attributable to the patented article” (emphasis added).  But I nevertheless find Mr. Hall’s analysis more persuasive, as an economic matter:  a licensee with any measure of bargaining power is unlikely to agree to agree to pay 100% of the benefit it expects to derive from the use of the licensor’s patent.  Still and all, if it turns out that the English courts downplay the use of NIAs in calculating infringers’ profits but also rely heavily on notional royalty rates for apportionment, the end result may be tolerable—though one might be forgiven for asking whether the disgorgement remedy really needs to exist at all, if the end result is going to be the functional equivalent of a reasonable royalty.  

A Dutch actor dies in March. By April, his likeness starts to appear widely. Generated videos show him promoting a supplement, and one clip ends with a link to a shop selling shirts printed with his face. A single man in Germany creates all of this, in large quantities, using a dozen deceased performers.

Who can sue, and in which court?

Dutch law answers the first question readily. Article 21 of the Auteurswet allows publication to be resisted when a reasonable interest of the portrayed person, or after his death of one of his surviving relatives, opposes it. Article 25a, in the same paragraph of the Act, identifies those relatives as the parents, the spouse or registered partner and the children, each of whom may act independently of the others. Article 21 addresses whoever holds the copyright for the portrait, which poses a problem for a generated video that may have no author at all. However, Article 35 makes the publication of a portrait without entitlement an offence for anybody, and Dutch practice has long read the two provisions together. German law follows a similar design. Section 22 of the Kunsturhebergesetz (KUG) requires the consent of the family of the deceased (Angehörige) for ten years after death, and defines them as the surviving spouse or registered partner and the children, failing whom the parents.

The second question leads to the Court of Justice and its judgment on 18 June 2026 in Idziski (C-232/25). The concentrating head of Article 7(2) Brussels Ia puts two questions to a single individual. Does the content identify you, and where are your interests centred? Death creates separation between these questions, and current case law keeps them apart.

The custodial pattern

Both provisions grant the post-mortem entitlement to a closed class of relatives, a group defined by their relationship to the deceased and not by any interest in the estate they left. A disinherited son may object, while the residuary legatee under the will stands outside the class entirely. Such relatives are best described as custodians, since the entitlement is all they hold of the deceased.

The German decade deserves a moment’s attention. Since section 22 of the KUG requires consent for ten years after death, the Federal Court of Justice has extended this same period by analogy to the pecuniary side of the post-mortem personality right in kinski-klaus.de (BGH, 5 October 2006, I ZR 277/03, BGHZ 169, 193), while the dignitary side endures beyond the ten-year mark. German law thus surrenders its transmissible part ten years after death. What survives is the dignitary part, which rests on constitutional grounds and is exercised by whoever is entitled to act for the deceased.

Whose interest the custodian asserts is settled in Germany and open in the Netherlands. German law divides the post-mortem personality right in two. The dignitary components rest upon Article 1(1) of the Basic Law, the right to free development of personality under Article 2(1) belonging to the living alone, and after death they are exercised by a person entitled to act on the deceased’s behalf (Wahrnehmungsberechtigter), in the case of images the Angehörige of section 22. That person holds defensive claims alone, and no claim for damages (BGH, 6 December 2005, VI ZR 265/04, BGHZ 165, 203, restated in kinski-klaus.de). The pecuniary components are separate. They are inheritable and pass instead to the heirs (Erben), who may bring damages claims in respect of them (Marlene Dietrich, BGHZ 143, 214), an allocation the Federal Constitutional Court held in 2006 (BVerfG, 22 August 2006, 1 BvR 1168/04) to be consistent with section 22, that provision governing consent rather than commercial value. Article 21 of the Auteurswet is drafted the other way about, speaking of a reasonable interest of the surviving relative herself.

The Dutch question may be left open, since the two readings fail for different reasons. Upon the first, the claimant asserts her own interest, and everything the video discloses belongs to her husband. Upon the second, the content identifies the person whose interest is asserted, and the difficulty moves to the place. Either reading leaves the concentrating head requiring one person to satisfy both of its conditions, a burden that under a custodial statute falls to two.

The existing commentary has been occupied with a different question. Giacomo Marola reads Idziski as a judgment of continuity in his contribution to the EAPIL Blog. Tobias Lutzi, at ConflictofLaws.net, entitled his note Nothing to See Here. Both readings are sound. The difficulty is that a rule which the Court has reaffirmed without qualifying it is now settled law for situations nobody has yet brought before it. A parallel debate has been running in Denmark and the Netherlands, where legislators have considered giving a person a statutory right in their own likeness, and it turns on who ought to hold such a right once its subject has died, and for how long. Neither literature has yet asked what follows once that question receives the answer the existing statutes already give it, which is to place the entitlement in the hands of somebody whom the content passes over.

Two bounds before going further. Neither reform is in force. The Danish bill, which would add new sections 65a and 73a to the Copyright Act and protect a person’s appearance and voice for fifty years after death, went out to consultation in July 2025 and was notified to the Commission under the TRIS procedure that October. The standstill ran into February 2026, when the Commission issued comments, and the entry date of 31 March 2026 written into the draft passed with the bill still not introduced. By February the Ministry of Culture had already moved its expectation to 1 July 2026, and a general election in March then removed the introduction slot as well. The Dutch initiative bill prepared by the member Dral, which would create a neighbouring right covering deepfakes of living and deceased persons, was consulted on between October and December 2025, and in May 2026 the Commissie Auteursrecht advised abandoning the proposed neighbouring right as an unsuitable instrument. Its author has since left the House of Representatives, and the government has said that it is for her successor to decide whether the project continues (Aanhangsel Handelingen II 2025/26, no 1351). The custodial provisions therefore govern. If either of the reforms arrives and if its related-right characterisation were to be recognised as an autonomous matter of Union law, the claim would move out of personality law and fall outside the scope of what follows. Secondly, if the defendant is domiciled outside the Union, then Article 6(1) applies together with the residual national rules of the forum.

What Idziski allocates

The judgment was given under Regulation 44/2001, the Polish proceedings having begun in 2013, and at paragraphs 26 and 27 the Court confirmed that its reading applies equally to Article 7(2) of Brussels Ia.

Upon the concentrating head the Court restated Mittelbayerischer Verlag (C-800/19). The courts of a claimant’s centre of interests may hear a claim for the entirety of the damage only where the content carries verifiable and objectively ascertainable material identifying that person, directly or indirectly, as an individual (paragraph 50). Indirect identification requires certainty, by reason of “attributes which are specific to them and which distinguish them from all other individuals” (paragraph 55). Membership of a defined group falls short of that standard, even where the group itself is unmistakable (paragraphs 53 and 54).

Consider the widow suing upon her own interest. Everything the video displays belongs to her husband, and the very feature that makes her claim worth bringing defeats her under the test.

The representative reading raises a different problem. If she exercises the deceased’s right, identification is satisfied since the content identifies the actor with precision. The centre of interests must then be located, and it belongs to a man who has died. eDate and Bolagsupplysningen both proceed upon a claimant with a life to be centred somewhere, and substituting the claimant’s own would detach the connecting factor from the person the content concerns.

Paragraph 56 confirms the difficulty rather than resolving it. The requirement exists so that the issuer of content may ascertain the centre of interests of those who are its subject, and predict where proceedings against him will lie. An uploader who generates a video of a well known actor may discover within a minute where that actor lived. The daughter’s residence remains obscure to him, and under Article 25a there may be four custodians acting independently, with four centres of interests between them. Predictability is served by asking after the person depicted, while the rule asks after the person suing.

The mosaic head remains available, and the point should be acknowledged. Paragraph 64 confirms, following Gtflix Tv, that compensation can be divided and recovered in each Member State for the damage caused there. Paragraph 67 applies as much to Z.R., who failed the identification test and could still recover in Poland. Both custodial provisions describe a territorial wrong. Section 22 covers distribution and public display, while Article 21 deals with openbaarmaking. This means the injury is spread across the states where the video was viewed. Nevertheless, the concession does nothing for the German dignitary custodian. Because his claim is defensive, a damages jurisdiction is of no use to him, and the removal he seeks lies with a court that paragraph 67 places elsewhere.

Ruling 2 limits what survives. A court with territorially limited authority hears divisible claims and does not have jurisdiction over a non-pecuniary remedy that seeks to correct information placed online (paragraph 67). This is based on the indivisibility principle from Bolagsupplysningen (paragraph 48). Removal is the remedy that answers content that can be regenerated faster than damages can be assessed. Lutzi adds that such non-pecuniary remedies as do survive face poor chances of being enforced in the defendant’s own Member State.

What remains

Paragraph 47 reassures that a claimant may always bring an action for damages covering all the harm caused, at the defendant’s domicile or at the place of the causal event. For a corporate co-producer, the two are distinct and useful. For a single uploader, they have the same address. Article 8(1) offers a joinder that these facts fail to satisfy. Uploaders who share a subject and a model are too loosely connected to risk irreconcilable judgments. Therefore, custodians must file a separate action for each uploader in that uploader’s own courts, based on whatever conflict rules the forum has in place. Personality claims are not covered by Rome II according to Article 1(2)(g). For this type of claim, the concentrating head of Article 7(2) leads to dispersal.

The merchandise version follows the same pattern. Shirts with a dead actor’s face are the paradigm the provisions were drafted for, unambiguously commercial and readily quantified. Dutch law has long recognised that a reasonable interest under Article 21 may be commercial, as the Hoge Raad addressed in Cruijff v Tirion (14 June 2013, ECLI:NL:HR:2013:CA2788). The shirt, however, depicts the actor alone.

One reply claims that the difficulty is merely academic, since notice and action can resolve such disputes, and questions of jurisdiction rarely come up. The argument holds so long as the platform agrees. Under Article 16(3) of the Digital Services Act, a notice is considered to give rise to actual knowledge when it permits a diligent provider to recognise the illegality without needing detailed legal examination. A notice sent by a Dutch widow, using a Dutch provision against a German uploader, in a field where applicable law is determined by residual national rules, is precisely the case that requires such an examination, and so falls outside the provision. Consequently, the notice keeps the provider where Article 6 of that Regulation found it, whatever other circumstances may later establish knowledge. Notice and action have concealed the defect instead of curing it.

Each part of the argument is old. Indivisibility dates back to 2017, and the identification requirement comes from 2021. Their combined effect on a claimant outside the contemplation of both is the novelty.

Anchoring the forum to the decedent

The solution proposed here aims to anchor the connecting factor to the deceased rather than to the person suing. This way, the concentrating forum shifts to the last centre of interests of the person the content concerns. Such a rule provides the predictability that paragraph 56 needs, locates the proceedings where evidence of the deceased’s reputation can be found, and restores the pairing that the head presupposes.

The concept allows for this development. In paragraph 39, the Court notes that the centre-of-interests option exists in the interests of the sound administration of justice rather than for the specific protection of the applicant. This clarifies why, in Bolagsupplysningen, the natural or legal character of the claimant was not important. A head of jurisdiction serving the administration of justice may perfectly well locate its connecting factor elsewhere than in the claimant. It should be found where the dispute belongs. For content concerning one identified deceased person, that location is where that person’s life was centred.

The proposal needs a development in doctrine rather than just application of it. The custodial provisions work by designation instead of transmission, and Article 25a allows four possible custodians to exercise independently, which resists simplification to a single inherited position. Lutzi and Marola both suggest that this kind of recalibration belongs to the recast of Brussels Ia rather than to the Court, and they are probably correct on this general point. The challenge is timing. Custodial claims will come with the next well known death, whereas the recast will take some more years to arrive.

The alternative solution is a private one and stems from a situation before Idziski. In the case of Stichting Right to Consumer Justice and Stichting App Stores Claims (C-34/24, 2 December 2025), the Court allowed representative foundations, asserting their own right to defend the collective interests of a group of unidentified but identifiable persons, to rely upon Article 7(2), a development which Burkhard Hess referred to as the creation of a new forum actoris through judicial lawmaking. Idziski continues this approach at paragraphs 57 to 59. A family could thus set up a foundation in order to defend the actor’s dignity, reputation and memory and to litigate through that foundation.

The course is inferior to the proposal made above even where it succeeds, since the availability of a forum would then depend upon whether a family possessed the means and the foresight to incorporate. It very likely fails in any event. The operative ruling speaks of a group whose members form a closed category, and a single deceased individual falls outside that description. Paragraph 59 grounds the exception in predictability, and the exception was predictable in Idziski because the series addressed the unit directly, whereas an uploader generating at volume remains ignorant of a foundation’s existence and of where it operates. The exception arose, moreover, in a Polish case concerning the collective dignity of a wartime unit, and may generalise less readily than its wording invites.

The question for the Court, when a national court eventually puts it, is whether the identification requirement in Article 7(2) attaches to the claimant or to the person whose interest is asserted. Idziski assumed the two to be one person, as the earlier case law had done, because on the facts of all those cases they were. Under a custodial statute they are always two.

AI was used in the creation of this post for feedback and research. All writing and analysis is the author’s own.

On Tuesday, September 8, 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).

Xandra Kramer (Erasmus University Rotterdam & Utrecht University) will speak, in English, about the topic

“Cross-Border Collective Litigation in Tech Cases: Is the European Framework up to the Challenge?”

Collective actions have gained traction in Europe, boosted by the Representative Actions Directive and enabled by third-party litigation funding in several jurisdictions. These increasingly involve cases against multinational big tech companies operating in Europe. The current private international law framework, however, is not designed to address the challenges of these complex cases.  The presentation will discuss how the European Court of Justice and Dutch courts have primarily handled questions of international jurisdiction and to what extent the existing legislative framework needs amendment.

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.

The authors bring considerable practical expertise to the subject. As the preface indicates, their analysis is informed not only by academic study but also by professional experience of state-immunity litigation. The result is a specialist and authoritative treatment of a technically demanding statute. The chapters generally combine legislative history, an overview of the relevant statutory provisions, and a detailed examination of their judicial application.

Chapter 1 explains the historical development of the State Immunity Act 1978 and the United Kingdom’s movement from absolute to restrictive immunity. Under restrictive immunity, a foreign state remains immune in respect of sovereign acts but may be subject to jurisdiction in relation to commercial and other non-sovereign activities. This distinction provides the organising principle for much of the Act and gives the subject its particular importance for private international law.

Chapter 2 is especially significant because it situates the 1978 Act within the wider legal framework. The Act is mandatory and generally supersedes the pre-existing common-law rules governing state immunity. Although it was influenced by the European Convention on State Immunity 1972, the United Kingdom courts are not required to interpret it as if it faithfully reproduced every aspect of that Convention. At the same time, the Act should, so far as its language permits, be interpreted consistently with customary international law, on the presumption that Parliament did not intend to place the United Kingdom in breach of its international obligations.

The United Nations Convention on Jurisdictional Immunities of States and Their Property  2004 may also inform the interpretation of the Act. It is not, however, binding for this purpose, nor can all its provisions automatically be treated as definitive statements of customary international law. The authors therefore demonstrate that statutory interpretation in this field requires careful engagement with legislation, treaties, customary international law and judicial authority.

The chapter also distinguishes state immunity from related regimes. The State Immunity Act primarily concerns the immunity of foreign states and incorporates exceptions associated with restrictive immunity. The Diplomatic Privileges Act 1964 and Consular Relations Act 1968, by contrast, protects particular persons in the performance of their official functions and is governed by separate legislations. Special missions and international organisations are similarly subject to distinct statutory regimes.

The discussion of human rights identifies a persistent tension between access to justice and respect for sovereign immunity. The United Kingdom courts have generally placed substantial weight on the latter. Provisions of the Act have nevertheless been challenged under Article 6 of the European Convention on Human Rights 1998. Declarations of incompatibility have been made in the employment context, most notably in Benkharbouche v Embassy of Sudan and Secretary of State for Foreign and Commonwealth Affairs v Benkharbouche, while in Kingdom of Spain v Lydia Lorenzo [2024] EWCA Civ 1602, the UK Court of Appeal ruled that a foreign state cannot claim state immunity in an employment discrimination and unfair dismissal case brought by an administrative embassy worker. These cases show that state immunity is not merely a procedural technicality: it may determine whether an individual has any effective opportunity to vindicate substantive rights.

The book also explains the post-Brexit relationship between state immunity and European Union law. EU law no longer has the supremacy it previously enjoyed within the United Kingdom, although retained or assimilated EU law and the European Union (Withdrawal) Act 2018 remain relevant to the historical development and present operation of some rules.

Equally important is the distinction between state immunity and the foreign act-of-state doctrine. Both rest, in part, on ideas of sovereign equality and the independence of states, but foreign act of state is a common-law doctrine rather than a product of the 1978 Act. The doctrines should therefore not be treated as interchangeable.

For private international lawyers, the book’s most important conceptual point is that the 1978 Act limits the adjudicatory jurisdiction that a United Kingdom court would otherwise possess. It does not itself confer jurisdiction. A claimant must first establish jurisdiction under the ordinary rules of civil procedure and private international law. Only then does the separate question arise whether the foreign state is immune from the exercise of that jurisdiction. This distinction between the existence of jurisdiction and immunity from its exercise is fundamental.

Chapter 4 examines the general immunity from adjudicatory jurisdiction. The statutory scheme leans strongly towards protecting foreign states: the claimant bears the burden of establishing an applicable exception to immunity, even where the foreign state declines to appear. This may present a considerable practical obstacle because the facts necessary to establish an exception may be difficult for a private claimant to obtain without the state’s participation.

Chapter 5 considers submission to jurisdiction. A choice-of-court agreement in favour of the courts of any part of the United Kingdom may constitute a waiver of immunity, whereas a choice-of-law clause does not. This distinction is particularly important in drafting international contracts. Selecting English law does not, without more, amount to consent by a foreign state to the jurisdiction of the English courts.

Submission may also occur through a treaty, convention or other international agreement, but it must be express. A state may submit after the dispute has arisen, and although such submission must be express, it need not necessarily be in writing. Submission may additionally result from instituting proceedings, advancing a counterclaim or participating in proceedings beyond what is necessary to assert immunity. The act of submission must be duly authorised by the state. Once valid submission occurs, the state is generally placed in the position of an ordinary litigant for the relevant proceedings. Importantly, however, submission to adjudication does not necessarily amount to consent to enforcement against state property.

Chapter 6 addresses commercial transactions and associated obligations, including contracts to be performed in the United Kingdom. The commercial-transactions exception lies at the heart of restrictive immunity and is shaped by both the earlier common law and the European Convention. It is particularly relevant to private international law because disputes concerning the character of a transaction, contractual performance and the territorial connection with the United Kingdom may determine whether immunity is available.

Chapter 7 concerns employment contracts. As the authors observe, section 4 may justifiably claim to be among the most controversial provisions of the Act. The central authority is Benkharbouche, in which statutory restrictions on claims by state employees were held incompatible with Article 6 of the European Convention on Human Rights and, at the relevant time, Article 47 of the EU Charter of Fundamental Rights. The resulting changes strengthened employees’ access to justice. The chapter is particularly valuable because cross-border employment disputes frequently bring together jurisdiction, applicable law, mandatory employment protection, human rights and the public international law of immunity.

Chapters 8 to 14 examine the statutory exceptions relating to personal injury and damage to property; ownership, possession and use of property; intellectual and industrial property; companies and other collective bodies; arbitration; admiralty proceedings; and taxation. The property provisions remove immunity in defined proceedings concerning property, subject to protections for premises used for diplomatic purposes. The intellectual-property exception reflects restrictive immunity but has generated comparatively little reported litigation.

The arbitration chapter is of special interest to commercial lawyers. Where a state has agreed in writing to submit a dispute to arbitration, immunity from the supervisory or supporting jurisdiction of the courts is generally removed in relation to the arbitration. This provision has been frequently litigated. Nevertheless, the existence of an arbitration agreement and the removal of adjudicatory immunity do not automatically permit execution against state assets. Parties dealing with states must therefore distinguish carefully between consent to arbitration, consent to court proceedings connected with arbitration and waiver of immunity from enforcement.

Chapter 15 examines service of process and default judgments. These procedural matters have substantial private international law significance because the validity of service and the protection afforded to an absent foreign state may determine whether proceedings can advance and whether a judgment will ultimately be effective.

Chapter 16 addresses enforcement jurisdiction, perhaps the area in which the special position of a sovereign state is most pronounced. Coercive measures—including injunctions, contempt proceedings, orders compelling employee reinstatement and execution against state property—are generally considered inappropriate without a sufficient statutory basis. Even where a claimant has successfully established jurisdiction and obtained judgment, enforcement may therefore remain impossible.

The principal exceptions arise where the state has expressly and unequivocally waived immunity from enforcement or where the relevant property is in use, or intended for use, for commercial purposes. A waiver of immunity from adjudication should not lightly be treated as a waiver of immunity from execution. This separation has major practical consequences: a claimant may win the legal dispute yet be unable to obtain the benefit of the judgment. The chapter reinforces the need for contracts involving states to contain carefully drafted and distinct waivers addressing jurisdiction, interim relief and enforcement.

Chapter 17 discusses the meaning of “the State” and the treatment of separate entities, central banks and constituent territories. Whether a body forms part of the state or is a separate entity may determine both the applicable test for immunity and the availability of assets for enforcement. Central-bank property receives particularly strong protection. These classification questions are often decisive in cross-border litigation, especially where commercial activity is conducted through state-owned corporations or other legally distinct bodies.

The remaining chapters address the power to amend Part I, savings and excluded matters, statutory interpretation, foreign judgments, heads of state and related persons, and certificates concerning facts of state. Chapter 21’s treatment of foreign judgments is particularly relevant to private international law, although the statutory mechanism considered there appears never to have been used against the United Kingdom. More generally, the relationship between foreign judgments and state immunity raises difficult questions: recognition of a judgment, adjudicatory jurisdiction over the state and execution against state property are separate stages and may be governed by different requirements.

Overall, this is a highly specialised work. A sound knowledge of public international law—and, to a lesser extent, private international law—is helpful if the reader is to appreciate its analysis fully. Yet the book is also valuable precisely because it demonstrates that the boundary between the two disciplines is permeable. State immunity is founded in public international law, but it operates through the machinery of private litigation. It affects jurisdiction, choice-of-court agreements, employment disputes, arbitration, service, foreign judgments and enforcement.

Before reading the book, I was sceptical about the practical force of public international law, particularly because powerful states sometimes appear able to disregard its principles without meaningful consequences. This book has caused me to reconsider that view. Public international law is not confined to prominent disputes about war or territorial sovereignty. In the field of jurisdictional immunities, it performs an important stabilising function by mediating between access to national courts and the sovereign equality of states. It thereby contributes to international comity and the orderly conduct of relations among states.

For a private international lawyer, the book’s lasting lesson is that ordinary rules of transnational litigation cannot be applied to foreign states without accounting for their sovereign character. Conversely, public international law principles of immunity acquire practical effect through domestic rules governing civil proceedings. Dickinson and Thompson’s work illuminates that relationship with considerable depth. It merits close attention from practitioners and scholars working on cross-border litigation, international commercial arbitration, employment disputes involving states, and the recognition and enforcement of judgments and awards. It is also a book to which I expect to return as my understanding of the relationship between public and private international law continues to develop.

The Annual Conference of the American Association of Private International Law (ASADIP) will take place from 20 to 23 October 2026 in San Salvador (El Salvador). It is entitled the transformative spirit of Private International Law (“La vocación transformadora del Derecho Internacional Privado”).

The deadline to submit posters has been extended to 13 September 2026.

As indicated in the call for evidence, “[t]he aim of the consultation is to collect evidence, experiences and opinions from relevant stakeholders. These contributions will inform the analysis and assessment of the performance of the Regulation in its current form, the shortcomings identified, possible policy options to address them and their expected impacts.”

The public consultation will run from 1 September 2026 until 24 November 2026 (midnight Brussels time).

My book Wrongful Patent Assertion:  A Comparative Law and Economics Analysis (Oxford Univ. Press 2026) is now available for purchase online and in hard copies in all major markets.  Readers can download the first chapter for free using this link, through the end of this month.  In addition, you can use the promotion code listed in the picture below (AUFLY30) for a 30% discount. 

From the book description:

Patents play an important role in inducing the investment needed to transform basic discoveries into the practical innovations that contribute to long-term economic growth. But patents also can generate a variety of social costs which, if unchecked, can unnecessarily impede competition, inhibit innovation, impair the integrity of the marketplace, and reduce overall social welfare.

Wrongful Patent Assertion provides the first comprehensive, comparative overview of how the world's leading jurisdictions for patent litigation employ different bodies of law and legal doctrines-including antitrust and unfair competition law, as well as other generally-applicable legal principles-to regulate the enforcement of patent rights, and how these efforts might be improved. Among the topics discussed are the circumstances under which owners are or should be liable for the actual or threatened enforcement of patent rights; what sort of harms should matter in assessing liability; and the circumstances under which liability should depend, in whole or in part, upon the patent having been adjudicated invalid or not infringed ex post, or upon evidence that the assertion of rights enables the owner to extract benefits beyond the patent's probable ex ante scope; or alternatively, upon some reason independent of the patent's actual or probable validity or infringement.

This second post on the Court of Appeals for England and Wales’ recent decision in Lufthansa Technik AG v. Astronics Advanced Electronic Systems, [2026] EWCA Civ 964, will focus on Lord Justice Arnold’s analysis of the lower court’s award of a portion of the profits earned by defendants Astronics, Panasonic, and Safran.  For the facts of the case, see my first post in this series, published last Thursday.

The principal issue under consideration, as the court states, is how to “distinguish between ‘the profits derived . . . from the infringement’ and profits which are not ‘derived . . .  from the infringement’” (para. 78).  To answer this question, the opinion sets out to analyze the relationship between a “differential profits” approach and apportionment.  Paragraphs 80 through 82 state the parties’ competing positions:

80. Lufthansa contends that, in most cases, the correct way in which to distinguish between “profits derived … from the infringement” and profits which are not “derived … from the infringement” is by ascertaining the difference between the profits which the defendant made from its infringing activities and the profits which the defendant would have made from the nearest available NIA [noninfringing alternative]. This type of analysis is most commonly referred to in the case law and the academic literature as a “differential profits” analysis, although other terms (such as “incremental profits”) are sometimes used. Once a differential profits analysis has been undertaken, Lufthansa contends that there is no legal or economic justification for applying an apportionment of the profits: these are alternative approaches to the isolation of profits caused by the infringement. Lufthansa accepts that there may be cases in which apportionment is appropriate, but it argues that a differential profits analysis is usually preferable. What is not legitimate is to apply both. Lufthansa also accepts that, having carried out a differential profits analysis, it remains necessary to ask whether any of the resulting profits were too remote (in the broad sense) from (i.e. not legally caused by) the defendant’s acts of infringement. Lufthansa argues that this addresses the problem of long chains of causation, and does not justify apportionment.

81. Lufthansa contends that, since the judge found that the Defendants had failed to establish any NIA, the result of the differential profits analysis is that all of the profits in question “derived … from the infringement”. The Defendants’ failure to establish an NIA demonstrates the Patent was a “gateway” patent which controlled access to the relevant market. Accordingly, Lufthansa says, it is just that Lufthansa should recover all of the profits generated as a result.

82. Astronics and Panasonic contend that apportionment is a well-established approach in English law to determining what profits are “derived … from the infringement”, and that the use of apportionment is not precluded by a finding that all of the profits in issue were factually caused by the infringing acts. . . . It would be unjust for Lufthansa to recover all of the profits in issue, because there were multiple causes for the generation of those profits. Although infringement of the Patent was necessary for those profits to be generated, it was not sufficient.

The opinion then spends several pages (paras. 84-132) discussing the relevant common-law precedents, including (among many others) Celanese International Corp v BP Chemicals Ltd [1999] RPC 203, a case I discuss and critique at some length in my book Comparative Patent Remedies, and Nova Chemical Corp v Dow Chemical Co [2022] SCC 43 (Can.), a decision that Norman Siebrasse discusses and critiques in two papers, Nova v. Dow: Intuition or Principle in the Accounting of Profits Remedy, Part I, 35 I.P.J, 249 (2023); Norman V. Siebrasse, Nova v. Dow: Intuition or Principle in the Accounting of Profits Remedy, Part II, 36 I.P.J. 81 (2023).  The opinion also discusses and critiques some academic works that Siebrasse and I, among others, have either authored or coauthored (paras. 133-42).  The opinion’s principal critique of some of this work is that it doesn’t answer the question of how a court should proceed when the evidence does not indicate what the NIA would have been.  (Later in the opinion, as noted below, the opinion rejects the argument that courts should resolve this issue simply by allocating the burden of production or burden of proof to one party or the other.)  I commend all of this to readers’ attention,  but in the interest of conciseness I will cut to Lord Justice Arnold’s resolution of the issue, which begins at paragraph 143:

143. Analysis of the law. As is common ground, factual causation is not enough on an account of profits any more than it is on an inquiry as to damages. The reason is simple: factual causation proves too much. Applying the usual “but for” test of factual causation, the infringer may have made profits which it would not have made but for the infringement, but which are not in truth derived from the infringement as opposed to other factors. . . . Accordingly, as is also common ground, legal causation is required as well as factual causation. . . .

145. Lufthansa argues that a correct application of the “but for” test of factual causation involves the identification of a counterfactual world in which the infringements did not take place. That requires identification of the nearest NIA available to the defendant. The difference between the profit the infringer in fact made and the profit the defendant would have made had it adopted that NIA (i.e. the differential profit) represents the profit derived from the infringement. On this argument, a differential profit analysis identifies with precision the profits attributable to infringement as opposed to other factors. Thus it accounts for the causal potency of the different factors. Accordingly, the only role for legal causation is to police the length of the causation chain, and to exclude profits which are too remote from the infringing acts (e.g. profits made by reinvestment of the profits from the infringing acts into a cryptoasset which performs very well). . . .

Lord Justice Arnold, however, expresses agreement “with Astronics and Panasonic that the ‘but for’ test of factual causation does not necessarily require the identification of a specific NIA,” and “that the role of legal causation in this context is not limited in the manner contended for by Lufthansa” (para. 148).  In my view, the next several paragraphs are the most important portion of the opinion, so I’m going to quote them with only minimal editing for concision. 

149. As Astronics and Panasonic accept, there may be cases in which a differential profit analysis is useful for this purpose. As they submit, however, differential profit analysis is fraught with difficulty. . . .

150. The reason why differential profit analysis is fraught with difficulty is that, in order to identify with precision the profits attributable to the infringement, as opposed to other factors, it is necessary to identify a counterfactual in which all other factors are held constant and the minimum change is made to ensure that the patent is no longer infringed, so that the economic impact of the infringement can be isolated from the economic impact of other factors. In theory, this should present no difficulty. In the real world, the opposite is true.

151. The first question is who bears the burden of identifying and proving the NIA. The Canadian courts have held the burden rests on the defendant, but it is not clear to me why this should be so. One could argue that the burden should lie on the claimant, since the claimant is claiming the profits derived from the infringement, and if it relies upon differential profits analysis to quantify those profits, then the claimant must prove the NIA which should be used for that purpose. A potential difficulty with that approach is that it would enable the claimant to skew the differential profits analysis by selecting a very unprofitable NIA. As I understand the jurisprudence of the US courts on this question, they apply a shifting burden of proof under which the claimant must first identify an NIA, and then the onus is upon the defendant if it wishes to rely upon a different NIA as being a better one. That is a principled approach, but in many cases it will lead to an evidential burden on both parties.

152. If the defendant bears the burden of proof either in full or in part, the next question is what happens if the defendant proposes an NIA which the claimant contends is not an NIA because it also infringes the patent in suit? This is what happened in the present case. The first problem with this is that it required the judge to undertake a patent infringement trial as part of the account of profits, with all the attendant complexity and expense.

153. The next problem is what happens if the claimant turns out to be correct, and the proposed NIA actually infringes. Lufthansa argues that, because the Defendants failed to prove their chosen NIA, Lufthansa can claim all the profits. But all this shows is that the supposed NIA is inapposite for a differential profit analysis because it is not actually an NIA. It should not mean that the court is relieved from the burden of identifying an NIA, because differential profit analysis requires an NIA. One answer to this would be for the defendant to plead and prove a series of alternative potential NIAs, each further away from the claimed invention than the last, but that would simply compound the first problem.

154. The next difficulty is that a question may arise as to whether the defendant could have undertaken the NIA. Suppose that the NIA requires access to a particular raw material or part, but the defendant did not have access to that material or part at the relevant time. As I understand Lufthansa’s argument, this means that the defendant cannot rely upon the NIA, but I question why not. The availability of that material or part does not alter the inventive contribution of the patent. The object of a differential profit analysis is to identify what profits are caused by the use of invention, not what profits are caused by adventitious commercial factors. A similar problem arises if the defendant is prevented from using the NIA by regulatory factors unrelated to the invention. . . .  

155. Furthermore, a question may arise as to whether, even if the defendant could have undertaken the NIA, it would probably have done so. This seems to me to even less relevant, since ex hypothesi we are considering a counterfactual. A counterfactual is a thought experiment whose purpose is objectively to identify the consequences of what the defendant actually did. It does not depend on the probability of the defendant doing the alternative in the counterfactual world. . . .

156. The next difficulty is the one I mentioned when discussing the academic literature. In adversarial litigation courts depend on the parties to adduce evidence. What happens if the evidence does not enable the court to identify a suitable NIA? Counsel for Lufthansa argued that it is always possible to postulate an NIA, even if it is simply not producing the product in question at all. The problem with this argument is that an NIA only serves the purpose of the differential profit analysis if it enables the court to distinguish between the profits derived from the infringement from the profits derived from other factors. As explained above, this requires the identification of an NIA in which the minimum change necessary to avoid infringement is made, but all other factors are held constant. As the present case illustrates, the evidence may not permit this satisfactorily to be done.

157. The final problem I will mention is the one touched on by Laddie J in Celanese v BP at [43] (paragraph 102 above). In the real world, it is often the case that a complex product or process is covered (or arguably covered) by multiple patents relating to different aspects of the product or stages of the process. How does differential profits analysis work on a claim for an account of profits for infringement of just one of those patents? It cannot be correct to treat all of the profits generated by the manufacture and sale of the complex product or process as attributable to that infringement and none as attributable to the use of the other inventions. It could be argued that this depends on whether the other patents are (a) valid and (b) infringed, but that raises the spectre of determining the validity and infringement of each of those patents, without the participation of the owners of those patents, for the purposes of an account of profits. . . .

158. In short, while differential profit analysis has much to be said for it in terms of legal and economic theory, applying it in real world litigation is at best difficult, costly and uncertain.

159. The conclusions which I draw from this discussion are as follows. First, as Astronics and Panasonic accept, there are some cases in which it is possible to say that all of the profits in issue are derived from the infringement. As Laddie J explained in Celanese v BP at [47] (paragraph 104 above) and Lewison LJ noted in Abbott v Design & Display at [28] (paragraph 108 above), these are cases where, without the infringement, the infringer’s product or process would not have existed at all or where the invention was the essential ingredient in the creation of the infringer’s whole product or process. It may be possible, as discussed above, to reconcile such cases with differential profit analysis on the basis that the NIA is not manufacturing products at all, but that does not seem satisfactory. In any event, that is not how they have been analysed in the English or Australian case law. I shall return to this question in the context of ground 2.

160. Secondly, as Astronics and Panasonic also accept, there may be some cases in which differential profit analysis is a useful tool to identify the profits derived from the infringement, rather than from other factors. These will be cases where there is a well-defined and uncontested NIA which only changes the defendant’s product or process to the minimum extent necessary to avoid infringement and holds all other factors constant. For the reasons given in paragraphs 149-157 above, I am sceptical as to whether there are likely to be many such cases.

161. Thirdly, the English and Australian case law demonstrates that there is a well-established alternative to differential profit analysis, which is for the court to make a fair apportionment of the profits in issue. This approach is to be adopted when the case does not fall into either of the two categories discussed in paragraphs 159-160 above, that is to say, it is not a case where all of the profits are derived from the infringement or where a differential profit analysis can readily be undertaken. I will discuss how apportionment is to be carried out when I come to ground 4.

 I’ll stop there for now, and comment a bit on the preceding paragraphs.

First, I agree with Lord Justice Arnold that, in the real world, and particularly in cases involving complex products, it often may be unduly difficult or impossible to calculate the profit attributable to the infringement by means of the differential profits approach; and that, in recognition of these difficulties, what courts often tend to do is to apportion, as best they can, the profit attributable to the invention in comparison with the other features of the accused product.  This is a point I do make when I teach my IP remedies course, but I probably have not made it sufficiently clear in my scholarship, which has tended to emphasize why I believe that, in general, the differential profits approach is correct in theory and should be employed when it is feasible to do so.  A related point that I have tried to emphasize, however, in papers such as Patent Damages Heuristics, is that there often is a tradeoff between (theoretical) accuracy and administrability; and that sometimes the net benefits of a more easily administered rule outweigh the net benefits of (what might seem to be) a more precise, but also more costly to implement, approach.

Second, I agree with much, though not all, of Lord Justice Arnold’s analysis of the problems that can arise when trying to carry out a differential profits analysis.  It is, of course, often difficult to determine precisely what the NIA was (or to disentangle how its use might have affected other aspects of the accused product).  There is also the difficulty of determining how to proceed if a proposed NIA itself turns out to be patented, which is a matter my coauthors and I briefly noted at pages 20-22, 62 of Patent Remedies and Complex Products, but didn’t attempt to resolve. Where I might respectfully disagree with Lord Justice Arnold is in his discussion at paragraphs 154-55 of whether a differential profits analysis should take into account “adventitious commercial factors” or what the defendant would have done but-for the infringement as opposed to what it could have done.  More generally, I tend to agree with Norman Siebrasse, in his critique of the Canadian Supreme Court decision in Nova v. Dow (a case discussed in the present decision at paras. 127-32), that the correct approach when applying the differential profits analysis is to identify what the defendant would have done but-for the infringement, even if that noninfringing option consists of deploying its resources to make an entirely different product.  The goal of the disgorgement remedy should be to determine how much the defendant benefited from the infringement, and that means taking into consideration what action the defendant would have taken had it not infringed and estimating what benefits, adventitious or not, it would have derived from doing so.  For further discussion of this issue, see Siebrasse's article on Nova v. Dow, Part 1, particularly pp. 299-301 (arguing, inter alia, that "[a]n effort to determine the true value of the invention, apart from such happenstance, is akin to an effort to determine the true harm from negligent driving by awarding damages according to some ideal or average harm that would be caused by a negligent driving accident, rather than the accident that actually happened"). 

Third, and related to the preceding points, the differential profit approach can run into problems if there are two or more patents that are essential to the production of the product in question.  Imagine, for example, that two patentees each own an essential patent that is infringed by the maker of the accused product, and that each patentee files its own independent infringement action.  Each might claim that, absent the use of the patented technology in suit, the defendant would have earned zero profits; but surely it would make no sense to award each patentee the entire profit earned from sales of the infringing product.  Some sort of apportionment would therefore seem to be necessary instead.  (Perhaps the correct theoretical approach solution in such a case would be to apply some version of Shapley Pricing to isolate the inventive contribution of each essential patent, as Siebrasse and I proposed in The Value of the Standard--though we cautioned there that our analysis was not “intended to describe how we think a real world royalty setting process should work,” but rather as presenting “conceptual benchmarks for assessing a FRAND royalty” (p.1199).  I would also call interested readers’ attention to a somewhat analogous issue discussed by Jason Reinecke in his article Lost Profits Damages for Multicomponent Products:  Clarifying the Debate, 71 Stan. L. Rev. 1621 (2019), in the context of lost profits and multiple essential patents.) 

Returning to the Lufthansa decision, the next portion of Lord Justice Arnold’s opinion concludes, in brief, that the trial court was correct to apportion profits, despite some language in the lower court opinion suggesting that it was doing so despite having found that those profits were not legally (proximately) caused by the infringement (see paras. 162-76).  In fact, there was sufficient evidence that an allocable portion of the profits were legally caused by the infringing use of the patent (paras. 177-90).

That leaves for discussion Lord Justice Arnold’s analysis of the method of apportionment, the double recovery issue, and interest, as well as the two short concurring opinions by Lord Justices Nugee and Lewison.  I will return to these in a subsequent post or posts.    

Susanne Gössl (Bonn), Frederick Rieländer (Bremen), and Benedikt Schmitz (Groningen) are happy to announce the creation of the European Group on the Digitalisation of Justice (EGDJ), a Chapter-based collaborative research network dedicated to analysing, evaluating, and shaping the ongoing digital transformation of judicial systems across Europe. It focuses on end-users, the judiciary as well as public administrations, and broader systematic changes.

Inspired by the insights of a comparative symposium held in Groningen in May 2026, EGDJ is launching with the Netherlands and Germany as its inaugural chapters. A chapter represents either a country or a region and is headed by one or more “leads”. Chapters must participate in group-wide projects but may also conduct their own national initiatives. Leads are responsible for convening a group of scholars, practitioners, and policymakers from all procedural fields of law (PIL, civil procedure, administrative procedure, criminal procedure). The number of members for each chapter is not limited. A Chapter can also be a pre-existing group on national level.

Given EGDJ’s clear aspiration to be truly European, we are now looking for interested persons to take on the position as lead for their country/region. For a list of already existing Chapters, see: https://egdj.org/who-we-are/. This list will be updated on a rolling basis.

After passing of the (soft!) deadline, we will convene an online meeting to discuss the ins and outs of this new European Group on the Digitalisation of Justice, inviting you to directly influence its future direction.

Express your interest before 1 October 2026

Please send an email to the EGDJ coordinators at info@egdj.org, containing the following:

• Your name, position, and professional affiliation
• The country/region you would like to represent
• Your motivation for doing so
• And, if applicable, prior experience in the area of digitalisation of justice

The soft deadline to express your interest is before 1 October 2026. You may send an email at a later stage, too, but this might not be in time for the inaugural online meeting.

Questions?

If you have any questions, please contact Benedikt Schmitz at b.schmitz@rug.nl.

Earlier this month I noted the decision of the Court of Appeal for England and Wales in Lufthansa Technik AG v. Astronics Advanced Electronic Systems, [2026] EWCA Civ 964, and said that I would return with a more detailed, possibly two- or three-part analysis, focusing on the court’s handling of disgorgement of profits, double recovery, and prejudgment interest.  This post is the first part of that series, in which I will lay out the essential facts and set the stage for discussion of the general principles for calculating the profit to be disgorged.

The facts, in brief, are as follows.  Lufthansa owned European Patent (UK) No. 0 881 145, relating to “an apparatus that supplies electrical power to a socket that can be used by aircraft passengers for equipment such as laptops, mobile phone chargers and the like” (para. 2).  “The invention comprises a safety feature which detects whether a plug has been properly inserted before supplying power from a remote unit to the socket,” and “is useful where it is desired to supply passengers with high-voltage AC power rather than low-voltage DC power” (id.).  “The infringing acts concern the supply of EmPower Fusion systems incorporating the patented safety feature,” which “feature is implemented by an outlet unit or socket, an inseat power supply unit . . . and a cable that connects the two together (“the Primary Components”). The Primary Components can be used in conjunction with a number of additional components (“the Secondary Components”), the most important of which is the master control unit,” which “is usually located within the electronics bay of the aircraft and controls the distribution of power to a variety of downstream systems” (para. 5).  Astronics made the Primary and Secondary Components, which it sold to providers such as Panasonic, who “in turn sold integrated IFE [In-Flight Entertainment] systems incorporating the Primary and Secondary Components to airlines” (para. 6).  Astronics also sold the Primary Components directly to airlines, e.g. for use on shorter-haul flights, and in such cases companies such as Safran incorporated those components into airline seats (id.).  

Although the patent expired in 2018, litigation concerning the English, German, and French designations of EP `145 has been going on for some time.  The judgment of the Patents Court finding the defendants to have infringed issued in 2020, and in 2022 Lufthansa elected for an account of profits.  In 2024, the Patents Court held that Astronics was liable in the amount of US$4.42 million, Panasonic in the amount of US$7,384 million, and Safran (as subsequently revised) in the amount of $US 567,800.  In 2025, the Patents Court issued another decision awarding interest and declining “to make an order requested by the Defendants with a view to preventing double recovery by Lufthansa in proceedings in France and Germany” (para. 8).  Lufthansa appeals the profits awards against Astronics and Panasonic (it argues they should be higher).  The three defendants appeal the award of interest and the order concerning double recovery, and Astronics and Panasonic appeal an aspect of the 2024 judgment concerning whether a 1998 license Lufthansa granted to a third party (KID Systeme) was exclusive (which would affect the amount of profit to be awarded for a portion of the relevant time period).

There are additional facts set forth early on in Lord Justice Arnold’s opinion, concerning the development of an in-seat power supply unit by, and the issuance of related patents to, Olin Aerospace (later spun off as Primex Technologies, which was later acquired by General Dynamics, which later sold the unit to Astronics); the development by Lufthansa of the patented technology in suit; Lufthansa’s partnering with KID Systeme, a division of Airbus, to build its own in-seat power supply unit, as memorialized in a 1998 Teaming Agreement and a later, 2014 Teaming Agreement; and the 2003 settlement of litigation between Airbus/KID and General Dynamics concerning possible infringement of what were originally the Olin patents by Airbus/KID, and possible infringement of Airbus/KID’s “right of exclusive use” of the patent in suit by General Dynamics (paras. 12-35).  During the relevant time period, Astronics’ AC power system outsold KID’s, and by 2018 the former’s market share was 87.9% (para. 36).

On then to the principles concerning disgorgement of profits.  Early on, Lord Justice Arnold sets out the rationale for the remedy as follows:

53.  It is debatable whether the remedy of an account of profits for infringement of an intellectual property right is accurately described as a restitutionary one, although it can certainly be viewed as a remedy for unjust enrichment. For this reason, some scholars prefer to term the remedy “disgorgement”. Either way, the remedy should be distinguished from using the infringer’s profits as either evidence of, or a proxy for, the damages suffered by the right owner, as some legal systems do. It is well established that the purpose of the remedy is not to punish the infringer. On the other hand, it has been recognised by some courts that deterrence is part of the rationale, since an award of damages may in some circumstances leave the infringer better off than if it had not infringed, whereas an account of profits cannot have that effect: see, for example, Nova Chemical Corp v Dow Chemical Co [2022] SCC 43, [2022] 3 SCR 352 at [44]-[48] (Rowe J).

He then moves on to causation:

55. As [Patents Act] section 61(1)(d) makes clear, the profits for which an infringer must account are the profits “derived by him from the infringement”. Thus the profits must have been caused by the infringing acts. It is common ground that this involves both factual causation and legal causation. It is also common ground that, to this extent, the same principles are applicable to accounts of profits as to damages for patent infringement: see Imperial Oil Ltd v Lubrizol Corp (1996) 71 CPR (3d) 26 at 30 (Canadian Federal Court of Appeal), Celanese International Corp v BP Chemicals Ltd [1999] RPC 203 at [37] (Laddie J) and OOO Abbott v Design and Display Ltd [2016] EWCA Civ 98, [2016] FSR 27 at [14] (Lewison LJ). . . .

57.  It was common ground before the judge that the “but for” test of factual causation required consideration of a hypothetical counterfactual world in which the Defendants had adopted the nearest non-infringing alternative (“NIA”) to the arrangement claimed in the Patent. As explained in slightly more detail below, the Defendants argued that, had they not infringed, they could and would have made an alternative outlet unit referred to as the 1171M. The judge found that the Defendants had established this on the balance of probabilities, but that the 1171M would still have fallen within the claims of the Patent. Thus the Defendants failed to establish the only NIA for which they contended. Accordingly, the judge found that the profits claimed by Lufthansa had been factually caused by the Defendants’ infringing acts.

58. There is no challenge by the Defendants to the judge’s finding of factual causation. It should nevertheless be noted that the Defendants no longer support the proposition that factual causation in an account of profits for patent infringement requires consideration of an NIA. The Defendants consider that factual causation is a much simpler question: what profits were the consequence of the pleaded acts which were held to infringe? In the present case the infringing acts consisted of the supply of the Primary Components in the United Kingdom. Those supplies led to the profits being made which the parties’ accounting experts were able to identify as being consequent on those acts, including profits made by the supply of Secondary Components.

The next portion of the opinion sets out the trial judge’s analysis of the causation issue.  As summarized by Lord Justice Arnold, the trial judge found “that Astronics would not have made the profits in issue but for the infringement of the Patent for which Morgan J had held Astronics liable. Secondly, he found at [452]-[465] that, but for the supply of the Components to Safran and Safran connecting them together and incorporating them into airline seats, Panasonic would not have made the profits in issue. Thirdly, he found at [466] that Safran would not have made the profits in issue but for the infringement of the Patent for which Morgan J had held Safran liable” (para. 63).  However, the trial judge also found that legal (proximate) causation was lacking, because the features of the patented invention were only some of the many other features that were necessary to the functional and commercial success of the infringing system (para. 64).  The same reasoning applied to Panasonic; as for Safran, the plaintiff conceded that apportionment would be appropriate, so the court didn’t believe it to be necessary to decide legal and proximate causation with respect to that defendant (para. 65).  The trial judge nevertheless concluded that, despite the lack of proximate causation as to Astronics and Panasonic, Lufthansa was entitled to an apportioned amount of these firms’ profits.  “He noted at [574] that the Defendants had pleaded four alternative ways of apportioning their profits: (i) patent counting, (ii) the cost of the Components, (iii) the causative effects of the Patent and other factors and (iv) by reference to the 2014 Teaming Agreement [under which Lufthansa granted KID a non-exclusive license, see para. 39] (para. 71).  Ultimately, the trial court derived an implicit royalty rate from the 2014 Teaming Agreement, of 21% deducting all overheads or 13% deducting incremental overheads only.  He applied the 13% rate to Astronics’ and Panasonic’s profits, resulting in the $4.42 million and $7.384 million figures noted above (paras. 73-75).

From these conclusions, Lufthansa raises four grounds for appeal.  “Ground 1 is that, having correctly carried out a differential profits analysis, the judge was wrong then to make an apportionment of the Defendants’ total profits because those approaches are alternatives. Ground 2 is that the judge erred in his approach to legal causation. Ground 3 is that the judge wrongly applied the test for legal causation. Ground 4 is that, even if he was right to apportion the Defendants’ profits, the judge erred in his approach to apportionment” (para. 77).

Long story short:  Lord Justice Arnold concludes that it was appropriate to carry out an apportionment analysis on the facts of the present case; that the judge’s approach to legal causation was erroneous, but that he was correct to apportion nonetheless; and that the method used by the judge for apportionment was correct, though with a correction to be made with regard to the effect of the original (1998) Teaming Agreement.  Why?  That will be the subject of my next installment. 

On 30 November and 1 December 2026, the University of Vienna (Section for Comparative, Uniform and Private International Law) will host a conference entitled „Conflict of Laws in International Arbitration“.

Four thematic sessions will consider current issues revolving around the law governing (1) arbitrability and the arbitration agreement, (2) the conduct of proceedings, (3) privilege and document production, as well as (4) the merits of the dispute. The panels include academics and practitioners from Asia, Europe, and the Americas, with plenty of time reserved for discussion and networking.

Early winter is an optimal time to visit Vienna, and Christmas markets will already be in full swing. A Mulled Wine Reception in the evening of the first conference day will hopefully spread a festive mood among participants, and will be followed by the optional Conference Dinner at Vienna City Hall.

The preliminary agenda for the conference is now available here.

Registration is possible here and free of charge for full-time academics, students, and public servants; early-bird prices of EUR 80 are still available for other participants.

A charge of EUR 60 applies for the optional conference dinner.

We are looking forward to welcoming many of you to Vienna!

We are excited to announce that the Third Conflict of Laws Annual Workshop (CLAW3) will be hosted by the University of Pennsylvania Carey Law School on Friday, November 13, 2026 with a welcome dinner the night before. The CLAW aims to provide a forum to discuss new work in conflict of laws. The CLAW welcomes work on all aspects of conflict of laws, including civil, criminal, domestic and transnational conflict of laws. We welcome all those writing and working in the field of conflict of laws to attend.

Call for Papers

Those wishing to present a paper for discussion should submit a one-page abstract by September 18. Please email abstracts in Word or PDF format to roger.michalski@ou.edu, asimowitz@willamette.edu, and krooseve@law.upenn.edu.

Logistics

The CLAW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.

Please do not hesitate to contact us if you have any questions.

All the best,

Kim, Roger, & Aaron

While I was away last week, the Federal Circuit handed down its decision in VDPP, LLC v. Volkswagen Group of America, Inc., precedential opinion by Chief Judge Moore joined by Judges Lourie and Cunningham.  The patent at issue had expired by the time the patentee sued Volkswagen, and so the patentee could only seek damages for infringement occurring (a) prior to patent expiration and (b) within the six-year statute of limitations.  The patentee nevertheless failed to plead with sufficient particularity, much less prove, that it had made reasonable efforts to ensure that other entities to whom it had licensed the patent in suit pursuant to settlement agreements complied with the patent marking requirement set forth in 35 U.S.C. § 287(a).  The Federal Circuit affirms that that failure is fatal to the patentee’s ability to recover damages, and since that was the only relief to which it might have been entitled, it failed to state a claim upon which relief may be granted.  In addition, the court affirms an award of attorneys’ fees, for reasons discussed below, and dismisses an appeal of an award of sanctions against the patentee’s attorney.   

Readers who are not familiar with the peculiar U.S. patent marking requirement may benefit from a brief primer on what this all about, so here is a little background.  First, § 287(a) establishes a general rule that patent owners cannot recover damages for any infringement of their patents occurring before the date on which they marked their products with the patent number, or provided actual notice to the accused infringer that their products are patented.  Second, as the Federal Circuit reaffirms in VDPP, the marking/actual notice requirement is intended to “(1) help[] . . . avoid innocent infringement; (2) encourag[e] patentees to give public notice that the article is patented; and (3) aid[] the public [in] identify[ing] whether an article is patented” (opinion at 6, citation omitted).  Third, according to the case law, if a patentee licenses its patents to another entity, it must make reasonable efforts to ensure that the licensee complies with the marking requirement, if it wishes to recover damages for infringing activity that pre-dates the date on which it puts the accused infringer on actual notice.   (Actual notice can be accomplished by means of a cease-and-desist letter or, at the latest, by the service of the complaint.)  Fourth, however, the marking requirement is riddled with so many exceptions and formalisms that, in my opinion, we would be better off without it.  As I have written previously, the three policy justifications recited above

may sound reasonable, but in practice marking does not necessarily further [them], and the manner in which the statute has been interpreted produces some strange results. In particular, absent compliance with the marking requirement damages will not begin to accrue until the owner provides the infringer with actual notice, even if the infringer has acquired actual knowledge of the patent prior to that date. That seems bad enough, but now consider what happens if the owner has failed to mark but the defendant, with actual knowledge of the owner’s patent, knowingly induces a third party to infringe that patent. Under the law of induced infringement, the defendant is liable from the moment the third party takes the bait and begins infringing, precisely because the defendant had actual knowledge of the patent; and yet damages cannot accrue until the date on which the owner provides actual notice, even though common sense would suggest that such notice is superfluous. Similarly, a defendant may be adjudicated a willful infringer, and thus be on the hook for enhanced damages, based on evidence that it knowingly infringed prior to the owner’s having put the defendant on actual notice; but if the owner failed to mark its products, no damages (enhanced or otherwise) will accrue until the date of actual notice. On the other hand, if the owner successfully asserts a process patent instead of a product patent, damages accrue from the moment of infringement regardless of whether the owner provides actual notice or the defendant has actual knowledge, because there is nothing to mark. Nevertheless, if the owner asserts both a product and a process claim of a patent containing both, and sells unmarked goods covered by the product claim and made in accordance with the process claim, a defendant who infringes both product and process claims is probably not liable for damages until the owner provides actual notice. The outcome is the same if the owner asserts both claims but only prevails on the process claim. If the owner asserts only the process claim, however, it can recover damages from the date the infringement began; similarly, if the owner has two separate patents, one reciting product and the other process claims, it can recover damages for the infringement of the process patent from the date that infringement began, and it can recover damages for the damages for infringement of the product patent from the date on which it puts the infringer on actual notice.

Fifty Years of Patent Remedies Case Law: Two Steps Forward, One Step Back, 50 AIPLA Q.J. 607, 621-25 (2022) (citations omitted).  Moreover, the owner of an idle patent--that is, a patentee who doesn't manufacture, sell, or license any products covered by the patent--can recover damages from the date the infringement starts, as long as it's within the statute of limitations, regardless of whether it puts the accused infringer on actual notice prior to filing suit (see opinion, p.5).  And as my former student Bernard Cryan noted in his paper Not All Licensees Are the Same: 35 U.S.C. § 287 Should Not Require Marking by Licensees that Deny Infringement, 101 J. Pat. & Trademark Off. Soc’y 531 (2021), cases involving licenses entered into pursuant to settlements are particularly fraught, because the licensee may agree to settle simply to avoid the cost of litigation, and may believe in good faith that its products do not infringe.  To be sure, in the present case the Federal Circuit states that “the subjective view of the accused infringer” does not matter (p.6); but 35 U.S.C. § 292(a) states that “[w]hoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word 'patent' or any word or number importing that the same is patented, for the purpose of deceiving the public,” is potentially liable for a $500 fine (or in some cases damages) for false patent marking.  Should the patentee nevertheless require the settling licensee to mark its products, even if the latter doesn’t believe that the claims of the patent in suit actually read on its products?  

My opinion is that, in practice, these rules are so arbitrary that we would ought to abolish the marking requirement altogether; or, alternatively, we could mimic practice in the U.K. and condition awards of damages on actual or constructive knowledge, such that infringers with actual knowledge would not be off the hook even if the patentee has not provided actual or constructive notice, while infringers of process patents who have no pre-suit knowledge or notice of those patents would not be liable for damages accruing prior to the filing of the complaint.  Either option would be a rational, defensible rule, but in my view our current U.S. practice is not.  (For further discussion from a comparative law perspective, see my book Remedies in Intellectual Property Law (Edward Elgar Publishing 2026), pp. 129-36.)

Coming back to the present case, as mentioned above the court also affirms an award of fees, though this is only partly related to the patent marking issue:

The district court did not abuse its discretion in determining this was an exceptional case. Specifically, the court reasonably determined that “[m]any of the positions VDPP took were frivolous and objectively unreasonable,” including seeking future damages and an injunction on an expired patent, seeking past damages despite an inability to allege patent marking, failing to disclose relevant settlement agreements, and prolonging litigation with false statements about the settlement agreements. . . . The court also noted that “VDPP made sloppy errors, over and over” ranging from obviously incorrect venue allegations to initial disclosures about an unrelated patent, which made the case “even more cumbersome and difficult to handle.” . . . Moreover, the court found a “need for meaningful deterrence” based in part on VDPP’s pattern of repeat litigation over the ’452 patent involving “settlement demands far less than the costs of defense and unrelated to any damages theory.” . . . The court further rejected VDPP’s argument that the fee award should be limited to the exceptional portion of the case because “VDPP’s misconduct infected the entire litigation” (pp. 7-8, citations omitted).

The court further notes that a case may be “exceptional” even if the losing party’s conduct is not sanctionable under Rule 11 of the Federal Rules of Civil Procedure (pp. 8-9).  Further, while “‘filing a large number of suits does not, by itself, justify an inference of . . . an improper motive,’ Thermolife Int’l LLC v. GNC Corp., 922 F.3d 1347, 1363 (Fed. Cir. 2019), and ‘[t]he mere existence of these other suits does not mandate negative inferences about the merits or purpose of this suit,” SFA Sys., LLC v. Newegg Inc., 793 F.3d 1344, 1351 (Fed. Cir. 2015). But we have also recognized that ‘a pattern of litigation abuses characterized by the repeated filing of patent infringement actions for the sole purpose of forcing settlements, with no intention of testing the merits of one’s claims, is relevant to a district court’s exceptional case determination under [35 U.S.C.] § 285,’ and ‘a district court should consider a patentee’s pattern of litigation where adequate evidence of an abusive pattern is presented.’  SFA, 793 F.3d at 1350, 1352 (emphases added)” (pp. 8-9).

Finally, the court dismisses the portion of the appeal relating to attorney sanctions, on the basis of its conclusion that the attorney “failed to timely appeal the district court’s sanctions order on his own behalf and that VDPP lacks standing to contest the sanctions for him” (p.13).

Update:  In the interest of completeness, I should also note some further issues concerning marking/notice/knowledge framework arising under Patent Act § 154(d) (relating to royalties for the unauthorized making, use, etc. of inventions claimed in pending applications) and § 287(b) (relating to the infringement of process patents by means of the unauthorized importation, sale, offer to sell, or use of products made by such processes, in violation of § 271(g)).  I'm not going to go into the details here, though. 

Keio University Law School in Tokyo

As the readers of ConflictofLaws.net are well aware, Studies in Private International Law – Asia is a forum for discussion and analysis of private international law issues in Asian jurisdictions, which is published under Hart’s celebrated series Studies in Private International Law.  This seminar aims to provide an overview of the book series to the audience. Legal practitioners, government officials, academics and students who are interested in Asian law, private international law (broadly defined) and/or law and development are welcome to join.

The seminar will be followed by a networking tea, during which interested participants may explore future publication opportunities in the Studies in Private International Law – Asia series and other Hart Publishing outlets with Justice Anselmo Reyes (General Editor of Studies in Private International Law – Asia and International Judge at Singapore International Commercial Court) and Dr Roberta Bassi (Publisher at Hart Publishing).

There is no registration fee for this event, but registration is required for catering purposes. Visit here to register.

Programme

SPIL-A series seminar Keio

Iran’s use of property measures against critics abroad is no longer hypothetical. In March 2026, Iran’s Prosecutor-General’s Office warned Iranians living abroad that support for, or cooperation with, states regarded by Iran as hostile could result in confiscation of their property. Reuters reported the warning on the basis of statements carried by Iranian state media.

The policy has since acquired a more concrete form. In May 2026, Amnesty International reported judicial orders to identify, freeze and seize bank accounts, properties and other assets belonging to persons accused of cooperating with “enemy states” or “hostile media”. Iranian authorities had reportedly announced measures affecting more than 750 persons inside and outside Iran, including journalists living abroad.

Administrative measures adopted in 2026 have also brought security screening into the use of consular powers of attorney. A circular concerning power of attorney issued abroad required inquiries where such instruments were presented in Iran and contemplated prosecutorial action where the grantor was identified as an opponent of the Islamic Republic abroad.

For present purposes, this situation can be described as political immobilization. Ownership may formally remain intact, while access to the legal mechanisms required to sell, mortgage, partition or administer the property is conditioned by political or security considerations.

The immediate concern is one of human rights. A separate question arises in private international law once the consequences of such measures are relied upon before courts outside Iran.

Property and the Lex Situs

The conventional starting point is the lex rei sitae. Article 966 of the Iranian Civil Code provides that possession, ownership and other rights over movable and immovable property are governed by the law of the country in which the property is situated. Proprietary questions concerning land situated in Iran therefore fall, in principle, under Iranian law.

That rule does not dispose of every dispute connected with Iranian property. A transaction involving land in Iran may also generate questions of contractual liability, restitution, succession, matrimonial property or insolvency before a foreign court. Those questions require separate characterization and may be governed by a law other than the law governing title itself.

Suppose, for example, that an Iranian resident abroad contracts to sell property in Tehran but cannot complete the transaction because the authorities prevent the use of a power of attorney on security grounds. Proceedings may subsequently be brought abroad for repayment or damages. The foreign court would first have to determine the nature of the claim and the law applicable to it. An Iranian administrative instruction addressed to prosecutors, consular authorities, notaries or registries does not automatically govern contractual liability in another legal system.

An additional distinction is important. The Iranian restriction might appear before the foreign court simply as a fact explaining why performance could not occur. In that situation, public policy cannot make the factual impediment disappear. A different problem arises where a party asks the forum to attribute legal effect to the measure itself, whether through the applicable foreign law, a claimed proprietary consequence, or recognition of an Iranian decision.

Human Rights and Public Policy

Human rights do not replace ordinary conflicts rules, nor do they ordinarily operate as connecting factors permitting a court to disregard foreign law merely because its application produces an objectionable result.

Their influence is nevertheless visible within established mechanisms of private international law. A useful contemporary restatement appears in the Institut de Droit international’s 2021 Resolution on Human Rights and Private International Law. Article 8 provides that, in assessing whether the application of foreign law designated by conflicts rules complies with international public policy, due consideration must be given to human rights, notably the principle of non-discrimination. Public policy therefore remains an exceptional control mechanism, not a competing choice-of-law rule. It may permit the forum to refuse effect to a consequence of otherwise applicable foreign law that is incompatible with its fundamental principles.

The distinction between territorial effectiveness and legal effect abroad is familiar in conflicts jurisprudence. In Luther v Sagor, English courts accepted the proprietary consequences of Soviet confiscatory legislation concerning property situated within Soviet territory. Oppenheimer v Cattermole demonstrated that such deference was not unlimited where foreign legislation was fundamentally incompatible with public policy. In Kuwait Airways v Iraqi Airways, the House of Lords likewise began from ordinary choice-of-law principles concerning proprietary rights but refused effect to Iraqi confiscatory legislation on public-policy grounds. Belhaj v Straw subsequently discussed Oppenheimer and Kuwait Airways within this public-policy line of authority.

The comparison is doctrinal, not historical. The Iranian measures are not equated with Soviet nationalization, Nazi persecution or Iraqi confiscation. These authorities instead illustrate that the territorial operation of foreign law and the legal consequences accorded to it by another legal system are separate questions.

Iranian law will ordinarily govern proprietary rights in assets situated in Iran. The private international law issue arises only when a consequence of the Iranian measure is invoked before a foreign court. The forum must first characterize the issue, determine the applicable law and establish the scope of the relevant foreign rule. Only then can public policy become relevant. Where the consequence for which legal effect is sought rests on discrimination based on political opinion or opposition activity, human-rights considerations may properly enter that assessment.

Political immobilization thus becomes a private international law problem when a measure effective within Iran is invoked as the basis for legal consequences outside Iran.

For many years, South African private international law relied on the lex domicilii matrimonii as connecting factor to determine the legal system applicable to the proprietary consequences of a marriage. The lex domicilii matrimonii is interpreted as the husband’s domicile at the time of entering into the marriage. This rule was firmly entrenched in South African law since it was formally adopted in Frankel’s Estate v The Master & Another 1950(1) SA 220 (A) and reinforced in subsequent decisions, the latest being LE v LA 2024 (5) SA 539 (GJ). Despite the courts’ reliance on this rule, it became increasingly evident that it is not compatible with South Africa’s Constitutional commitment to equality, dignity and non-discrimination (Constitution of the Republic of South Africa, 1996). The Westen Cape High Court has finally addressed this discriminatory connecting factor in a judgment delivered on 24 June 2026 in Pringle v Minister of Justice and Constitutional Development and Others (2468 / 2024) [2026] ZAWCHC 343.

The challenge to the lex domicilii matrimonii emerged from a divorce dispute between Nina Pringle (applicant) and Ian Norman Pringle (third respondent), both of whom, at the time of their marriage, were domiciled outside South Africa. The marriage between the parties also took place outside South Africa, therefore South African private international law rules came into play in the case. The applicant challenged the application of the lex domicilii matrimonii rule on the basis that it automatically preferred the husband’s domicile at the time of the marriage, which has the result that the rule discriminates against women and fails to accommodate same-sex marriages.

The applicant argued that the lex domicilii matrimonii is inconsistent with the Constitution in that it discriminated between spouses on the on grounds of sex, gender and sexual orientation. Historically, the rule developed from patriarchal assumptions that the husband was the head of the family and that the wife’s identity followed his (para 60 of the case). Although such assumptions show the legacy of earlier legal systems, they have long since been rejected by South African constitutional jurisprudence. What is also interesting is that, while the wife’s domicile of dependence was abolished through the Domicile Act 3 of 1992, the lex domicilii matrimonii continued to determine the proprietary consequences of marriage according to the husband’s domicile. The applicant therefore challenged validity of the lex domicilii matrimonii, that this rule no longer serves any legitimate purpose within a constitutional democracy founded on equality and human dignity (para 3.1 of the Pringle case).

The court concurred with the applicant’s argument. It held that the lex domicilii matrimonii rule unfairly discriminates based on sex, gender and sexual orientation, which renders the rule inconsistent with the Constitution (paras 70 & 72). The court acknowledged that there exists no rational justification to continue employing the husband’s domicile when South African law has already abolished the idea that a married woman’s legal identity is dependent upon her husband (para 64). The court further acknowledged that the rule failed to accommodate same-sex marriages (para 67). In arriving at this conclusion, the court recognised that the common law must evolve to reflect the values enshrined in the Constitution, specifically where private international law rules perpetuate historical inequalities.

The court’s declaration that the rule is unconstitutional and invalid in terms of s 172(1)(a) of the Constitution, means that it had to pronounce a just and equitable replacement (s 172(1)(b)) that will determine the legal system applicable to the proprietary consequences of marriages with an international element. In this vein, the court used its powers to develop the common-law by drawing inspiration from international instruments such as the 1978 Hague Convention on the Law Applicable to Matrimonial Property Regimes and the European Union’s Matrimonial Property Regulation 2016/1103 (paras 85 – 93). The court developed a new hierarchical applicable law framework. The new rule prioritises party autonomy by enabling spouses to choose the legal system that will govern the proprietary consequences of their marriage, this is subject to the chosen system having a substantial link to either or both spouses (para 2.1. of the order). Should there be no choice made by the spouses or their choice has no substantial connection to them, the applicable law is determined successively by the parties’ common domicile, common habitual residence, common nationality and finally, the legal system with the closest connection to the spouses (para 2.5 of the order). The court also considered the South African Law Reform Commission’s (SALRC) Project 100E, Review of Aspects of Matrimonial Property Law, Discussion Paper 160, that considered the constitutionality of the lex domicilii matrimonii and any suitable replacement. The court departed from the SALRC Discussion Paper 160 in respect of the choice of the applicable law. The court pronounced that there should be a substantial connection between the parties and the designated legal system (para 95).

The new common-law rule developed by the court has retrospective effect; subject to certain exceptions. Firstly, where spouses concluded an antenuptial contract choosing the law governing the proprietary consequences of their marriage, the new rule will not apply for two years from the date of the order, allowing the parties time to amend their contract if necessary (para 3.1 of the order). Secondly, in the absence of a choice of law by the parties, the new rule shall not apply if it would lead to substantial prejudice (para 3.2 of the order). Thirdly, the order will not disturb vested rights or invalidate transactions and decisions already taken under the previous lex domicilii matrimonii rule (para 3.3 of the order). Finally, the new rule will not apply to marriages already dissolved by death or divorce before the date of the order (para 3.4 of the order).

The court’s declaration of invalidity and replacement of the lex domicilii matrimonii rule marks a significant development in South African private international law. Unlike the previous rule, which by default preferred the husband’s domicile, the new framework recognises the equal status of spouses while advancing legal certainty and flexibility in international marriages. The court’s adoption of connecting factors internationally applied and recognised as best practice, advances harmonisation between South African private international law and other jurisdictions. It also promotes predictability for parties involved in cross-border relationships.

The judgement is widely welcomed, given the fact that many experts in the field have long criticised and called for the rule to be replaced. The courts did not wait for legislative intervention to align the South African law with internationally accepted principles. This indicates that the courts are prepared to ensure that common-law rules align with the constitution. Some aspects still need to be explored, namely the practical application of the concept of “closest connection” and the extent to which courts will interpret the requirement of a “substantial connection” when spouses exercise their right to choose a legal system. Another aspect that would need to be explored is the court’s order that the new common-law rule shall not apply to existing marriages if it would lead to substantial prejudice. The meaning of substantial prejudice will require interpretation from our courts. These issues will undoubtedly be addressed through future scholarship and litigation.

Nevertheless, Pringle marks the demise of the lex domicilii matrimonii which was rooted in outdated patriarchal assumptions and confirms that South African private international law must develop in line with the Constitution.

The judge rapporteur [Dr. Matthias Zigann] explains that, if this case is not settled or goes to the PMAC [Patent Mediation and Arbitration Centre], it will require a decision from the Court of Appeal. This is because, for the first time, the UPC will need to define the details of a claim for damages and the accompanying claims to open the books with regard to non-infringing products. Although there is some national case law, the situation at hand has not, it seems, been decided: the replacement of an infringing product by a non-infringing product during the lifetime of the patent, and the patent owner's claim that the profits with this non-infringing product must be taken into account when calculating damages. . . .

The judge-rapporteur shared his preliminary assessment of the main legal question of whether profits from non-infringing products could be taken into account when calculating damages, and whether they could therefore be subject to an 'open the books' application. He gave an example: A department store advertises an infringing product, 'A'. A customer sees the advertisement and visits the department store to buy the infringing product “A”. However, the product has been taken off the shelves in the meantime due to a court order. The salesperson sells the customer a non-infringing product, "B", instead. In this situation, the profits made from selling product “B” can be attributed to the patent infringement, the patent-infringing offer. In the present case, it may be necessary to take into account the profits made from non-infringing products that replaced the infringing product in open tenders. However, if the link to the sales of the non-infringing products is more tenuous, this might be viewed differently.

This is a very interesting issue.  I’m inclined to think that, although there is a causal connection between the profits earned on sales of the noninfringing substitutes and the earlier offer for sale of infringing products, that causal connection should be viewed as too attenuated.  (My understanding of German law, should that factor into the mix, is that it doesn’t have a proximate cause doctrine as such, but that German courts employ the concept of haftungsausfüllende Kausalität to cut the causal chain where damages are too remotely connected to the wrongful act.)  Under U.S. utility patent law, there is no disgorgement of the infringer’s profits, so I don’t think this precise issue would come up (unless it were somehow relevant to determining a reasonable royalty, which seems a bit of a stretch).  According to Rite-Hite Co. v. Kelley Corp., 56 F.3d 1538 (Fed. Cir. 1995) (en banc), however, infringers can be liable for lost profits on sales of noninfringing goods that compete with infringing products—but not for lost profits on sales of noninfringing complementary products that the patent owner ordinarily sells along with the patented article, unless they “function together with the patented component in some manner so as to produce a desired end product or result” and are therefore “analogous to components of a single assembly or be parts of a complete machine, or . . . constitute a functional unit.”  I think that logic would exclude the recovery of the infringer’s profits on noninfringing goods, even if U.S. law otherwise permitted disgorgement in utility patent cases.  Of course, UPC law or domestic national law within the E.U. could chart a different path.

Update:  Now that I've thought about the matter some more, I'm beginning to wonder if my reasoning above is correct.  Suppose that a defendant makes an infringing offer that bears a causal connection to its subsequent sale of noninfringing goods.  Maybe it would make sense, if U.S. patent law permitted the recovery of infringer's profits, to say that the profits earned on the sales of noninfringing goods are recoverable.  The noninfringing goods may well compete with the plaintiff's patented goods, after all.  Note also that in Germany, it appears that the plaintiff could recover damages from the defendant's sales of products made outside of Germany, or on sales of complementary goods, or on sales of products made following the completion of the patent term, as long as there is a sufficient causal connection between the infringing act and these sales.  See discussion on this blog here, here, and here.  Maybe that logic makes more sense.

Breakdown of the Rules-Based International Order
– What Role for Private International Law?

Following the first Private International Law Festival in 2022 (conference report),  on 24-25 September 2026, the University of Edinburgh Law School and the Max Planck Institute for Comparative and International Private Law, generously supported by the Lindemann Foundation, will cohost the second Private International Law Festival at Edinburgh University’s splendid Playfair Library in Edinburgh. Two days of conflict of laws, plus a Ceilidh!

The program is here, a flyer is here. As to the Ceilidh, no prior expertise is expected, but you can take a look here.

Registration is open until August 28, please register here.

The decision, which I just became aware of today though it was released on July 27, is Lufthansa Technik AG v. Astronics Advanced Electronic Systems, [2026] EWCA Civ 964.  The principal opinion is by Lord Justice Arnold, in which Lord Justices Lewison and Nugee concur.  Lord Justice Lewison also writes a separate opinion, in which Lord Justice Nugee concurs, and Lord Justice adds a very short separate opinion of his own.  The decision is long (92 pages altogether, with 353 paragraphs), and while the principal topic is the principles applicable to awards of infringers’ profits (including the relevance of noninfringing alternatives, but-for and proximate causation, and apportionment), the case also presents issues relating to double recovery and prejudgment interest.  Lord Justice Arnold’s opinion cites some of my work, as well as work by Professor Norman Siebrasse and a chapter I coauthored (with Siebrasse, Chris Seaman, Brian Love, and Masabumi Suzuki) that was published in the edited volume Patent Remedies and Complex Products (Cambridge Univ. Press 2019). Rather than rush to get something out, I want to do justice to this important and thoughtful decision, and I suspect that doing so may require two or three separate, rather detailed, blog posts.  For today, then, I’m simply providing the link to the decision (above) for readers who have not read it yet but are interested in the relevant topics, and will summarize what I view as the three most important holdings, all pertaining to disgorgement of profits.  The first is that “there are some cases in which it is possible to say that all of the profits in issue are derived from the infringement” (para. 159).  The second is that a “differential profits analysis”—under which the profits attributable to the infringement are measured by the difference between the profits the infringer actually earned and the amount if would have earned in the counterfactual world in which it deployed the next-best available noninfringing alternative to the patented invention—can in some cases be “a useful tool to identify the profits derived from the infringement” (para. 160), but that there are numerous difficulties concerning its use in the real world (see paras. 150-58).  The third is that “there is a well-established alternative to differential profit analysis, which is for the court to make a fair apportionment of the profits in issue,” and that “[t]his approach is to be adopted when the case does not fall into either of the [preceding] two categories . . . that is to say, it is not a case where all of the profits are derived from the infringement or where a differential profit analysis can readily be undertaken” (para. 161; see also para. 111, describing apportionment as "normally the appropriate approach").  The opinion then goes on (starting at paragraph 191) to discuss some principles relating to how apportionment may be carried out.

Again, this is a very important decision on one of the most practically and intellectually challenging topics in all of IP remedies law.  My plan is to return with a detailed, probably multipart, analysis, probably starting the week after next (I will be away for one more little summer jaunt next week).  

This piece is based on a paper that I presented at the World Congress on Adults Protection, held in Amsterdam from 8 to 10 July 2026. It is still work in progress.

The World Conference focused on capacity rather than vulnerability and incapacity of Adults. This choice of theme resulted in much discussion on support for the exercise of capacity. Supported decision-making rather than replaced decision-making for an incapacitated person poses challenges for Private International Law, especially of the Von Savigny tradition. Our approach is to first characterise and then find which laws we can apply. But it is exactly this characterisation that is becoming blurry: to be fully in compliance with the UN Convention on the Rights of Persons with Disabilities people should be allowed to make decisions, i.e. conclude contracts with the help of others. There should be no boxes of capacitated and incapacitated persons. No longer can only the former conclude contracts, while the latter have to be represented by guardians or other persons with a representation function. In Adult law some concepts are phasing out, while others are being reinterpreted by legislators and courts.

Below, after briefly explaining the move towards supported decision-making in substantive family law and human rights law, I turn to the available legal framework for cross-border cases, then to the difficult question of characterisation, and lastly to cross-border recognition.

The move towards supported decision-making

The civil laws of various countries are adapting to be in conformity with the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which recognises the legal capacity of persons with disabilities on an equal basis with others (Art. 12,2). It also imposes an obligation on States to take appropriate measures to support persons with disabilities to exercise their legal capacity. The Convention was ratified by all EU Member States, and confirmed by the European Union. It further states the full and effective participation and inclusion in society as a general principle (Art. 3), and calls on States to ensure effective access to justice for persons with disabilities, equal to other (Art. 13). And importantly from a private international law perspective, the Convention requires States to recognise the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others (Art. 18).

Germany and Ireland have strongly amended their civil laws to adapt to this. Other EU Member States are still in the process of doing so. It was clear at the conference that the law needs to make a paradigm shift. It is not easy for legislators and even legal scholars, to let go of the concept of “incapacity” and to accept that people may need support without being represented in their legal acts. This reality requires different thinking about personal law as well as contract law, and the intersection of both.

Legal framework for cross-border cases

In private international law, the main international source for Adult law is the Hague Adults Convention of 2000. This Convention was avant-garde when it was concluded. It dealt with the issue of Adults even before the UNCRPD came about. It provided a framework to ensure cross-border continuity of protection of adults, as well as for the legal acts they and/or their representatives performed. The Convention uses open-ended and respectful terminology. Yet, the Convention also suffers from its stagnant nature (as Conventions do – set in stone the moment they are adopted). The Convention was inspired by the Hague Child Protection Convention 1996, which is also a good Convention, ensuring the continuity of child protection and parental responsibility. This has the unfortunate result that the Convention uses concepts like incapacity, protection, guardianship, curatorship, placement, and representation. Yet, as explained in the previous section, the UNCRPD is requiring a shift away from such ideas.

To my mind the Convention, as a living instrument, can still stand in the emerging legal landscape. This requires a purpose-driven and context-sensitive interpretation of its provisions. Such reinterpretation will no-doubt soon reach domestic courts, and is already being discussed. The first Special Commission on this Convention held by the Hague Conference in November 2022, acknowledged that the terms ‘guardianship’ and ‘curatorship’ no longer exist in some legal systems, that have moved to supported decision-making. However, they concluded to keep the terms in the Convention, and not amend the Convention at that time (para 69). They also discussed the possible reinterpretation of ‘powers of representation’ (in Arts 15 to 17) to include advance unilateral acts or expressions of decisions, for instance on health care (paras 23 to 26). They concluded that courts could undertake such appreciation on a case-by-case basis. Thus, the door remains open for an interpretation fit for new legal and societal contexts.

The Hague Adults Convention is currently in force in sixteen States (thirteen EU Member States, the other three neighbouring States to the EU). In addition, five States (all of them EU States) signed the Convention without following up by a ratification yet.

After two resolutions by the European Parliament (in 2008 and in 2017), the European Commission in 2023 published two proposals on Adults. One proposal is for a Council Decision to authorise Member States that have not already done so to ratify the 2000 Hague Convention. The other is to complement the Convention in the EU by a Regulation, which enhances or slightly adapt some rules. The Commission’s approach can thus be described as a ‘Hague+’ one, similar to the approaches taken in parental responsibility and maintenance. Under the latest agreement between the Council and the Parliament (May 2026) the Regulation would place emphasis on ‘support’. The legislators do not seem to modify the Hague Convention’s private international law rules, but would include ‘support’ when reference is made to representation.

How should we then characterise?

The shift is monumental. For us to rethink private international law in this sphere, it is helpful to think in terms of two different scenarios that can arise when an Adult in need of assistance concludes a contract. The first is representation of the adult by another person. This other person is the one negotiating, deciding and contracting. The Adult involved stays in the shadow . The other is where the Adult is involved in the preparation, negotiation and conclusion of the contract. The Adult is the one signing, but with the help of a support person. This construction is different from current (traditional) contract law. Some argue that it does not comply with the standards of legal certainty.

The characterisation would be contract law to check the validity of the contract, i.e. to verify whether there was really a meeting of the minds (consensus) between the persons involved. If legal systems recognise the capacity of every person (or like the German system reduces capacity in only a very limited number of situations), then the characterisation stays within contract law. Thus it stops at the question of validity and consensus. In legal systems that still have the notion of incapacity, the characterisation for this question switches to the appropriate connecting factor under the law of persons (often the law of the nationality).

The Hague Adults Convention refers to ‘measures’ to protect an adult. These measures would however, in an ideal world, only involve the appointment of support persons for the Adult. Such appointment can happen under the jurisdiction bases and applicable law rules of the Convention. The Convention also foresees the possibility for Adults to appoint the representative(s) of their choice (Arts 15 to 17). The same private international law would apply for the appointment by Adults of support persons.

Recognition across borders

Getting to recognition, a court order or authentic instrument appointing a support person for an Adult would benefit from the recognition regime of the Hague Convention and the proposed Regulation. If a support person was appointed in an informal way, their role would not be up for recognition (in the private international law sense), but would turn on the law applicable to the legal relation. As explained above, that will to a large extent by contract law, in the absence of incapacity.

There is still much to think through. Private international law will probably be in flux for some time still, while domestic laws are being amended.

This piece is based on a paper that I presented at the World Congress on Adults Protection, held in Amsterdam from 8 to 10 July 2026. It is still work in progress.

The World Conference focused on capacity rather than vulnerability and incapacity of Adults. This choice of theme resulted in much discussion on support for the exercise of capacity. Supported decision-making rather than replaced decision-making for an incapacitated person poses challenges for Private International Law, especially of the Von Savigny tradition. Our approach is to first characterise and then find which laws we can apply. But it is exactly this characterisation that is becoming blurry: to be fully in compliance with the UN Convention on the Rights of Persons with Disabilities people should be allowed to make decisions, i.e. conclude contracts with the help of others. There should be no boxes of capacitated and incapacitated persons. No longer can only the former conclude contracts, while the latter have to be represented by guardians or other persons with a representation function. In Adult law some concepts are phasing out, while others are being reinterpreted by legislators and courts.

Below, after briefly explaining the move towards supported decision-making in substantive family law and human rights law, I turn to the available legal framework for cross-border cases, then to the difficult question of characterisation, and lastly to cross-border recognition.

The move towards supported decision-making

The civil laws of various countries are adapting to be in conformity with the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which recognises the legal capacity of persons with disabilities on an equal basis with others (Art. 12,2). It also imposes an obligation on States to take appropriate measures to support persons with disabilities to exercise their legal capacity. The Convention was ratified by all EU Member States, and confirmed by the European Union. It further states the full and effective participation and inclusion in society as a general principle (Art. 3), and calls on States to ensure effective access to justice for persons with disabilities, equal to other (Art. 13). And importantly from a private international law perspective, the Convention requires States to recognise the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others (Art. 18).

Germany and Ireland have strongly amended their civil laws to adapt to this. Other EU Member States are still in the process of doing so. It was clear at the conference that the law needs to make a paradigm shift. It is not easy for legislators and even legal scholars, to let go of the concept of “incapacity” and to accept that people may need support without being represented in their legal acts. This reality requires different thinking about personal law as well as contract law, and the intersection of both.

Legal framework for cross-border cases

In private international law, the main international source for Adult law is the Hague Adults Convention of 2000. This Convention was avant-garde when it was concluded. It dealt with the issue of Adults even before the UNCRPD came about. It provided a framework to ensure cross-border continuity of protection of adults, as well as for the legal acts they and/or their representatives performed. The Convention uses open-ended and respectful terminology. Yet, the Convention also suffers from its stagnant nature (as Conventions do – set in stone the moment they are adopted). The Convention was inspired by the Hague Child Protection Convention 1996, which is also a good Convention, ensuring the continuity of child protection and parental responsibility. This has the unfortunate result that the Convention uses concepts like incapacity, protection, guardianship, curatorship, placement, and representation. Yet, as explained in the previous section, the UNCRPD is requiring a shift away from such ideas.

To my mind the Convention, as a living instrument, can still stand in the emerging legal landscape. This requires a purpose-driven and context-sensitive interpretation of its provisions. Such reinterpretation will no-doubt soon reach domestic courts, and is already being discussed. The first Special Commission on this Convention held by the Hague Conference in November 2022, acknowledged that the terms ‘guardianship’ and ‘curatorship’ no longer exist in some legal systems, that have moved to supported decision-making. However, they concluded to keep the terms in the Convention, and not amend the Convention at that time (para 69). They also discussed the possible reinterpretation of ‘powers of representation’ (in Arts 15 to 17) to include advance unilateral acts or expressions of decisions, for instance on health care (paras 23 to 26). They concluded that courts could undertake such appreciation on a case-by-case basis. Thus, the door remains open for an interpretation fit for new legal and societal contexts.

The Hague Adults Convention is currently in force in sixteen States (thirteen EU Member States, the other three neighbouring States to the EU). In addition, five States (all of them EU States) signed the Convention without following up by a ratification yet.

After two resolutions by the European Parliament (in 2008 and in 2017), the European Commission in 2023 published two proposals on Adults. One proposal is for a Council Decision to authorise Member States that have not already done so to ratify the 2000 Hague Convention. The other is to complement the Convention in the EU by a Regulation, which enhances or slightly adapt some rules. The Commission’s approach can thus be described as a ‘Hague+’ one, similar to the approaches taken in parental responsibility and maintenance. Under the latest agreement between the Council and the Parliament (May 2026) the Regulation would place emphasis on ‘support’. The legislators do not seem to modify the Hague Convention’s private international law rules, but would include ‘support’ when reference is made to representation.

How should we then characterise?

The shift is monumental. For us to rethink private international law in this sphere, it is helpful to think in terms of two different scenarios that can arise when an Adult in need of assistance concludes a contract. The first is representation of the adult by another person. This other person is the one negotiating, deciding and contracting. The Adult involved stays in the shadow . The other is where the Adult is involved in the preparation, negotiation and conclusion of the contract. The Adult is the one signing, but with the help of a support person. This construction is different from current (traditional) contract law. Some argue that it does not comply with the standards of legal certainty.

The characterisation would be contract law to check the validity of the contract, i.e. to verify whether there was really a meeting of the minds (consensus) between the persons involved. If legal systems recognise the capacity of every person (or like the German system reduces capacity in only a very limited number of situations), then the characterisation stays within contract law. Thus it stops at the question of validity and consensus. In legal systems that still have the notion of incapacity, the characterisation for this question switches to the appropriate connecting factor under the law of persons (often the law of the nationality).

The Hague Adults Convention refers to ‘measures’ to protect an adult. These measures would however, in an ideal world, only involve the appointment of support persons for the Adult. Such appointment can happen under the jurisdiction bases and applicable law rules of the Convention. The Convention also foresees the possibility for Adults to appoint the representative(s) of their choice (Arts 15 to 17). The same private international law would apply for the appointment by Adults of support persons.

Recognition across borders

Getting to recognition, a court order or authentic instrument appointing a support person for an Adult would benefit from the recognition regime of the Hague Convention and the proposed Regulation. If a support person was appointed in an informal way, their role would not be up for recognition (in the private international law sense), but would turn on the law applicable to the legal relation. As explained above, that will to a large extent by contract law, in the absence of incapacity.

There is still much to think through. Private international law will probably be in flux for some time still, while domestic laws are being amended.

The case is Socket Solutions, LLC v. Import Global, LLC, a short precedential opinion by Chief Judge Moore (joined by Judge Prost and District Judge Seeborg) handed down last Tuesday.  Plaintiff Socket Solution “owns U.S. Patent No. 9,509,080, which is directed to an indoor electrical

wall outlet cover that permits use of a wall outlet while concealing the outlet contact openings” (p.2).  “Socket Solutions sued Import Global, alleging Import Global’s Neat Socket product infringed claim 19 of the ’080 patent, and moved for a preliminary injunction” (id.).  The district court granted the preliminary injunction, but the Federal Circuit reverses and remands.  In particular, the appellate court concludes that the district judge erred in construing two terms (“backplate” and “pin”) used in claim 19, and therefore vacates and remands for further consideration on the issue of “likelihood of success on the merits” (pp. 5-9).  Of greater interest, however, to the law of remedies, is the appellate panel’s discussion of irreparable harm:

Because we remand to the district court on the likelihood of success factor, we do not reach Import Global’s irreparable harm arguments. We hold only that the court erred to the extent it relied on a presumption of irreparable harm when a clear showing of patent validity and infringement has been made. . . . We note that this presumption cannot be justified after eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 393–94 (2006).

In eBay, the Supreme Court reversed a grant of permanent injunction where the appeals court applied a “general rule” unique to patent disputes “that a permanent injunction will issue once infringement and validity have been adjudged.” 547 U.S. at 393–94 (citation omitted). The Supreme Court explained that patent disputes are no different than in other cases governed by the “traditional principles of equity,” and thus the traditional four-factor framework should apply. Id. After eBay, we confirmed the presumption of irreparable harm was abolished as it applied to determining injunctive relief. Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1149 (Fed. Cir. 2011) (“We take this opportunity to put the question to rest and confirm that eBay jettisoned the presumption of irreparable harm as it applies to determining the appropriateness of injunctive relief.”). Although eBay and Bosch involved permanent injunctions, we see no reason to depart from their holdings in the preliminary injunction context.

It is not clear here that the district court applied the presumption of irreparable harm to its fact findings rather than simply note there is such a presumption. . . . In any event, the court may analyze irreparable harm in a manner that does not rely on the presumption, if it reaches this issue on remand (pp. 9-10).

By itself, the above discussion is pretty unremarkable, inasmuch as it merely reaffirms the Federal Circuit’s long-standing understanding of eBay, albeit in the context of preliminary relief.  The absence of a presumption of irreparable harm nevertheless remains a fraught issue, with Collision Communications having argued (unsuccessfully) before Judge Gilstrap, and more recently before the Federal Circuit (where the matter remains pending), that it is entitled to such a presumption because that would have been the practice in courts of equity in 1789, and under Trump v. CASA federal courts are obligated to apply the law of equity as it would have been understood as of that time.  For previous discussion on this blog of Collision Communications v. Samsung, see here; for recent discussion of the pending appeal, see the write-up last week on Patently-O, here.  My own long-standing view is that, while the eBay opinion is not a paragon of legal reasoning, the eBay standard remains a necessary tool, at least in U.S. practice, for reducing the harms resulting from patent holdup.  I also wonder whether, doctrinally, even if U.S. courts are obligated to apply the standards that a court of equity would have applied in 1789 (sigh), if a district court today can award post-judgment reasonable royalties but could not have done so in 1789 absent proof of an established royalty, that should render the presumption of irreparable harm nugatory--or does that argument only work if ongoing royalties are characterized, contrary to current Federal Circuit case law, as a form of legal relief authorized under 35 U.S.C. § 284?  See pp. 1162-63 of this paper; cf. Plaintiff’s Brief at p.53, citing an 1887 Supreme Court decision (McConihay v. Wright) for the proposition that “The adequate remedy at law, which is the test of equitable jurisdiction in [federal] courts, is that which existed when the judiciary act of 1789 was adopted, unless subsequently changed by act of congress”).

The following contributions might be of particular interest for the readers of this blog with a broader interest in comparative and European private law:

• Teresa Rodríguez de las Heras Ballell: Law in Uncertain Times: Fragilities, Dilemmas and the Role of (Soft) Legal Standards On the occasion of the ELI’s 15th Anniversary

In the editorial, Law in Uncertain Times: Fragilities, Dilemmas and the Role of (Soft) Legal Standards On the occasion of the ELI’s 15^th Anniversary, Teresa Rodríguez de las Heras Ballell, reflects on the European Law Institute’s (ELI) contribution to shaping the law in times of global uncertainty on the occasion of its 15^thanniversary and envisages the role the ELI is called upon to play in the future. After examining the three challenges and the corresponding fragilities facing the law, the editorial turns to two central dilemmas of contemporary law-making and discusses the harmonisation potential of soft law.

• Yves-Marie Laithier: The Reform of the French Law of Obligations: 10 Years On

In his article, The Reform of the French Law of Obligations: 10 Years On, Yves-Marie Laithier takes a look back and ahead on the tenth anniversary of the French reform of the law of contract, the general regime of obligations, and the proof of obligations. He points out the surprising fact that, as a result of the 2016 reform, the law applicable prior to it (the “old” law) has also been subject to a series of interpretative changes inspired by the perceived need to reduce the gap between it and the provisions newly inserted into the Civil Code (the “new” law). Thus, the reform, designed for the present, has led to a partial rewriting of the law of the past. The article concludes by assessing the future prospects of the reform.

• Walter Doralt: Das Projekt eines Europäischen Handelsgesetzbuchs – Vom Beruf unserer Zeit zur Reform und (Re-)Kodifikation im Handelsrecht

Walter Doralt on Das Projekt eines Europäischen Handelsgesetzbuchs – Vom Beruf unserer Zeit zur Reform und (Re-)Kodifikation im Handelsrecht provides (in German) a brief overview and assessment of the project for a European Commercial Code, which stems from an academic Franco-German initiative. In doing so, he highlights that major law reform initiatives on a European level have often originated in legal scholarship. The article addresses the challenges of translating academic proposals into legislation, as well as the potential benefits and lasting influence of such initiatives on the development of the law.

• Matthew Dyson: Law By Commission: Standing Law Reform Bodies in the Com-mon Law Tradition

In, Law By Commission: Standing Law Reform Bodies in the Common Law Tradition, Matthew Dyson examines the role of law commissions, ie, bodies officially charged with the task of reviewing the law and preparing reform proposals for the legislator to consider. The article explores when and how law commissions are typically created, how they work, what they do, and how successful they have been in the past. The article further considers the spread of law commissions as institutions widely used in common law (and mixed) legal systems. The article also compares law commissions to other bodies engaged in law reform.

I. Introduction

Recent years have witnessed a movement towards the dejudicialization of consensual divorce and the proliferation of extrajudicial divorce mechanisms notably in Europe. While this mode of “private divorce” is not, as such, a new phenomenon and extrajudicial divorce has been practised in different forms across various parts of the world (see e.g.,  Béligh Elbalti, “Le divorce au Japon et son accueil en Tunisie” (2026) 73 Osaka University Law Review 6), it has attracted increasing attention in recent years, given the growing number of European jurisdictions that have introduced mechanisms allowing spouses to dissolve their marriage outside the courts, as well as the complex questions that such divorces raise in terms of their recognition and circulation across borders (for a comparative view in Europe, see e.g., CJEU, Directorate for Research and Documentation, “Extrajudicial Divorce: Rules, Procedures and Cross-Border Recognition in Member States” (Research Note, February 2022) 3; Pablo Quinzá Redondo, “The Recognition of Non-Judicial Divorces in Europe” in Konrad Duden and Denise Wiedemann (eds), Changing Families, Changing Family Law in Europe (Intersentia, 2024) 23). This is particularly true of the Italian form of extrajudicial divorce, introduced by Decree-Law No. 132/2014, converted into Law No. 162/2014, which allows spouses meeting specified conditions to obtain a divorce through an agreement before the civil registrar, rather than through a court.

As previously reported on this blog, the recognition of such an Italian divorce in another Member State gave rise to a CJEU decision in Senatsverwaltung für Inneres und Sport v TB (Case C-646/20) and to scholarly discussion, notably concerning the appropriateness of the CJEU’s treatment of such a divorce agreement as a “decision” for the purposes of its recognition under the Brussels IIa Regulation, later replaced by the Brussels IIb Regulation (for critical comments, see e.g., Elena Bargelli, “Reshaping the Boundaries Between ‘Decision’ and Party Autonomy. The CJEU on the Extrajudicial Italian Divorce” (2023) 8(1) European Papers 43; Quinzá Redondo, op.cit., 35 ; Sabine Corneloup, “La circulation européenne du divorce sans juge : nouvel arrêt et toujours des incertitudes” (2023) RCDIP 409).

The issue of the recognition of Italian extrajudicial divorces has recently crossed the Mediterranean and reached the Tunisian courts. While this is not the first time that Tunisian courts have dealt with the issue (for an earlier case concerning the recognition of a French out-of-court divorce, Souhayma Ben Achour, “Le divorce extrajudiciaire français devant le juge tunisien, une tolérance à contrecœur…À propos du jugement du tribunal de première instance de Tunis du 14 novembre 2017 (no 86358)” (2018) RCDIP  211; on this issue in general, see Elbalti, op cit. 48-49, and, more specifically, on the recognition of Japanese extrajudicial divorce, pp. 50 et seq.), to my knowledge, this is the first time that the issue of the recognition of an Italian extrajudicial divorce has been brought before the courts in Tunisia. The issue is particularly interesting from a comparative law perspective, as it provides insights into the way in which Tunisian courts approach a form of marital dissolution originating in a different legal system, as well as the challenges that may arise in the cross-border circulation of such divorces from the perspective of non-EU law.

II. The Case

The petitioner, X (a Tunisian national), married the first respondent, Y (an Albanian national), in Italy in 1996. Since 2005, pursuant to a judgment of personal separation issued by an Italian court, the parties had been legally separated. In 2021, the parties obtained a divorce by mutual agreement before the Italian civil registrar, in accordance with the applicable Italian rules on extrajudicial divorce. Later, in 2025, X initiated summary proceedings against Y and the Public Prosecutor, as the second respondent, seeking an order from the First Instance Court of Nabeul (one of the 28 courts of first instance in Tunisia) seeking a summary order allowing the entry of the divorce agreement in X’s civil-status records.

In support of the application, X argued that the divorce had been obtained by mutual consent before the Italian civil registrar and that the resulting agreement should be entered in his civil-status records. X relied, in particular, on the 1967 Tunisian–Italian Convention on judicial assistance, arguing that the Convention provides for the recognition in Tunisia of decisions issued by Italian authorities and that this should also extend to extrajudicial divorces under Italian law, introduced as a simplified procedure allowing spouses, subject to certain conditions, to dissolve their marriage before the civil registrar. X further argued that the agreement concluded by the parties complied with all the requirements under Italian law: in particular, the parties had no children and had appeared before the civil registrar twice, more than thirty days apart, to confirm their agreement. X also argued that the Italian divorce had been issued by a competent authority in accordance with Italian law, had become final and effective in Italy, and had already produced its effects there, as demonstrated by the official documents submitted to the court.

III. The Ruling

In its summary order dated 24 February 2026, the First Instance Court of Nabeul admitted the application and ruled as follows.

The Court began by recalling the general context of the case and referring to the relevant provisions of Italian law submitted by the applicant. It then identified three legal issues to be addressed: first, whether the Court, sitting in summary proceedings, had jurisdiction to deal with an application seeking an order allowing the entry of the Italian divorce in the Tunisian civil-status records; second, whether judicial review of the Italian divorce by agreement by a court sitting in summary proceedings was permissible; and third, whether the Court should order the entry of the Italian divorce by agreement in the Tunisian civil-status records.

Regarding the first issue, the Court recalled that the jurisdiction of a court sitting in summary proceedings depends on the satisfaction of two conditions: (1) the existence of a situation of urgency; and (2) the summary proceedings must not prejudice the merits of the case. With respect to (1), the Court considered that the requirement of urgency was satisfied given the instability and discrepancy in the applicant’s civil status resulting from the foreign divorce, and the potentially serious consequences of such a situation for family stability. With respect to (2), the Court considered, referring to Tunisian scholarly opinions, that this requirement was also satisfied, since the substance of the right invoked had already been addressed in the foreign country.

Regarding the second issue, the Court invoked four grounds justifying judicial review of the Italian extrajudicial divorce by a court sitting in summary proceedings. The first was a legal ground, based on the view that the extrajudicial divorce could be treated as a “decision” under the Tunisian–Italian Convention and the 1998 Tunisian Code of Private International Law (TCPIL). The Court considered that the TCPIL aims to recognize legal situations created abroad and that its provisions could therefore be applied to the recognition of extrajudicial divorces, whether consensual, notarial, or administrative. The second was a scholarly ground: the Court referred to the prevailing opinion in Tunisian legal literature in favour of the recognition of extrajudicial divorces. The third was a case-law ground: the Court referred to previous cases in which the entry of extrajudicial divorces obtained abroad into the Tunisian civil-status records had been allowed. The fourth was based on practical considerations, namely that summary proceedings allow time and effort to be saved, the need to take into account the Tunisian diaspora living in countries where extrajudicial divorce is permitted, and the absence of any serious controversy between the parties.

Regarding the third issue, the Court held that the Italian extrajudicial divorce should be entered in the Tunisian civil-status records. It considered that refusing to recognize a divorce that had already taken effect in Italy, in the absence of any serious dispute between the parties, would create an inconsistency in their civil status and potentially interfere with their private lives and the exercise of rights resulting from their changed marital status. The Court also noted that the divorce had already been recorded in the parties’ Italian civil-status records, that the respondent had authorized X to seek its registration in Tunisia, and that the agreement complied with the requirements of Italian law and did not prejudice the interests of either spouse or of any children.

On this basis, the Court issued the order allowing the entry into the Italian divorce in X’s Tunisian civil-status records.

IV. Comments

While the outcome of the case can be agreed with, the Court’s reasoning raises serious questions concerning the manner in which an extrajudicial divorce can be given effect in Tunisia. Various aspects – notably from the perspective of the general legal and procedural framework applicable to the “recognition” of foreign divorces in Tunisia – deserve a more thorough analysis, which may not be appropriate for a blog post, (for a detailed analysis of this issue, see Elbalti, op cit. 24 et seq.). Three particular issues, however, will be addressed here.

1. Summary Proceedings and the Recognition of Foreign Divorce

First, regarding the jurisdiction of the First Instance Court sitting in summary proceedings, it is sufficient to point out that, in assessing the requirement that summary proceedings must not prejudice the merits of the case, the Court seems to have confused the substantive merits of the case (i.e. the dissolution of the marriage) with the object of the proceedings, which, in the Court’s own words, was to obtain the “recognition” of the Italian divorce for the purpose of its entry in the Tunisian civil-status records. However, given that, under the current legal framework in Tunisia – and despite the prevailing view in Tunisia to the contrary – “recognition” is not automatic (for details, see Elbalti, op. cit., p. 29, describing the issue as “thorny” (épineuse)), a formal exequatur procedure for giving effect to the foreign divorce would have been required. Such a procedure falls within the subject-matter jurisdiction of the courts of first instance exercising their ordinary jurisdiction (Elbalti, op. cit., p. 41). In other words, the requirement that summary proceedings must not prejudice the merits of the case should have been examined with regard to the exequatur procedure that should have been initiated pursuant to the applicable rules governing the recognition and enforcement of foreign judgments, rather than with regard to the dissolution of the marriage itself. In that respect, examining the “recognition” of the foreign divorce necessarily entails an examination of the conditions governing its recognition and enforcement and, therefore, requires the court to determine issues that properly belong to the exequatur proceedings. In this sense, the exercise of jurisdiction by the First Instance Court sitting in summary proceedings would not, under the applicable legal framework currently in force, be legally justified.

In any event, it is worth noting that, in recent years, the practice of initiating summary proceedings for the “recognition” of foreign divorces for the purpose of ordering their entry in the Tunisian civil-status records (as well as other procedural modalities) has developed in judicial practice in Tunisia, generally with the approval of Tunisian scholars (see Elbalti, op. cit., p. 43).

2. The Uncertain Method of Recognition

 Second, it is remarkable that the Court began its analysis by placing itself on the terrain of the “recognition of foreign decisions”, either under the 1967 Tunisian–Italian bilateral Convention or under the TCPIL. Leaving aside the question of whether an Italian extrajudicial divorce can properly be treated as a “decision” (on this issue, see the convincing analysis of Bargelli, op. cit., arguing that it should not), such an approach would suggest that the recognition of the Italian divorce should have been examined by reference to the requirements governing the recognition and enforcement of foreign judgments, notably those prescribed by Article 3 of the 1967 Tunisian–Italian Convention, which the Court expressly referred to. (It is worth noting, however, that Tunisian scholars are generally in favour of applying domestic law, namely the TCPIL, as it sets out less restrictive requirements for the enforcement of foreign judgments than those provided for in the international conventions concluded by Tunisia. On this issue, see e.g., Souhayma Ben Achour, La réception des decisions étrangères dans l’ordre juridique tunisien (CPU, 2017) 33).

However, this is not what the Court did. It did not examine the recognition of the Italian divorce under the applicable rules governing recognition, whether under the convention-based framework or the requirements set out in the TCPIL. Instead, the Court seems to have focused on the need to prevent and remedy the harm resulting from the discrepancy in the parties’ civil status created by the divorce abroad. It emphasized the need to recognize the divorce agreement concluded abroad and to order its entry in the Tunisian civil-status records, particularly because the divorce had already produced its effects in Italy. This approach is reminiscent of recent discussions concerning the “recognition of situations created abroad” as an alternative method for giving effect to foreign legal situations (see e.g., Dagmar Coester-Waltjen, “Recognition of Legal Situations Evidenced by Documents” in Jürgen Basedow et al. (eds), Encyclopedia of Private International Law – Vol. 2 (Edward Elgar Publishing, 2017) 1495).

The Court went even further, however, by stating that the divorce complied with the requirements and procedures prescribed by Italian law. Such a reference to Italian law would not have been necessary under either of the two approaches mentioned above. It would, by contrast, have been entirely justified had the Court proceeded to examine the validity of the divorce under Tunisian choice-of-law rules under the so-called “method of acceptance by conflict-of-laws” (Susanne Lilian Gössl, “Open Issues in European International Family Law: Sahyouni, ‘Private Divorces’ and Islamic Law Under the Rome III Regulation” (2017) European Legal Forum 69). Such an approach would have led to the application of Italian law as the law of the parties’ common domicile, pursuant to Article 49 of the TCPIL (see Elbalti, op cit. p. 57). Importantly, however, such an approach would not have required the Italian divorce to be characterized as a “decision” under the Tunisian–Italian Convention or under the Tunisian rules on the recognition and enforcement of foreign judgments.

3. Towards a More Tolerant Approach to Extrajudicial Divorce

Finally, the case illustrates the evolving treatment of extrajudicial divorces in Tunisian PIL. Until recently, the “judicial nature” of divorce was generally regarded as a matter of public policy, leading Tunisian courts to (almost) systematically refuse to give effect to divorces that had not been pronounced by a judicial authority (see Elbalti, op. cit., pp. 46–49). This was particularly true of extrajudicial divorces obtained in other Arab jurisdictions, whether in the form of traditional talaq or khulʿ, as well as administrative divorces permitted in some other countries (see Elbalti, op. cit., p. 59). The position of the courts has been consistent in this respect and was endorsed by the Tunisian Cour de cassation, which had the opportunity on several occasions to state that the judicial nature of divorce forms part of Tunisian public policy (see, e.g., the Tunisian Cour de cassation ruling of 7 November 2018, in which the Court stated, in dictum, that the principle that divorce must be judicial forms part of Tunisian public policy in the meaning of PIL).

Since the introduction of the French divorce sans juge in 2016, however, the situation has gradually begun to change, particularly in legal scholarship and in the judicial practice of the courts of first instance (see Elbalti, op. cit., p. 63). While Tunisian courts have generally continued to refuse recognition of extrajudicial divorces originating in other Arab jurisdictions (see Elbalti, op. cit., p. 60 and the cases cited therein), even where recognition is sought by the wife (see Elbalti, op. cit., p. 63, fn 239), they have shown greater tolerance towards extrajudicial divorces originating in certain European countries, notably France, as well as Japan (see Elbalti, op. cit., p. 63, contrasting the “great tolerance” shown towards French extrajudicial divorce with the “consistent hostility” towards forms of dissolution of marriage originating in other Arab jurisdictions).

One of the possible explanations for this difference in treatment lies in the generally hostile attitude of Tunisian courts and legal scholarship (see Elbalti, op. cit., p. 48 and the various opinions cited therein at fn 196) towards traditional forms of divorce, which are often regarded as incompatible with the legislative policy pursued by the Tunisian State since independence. That policy has sought, among other things, to distance Tunisian family law from unilateral and traditional forms of divorce. By contrast, extrajudicial divorces based on the mutual agreement of the spouses appear more compatible with this legislative policy, which is grounded in the principles of equality between men and women and non-discrimination, particularly in matters relating to the dissolution of marriage. They have therefore encountered less resistance in Tunisian judicial practice (in this sense, see Ben Achour, op. cit., 222), despite their non-judicial character. This suggests an evolving approach towards the judicial nature of divorce in Tunisian PIL, at least with regard to extrajudicial divorces originating in Europe and Japan. This approach has been largely endorsed by the Tunisian lower courts (see Elbalti, op. cit., p. 59), but remains to be confirmed by the higher courts, including the Tunisian Cour de cassation.

For anyone who begins studying private international law – particularly from a civil law perspective – one of the first concepts encountered, after Savigny’s ‘Copernican Revolution’, is the American ‘Choice-of-Law Revolution’. Since the late 1950s, American courts and scholars have progressively abandoned the rigid territorial methodology embodied in the First Restatement of Conflict of Laws in favour of more flexible approaches based on standards and policy-oriented analyses. The pioneering contributions of Brainerd Currie, David Cavers, Robert Leflar, and William Baxter, among others, fundamentally reshaped American conflicts law and made the United States a laboratory of modern choice-of-law theory.

In this context, the publication of Professor Linda J. Silberman’s General Course on Private International Law in the prestigious Collected Courses of the Hague Academy of International Law (Volume 456), under the thought-provoking title The Counter-Revolution in U.S. Private International Law: From Standards to Rules?, is a significant event.

Professor Silberman hardly needs any introduction to readers interested in private international law. Emerita Professor at New York University School of Law, she is one of the leading authorities in the field, whose scholarship has profoundly influenced the development of U.S. private international law, particularly in the areas of conflict of laws, transnational litigation, international civil procedure, and the recognition and enforcement of foreign judgments. She has also played a major role in several American Law Institute Restatement projects, served as Reporter for the proposed federal statute on the recognition and enforcement of foreign judgments, and has been closely involved in the work of the U.S. State Department and the Hague Conference on Private International Law.

Professor Silberman’s General Course revisits this well-known narrative from a fresh perspective. Rather than focusing on the revolution itself, she examines whether American private international law is now witnessing a ‘counter-revolution’. Her central thesis is that, after several decades dominated by flexible standards and multifactor balancing, a discernible movement towards more rule-based solutions has emerged in a number of areas of U.S. private international law.

The breadth of the course is particularly noteworthy. Beyond choice of law, Professor Silberman explores the standards-vs-rules debate across a wide range of topics, including party autonomy in contracts, the extraterritorial application of U.S. statutes, judicial jurisdiction, adjudicatory comity (forum non conveniens, lis pendens, and international abstention), human rights litigation, transnational discovery, treaty interpretation, and the recognition and enforcement of foreign judgments. The table of contents alone demonstrates the ambitious scope of her work and its attempt to identify a common methodological trend across the different branches of American private international law. The publication of this General Course is therefore a significant event for both American and comparative private international law, as it does not only provide a comprehensive account of the evolution of U.S. private international law over the past six decades, but also offers an original framework through which to understand its most recent developments.

The general outline of the volume is structured as follows

Biographical Note

Principal Publications

Preface and Acknowledgments

Chapter I. Introduction to the U.S. Legal System and to the Nomenclature of Standards and Rules

Chapter II. The Counter-Revolution from Standards to Rules in Choice of Law: The Example from Torts and the Third Restatement of Conflicts

Chapter III. Party Autonomy in Contracts: From Standards to Rules and the Third Restatement of Conflict of Laws

Chapter IV. Extraterritorial Reach of U.S. Statutes: From Standards to Rules

Chapter V. Judicial Jurisdiction in the Supreme Court: The Move Toward a More Rule-Based Regime

Chapter VI. The Role of Adjudicatory Comity—Forum Non Conveniens, Lis Pendens, and International Abstention—in the Rules vs. Standards Debate

Chapter VII. Human Rights Violations: Suits Against Private Parties in the Age of Statutes

Chapter VIII. Discovery and Judicial Assistance in Transnational Litigation and Arbitration: Of Rules and Standards

Chapter IX. Wherefore Rules and Standards in Treaty Interpretation: The Hague Abduction Convention Example

Chapter X. “Standards” vs. “Rules” in the U.S. Recognition and Enforcement of Foreign Country Judgments: Prospects for the Future

Epilogue: A Summary

Bibliography

Thoroughly revised and updated, the new edition brings together civil-law and common-law perspectives to examine some of the most important questions and continuing challenges in EU private international law. Alongside the traditional fields of jurisdiction, contractual and non-contractual obligations, the Handbook addresses significant developments in family law, parental responsibility and cross-border succession.

Building on the first edition, the volume includes new contributions on class actions and collective redress, party autonomy, behavioural economics, and the harmonisation of private international law in matters of succession and parental responsibility. It also expands the analysis of the Rome I and Rome II Regulations, including the particularly complex questions concerning the law applicable to defamation and privacy.

Further chapters explore parallel proceedings and the EU rules on lis pendens, the relationship between the Brussels I Recast Regulation and arbitration, anti-suit injunctions before and after Brexit, the determination of the lex arbitri in decentralised blockchain-based arbitration, and the application of EU law principles in the fields of civil jurisdiction and arbitration.

The Handbook comprises 16 substantive chapters written by scholars from a range of jurisdictions and legal traditions. By combining analysis of the existing legal framework with critical assessments and proposals for its further development, the volume provides a valuable resource for researchers, teachers, postgraduate students and practitioners working in private international law, EU law, international dispute resolution, family law and succession law.

The book is available in hardback and electronically, and the opening chapter is available in open access. Further information, including the complete table of contents and access options, is available on Elgaronline webpage.

This was first published at verfassungsblog.de

The background to the case is set out in previous posts (here, here and here). In summary, Kea Investments Ltd (Kea), a British Virgin Islands company, alleged that the default judgment obtained by Wikeley Family Trustee Ltd (WFTL), a New Zealand company, was based on fabricated claims intended to defraud Kea. The New Zealand High Court found that the defendants had perpetrated a tortious conspiracy. The Court of Appeal upheld the findings of fraud but allowed an appeal against the grant of the injunction, concluding that an injunction could only be granted as a step of last resort, which required Kea to pursue its right of appeal against the Kentucky judgment.

It was not in issue before the Supreme Court that the claim in the Kentucky court formed part of a conspiracy to defraud Kea (at [102]). It was also not in issue that New Zealand was the proper jurisdiction to deal with the claim of fraud (at [102]). In these circumstances, the Court found that comity did not stand in the way of anti-enforcement relief.

Relevant principles

The Court considered that the in personam nature of anti-suit and anti-enforcement injunctions remains “fundamental”, even though “the jurisdictional conflict” that arises “may indirectly impinge on the freedoms of the foreign jurisdiction” (at [105]).  The Court also confirmed that the grant of such an injunction “tends to depend on there being something wrongful”, which could be “unconscionable (or vexatious or oppressive) litigation in the foreign state”, such as a fraudulent proceeding, or “the disregard of a right in contract not to be sued in the foreign state” (at [107]).

Turning to anti-enforcement injunctions more specifically, the Court did not think it was helpful to say that they “should only be granted in ‘exceptional circumstances’”, although it would be “a rare case that the conditions for their grant will be met” (at [108], adopting the language of Males LJ in SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599, [2020] 1 CLC 816). Citing Adrian Briggs (Civil Jurisdiction and Judgments (8th ed, Routledge, Oxford, 2025) at 463), the Court noted that the enforcement of a judgment that has been wrongfully obtained “aggravates the original wrong” (at [108]).  However, an applicant would have to be able to explain why there had been no earlier application for an anti-suit injunction; and where the anti-enforcement injunction seeks to prevent enforcement in the country in which the judgment was given, “comity may demand particular restraint” (at [109]).

The Court described comity as “the need for domestic courts to respect the legitimate exercise of jurisdiction by the courts of a foreign state” (at [10], [113], citing Maria Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at [1.29]). It accepted that “comity is a consideration necessitating caution in making anti-suit or anti-enforcement injunctions that cut across the authority of a foreign court acting within its legitimate jurisdiction” (at [116]). However, comity had “a measure of elasticity”; it did not “entail blind deference” (at [116]).

Crucially, the Court considered that fraud “reframes ordinary comity considerations” (at [117]). First, fraud is a “paradigm” case of vexatious and oppressive conduct that justifies an injunction if the fraudster is in the court’s jurisdiction (Ellerman Lines Ltd v Read [1928] 2 KB 144 (CA)) (at [117], [118]-[128]). Second, there is “a mutual interest in both courts to act quickly and effectively to restrain such conduct”. In fact, the Court went so far as to say that “[r]espect by the foreign court for the domestic court’s anti-fraud orders may reasonably be expected” (at [117], [128]-[130]).

Finally, there was no requirement that an applicant exhausts local remedies in the foreign court before applying for an injunction (at [134]). In this sense, anti-suit or anti-enforcement injunctions are not a “measure of last resort”, as the Court of Appeal had considered. The Court accepted counsel’s submission that “the idea that the New Zealand courts should wait and see whether the Kentucky courts do the ‘correct’ thing is ‘not only invidious but the reverse of comity’” (at [134]).

This case

Kea was “that rare case” where direct evidence of fraud justified the grant of anti-enforcement relief (at [120]). According to the Supreme Court, the fraud “[set] out to make a fool of both jurisdictions” (at [127]):

One court exerts jurisdiction upon a wholly false premise— both as to jurisdiction and obligations; the other—despite being the proper forum to address the fraud—is then counselled to act with restraint out of a need for comity for the first court.

The courts that were invoked in this case had “a mutual interest in stifling cross-border fraud of this kind”, and their international cooperation was consistent with a commitment to the rule of law (at [128]). From this perspective, the High Court’s anti-enforcement orders “enhance, rather than erode, comity” (at [128]). Expert evidence of US law confirmed that an injunction to stop the continued perpetration of a fraud would be consistent with US notions of comity (at [129]).

The fact that WFTL had been placed in protective interim liquidation also reframed the comity considerations in the case (at [131]). WFTL was controlled by the liquidators, who were subject to the High Court’s personal jurisdiction. An order “requiring them to seek discharge of the default judgment … ought to be within the remedies that Court ought to be able to exercise” (at [132]). The liquidators recognised “that they cannot take any responsible or lawful action other than to have the default judgment discharged” (at [131]) but the orders were still necessary to allow the liquidators to fulfil their duties (at [132], [136]). In these circumstances, the injunctions were “consistent with protecting the Court’s processes and officers” (at [133]).

The Court concluded that the anti-enforcement orders were not only justified but also necessary (at [136]): “If not in this case, then when? If not by the New Zealand High Court, then by whom?” The level of fraud in this case was such that “even requiring a party to apply for a stay or dismissal in the foreign court would be unjust” (at [135], citing Thomas Raphael The Anti-Suit Injunction (2nd ed, Oxford University Press, Oxford, 2019) at [5.45]). The proceedings in the Kentucky courts were “a core operative element of the fraud” (at [135]). If the High Court had not made the interim orders in this case, “control of WFTL, and with it the default judgment … would by now have passed well beyond the New Zealand jurisdiction” (at [135]); the “status quo for both jurisdictions would soon have shifted as part of this swirling, evolving fraudulent enterprise” (at [136]).

Comment

The existence of the fraud was not in issue, and neither was the High Court’s conclusion that it had jurisdiction – and that it was the appropriate forum – to determine the claim for fraudulent conspiracy. But the Supreme Court made it clear that the High Court’s approach to jurisdiction, at a time when the existence of fraud was “a strongly arguable possibility”, was “entirely correct” (at [103]). The alleged fraudster was in New Zealand, which made it appropriate for the New Zealand court to become involved, culminating in the grant of anti-enforcement relief once the question of fraud had been finally determined.

Why is it appropriate for a New Zealand court to decide on the right- or wrongfulness of proceedings in a foreign court (see here)? Should such decisions not fall exclusively within the foreign court’s jurisdiction? The Kentucky court in this case had taken the position, at first instance, that the default judgment should stand.

The Supreme Court acknowledged that anti-suit and anti-enforcement injunctions “cut across the authority of a foreign court acting within its legitimate jurisdiction” (at [116]). But in the case of fraudulent proceedings, the fraudster’s jurisdiction, too, is connected to the fraud and has a responsibility to stop it. In fact, comity here requires cooperation to stop the fraud, and within this framing of cooperation, questions about the courts’ relative jurisdictional authority do not arise. If anything, it is the foreign court, the court that entertained the fraudulent proceedings, that may be thought to be interfering with comity if it denies the importance of combatting fraud (see [117]).

While the Court of Appeal had been sceptical of the legitimacy of anti-suit and anti-enforcement injunctions, the Supreme Court recognised them as valid and established tools of the conflict of laws. It pointed to the history of anti-suit and anti-enforcement injunctions as originating in the courts of equity, which granted injunctions to restrain proceedings in the common law courts, to explain why they are “very much a creature of the Anglo-American common law” (at [104], referring to Martin Davies and others Nygh’s Conflict of Laws in Australia (11th ed, LexisNexis, Sydney, 2026) at [9.2]). At the same time, the Supreme Court’s thoughtful analysis of the relationship between fraud and comity may inspire New Zealand courts to tread carefully in future cases. If anti-suit and anti-enforcement injunctions “cut across the authority of a foreign court acting within its legitimate jurisdiction”, there needs to be a convincing reason on the facts of a particular case why they are not, in fact, an undue interference with comity.

from Marcel Vitor de Magalhães e Guerra

On 14 November 2025, the English High Court handed down its Stage 1 judgment in Município de Mariana and others v. BHP Group Plc and BHP Group Limited [2025] EWHC 3001 (TCC), finding the defendants liable — under Brazilian law — for the 2015 collapse of the Fundão tailings dam: over 600,000 claimants, an estimated £36 billion, the largest group litigation in English legal history. This post argues that Mariana exposes a functional interconnection between public and private international law at the stage of determining jurisdiction itself: although doctrinally distinct, the court’s application of a private international law rule required engaging questions of corporate organisation, adjudicatory legitimacy, and transnational responsibility that traditionally belong to public international law.

A jurisdictional rule that was anything but self-executing

The formal basis for the English courts’ competence was straightforward: Article 4(1) of the Brussels I Recast Regulation, under which BHP Group Plc — domiciled in England and Wales, then part of a Dual Listed Company structure with the Australian BHP Group Limited — was subject to mandatory jurisdiction. Yet the rule was anything but self-executing. Turner J struck out the claims (Municipio de Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC)) as an abuse of process, also accepting the Article 34, forum non conveniens and case-management applications on alternative grounds. Only the Court of Appeal’s 2022 judgment ([2022] EWCA Civ 951) — drawing on Owusu (Case C-281/02, [2005] ECR I-1383) and Vedanta ([2019] UKSC 20) — rejected those objections, confirming that complexity could not convert mandatory jurisdiction into a discretionary one.

Even this mandatory rule required the courts to engage with contested questions about the defendants’ identity, group structure, parallel proceedings and manageability — requiring considerably more than a purely procedural inquiry, and engaging the same transnational corporate reality that later informed the liability determination. The jurisdictional inquiry thus already illustrates the interconnection between public and private international law.

The same underlying corporate relationships

The jurisdictional history of Mariana illustrates a phenomenon that has received surprisingly little explicit attention in scholarship. In Private International Law and Global Governance, Horatia Muir Watt and contributors recast private international law as an instrument of transnational governance, allocating and constraining the regulatory authority exercised by private actors, and Ralf Michaels cautions against treating jurisdiction as a single, uniform concept.[1] Alex Mills, in The Confluence of Public and Private International Law, has argued that the two fields increasingly operate as complementary components of a common transnational legal order. The public international law dimension lies not in the jurisdictional rule itself, but in the international legitimacy of projecting adjudicatory authority over conduct occurring partly outside the forum State — a question traditionally analysed through principles governing the permissible bases of jurisdiction. The procedural application of Article 4 in Mariana therefore became inseparable from questions of international jurisdictional legitimacy.

Jurisdiction and liability remain analytically distinct, but such litigation may require successive, asymmetrical reconstructions of the same corporate organisation. Allegations about the coordinated operation of the two BHP parent companies formed part of the factual setting for assessing whether the proceedings were abusive or unmanageable; at the merits stage, Mrs Justice O’Farrell reached a strikingly similar conclusion applying Brazilian law’s “multifactorial and evaluative” approach to indirect polluter liability, finding that BHP, through its control of Samarco, caused or permitted the continued raising of the dam despite known risks.

A caveat: although the corporate reality examined is the same at both stages, the evidentiary burden escalates sharply — from threshold plausibility to proof on the balance of probabilities. The relationship is thus telescopic, not repetitive.

The phenomenon is not confined to environmental litigation. Toussaint Nothias’s recent account of the Kenyan proceedings against Meta describes a comparable problem: Meta contested jurisdiction by relying on its foreign incorporation and moderators’ formal employment status, yet the courts examined its Kenyan operations and subcontractor relationships — relevant both to jurisdiction and to whether Meta was the moderators’ true employer.

Morelli had already asked, in 1953, whether States face limitations in exercising judicial jurisdiction over civil actions.[2]Mariana and the Kenyan litigation reveal how far that interconnection extends today — distinct from the choice-of-law analysis that resolves the merits, since which court may hear a case does not turn on which law governs it. Jurisdictional doctrine cannot be developed in complete isolation from the evidentiary realities of transnational litigation.

That overlap is rarely made explicit in the jurisdiction literature, which treats domicile, service, and forum non conveniensas self-contained inquiries.

A live illustration for the HCCH parallel proceedings debate

This bears on the continuing HCCH debate following the recently concluded consultation on the Draft Text of a future Convention on Parallel Proceedings. As a recent follow-up post on this blog reported, the German Judges Association flags concerns about Articles 9 and 10, which, in bracketed form, would permit courts to assess whether another court is more appropriate — a discretionary test unfamiliar to jurisdictions like Germany’s, trading predictability for a forum non conveniens-style exercise.

Mariana offers a cautionary data point from a jurisdiction where such discretion is already familiar: BHP’s strategy was, in substance, an attempt to secure a comparable reassessment — through forum non conveniens and an abuse-of-process argument that the litigation was “irredeemably unmanageable.” Both succeeded at first instance, reversed only on appeal, years later — precisely what the Association warns a discretionary regime could produce elsewhere. Its concern that such factors could disadvantage claimants given complex, globalised structures maps onto this case: the Dual Listed Company structure at issue is exactly what such a regime would have to unpack before reaching the forum question.

What this means for private international law

The upshot is not that domicile-based jurisdiction under Brussels I Recast should be reopened to substantive scrutiny — the Court of Appeal was right that complexity cannot convert a mandatory rule into a discretionary one. The point is narrower: courts adjudicating cases like this may already be engaging in a sequence of partially overlapping inquiries spanning what doctrine presents as separate stages. Future work might therefore pay less attention to treating these stages as entirely self-contained, and more to understanding how their factual and normative interdependence shapes transnational litigation.

The significance of Mariana extends beyond the relationship between jurisdiction and liability: it shows that determining adjudicatory jurisdiction itself increasingly occupies a space where public and private international law interact functionally, requiring courts to evaluate a common transnational corporate reality before either jurisdictional or substantive questions can be resolved.

Marcel Vitor de Magalhães e Guerra is a Public Defender (Defensor Público) of the State of Espírito Santo, Brazil. He holds a doctorate in International Law from the State University of Rio de Janeiro (UERJ) and is the author of the book Jurisdição Internacional e Efetividade Climática (Conjecturas, 2026).

[1] Ralf Michaels, ‘Some Fundamental Jurisdictional Conceptions as Applied in Judgment Conventions’ in Eckart Gottschalk, Ralf Michaels, Giesela Rühl and Jan von Hein (eds), Conflict of Laws in a Globalized World (Cambridge University Press 2007) 29–62.

[2] Gaetano Morelli, Diritto processuale civile internazionale (2nd edn, CEDAM 1953) 87.

This Call for Papers has been kindly shared with us by Inez Lopes / University of Brasilia (UnB) and Fabricio B. Pasquot Polido / University of Minas Gerais (UFMG)

Following the previous editions hosted by the University of Brasilia in 2019 and 2024, the Third Seminar “The Challenges of Private International Law in Contemporary Society”, will be held from 4 to 6 November 2026 at the Faculty of Law of the Federal University of Minas Gerais, Brasil. The theme of the 2026 edition is:

“Jurisdiction and Transnational Access to Justice between New Technologies and ‘The Human Side of Artificial Intelligence’”

The event forms part of a continuing initiative developed by Brazilian and international research networks in the field of Private International Law. It is articulated with academic groups and networks devoted to Private International Law, international civil procedure, international judicial cooperation, digital technologies and artificial intelligence, including the Research Group “Private International Law in Brazil and International Fora”, the Latin American Research Network on International Civil Procedure, the CNPq research project “Digital Technologies as Tools for International Judicial Cooperation, Private International Law and Comparative Law”, the Brazilian National Forum on Law and Artificial Intelligence, and members of the American Association of Private International Law – ASADIP.

The 2026 edition aims to foster interdisciplinary debate on the impact of emerging technologies and artificial intelligence on the foundations of Private International Law, domestic and regional legal systems, transnational litigation, transnational access to justice, and mechanisms of international judicial cooperation. In addition to the Working Group sessions, the Seminar will feature thematic academic panels addressing contemporary challenges of Private International Law, new technologies, artificial intelligence, international judicial cooperation and access to justice.

The Scientific Committee invites submissions of draft papers and extended abstracts, in Portuguese, Spanish or English, for presentation in the following Working Groups:

• The Human Side of Artificial Intelligence, Domestic Courts and Private International Law;
• Foundations of Private International Law and Digitalisation;
• Complex Cross-Border Litigation in Data, Technologies and Artificial Intelligence;
• International Judicial Cooperation, Digitalisation and AI;
• Artificial Intelligence and Transnational Access to Justice on a Global Scale.

The selected draft papers/extended abstracts will be presented in person during the Working Group sessions, which will take place as part of the Seminar in Belo Horizonte.

The deadline for submissions is 10 September 2026, at 11:59 pm Brasília time. Results will be announced by 30 September 2026.

Submissions must be made through the electronic form: https://forms.gle/8rknWFYgueAqdELJ9

The full Call for Papers, including submission guidelines, and information on presentations in the Working Groups, is available in the event documents folder.

For further information, please do not hesitate to contact the Committee (rdip.ufmg@gmail.com) and follow the news and updates on the PIL Seminar at https://pos.direito.ufmg.br/noticias/noticias/

This article traces Japanese SEP/FRAND litigation from the 2024 Grand Panel decision in Apple v. Samsung, which set such a high bar for finding an "unwilling licensee" that it caused an eleven-year stagnation in Japanese FRAND disputes, to the Tokyo District Court's June 2025 judgment in Pantech v. Google, the first case in Japan in which an injunction against a FRAND-declared SEP was granted.  The court found Google to be an unwilling licensee based on its refusal to disclose sales data and engage constructively in court-mediated settlement discussions.  This article explains the judgment as a significant step toward aligning Japanese practice with global FRAND standards, which is further reinforced by the new Litigation and Mediation Protocols published by the Tokyo District Court in January 2026. 

For previous discussion of Pantech on this blog, see my post "FRAND in Japan" here. 

Also in this issue of GRUR Patent are an essaye by Dr. Henrik Holzapfel titled Die extraterritoriale Durchsetzung von Patenten—vom Kuriosum zum Königsweg? (Extraterritorial Enforcement of Patents—from Curiosity to Royal Road?"), and an article by Katalin Tözsér, Florian Schweyer, and Oliver Schön titled Europäische Gerichte als «worldwide super infringement courts« (“European Courts as ‘Worldwide Super Infringement Courts”).  I have not read these yet, but since I am writing about extraterritoriality I plan to, and may have some comments here in due time.  The issue also includes an article by Oliver Bäcker and Marc Berninger on the Munich Landgericht's January 8, 2026 decision in the FRAND dispute between Wilus and Asus, concerning, inter alia, the defendant's obligation to provide security. 

*                    *                    *

I will be taking a blogging break next week.  

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its XLIX Seminar entitled “Towards a new codification of Private International Law in Mexico” (Hacia una nueva codificación del Derecho Internacional Privado en México) from 15 to 16 October 2026. The venue of the seminar will be the Universidad Autónoma de Yucatán (Mérida, Mexico).

This edition of the seminar will primarily focus on the draft bill on Private International Law for the state of Yucatán, an initiative presented by AMEDIP to the authorities of that state. This draft breaks from previous practice, according to which state PIL rules are contained in civil codes, by suggesting the adoption of a standalone Act (available here).

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by 3 August 2026. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services, but some exceptions may be made by the organisers upon request for presentations in English or Portuguese. For more information on the requirements, click here.

Yesterday the U.K. Supreme Court handed down its decision in Tesla, Inc. v. InterDigital Patent Holdings, Inc., [2026] UKSC 27.  The Court held, inter alia, that (contrary to the majority view of the Court of Appeal) there is a "serious issue to be tried" whether SEP owners' obligations to license their SEPs on FRAND terms applies to an offer to license those patents jointly through a platform, such as Avanci.   Other sources, including ip fray, JUVE Patent, Patently-O, and Kluwer (one by Matthieu Dhenne, and another by Naomi Hazenberg and Patrick Newlands) already have written about yesterday’s decision in some depth, so I don't see any reason to present a detailed summary here.  I will simply note that the Court's principal justification is that there is no apparent "basis for concluding that the FRAND obligation ceases to apply if two or more owners choose to offer a licence of their patents through or using a licensing agent appointed for that purpose" (para. 84), and that "the utility of the FRAND obligation would be severely compromised were it to cease to apply in circumstances such as these" (para. 85).  In other words, there is an serious issue to be tried whether Tesla is correct in asserting that "joining a pool or platform does not release the SEP owner from the FRAND obligation it has already undertaken" (para. 89).  From this, it further stands to reason, in the Court's view, that Tesla has a "real prospect of establishing" at trial that a FRAND license pertaining to the relevant U.K. SEPs would be a platform license at a FRAND rate (para. 95).  Tesla therefore has a "real prospect of securing the declaratory relief it seeks in the Licensing Claims against InterDigital" and against Avanci, as agent for the individual SEP owners (paras. 131, 132).

I am of two minds on this case.  As I wrote last year in my (fairly detailed) discussion of the Court of Appeal decision in this case, on the one hand an affirmation that an English court has jurisdiction to determine a pool rate for the entire world seems pretty breathtaking, especially given that the UK SEPs comprise a decidedly small portion of the overall portfolio.  On the other hand, the Supreme Court has a point when it says that "the existence and operation of . . . pools and platforms of SEPs, without the possibility of court scrutiny of the pool or platform rates, would seriously undermine the effectiveness of the FRAND obligation of the SEP owners" (para. 138).  Like the court, I am not convinced that the bilateral licensing option necessarily constrains the pool from charging an above-FRAND rate.  I have suggested previously that, if the transaction costs savings from licensing through the pool are substantial, licensees may prefer the rate charged by the pool to bilateral licensing, even if the rate is non-FRAND.  (See the last paragraphs of my March 10, 2025 post for why I think this is so.  One thing I did not take into account there, however, is the possibility that the pool rate might be lower than the non-pool rate because pooling reduces the risk of royalty stacking.  That doesn't necessarily change my overall conclusion, though.)  Moreover, the licensors' representation that the pool will charge a FRAND rate can be a factor in determining that the pooling arrangement does not violate antitrust law; but if so, that would seem to suggest that some institution must have jurisdiction to determine if, in fact, the pool's terms are FRAND.  Perhaps the matter could be left to antitrust enforcers in the U.S., the E.U., or elsewhere, but they may have little incentive to do engage, once the pool is up and running, in comparison with prospective licensees such as Tesla.  That said, we still come back to the questions of whether the English judiciary is the right institution to make this determination for effectively the entire world; and if so, whether we can be reasonably confident that its determination will be correct. 

The publisher’s blurb, including a discount code, is as follows:

Private International Law and Children’s Rights Law  

Conflicts in International Child Abduction Cases

Tine Van Hof

This book examines the relationship between two legal fields when courts decide on cross-border child abduction. While private international law prioritises the child’s prompt return and applies the best interests principle in abstracto, children’s rights law demands an in concreto, individualised assessment of the child’s best interests. These differing approaches can lead to legal friction in practice.

Through a detailed analysis of legal instruments and supranational case law, the book explores how these conflicts arise and how they might be resolved.

Offering clear recommendations for lawmakers, international organisations, and courts, the book provides a roadmap for fostering constructive relationships between legal fields. It is an essential resource for scholars of private international law, judges and practitioners in cross-border family law, and policymakers working at the intersection of international law and children’s rights.

Tine Van Hof is a legal researcher at the University of Antwerp, Belgium.

Jun 2026   |   9781509977055   |   288pp   |   Hbk   |    RRP: £90

Discount Price: £72

Order online at www.hartpublishing.co.uk  – use the code GLR BD8 to get 20% off!

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It is our great pleasure to bring to readers’ attention the publication of the article “The Reasons Highest Courts Give: England, France, Germany; 1880–89 and 2007–16”, co-authored by Holger Spamann (Harvard Law School), Stefan Vogenauer and Jasper Kunstreich (MPI Hamburg), Heinrich Nemeczek (Scalable Capital) and Markus Lieberknecht (Osnabrück University), in The Journal of Legal Studies.

One of the core debates in comparative law concerns the characteristics, extent, and development of the common/civil law divide. In this context, it is a familiar trope that common and civil lawyers reason differently, but that the systems are converging. However, the empirical basis for such claims is thin to nonexistent. To address this paucity of data-backed research, we present the first systematic quantitative comparison of three paragon jurisdictions of common law (England) and civil law (France and Germany), and across two centuries (1880–89 vs. 2007–16). Specifically, we analyze the use of legal authorities (cases, statutes, and literature) in 40 representative opinions of each apex court in each of the two decades we surveyed.

Our findings challenge some conventional wisdoms. Take the claim of fundamental differences: Our findings suggest that England and Germany differ only in degree, not in kind. For instance, most German opinions were already citing and distinguishing precedent in the 1880s. There is nothing that one court does, that the other does not do at all. Nonetheless, English courts engage with prior cases more closely than the German courts. Overall, the odd one out in this trio is France, not England. The convergence thesis does not fare well in light of our data either: We observed no such development but instead noted the opening of a new chasm with regard to legal literature, which only the modern German court engages extensively.

Naturally, our study can only pose a challenge, not a refutation, of engrained beliefs that common and civil law systems are fundamentally different but that they have been converging.  It is, however, a rather strong challenge, relying on data from the three arguably central jurisdictions on the bread-and-butter object of legal studies (opinions of apex courts). We invite further research based on our sampling and coding scheme, which is scalable and can be applied to other jurisdictions and time periods.

The article – Spamann/Kunstreich/Lieberknecht/Nemeczek/Vogenauer, 55 J. Leg. Stud. 365 (2026) – can be accessed here or obtained from the author of this post.

The 6th issue of Perspectives contentieuses internationales has been released and is online.

It contains seven articles related to the consolidation of cross-border litigation. These articles form the first part of the proceedings of a conference held in Toulouse in November 2025. The second part will be published in Volume 7. Volume 6 also includes two further articles, one on the law applicable to air transport and one of theclassification, and three short notes (focus).

Here is the list of papers, along with their abstracts.

Fabienne Jault-Seseke, The consolidation of cross-border litigation in the interests of consistency

The consolidation of cross-border litigation makes it possible to satisfy the requirement of consistency. It is mainly understood as the ability to bring claims and defendants before a single judge,but it also arises in the context of res judicata. Consolidation serves the proper administration of justice by avoiding fragmented decisions in the same case, and it must be seen together with the right of access to a court. Finding the right balance is difficult. It depends on the nature and subject matter of the dispute. The rules that make such concentration possible are varied (related actions, the most appropriate forum, lis pendens, transfer of jurisdiction, specialization of courts, and cooperation between judges).

Sandrine Clavel, Global litigation strategy and consolidation

An analysis of the procedural strategies likely to be employed by the main parties involved in civil and commercial litigation—particularly businesses and nongovernmental organizations (NGOs)—reveals that they hold an ambivalent stance toward the goal of consolidating litigation. These strategies are, in fact, primarily driven by the desire to achieve the most favorable outcome for the party concerned; however, this fundamental objective is sometimes best served by consolidating the litigation and at other times by splitting it up. This analysis also highlights that the fragmentation of litigation is a natural tendency in transnational disputes, due to the multiplicity of parties and the dispersion of the elements of the dispute across multiple legal systems, but also, at times, due to the nature of the applicable legal rules. It is therefore relatively easy for the parties to capitalise on this trend by devising procedural strategies based on multiple proceedings, whereas it may prove more complex for those who, for very legitimate reasons, wish to effectively consolidate their litigation. The overview of litigation strategies presented in this article therefore leads to the conclusion that what matters is not so much deciding, in abstracto, on the respective merits of consolidating or fragmenting international litigation — this must be decided on a case-by-case basis by the parties involved, depending on the nature of the dispute and the applicable rules — but rather to provide litigants with effective tools to achieve the objective of consolidating litigation when they deem it desirable, and to provide judges with effective tools to sanction any abuses that might be committed by those litigants in defining their litigation strategies.

Estelle Gallant (dir.), The consolidation of litigation in family matters

Although the concentration of litigation in international family matters could undoubtedly be favored, it nevertheless appears that the European regulation of international family conflicts offers litigants a broad range of rules on judicial jurisdiction and thus establishes a deliberate form of forum shopping. This notably enables the better-informed parties to bring proceedings before the court whose applicable law will provide them with the greatest advantages. Mechanisms for consolidating proceedings do exist, but they clearly do not reflect any general objective pursued by the legislature. The autonomy of the will, increasingly valued in private international family law, may therefore prove valuable for parties wishing to anticipate outcomes in the event of a dispute; however, it may also appear as a discriminatory tool serving only a certain category of litigants and thus fail to satisfy all the objectives of justice in private international law. Finally, the fragmentation of international litigation sometimes comes into conflict with national rules requiring the indivisibility of certain proceedings, raising the question of how such rules should be reconciled with European regulations.

Marie Nioche, Provisional justice and consolidation of cross-border disputes

Provisional justice tends to fragment proceedings in cross-border disputes. The analysis is based on the Brussels I bis Regulation. The author first addresses the causes of this fragmentation. She then considers possible solutions for improving the concentration of cross-border provisional litigation. Under current law, the options are limited, as traditional tools are ill-suited to provisional litigation. De lege ferenda, however, it is possible to effectively tackle fragmentation by recognizing the central role of the judge who has jurisdiction on the merits, both ex ante – to prevent coordination difficulties and conflicts of provisional proceedings or decisions – and ex post – to resolve them. 

Philippine Blajan, Consolidation of cross-border disputes litigation through the optimal use of choice-of-court agreements

Choice-of-court agreements have become key instruments for managing cross-border disputes in an increasingly complex international commercial environment. Beyond ensuring predictability, they enable parties to concentrate litigation before a single forum and reduce the risks of parallel proceedings and inconsistent judgments. Their effectiveness, however, depends on their ability to bind third parties involved in complex contractual networks and to withstand competing jurisdictional claims. At the same time, excessive concentration may undermine procedural fairness where vulnerable or weaker parties are compelled to litigate before a distant or burdensome forum. The article analyses the tensions between party autonomy, procedural efficiency, and access to justice under European and French private international law. It concludes by suggesting a new “jurisdictional concentration clause” designed to centralize disputes arising from interconnected contractual relationships while preserving fairness and legal certainty, and binding force of contracts.

Julie Esquenazi, Hélène Georgelin, Choice-of-court agreements, primacy at any cost comes at a price

In the last few months, case law has been particularly notable in relation to jurisdiction clauses. Notably, the scope of such clauses is becoming increasingly broader, particularly with regard to their primacy over other jurisdictional rules as well as their enforceability against interested third parties. This approach in case law, justified by the objective of predictability, may conflict with other principles, such as the proper administration of justice or the relative effect of agreements.

Laurence Idot Consolidation of litigation: the contributions of public enforcement to private enforcement

Public enforcement in cross-border matters has developed considerably. Competition law is a prime testing ground. But financial and digital matters, among others, are also concerned. The mechanisms for concentrating litigation found there cannot simply be transposed to private enforcement. They are nevertheless a source of inspiration, whether in identifying the most suitable authority, putting in place cross-border information mechanisms, or identifying rules that help ensure coherence.

Caroline Derache, Constance Plouchart, The law applicable to disputes relating to air transport

Although international air transport is governed by uniform substantive rules laid down among others in long-standing international treaties, there are still many situations where, in case of litigation, the court may have to determine the law applicable to the claims brought before it. This is the case, for example, when parties other than the carrier are involved. Determining the relevant text and subsequently applying the appropriate conflict of laws rule can, then, give rise to debates that have led to decisions that are worth examining. However, some issues have not yet been resolved.   

Sophie Duparc, Elie Lenglard, Maud Minois, Noela Picari, What role does the ‘lege fori’ classification play in the age of independent classification ?

What role remains for lege fori characterization in a private international law increasingly shaped by the European Union and by autonomous concepts developed by the Court of Justice of the European Union ? Using the landmark Caraslanis decision as its starting point, the article argues that the opposition between domestic and autonomous characterization is less radical than commonly assumed. Although European harmonization has shifted the interpretation of connecting-factor categories to the legal order of the Union, it has neither eliminated the relevance of national legal concepts nor resolved the difficulties surrounding the identification of the object of characterization. The article highlights the continuing methodological value of lege fori characterization through three contemporary case studies: the fiducie and the trust, the direct action mechanism, and claims based on the abrupt termination of established commercial relationships. These examples reveal the persistent tension between European uniformity and the diversity of national private law systems. The authors contend that autonomous characterization can operate coherently only through renewed reliance on comparative analysis and a careful understanding of national legal institutions. The challenge today is therefore not to replace lege fori characterization with autonomous concepts, but to articulate both approaches in a manner that safeguards the unity of EU private international law while preserving the coherence of domestic legal systems.

The focus are the following :

Summary report on the inaugural conference of the GLAS Forum, by Daniela de Avilez Demoro and Yannick Vincent

A first step towards a revision of the Brussels I bis Regulation, by Sandrine Clavel

The transposition of the anti-SLAPP Directive, by Fabienne Jault-Seseke

This post was kindly prepared by Véronique Carole Ngono, Professor of Private Law (agrégée), University of Douala, Cameroon.

I. Introduction

The recognition and enforcement of foreign judgments in French-speaking sub-Saharan Africa has not been the subject of many studies. Although a few such studies do exist, this is in contrast to the field of conflict of laws and personal status law in particular. Consequently, the two rulings issued by the Supreme Court of Senegal on August 12, 2020, in connected disputes went practically unnoticed, even though they offer valuable insights into determining the jurisdiction of Senegalese courts in international disputes and the enforcement of foreign judgments.

The purpose of this note is therefore to shed light on the law and practice of conflict jurisdictions in Senegal.

II. Facts and proceedings

The dispute involves a Senegalese couple, X (the husband) and Y (the wife), who married in Senegal in 1996. They lived there for some time before Y moved to Montreal, Canada, where she settled in 2015.

In 2017, X filed a petition for divorce in Senegal. Y challenged the jurisdiction of the Senegalese courts. The lower court rejected Y’s objection and assumed jurisdiction over the dispute. Dissatisfied with the decision, Y appealed to the Supreme Court [Case 1].

Meanwhile, in 2019, Y successfully obtained an interim order from a court in Montreal, Quebec, in the divorce proceedings between the parties. The order, among other things, granted Y the exclusive right to occupy a residence located in Senegal, to the exclusion of X.

The lower court declared the Canadian judgment enforceable in Senegal. Dissatisfied with that decision, X appealed to the Supreme Court [Case 2].

III. Rulings

Case 1 (Ruling No 73 of 12 August 2020)

In the first case, the Supreme Court ruled that when disputes involve spouses of Senegalese nationality, the wife resides abroad, the rule governing the international jurisdiction of Senegalese courts set forth in Article 853 of the Family Code (CF) apply to the exclusion of domestic provisions contained in Article 167 of the same Code, which are confined to matters of territorial jurisdiction. Second, the Court held that, by virtue of the exclusive jurisdiction conferred upon it by Article 853, the Senegalese Court are not required, in the event of international lis pendens, to decline jurisdiction in favor of a foreign court hearing the same dispute between the same parties. Consequently, the lower court dismissed the lis pendens noting that the – both Senegalese national married in Senegal – had lived there before Y moved to Canada in 2015, properly justified its decision.

Case 2 (Ruling No 74 of 12 August 2020)

In the second case, the supreme Court ruled as follows:

First, the Supreme Court recalled the applicable legal framework for granting exequatur, notably Articles 787-790 of the Code of Civil Procedure (CCP) dealing with the exequatur requirements, and Articles 853 [op. cit.] as well as 843 and 846 of the FC dealing with the law applicable to the extra-patrimonial effects of marriage and divorce or legal separation, as well as matrimonial property regimes. The Court then observed that the lower court had declared the Canadian judgment enforceable in Senegal on the ground that it satisfied the requirements for recognition and enforcement.

However, the Supreme Court disagreed and held that, by declaring the Canadian judgment enforceable, the lower court had misapplied the law. First, the Canadian court lacked jurisdiction to order provisional measures in divorce proceedings between Senegalese spouses, since some of those measures were to be enforced in Senegal and the Canadian court had failed to apply Senegalese law, which was designated as the applicable law under the Senegalese conflict-of-laws rules. Second, nothing in the order established that the judgment had been rendered in proceedings in which the parties had been duly served, properly represented, or declared in default.

IV. Comments

An analysis of the two rulings sheds light on how Senegalese Courts deal with parallel proceedings in international disputes (1) and the requirements of the recognition and enforcement of foreign judgments (2).

1. The treatment of parallel proceedings by Senegalese Court

The first ruling in case 1 by the Supreme Court of Senegal provides some useful insights. First according to the supreme court, where one of the defendants is resident abroad, rules on international jurisdiction should apply even when the dispute is between two Senegalese nationals. Second, rules on international jurisdiction do not recognize international lis pendens. This is because according to the Court, Article 853 of the FC confers exclusive jurisdiction to Senegalese court whenever either plaintiff or the defendant is Senegalese national.

Accordingly, while Article 853 of the FC does not explicitly refer to the exclusive nature of the ground of jurisdiction based on the Senegalese nationality, the Court interpreted the “privilege of jurisdiction” referred to in the provision as conferring Senegalese courts exclusive jurisdiction. This exclusive nature of the jurisdiction of Senegalese courts precludes the recognition of international lis pendens, unless the parties have waived the jurisdictional privilege conferred to them or the judgment resulting from proceedings initiated in Senegal is intended to be enforced abroad.

Consequently, a judgment rendered abroad in a dispute between Senegalese nationals or between a Senegalese national and a foreign national in violation of this exclusive jurisdiction may not be enforced in Senegal. Paragraph 2 of this article further provides that Senegalese courts also have jurisdiction over disputes between foreign nationals when the defendant is domiciled in Senegal or when one of the jurisdictional grounds referred to in article 34 through 36 o the CPC dealing with territorial jurisdiction is located in Senegal.

2. The recognition and enforcement of foreign judgment

a) Applicable legal framework

Under Article 787 of the CCP, in civil, commercial and administrative matters, contentious and non-contentious decisions rendered by foreign courts have de plano the force of res judicata in Senegal territory if they meet the following conditions:

a) The decision was rendered by a court having jurisdiction in accordance with the rules on conflicts of jurisdiction recognized in Senegal;

b) The decision applied the law governing the dispute in accordance with the conflict-of-laws rules recognized in Senegal

c) The decision is, under the law of the State in which it was made, final, binding and enforceable under the law of the rendering State;

d) The parties were duly summoned, represented or declared in default;

e) The judgment is not contrary to Senegalese public policy and does not conflict with a Senegalese court judgment having the force of res judicata.

The application of Article 787 must also be read in conjunction with Article 790 of the CCP, and Articles 843, 846 et 853 of the FC. Article 790 of the CCP determines the scope of the exequatur court’s review by providing that, the President of the Regional Court of the place where enforcement is limited to verifying whether the decision for which a declaration of enforceability is sought meets the conditions laid down in Article 787.

Articles 843 and 846 of the FC lay down the rules on conflicts of law relating to personal status in Senegal, particularly in matters of marriage and divorce. These provisions are relevant for determining whether the foreign court had applied the law governing the dispute according to the Senegalese choice of law rules, as required by Article 787(b). Finally, as noted above, Article 853 establishes the rules governing international direct jurisdiction o the Senegalese courts and is relevant to determining whether the foreign court exercised jurisdiction in accordance with the jurisdictional rules recognized in Senegal, as required by Article 787(a).

b) The practice of recognition and enforcement of foreign judgements in Senegal

According to the Supreme Court the conditions laid down in Article 787 were not satisfied. First the Canadian court lacked jurisdiction to order provisional measures to be enforced in Senegal. Second, the Canadian court failed to apply Senegalese law, which was applicable in accordance with the conflict-of-laws rules Articles 843 and 846 of the FC. Those provisions provide that the extra patrimonial effects of marriage as well as divorce and legal separation, are governed by the spouses’ common national law where they share same nationality or where they are of different nationalities, by the law of the country where they have their common domicile at the time the proceedings are instituted. In the absence of proof of the existence of a common domicile the lex fori applies. Furthermore, the Court noted that nothing in the finding of the appealed order that the foreign judgment was rendered in proceedings which the parties had been duly summoned, represented or declared in default.

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

Contributions include:

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

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

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

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

Stefano Dominelli: Lex fori prorogati and Brussels I bis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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