Enforcing International Arbitration Agreements: the Remedial Powers of Federal Courts

Daniel S. Tan (O'Melveny & Myers LLP) has posted an article on "Enforcing International Arbitration Agreements in Federal Courts: Rethinking the Court's Remedial Powers" on the Social Science Research Network (SSRN) that will be published in the Virginia Journal of International Law in Spring 2007. The abstract reads:

The area of remedies in private international law is largely unexplored, but provide the very means by which the courts can advance private international law aims such as controlling international litigation and enforcing forum selection. The contractual nature of arbitration agreements and the policy in favor of arbitration make this a good starting point from which a wider remedial framework can be developed.

In practice, the U.S. federal courts invariably enforce arbitration agreements with the statutory remedies in the Federal Arbitration Act. Yet, there is no reason why this should be. Where the statutory remedy is deficient or inappropriate, the courts may appeal to their wider inherent remedial powers to fashion suitable relief. The domestic law of remedies suggests that the courts may use specific and (antisuit) injunctive relief to enforce the parties' right to the arbitral forum, or to award ordinary contractual damages to vindicate what is a straightforward breach of contract. Private international law remedies such as stays of proceedings and nonrecognition of judgments obtained in breach of arbitration agreements are other remedial alternatives that can be used to enforce such agreements. All the same, development of each of these remedies must be done within the context of an overarching remedial scheme – akin to that which exists in domestic law. The domestic law of remedies offers an interlocking set of remedial responses to vindicate wrongs. To effectively control international litigation and improper attempts at forum shopping, the courts must endeavor to develop a similar remedial framework in the private international law context, in order that they may be able to render the most appropriate remedial relief to enforce agreements to arbitrate and advance the policy in favor of arbitration.

You can download the full article here.




Call for Applications: Junior Professorship in Private Law and Private International Law at Humboldt University of Berlin

The Faculty of Law at Humboldt University of Berlin (Germany) invites applications for a Junior Professorship (W1 Tenure Track to W2) in Private Law and Private International Law, to be filled as of 1 October 2026.

Candidates are expected to conduct research and teaching in Private Law and Private International Law broadly understood (including in particular International Family and Succession Law, International Civil Procedure, International Dispute Resolution, International Commercial Arbitration).

This position is part of the Faculty’s strategic effort to further strengthen its international profile as well as its commitment to foundational legal research. Applicants should demonstrate academic excellence, international visibility and have teaching experience at university level.

Candidates must hold a first law degree (ideally from Germany) and a PhD in (private international) law from either Germany or abroad. In addition, proficiency in German (native speaker level) is required as the position requires teaching and participation in academic self-governance in German.

Applications (letter of motivation, CV, list of publications and presentations, relevant academic transcripts and certificates, teaching evaluations) should be submitted to the Dean of Humboldt Law both by postal and by electronic mail (in one pdf) by 11 July 2025 under the reference number JP/003/25:

Dean of the Faculty of Law
Prof. Dr. Philipp Dann
Humboldt-Universität zu Berlin
Unter den Linden 6
10099 Berlin
Germany

Email: dekan.rewi@hu-berlin.de

Further information on the tenure track framework at Humboldt University is available here at https://hu.berlin/tenuretrack-katalog.




Commission Report and Staff Working Document on Brussels I recast

Today the European Commission published its eagerly awaited Commission Report on the application of the Brussels Ia Regulation (also referred to as Brussels I-bis), No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). The Report is accompanied by a Staff Working Document, detailing a number of selected topics addressed in the Report. The documents rely in particular on the extensive Evaluation Study that was published in January 2023 as well as the findings of the JUDGTRUST project and the resulting book.

The Report states that it is ‘generally agreed that the Regulation is a highly successful instrument’ and that the enhancements, including the abolition of the exequatur, have strengthened judicial cooperation in civil and commercial matters. Its overall ‘clear and simple’ rules are ‘highly appreciated amongst practitioners. The Report also emphasizes the essential role of the CJEU case law in interpreting and applying the rules. While several complex issues require clarification, given the ‘general satisfaction with the operation of the Regulation, any modifications should respond to real practical difficulties and should not lead to an overhaul of the well functioning system of the Regulation’, according to the Commission.

The Report addresses the scope of application laid down in Art. 1  (in particular the exclusion of arbitration) as well as a number of issues in applying Arts. 2 and 3, including definitions (in particular the term ‘judgment’ in relation to provision and protective measures, and definition of ‘court’ referring to the Pula Parking judgment, see here).

As regards the scope of the jurisdiction rules, the much debated issue of the (non) application to third-country defendants and possible extension is addressed. Topics pointed out in relation to the special, alternative jurisdiction rules in Arts. 7-9 include the increasingly broad interpretation of ‘matters relating to a contract’, determining the place of performance  of contractual obligations (Art. 7, para 1), and as regards torts (Art. 7, para 2) the often problematic determination of the place of damage of pure financial loss (similar to Rome II Regulation, see also here) and the application of the mosaic principle in cases regarding the violation of privacy rights. As to the latter, reference is also made to the (negative) implication in SLAPP cases and the Anti-SLAPP directive, which was adopted in 2024. A number of issues are pointed out in applying the consumer protective rules in Arts. 17-19, including the notion of ‘consumer’, the phrase ‘directing of commercial activity’, the exclusion of transport contracts as well as their non-applicability in collective redress actions, where cases are brought by a representative organisation. A few minor (formulation) issues in the application of Art 24 on exclusive jurisdiction are pointed out.

As regards the rules on recognition and enforcement, it is concluded that the system of the recast Regulation, which abolished the declaration of enforceability (exequatur) works generally well in practice and has had a positive effect on the costs and workload of courts. The Report refers to a number of CJEU rulings on the application of the public policy exception, including in the cases Diageo Brands, H Limited and most recently, the Real Madrid. The CJEU upheld the restrictive application of the public policy exception, though created room for its application in the latter case in which the violation of a fundamental right under the EU Charter of Fundamental Rights (freedom of press) was at stake.

Lastly, the Report reflects on the relationship with other instruments (Arts. 67-74), referencing in particular the Lugano Convention, the New York Convention, bilateral conventions of Member States with third states, and the establishment of the “United” (this should be “Unified”) Patent Court.

A number of important horizontal issues that are pointed out are that of the potential problematic application in collective redress cases, as is also clear from a number of rulings of the CJEU, and the impact of digitalisation, including the increase of digital content and blockchain technologies, and the digitalisation of judicial procedures.

In conclusion, the Commission will initiate ‘a formal review of the Regulation in order to consider and potentially prepare a proposal to amend or recast the Regulation in accordance with the Better Regulation rules’. Highlighted topics in this context are:

  • (once again) the extension of the rules of jurisdiction to cover defendants not domiciled in a Member State
  • provisions on the scope and definitions, in particular the exclusion of arbitration, the notion of ‘court or tribunal‘ and ‘provisional, including protective, measures
  • simplifying and enhancing the effectiveness of the provisions on jurisdiction, in particular Arts. 7(1) on contracts and 7(2) on torts, as well as those on consumer contracts
  • further streamlining and simplifying the rules on recognition and enforcement
  • necessary procedural tools in relation to collective redress
  • coordination between the Regulation and international instruments, and
  • ways to modernise and simplify procedures as part of the digital reform of civil justice systems

To be continued!

Conflictoflaws will organise an online roundtable on designated topics of the report, following the succesful roundtable on Rome II – Stay tuned




Second Issue of Lloyd’s Maritime and Commercial Law Quarterly for 2025

The second issue of LMCLQ was recently published.

It contains the following conflict of laws works,

 

David Foxton, “The Applicable Law of an Arbitration Agreement: Floating or on the Rocks?”

 

Marcus Teo and Kah-Wai Tan, “Territoriality over Universalism”

 

Adrian Briggs, “Submission to a Russian Court”




Enforceability Denied! When the SICC’s Authority Stopped at India’s Gate

Written by Tarasha Gupta, BALLB (Hons), Jindal Global Law School, and Saloni Khanderia, Professor, Jindal Global Law School (India)

 

The Singapore International Commercial Court (“SICC”) has become a preferred hub for hearing litigation and arbitration of international commercial disputes. Accordingly, many decisions from the SICC require recognition and enforcement in India.

In this light, a recent judgment from the Delhi High Court (“HC”) is a significant development providing relief to those wishing to enforce the SICC’s judgments in India. In Discovery Drilling Pte Ltd v. Parmod Kumar & Anr,[1] the HC has held that the SICC is a superior court under Section 44A of the Code of Civil Procedure, 1908 (“CPC”). As a result, its judgments can be directly executed in India. That said, the HC ultimately held the judgment in question to be unenforceable, as it failed to meet the tests in Section 13 of the CPC.

This article breaks down the arguments and legal context behind the HC’s judgment. It also highlights how the case demonstrates flaws in India’s regime, which create difficulties not just for creditors trying to enforce foreign judgments in India, but also in enforcing India’s judgments abroad.

Legal Background

The procedure for execution of foreign judgments is prescribed under Sections 13, 14, and 44A of the CPC. Recognition and enforcement of foreign judgments is based on the doctrine of obligation. Accordingly, no foreign judgment can be recognised in India unless the judgment-creditor proves to the Court that the judgment-debtor owes it an obligation to pay a sum of money under the law of the foreign state where the judgment was pronounced. This obligation is given effect in India among the creditor’s initiation of fresh legal proceedings before the Indian court through an action in debt.

Some courts are nonetheless conferred with reciprocating status under Section 44A of the CPC. Thus, judgments of “superior courts” from 12 notified jurisdictions, including Singapore, are typically entitled to automatic enforcement if they otherwise satisfy the requirements of Section 13, under which the foreign court must be shown to be internationally competent – both directly under its own law and indirectly, under Indian private international law. While Section 13 provides multiple grounds for determining whether a judgment is conclusive, including considering the merits of the case.[2], the key pillar is considering whether the court had the competency to rule on the case. As a general rule, a foreign court is considered competent if it is entitled to summon a defendant and subject it to its jurisdiction. This is decided by considering inter alia whether the judgment-debtor was a subject or resident of the country at the time of the proceedings, or had otherwise submitted to the jurisdiction of that court.

Factual Background in Discovery Drilling

The petitioner is a joint venture between a company incorporated under Singaporean law, and Jindal Drilling & Industries Limited (“JDIL”), a company incorporated under Indian law. The respondents were employees of JDIL who acted as representatives of the petitioner for an agreement with ARKO Group DMCC (“ARKO”) to repair a rig.

Certain disputes and differences arose between the petitioner and ARKO, leading ARKO to initiate recovery proceedings against the petitioner in the High Court of Singapore. The case was subsequently transferred to the SICC, before which the petitioner filed its counterclaim. The second amendment to this counterclaim arrayed the respondents as defendants, alleging breach of contract, breach of fiduciary duties, and fraud. The petitioners claimed it served the respondents with all notices issued by the SICC and subsequent proceedings. However, the respondents never entered appearance before the SICC.

Finally, the SICC passed the subject judgment in favour of the petitioner. Therefore, the petitioner filed the present petition seeking enforcement of the judgment against the respondents.

Applicability of Section 44A of the CPC

The Delhi HC considered three things in deciding if Section 44A of the CPC applies to judgments from the SICC.

First, the HC considered whether the SICC is a “superior court” under Section 44A. The Court noted that by a Gazette Notification, the Central Government had declared the High Court of Singapore as a “superior court”. Since the SICC was created as a Division of the High Court of Singapore, the jurisdiction of the SICC is only a subset of the jurisdiction of the High Court and did not take up a new jurisdiction. Therefore, SICC can equally be treated as a superior court.

Second, the HC considered the respondents’ contention that the SICC was not a “court”. The respondents argued that the SICC does not have the trappings of a court, inter alia because it is not dependent on the concept of territorial jurisdiction, the normal rules are not applicable to it, and foreign judges can serve as judges. The HC rejected this argument, noting that the SICC cannot be denuded of its status as a “court” merely because it follows a different procedure.

Third, it was contended that for an application to be maintainable under Section 44A, it must be accompanied by a certified copy of the decree with a certificate from the superior court that passed the decree stating the extent to which the decree has been satisfied or adjusted. The petitioner in this case had not submitted such a certificate. Instead, they submitted an email issued by the SICC stating that the Rules of the Court do not provide for issuance of a certificate of non-satisfaction of a decree. It further confirmed that the subject judgment had not been appealed. The HC noted that the CPC does not provide a form in which the certificate under Section 44A(2) has to be framed, and therefore the email could be considered a ‘certificate’.

Tests Under Section 13 of the CPC

Despite holding that judgments of the SICC may be enforced as judgments of a “superior court” under Section 44A of the CPC, the Delhi HC ultimately held the subject judgment as unenforceable as it failed to pass the tests under Section 13 of the CPC. Specifically, the court held that the SICC did not have jurisdiction (as required by Section 13(a)) to hear the case at hand, for two reasons.

First, the respondents alleged that their consent to the SICC’s jurisdiction was not taken. They contended this was a pre-requisite for the SICC to take up jurisdiction. The Delhi HC considered the Supreme Court of Judicature Act, 1969 and Rules of the Court, to conclude that the SICC requires the parties to submit to its jurisdictions. The respondents did not accede to the SICC’s jurisdiction (as they were not parties to the original proceedings by ARKO against the petitioners) and also were not subjected to the jurisdiction of the High Court or Supreme Court as they were not residents of Singapore. The SICC could not have assumed jurisdiction against them without their consent.

Second, the SICC has jurisdiction to hear only commercial disputes. Section 18D of Singapore’s Supreme Court of Judicature Act, 1969 vests the SICC with jurisdiction to adjudicate disputes that are “international and commercial in nature”. Rule 1(2)(b) of Order 110 of the Rules of the Court define a claim to be “commercial in nature” when the subject matter of the claim arises from a relationship of a commercial nature. This includes transactions for the supply of goods, distribution agreements, joint ventures, etc.

The HC held that the subject matter of the claim at hand was the respondents’ breach of alleged fiduciary duties, which is an action in tort, based on fraud. Therefore, it deemed the petitioners and respondents to not have a commercial relationship, and consequently, the dispute was not “commercial in nature” and the SICC had no jurisdiction to adjudicate it.

Hence, the respondents met the exception under Section 13(a) of the CPC. The judgment was held to not be conclusive, as the SICC did not have jurisdiction over the matter. Apart from contesting the SICC’s jurisdiction, the respondents made two other arguments that the subject judgment failed the various tests under Section 13, both of which were dismissed.

First, a judgment must be given on the merits of the case as a condition under Section 13(b). Relying on this, the respondents alleged that the subject judgment was not passed on the merits of the case, especially considering it was passed ex parte. The HC dismissed this argument, observing that the SICC did not merely pass a formal order by way of the respondent’s absence, but instead had examined the evidence and considered the truth of the plaintiff’s claims before making its decision.

While the argument under Section 13(b) was not accepted, generally, the requirement of a merits review has had the unfortunate implication of making Indian judgments unenforceable in many parts of the world, as India is seen as imposing harsher conditions for enforcement. This means countries that rely on reciprocity and equality of treatment for enforcement, including many of India’s leading trade partners such as Germany, Japan, South Korea, and the US, do not recognise or enforce Indian judgments. This has adverse implications on the internationalisation of India’s judicial system, as it compels litigants to resolve their disputes before other countries’ courts to ensure enforcement, or to rely on arbitration.[3]

The second argument raised in this case was rooted in the requirement that the proceedings in which the judgment was obtained must not have been opposed to natural justice, per Section 13(d). The respondents alleged that they were denied their right to natural justice as they were not served with notice of the counterclaim in accordance with the laws of India. The HC considered that a mere procedural irregularity in the service of summons would not detract from a foreign judgment’s conclusiveness under Section 13, as procedural law cannot trump substantive rights.

Conclusion and Implications

With the creation of many special courts for international commercial disputes around the world, the case is an important precedent for the value of these court’s judgements and their recognition in India. Though the HC finally held the subject judgment unenforceable, the recognition of the SICC as a “superior court” under Section 44A has crucial implications for the ease of enforcing the court’s judgments in India in the future. The HC’s clarification on the nature of the certificate requirement under Section 44A(2) is equally significant for foreign courts which do not have provisions for such certificates in their rules. This is significant, considering District Courts all around India can hear cases of enforcement of foreign judgments under Section 44A. Notably, just last week, a District & Sessions Court in Haryana applied Section 44A to recognise a judgment from a Bangladeshi court.[4]

Simultaneously, the HC’s observations on the tests of Section 13 highlight the lingering difficulties with enforcing judgments even from reciprocating territories, as there are several exceptions the Indian court may consider. Specifically, the judgment highlights the importance of the foreign court having jurisdiction over the matter, to be ascertained as “competent” under Section 13(a). However, this section should ideally specify the grounds on which foreign courts will be construed as internationally competent, to ensure predictability and reduce the unnecessary anxieties that creditors currently experience while seeking execution of foreign judgments in India.

The Court’s findings on Section 13(b) are equally demonstrative of how the provision makes enforceability of Indian judgments difficult in other jurisdictions. The language of Section 13(b) suggests that Indian courts conduct a merits review of foreign judgments for their enforcement. However, as this case demonstrates, in reality, Section 13(b) is only used to ascertain whether the foreign judgment is procedurally sound under the requirements of Indian law. Under Indian law, a merits review does not entail a test of the propriety of the facts or the law applied by the rendering court. All the court does is ascertain if evidence is examined by the rendering foriegn court. Nonetheless, this requirement has been interpreted as a lack of reciprocity in many countries requiring the enforcement regime of the rendering court to be similar to theirs.[5] Therefore, the time is ripe for India to reword Sec 13(b) through an amendment since the Indian courts are anyways not conducting merits review despite legislative intent to the contrary. Moving forward, the CPC which regulates enforcement of foreign judgments should also clarify the grounds on which foreign courts will be construed as internationally competent under Section 13(a) to ensure predictability and reduce the unnecessary anxieties that  creditors currently experience while seeking execution of assets situated in India.

 

 

[1] 2025 SCC OnLine Del 1075.

[2] Namely, the judgment (a) must be pronounced by a Court of competent jurisdiction; (b) must be given on the merits of the case; (c) must not be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; (d) the proceedings in which it was obtained must not be opposed to natural justice; (e) must not be obtained by fraud; and (f) must not sustain a claim founded on a breach of any law in force in India.

[3] Saloni Khanderia, ‘Thorn in the Lion’s Paw: Révision au fond as India’s Self-Inflicted Injury in the Recognition and Enforcement of Foreign Judgments’ (forthcoming, 2025) Asian Journal of Comparative Law.

[4] Shahriar Noor Tutul & Ors. v. Rajvir Singh & Ors., Execution Case No. RBT-86-2020.

 

[5] Saloni Khanderia, ‘Thorn in the Lion’s Paw: Révision au fond as India’s Self-Inflicted Injury in the Recognition and Enforcement of Foreign Judgments’ (forthcoming, 2025) Asian Journal of Comparative Law.




Legislative direction for recognition of foreign judgments in Sri Lanka: A new sign-post in the private international law landscape

This post was written by Rose Wijeyesekera, Professor of Private and Comparative Law, Chair / Department of Private and Comparative LawFaculty of Law, University of Colombo

Introduction

Sri Lanka (formerly known as ‘Ceylon’) is an island in the Indian Ocean, and is home to a total population of 21,763,170, consisting of Sinhalese 74.9%, Tamils 15.4%, Muslims 9.3%, and 0.5% consisting of others such as Veddhas, Burghers, and gypsies.The legal system of this island nation is a unique blend of native laws and the laws that were placed by the colonial powers from 1505 to 1947, when the country gained independence. Since then, Sri Lanka has been a democratic republic and a Unitary State governed by a constitution. The Sri Lankan legal system is primarily based on Roman-Dutch law, inherited from its colonial past under the Dutch, and English common law introduced by the British colonial rulers. Apart from these two, the legal system incorporates elements of Kandyan law (representing indigenous customs of the Sinhalese), Tesawalamai(customary laws of the Tamils of the Northern province of the country) and Muslim law. These personal laws apply in matters of personal law, such as marriage, divorce, and inheritance, depending on the community to which an individual belongs. All Muslims including the sub-categories such as Moors and Malays, are governed by Muslim Law in their personal matters, while Kandyan Sinhalese (a minority of the Sinhalese who hail from “Kandyan Provinces” / the hill country, are governed by Kandyan Law. These customary laws bear a territorial and/or a religious nature. Most of these laws are enacted, but some remain open leaving room for judicial interpretation. The court system in Sri Lanka is structured hierarchically and is designed to ensure justice through a combination of traditional and modern legal principles. The system comprises the Supreme Court at the apex, the Court of Appeal, Provincial High Courts, District Courts, Magistrate Courts, and tribunals such as Labour Tribunals, Quazi Courts, and Mediation Boards.

The legislative sources of private international law are derived from multiple frameworks in Sri Lanka including the Civil Procedure Code (1889), Companies Act, No. 7 of 2007, Arbitration Act No. 11 of 1995 and Intellectual Property Act, No. 36 of 2003. The Reciprocal Enforcement of Foreign Judgments Ordinance No. 41 of 1921 (REJO) and the Enforcement of Foreign Judgements Ordinance No. 3 of 1937 (EFJO) were the most relevant in the sphere of reciprocal recognition, registration and enforcement of foreign judgments. Yet, these statutes, which were enacted during the British colonial era, were limited in their application as they applied only in judgments relating to commercial matters. The lacunae created by the absence of legal direction with regard to the recognition of foreign judgments in matters relating to divorce, annulment and separation of spouses, was huge in a socio-economic context where outward migration has become unprecedently large in recent times.

 

Pre-legislative judicial activism  

In December 2023, the Court of Appeal had to face this lacuna, where Champika Harendra Silva v. M.B. Weerasekara Registrar General and Others. The case concerned a Sri Lankan-born couple who had registered their marriage in Sri Lanka and migrated thereafter to England, had obtained a divorce decree from a competent court in England. The divorcee man applied to the Registrar General (RG) of Sri Lanka to register the divorce, but it was rejected on the basis that the divorce was obtained from a British court, which according to the RG, was not a ‘competent court’ under the Marriage Registration Ordinance of Sri Lanka. Upon rejection by the RG, the divorcee filed for a writ of certiorari pleading the court to quash the RG’s rejection, and a writ of Mandamus recognizing the decree of divorce granted by the English court. The court made headlines when, through judicial interpretation, it granted both writs declaring that a foreign decree of dissolution of a marriage contracted in Sri Lanka is valid and effectual in Sri Lanka subject to three guidelines. (a) Such Court must be in law vested with the jurisdiction in respect of the dissolution of a marriage and be the ‘Competent Court’ in the foreign country; (b) the Parties must have been residents of the foreign country for a reasonable period of time; and (c) the parties must have been properly represented and participated in the legal proceedings according to the laws and procedures of the foreign country. The decision was progressive and timely, and reiterated the necessity and urgency of legislative intervention in addressing this issue of recognizing foreign judgments especially with regard to matrimonial matters.

The legislature intervened promptly to address this legal lacuna by introducing the Reciprocal Recognition, Registration, and Enforcement of Foreign Judgments Act, No. 49 of 2024 (RRREFJ). The Act is effective from March 26, 2025, in respect of 53 countries listed in the Schedule. It repeals both REJO and EFJO.

 

Limited application of Private International law through REJO, EFJO, and Hague Conventions

REJO and EFJO, which were introduced to facilitate the cross-enforcement of foreign and Ceylonese (Sri Lanka as it was known then) judgments, had proved woefully inadequate to cater to the country’s ever increasing cross-border transactions in both commercial and personal matters. One of the main reasons was REJO’s limited scope, as it catered to rather uncomplicated monetary matters arose during the colonial times. It did not address matrimonial matters, perhaps because of limited overseas travel and limited marriages between Sri Lankans and foreigners. It has also been subjected to criticism due to stringent rules and procedural complexities, and understandably, they catered to procedural requirements of a far-less technologically facilitated financial world. Another deficiency was the absence of clear provisions for appeals. This hindered the enforcement process, and created legal uncertainty.

 

The RRREFJ Act of 2024

The 2024 Act comes in to bridge the gap between global realities and the local legal framework. Its scope is much wider than REJO, as it applies to the reciprocal recognition, registration and enforcement of foreign judgments regarding matrimonial matters, i.e. divorce, annulment and separation, as well as monetary obligations. It recognizes final and conclusive judgments of Scheduled jurisdictions. As at present, they are the 53 Commonwealth countries. An application for recognition, registration and enforcement of a foreign judgment can be made within a period of ten years from the final judgment, and by way of summary procedure as provided for in the Civil Procedure Code.

In terms of commercial transactions, its application extends to natural persons as well as companies, including Business Process Outsourcing (BPO) companies, which are increasing in the country. The Act does not apply to tax, charge, fine or other penalty payable under a judgment of a foreign court.

However, the Act is restrictive in terms of the application of matrimonial matters of persons whose marriages have been contracted under special personal laws, which are very much a part of the Sri Lankan law relating to marriage and family.

Section 3(1)(b) of the new Act of 2024 states that the Act applies to a foreign judgment for the dissolution or annulment of a marriage or separation of the parties to a marriage only if such judgment is obtained in respect of marriages entered under the General Marriages Ordinance No. 19 of 1907 (GMO) and where such judgment shall be deemed final and conclusive as long as either party to the marriage was domiciled in such country at the date of the judgement; habitual resident in such country for a period not less than one year before the date of  the judgment; was a national of such country at the time of the judgment; or both parties have submitted to the jurisdiction of such country. This leaves out Muslims who, under Sri Lankan law, are compelled to marry under the Muslim Marriage and Divorce Act 13 of 1951 (MMDA), and the Knadyan Sinhalese who may choose to register their marriages under the Kandyan Marriage and Divorce Act 44 of 1952 (KMDA). While the majority of the population are governed by the General Law and are required to follow the GMO in matters relating to their marriages, a considerable percentage of the Sinhalese population who are recognized as ‘Kandyans’ still opt to marry under the KMDA. The Muslims who constitute 9.7% of the total population of the country have no choice but to contract their marriages under the MMDA. The exclusion of their marriages from the 2024 Act raises multiple concerns including their right to equality before the law, which is a fundamental right guaranteed under the national constitution.

 

Way forward

The RRREFJ of 2024 is a timely legislative intervention in the sphere of private international law in Sri Lanka as it addresses a socially relevant legal lacuna in the country. The legislative effort was well-recognized by the apex court of the country when the constitutionality of the RRREFJ Bill was challenged in S.C.(SD) No.80/2024 and S.C.(SD) 81/2024. However, the Act has room to be more democratic in terms of its application, especially in the current social context in which the nation is struggling to overcome socio-economic devastations caused by multiple reasons including ethnicity, race, and religion. With necessary amendments to avoid these obvious racial and religious exclusions, the Act can strengthen the countries ties with the global village more fully.




Report from the inaugural conference of the Australasian Association of Private International Law (AAPrIL)

On 16 and 17 April 2025, the Australasian Association of Private International Law (AAPrIL) held its inaugural conference in Brisbane, Australia. Hosted by Griffith University—the home of AAPrIL President Mary Keyes—the conference featured stimulating panel presentations from speakers from around Australia and abroad.

The conference started with a panel on jurisdiction and judgments, chaired by Richard Garnett of Melbourne Law School. Reid Mortensen of USQ kicked things off with a presentation on Australia’s cross-vesting scheme. Priskila Penasthika of the Universitas Indonesia then spoke on ‘The Indonesian Language Contract Requirements versus Arbitration as a Choice of Forum’.

The second panel was on private international law and climate change, chaired by Lemuel Lopez of RMIT. Yao-Ming Hsu of the National Cheng-Chi University, Taiwan, spoke on ‘Cross-border/Transnational Climate Change Litigation and Private International Law’, then Ekaterina Aristova of Oxford presented on ‘Private International Law and Climate Change: Trends in Transnational Litigation’.

In the afternoon, Reid chaired a panel on Private International Law and Technology. Richard spoke on ‘Private International Law Aspects of Blockchain Contracts’, followed by Nargiza Abdurakhmonova of Griffith University who covered ‘Private international law and data protection in the Eurasian Economic Union’.

The first day was capped off with drinks and dinner overlooking the Brisbane River at South Bank. I had fish and beers. They were delicious.

Sore heads backed up well for the morning session on day 2, chaired by Mary, which considered ‘Prenuptial Agreements: Comparative Perspectives from France, Australia and Hong Kong’. Susannah Quinn of Mills Oakley provided an ‘Australian perspective, examining how Australian law handles foreign prenuptial agreements’, then Shu Mei Hoon of Drew Napier, Singapore spoke to ‘Exploring the treatment of prenuptial agreements in Singapore’. Emmanuelle Bonboire-Barthélémy of Chauveau Mulon & Associés provided a ‘French perspective, addressing the recognition and application of foreign prenuptial agreements in France and the international circulation of French marriage contracts in cross-border scenarios’.

After snacks, I chaired a session where Lemuel spoke on ‘Islamic Law in Non-Muslim Majority Jurisdictions: Lessons from the Philippines and Australia’, followed by Inma Conde of the University of Sydney and the Office of International Law (Australia), who spoke on ‘Ernst Rabel and the PIL Framework for International Sales’.

In the final session, Brody Warren, Assistant Director of the Private International & Commercial Law Section, Attorney-General’s Department (Australia), and formerly of HCCH fame, chaired a session where I defamed him and also spoke on ‘Extraterritorial enforcement of Australia’s eSafety regulation’. Paul Abraham of the University of Newcastle then presented on ‘Anti-enforcement Injunctions: A Discussion of Principles and Trends’. Last but not least, Mary spoke on ‘ Anti-suit Injunctions and Choices of Court’.

The first AAPrIL Conference was a great event and a credit to the organisational skills of Mary Keyes and Mel Davies of Griffith University. I will remember it for the collegiality as much as the educational content. Please join us for the next one! You can follow us at https://aapril.org/ and on LinkedIn.




Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 3/2025: Abstracts

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

 

M. F. Müller-Berg: The effects of the new product liability directive on international product liability

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

 

N. C. Kranzhöfer: Third-party effect of a jurisdiction clause in a bill of lading by virtue of the consignee’s succession into the rights and obligations of the carrier

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

 

R. A. Schütze: Security for costs under the HCCH for Singapore residents in German courts

The Regional Court of Appeal (Oberlandesgericht) Köln has decided that a claimant residing in Singapore is obliged to provide security for cost under sec. 110 German Code of Civil Procedure (ZPO) despite the fact that the Hague Convention on Choice of Court Agreements is already in force between Germany and Singapore. The Court thus dissented from an earlier decision of the Austrian Supreme Court (OGH). The Regional Court of Appeal Cologne erroneously did not apply the Hague Convention on Choice of Court Agreements because it interpreted terms of the convention from the point of view of German Civil Procedure instead of applying an autonomous interpretation.

 

F. Hess: No anti-suit injunction to prevent enforcement of an ICSID award in third States

Investors cannot enforce intra-EU-investment treaty awards within the European Union. Against this background, investors seek to enforce awards abroad. To prevent an investor from enforcing an arbitral award issued by an ICSID tribunal in the United States or in other countries, Spain applied for an anti-enforcement injunction. The Regional Court of Essen refused to grant the injunction. It held that the claim was inadmissible because such an order would violate state sovereignty and was therefore incompatible with German and EU law. The article examines the interface between the Brussels Ibis Regulation and arbitration, noting that anti-arbitration and anti-enforcement injunction proceedings fall within the scope of the Regulation. It then argues that anti-suit and anti-enforcement injunctions are in principle incompatible with German law and that, unlike in disputes over standard essential patents where German courts have granted anti-anti-suit injunctions, there is no reason for an exception to this principle.

 

A. Schulz: One-year time limit and settling in under the Hague Child Abduction Convention

The Higher Regional Court of Stuttgart ruled that if a child is first wrongfully retained in one state and then taken to several other states without the consent of the left-behind parent, the first wrongful act – in this case the retention – remains decisive for the start of the one-year period under Art. 12 para. 2 Hague Child Abduction Convention, also in the state in which the child is present at the end. However, in line with a more recent opinion in legal literature, the Higher Regional Court of Stuttgart affirmed its discretion to order the child’s return even if the one-year period has expired and the child has settled in their current state of residence. It based this on an argumentum a fortiori in comparison with Art. 13 para. 1 lit. b) of the Convention and on the behaviour of the abducting mother, who had already ignored a Romanian return decision and declared that she would not allow the courts to dictate her country of residence and that of the child.

 

C. Uhlmann: The untraceable plaintiff in International Civil Litigation – possibilities and limitations of European Union law

In Credit Agricole Bank Polska, the ECJ decided upon the question which law governs international jurisdiction in a potential cross border case if defendant’s current residence cannot be localized: the Brussels Ia Regulation or national procedural law. The ECJ came to the conclusion that even in cases where the defendant is a national of a third state and a consumer, international jurisdiction under Art. 18(2) Brussels Ia Regulation is to be determined at the defendant’s last known residence as long as there is no firm evidence that the defendant’s residence is in another Member State or a third country. In „Toplofikatsia Sofia“ EAD, the ECJ dealt with national legislation with respect to Member State’s own nationals aiming to ensure a permanent domestic residence. Holding such national legislation contrary to EU law, the ECJ further articulated that international jurisdiction is governed exclusively by the Brussels Ia Regulation as soon as there are reasonable grounds for believing that the defendant resides in another Member State. The author agrees with the ECJ with respect to the result, but criticizes that its reasoning is not always conclusive.

 

J. Samtleben: International Procedure Law in the National Civil and Family Procedure Code of Mexico.

On 7 June 2023, a uniform Civil and Family Procedure Code for the entire Mexican state was promulgated in the Mexican Official Gazette. The legislatures of the federal area and the individual states have until 1 April 2027 to enact the Code and replace the corresponding procedural laws. In its Tenth Book, the Code contains a detailed catalogue of international procedural law that is partly based on traditional regulations, but which creates a new and detailed legal basis for many areas. For the first time, it expressly regulates the international jurisdiction of Mexican courts. The application of foreign law has also been regulated in detail. Among the provisions on international procedural cooperation, the enforcement of foreign protective measures and the use of videoconferencing are particularly noteworthy. As before, the enforcement of foreign judgments requires a request for legal assistance from the foreign court.




5th German Conference for Young Researchers in Private International Law in Heidelberg – Conference Report

Written by Victoria Hélène Dintelmann (Heidelberg University)

On February 14th and 15th, 2025, more than one hundred young academics gathered at Heidelberg University for the 5th German Conference for Young Researchers in Private International Law to discuss the topic “Digital Transformation and Private International Law – Local Connections in Boundless Spaces”. The conference was organized by Andreas Engel, Sophia Schwemmer, Felix Berner, Aron Johanson, Markus Lieberknecht, Ann-Kathrin Voß, Charlotte Wendland and Anton Zimmermann.

The first day started with Professor Marc-Philippe Weller (Heidelberg University), director of the Institute for Comparative Law, Conflict of Laws and International Business Law, illustrating Heidelberg University’s Private International Law tradition. For instance, Max Gutzwiller, who rejected renvoi as well as party autonomy in Private International Law, was the director of the Institute from 1929 until he was forced to emigrate to Switzerland in 1935. Weller ended his remarks with special emphasis on the late Erik Jayme, whose impact on Private International Law was vast. For example, Jayme advanced the “two-stage theory of Private International Law”. Further, he introduced postmodern thoughts of mobility, multiculturalism and openness to Private International Law, arguing for every human to have a “droit à la difference”.

Professor Christiane Wendehorst (University of Vienna) gave the keynote lecture on digital goods in Private International Law. She focused on the Private International Law treatment of digital goods regarding rights with third-party effects. In her introduction, she differentiated between digital goods based on their level of exclusivity and the ability to duplicate them. Within crypto assets in particular, Wendehorst differentiated between tokens with an internal value such as bitcoin (“intrinsic tokens”) and tokens that represent an asset outside the crypto system (“extrinsic tokens”). She deemed this differentiation to be of great importance to assess the applicable law: for extrinsic tokens, the statute of the represented asset must be considered. While some tokens are regulated, e.g. by Sec. 32 of the German Electronic Securities Act, Wendehorst expressed criticism towards an analogous application of such provisions, doubting the tokens’ functional comparability. She then continued with a comparative approach and illustrated different national laws as well as international attempts at a more uniform Private International Law approach to rights in rem to digital assets. She emphasized rules under which a choice of law regarding rights with third-party effects is possible. For instance, the rules of the United States’ UCC refer to the lex fori of the District of Columbia in absence of a choice of law as a fallback. A similar approach, looking first at a choice of law and last at the law of the forum state, was adopted under Principle 5 of the UNIDROIT Principles on Digital Assets and Private Law. Wendehorst concluded by explaining the purposes of the different approaches. In the end, Wendehorst made the plea for a more comprehensive solution and ideally more uniform conflict of laws rules to solve what she called a “crisis in International Property Law”.

Johannes Weigl (LMU Munich) presented on data-related European conflict of laws questions. He first showed that the decades-old “libertarian dream” of a boundless internet did not come to fruition: data is regulated by states. Still, digital and analogous goods cannot be equated, leading to a call for a harmonized digital property law. Such a uniform law would cause the “silent death” of conflict of laws provisions regarding digital property. Still, Weigl identified four categories in which questions of conflict of laws might nonetheless arise. As to territorial limits of harmonization, he identified as a first category the territorial scope of EU digital regulation and as a second category data protection through the limitation of the free flow of data beyond the EU’s borders. Regarding the substantive limits of harmonization, he considered a third category of potential conflict of laws challenges to be explicit references to national law and, as a fourth, substantive gaps of uniform law. Weigl went on to discuss limits of boundlessness using the examples of his first and third category. Regarding the territorial scope of EU digital regulations, many do not depend on the provider’s place of establishment but on whether the services are offered to persons in the EU. While Weigl classified those as one-sided conflict norms undoubtedly belonging to public law, he argued for their parallel application as public and private law conflicts rules. Weigl explained this approach to be – above all – teleologically convincing, securing the effet utile of EU law as well as international decisional harmony between public and private law. Further, Weigl illustrated the substantive limits of unification using the example of the third category, i.e. rules explicitly referring to national law. While some see such referential norms as conflict of laws rules, he argued against this classification, maintaining that referential norms are not conflict of laws rules but leave room for general conflicts rules. As this approach leads to the application of general conflict of laws rules, he identified some room for a more general legal policy discussion, e.g. about further harmonization of conflict of laws rules or the creation of internet specific conflicts rules.

Loïc Bréhin (Université Panthéon-Assas) addressed the law applicable to determine the illegality of digital content. Pursuant to Art. 3(h) DSA, content is illegal if it is not in compliance with EU law or the law of Member States. Bréhin criticized this provision as too generic; it does not determine the applicable law. He identified the root of the problem to be the diversity of legal relationships one could assess: there is a relationship between victim and publisher, victim and platform, as well as publisher and platform. Bréhin explained that to all relationships, different rules may apply and thereby cause inconsistencies. Bréhin acknowledged that the problem could be mitigated by solutions at the edge of conflict of laws theory such as internal market clauses or through fundamental rights. However, he found the most promising solution to lie at the heart of conflict of laws theory: substantive law consideration. He proposed to assess the legality of content under the law designated by the conflicts rule for torts invokable by the victim, either as applicable law or as law to be taken into consideration at the level of substantive law. Bréhin based this proposal on the rationale of Art. 3(h) DSA and Art. 14(4) DSA, maintaining that although digital platforms are often classified as private, they are in fact collective phenomena. He concluded that there is great potential in allowing for adjustments – in particular, when considering the platform’s nature as a collective phenomenon.

Christina Lemke (University of Hamburg, Max Planck Institute for Comparative and International Private Law Hamburg) tackled questions regarding the implementation of the digital euro as a European digital currency from a Private International Law perspective. Lemke introduced the topic by differentiating between cash, electronic money and the digital euro. She classified cash, on the one hand, to be a central bank liability to which individuals have property rights. Electronic money, on the other hand, is a means of payment that derives its value from a claim against a private institution. Lemke explained that in contrast, the digital euro is to be a central bank liability, aimed at supplementing cash payment. Neither the technological details nor the digital euro’s legal nature are certain. Lemke maintained that the digital euro should not be classified as a mere claim, since it can be allocated to an individual. Lemke determined the most important question in relation to the digital euro to be the function of payment, i.e. the evaluation of the satisfaction of payment obligations. The first step in answering this question is the determination of the applicable law. To assess payment, one could look at the lex causae. Lemke emphasized the importance of the lex monetae principle for monetary units: Anchored in sovereignty, every state is entitled to its own currency. Hence, a monetary unit is governed by the sovereign that issued the unit. However, the digital euro is not a monetary unit, but a monetary medium. Lemke argued for the extension of the lex monetae principle to the monetary medium. Lemke concluded by raising the delicate questions on the EU’s competence to develop private law regulations on the digital euro and the conflicts between EU institutions possibly involved.

Naivi Chikoc Barreda (University of Ottawa) elaborated on the rise of remote authentic instruments when notarizing beyond borders through online appearance. While notarial practice is increasingly shaped by digitization, there is potential for conflict when a party is in a different country than the notary. Chikoc Barreda started by giving a comparative overview of the three main approaches to deal with remote authentication: first the liberal approach, which allows all relations to be handled remotely, second the intermediate approach, which allows for exceptions in very protected fields of law (e.g. wills, divorces) and third the restrictive approach, which generally prohibits remote authentication with few exceptions (e.g. the incorporation of companies). Chikoc Barreda explained that this fragmentation leads to challenges for Private International Law. One of these challenges is to assess whether the locus actus is the state where the notary is located or the state from which the parties appear. While jurisdictions following the liberal approach view the location of the notary as decisive, restrictive jurisdictions tend to prioritize the state from which the parties appear. This leads to the risk of limping legal relationships. Further, Chikoc Barreda showed that questions of equivalence of acts arise. Authenticity relies on a person’s assessment by the notary. The classic notion was to reach such an assessment through physical presence. Under a more modern approach, in some jurisdictions, virtual presence suffices. In light of this, Chikoc Barreda elaborated on the assessment of the equivalence of notarial acts: while the state of origin will regularly apply the lex auctoris to determine equivalence, the receiving state might apply another law to the form. Last, Chikoc Barreda addressed the notary’s international competence: some view a foreign notary as having unrestricted competence in line with the principle of free choice, while others only accept a restricted competence of the notary, demanding for a significant connection to the notary’s state of origin. Chikoc Barreda concluded that the rise of remote authentication calls into question the lex loci actus rule, authenticity, and the notary’s international competence.

Piotr Wilinski (Erasmus University Rotterdam) and Marciej Durbas (KKG Legal, Kraków) discussed the consequences of the use of AI by arbitral tribunals – in particular, potential challenges of arbitrators and awards. Wilinski and Durbas first introduced the legal framework, stating that there is no significant transnational law governing the use of AI in arbitration. However, there are emerging legal instruments, e.g. in the EU and the US. The EU AI Act governs individuals who rely on AI as deployers. A deployer status causes a duty to disclose. Wilinski and Durbas argued that arbitrators can be classified as deployers within the meaning of the EU AI Act, causing potential disclosure obligations. At the same time, there is only nascent soft law, namely the Silicon Valley AI guidelines and the SCC guidelines. These rules are quite rudimental. Wilinski and Durbas agreed that under the guidelines, decision-making may not be delegated to AI. Second, Wilinski and Durbas turned to potential challenges of arbitrators. They found that AI can be used to assist decision-making. Although most tasks one might delegate to AI do not directly affect decision-making, it does seem possible that steps such as AI-generated summaries of cases indirectly affect the decision. Wilinski and Durbas proposed that an improper use of AI could lead to challenges of the tribunal. Third, Wilinski and Durbas assessed the enforceability of awards rendered with the use of AI. Although AI is a new phenomenon, Wilinski and Durbas argued that the core of the problem is not. They drew a comparison of the use of AI on the one hand with the use of tribunal secretaries and independent legal research by arbitrators on the other hand. Based on this comparison, they deduced that as long as AI is merely used for assistance with the award’s drafting (even if its use was undisclosed), the award will likely stand. When it comes to decision-making, AI may be used for support in reasoning, but they found that to secure enforcement, the decision itself must stay with the tribunal. Wilinski and Durbas concluded that for now, as long as AI does not render the final decision, arbitrators can “sleep safely”. However, they found a common standard to be preferrable, perhaps in the form of a traffic light approach.

The last speaker of the first day was Agatha Brandão (University of Luzern), who presented on the development of a large language model for Swiss cases on choice of law (available at https://www.choiceoflawdataverse.com). The project’s goal was to use an open AI GPT to generate high-quality case law analysis comparable to Private International Law experts. Using a data set of 33 cases, the AI was to perform six tasks: to extract an abstract, to extract and summarize relevant facts, to extract the relevant Private International Law provisions, to classify and interpret the choice of law issue and to extract and interpret the court’s position. Brandão maintained that the AI case analyzer succeeded in the extraction and classification of information. However, challenges arose when the AI case analyzer provided information that was secondary or irrelevant and when it produced lengthy responses. Brandão explained that in working on fixing these problems, the research team focused on phrasing prompts as precisely as possible: if the output did not match the researchers’ expectations, the instructions were most likely not sufficiently comprehensive. At the end of the experiment, each category of tasks was evaluated based on specific criteria in a peer-reviewed process. Overall, the AI case analyzer had a success rate of 92 %. While there were still roughly 10 % of outcomes one might want to modify, Brandão emphasized that the AI case analyzer saves valuable time – in particular, for the extraction and classification of information and when given sufficiently precise instructions. Brandão concluded that large language models can indeed be a valuable support – not unlike real-life Private International Law experts.

The second day of the conference started with parallel panel discussions. In the first panel, Christoph König (BSP Berlin) gave an impulse rooted in legal history on the decentralization of blockchain technology and delegalization. König drew parallels from discussions surrounding the creation of a lex mercatoria in the past century. The second panel focused on the pioneering role of arbitration in the use of digital tools in contrast to the use of digital means in German and Swiss courts. First, Cedric Schad (University of St. Gallen) gave an overview over the advanced, but not boundless use of digital instruments in arbitration. In particular, he illustrated the option of conducting proceedings via video conference and the use of case management platforms. Second, Marco Andjic (Osnabrück University) presented on attempts at digitization in German courts: he found that the main obstacle of remote proceedings is not German law, but the equipment of courts. Third, Nadine Boss (University of St. Gallen) elaborated on the Swiss approach. While there is no option of virtual court proceedings yet, there are attempts at reform. It is possible to use digital tools such as e-mail, but uncommon due to perceived risks regarding service. In the third panel, Raffael Müller (Heidelberg University) presented on international product liability and AI. Müller considered the applicability of Art. 5 of the Rome II Regulation to Artificial Intelligence. He emphasized the importance of placing AI on the market and its interplay with the AI Act, in particular regarding the AI Act’s territorial scope. Fourth, Peter Moser (LMU Munich) addressed connecting factors for declarations of intent made by AI. Moser differentiated between an “ePerson” and an “AI agent”. An “ePerson”, on the one hand, can be legally competent and capable. As Art. 7 of the Introductory Act to the German Civil Code concerns natural persons, Moser found that a corporate law connecting factor might be more appropriate. An “AI agent”, on the other hand, is no proper legal entity. Hence, the attribution of its actions is critical. Moser found it most appropriate to apply Art. 10 Rome I Regulation, as the exclusion in Art. 1(2)(g) Rome I Regulation concerns natural persons – not an “AI agent”. In the fifth panel, Leon Marcel Kahl (University of Vienna) illustrated how the special construction of the Unified Patent Court leads to conflict of laws questions. Which conflict of laws rules the Unified Patent Court applies is determined by a “ladder” in Art. 24(2) UPCA. According to its lit. c, the applicable national conflicts rules are to be determined by the court. However, since the Court of First Instance comprises a central chamber as well as local and regional chambers, it is not clear which national provisions are to be applied.

After the panel discussions, Linda Kuschel (Bucerius Law School) elaborated on whether cross-border electronic service is a sovereign act on foreign territory. In Germany, regular e-mails do not suffice for proper service, but the use of a special electronic attorney mailbox (“beA”) does. Internationally, there are cases of service through e-mail and even social media platforms. First, Kuschel identified the European Service Regulation and the Hague Service Convention as the relevant rules for cross-border service. Next, she discussed the Public International Law qualification of service. The prevailing opinion considers the service of court documents to be an exercise of state authority. This is where Kuschel differentiated: while she qualified the legal consequences of service as an exercise of state authority, she did not find the same to apply to the mere act of gaining knowledge of a document and its content, e.g. through service by private means. She then tackled the question of localization of electronic service. First, one could see electronic service as a type of fictional service. But while fictional service is a mere last resort, electronic service could become the norm – therefore, Kuschel negated a comparability. Second, one could view the internet as an exterritorial space that cannot be attributed to any sovereign state, but the internet is not truly boundless. Third, one could draw an analogy to analogous life and treat electronic service parallel to analogous service, as territorial borders are emulated in the digital space. However, equating analogous and electronic service would lead to a fiction. Kuschel assessed this to be particularly problematic if one – in line with the prevailing opinion – classifies service in a foreign state as an act of sovereignty on foreign territory. In light of these shortcomings, Kuschel deemed it necessary to assess electronic service by its own metrics. She concluded that only service on foreign territory through means of sovereign power leads to a violation of the principle of territoriality while in contrast, service by means of communication accessible to private persons should not violate Public International Law.

The last presentation was delivered by Adrian Hemler (University of Konstanz), who illustrated options and boundaries of a fully digital judicial activity from abroad. Hemler reported a trend towards virtual and digital proceedings, asserting that these developments can only be expected to accelerate. The advantages in virtual proceedings lie in more efficiency, lower costs as well as in making the profession of judge more flexible and, hence, more attractive. While Hemler found possibly affected principles of German procedural law to be publicity, immediacy and orality, he assessed that their violation can be avoided. However, Hemler explained the currently prevailing opinion to be that working from abroad as a judge violates the foreign country’s sovereignty. Hemler went on to reference Kelsen, who understood what ought to be at the core of law – not what is. Building on this, Hemler differentiated between on the one hand the scope of application of legal norms, which operates on the level of what ought to be. This category does not violate foreign sovereignty, even when it extends beyond a state’s territorial borders. On the other hand, Hemler allocated the practical implementation and enforcement of legal rules on the level of what is. Hemler argued that this latter category should only be allowed with the other country’s permission – otherwise, Public International Law violations can arise. Within this grid, according to Hemler, rendering judgements from abroad does not interfere in the foreign state’s sovereignty.

A conference volume will be published by Mohr Siebeck later this year. The 6th German Conference for Young Researchers in Private International Law will take place at LMU Munich in 2027.




A New Precedent in Contract Conflicts: Decoding the Tyson v. GIC Ruling on Hierarchy Clauses

By Ryan Joseph, final-year BBA LLB (Hons) student, Jindal Global Law School, India.

Introduction

The recent decision of the UK High Court (“Court”) in Tyson International Company Limited (“Tyson”) v. General Insurance Corporation of India (“GIC”) sets a critical precedent for cases that lie at the intersection of arbitration, contractual hierarchy, and judicial intervention through anti-suit injunctions. The principal issue in the case revolved around the harmonious application of two conflicting dispute resolution clauses contained in two separate agreements pertaining to the same transaction. While one provided for dispute settlement through arbitration seated in New York, the other was an exclusive jurisdiction clause that provided for dispute settlement by England and Wales courts. To resolve this apparent conflict between the two clauses, the Court relied on a confusion clause (also known as a hierarchy clause) in the parties’ agreement to rule that the exclusive jurisdiction clause, in favour of  England and Wales courts, prevails over the arbitration clause. Based on this conclusion, the Court issued an anti-suit injunction against GIC from arbitrating the dispute in New York.

Factual Background

Tyson entered into a reinsurance agreement with General Insurance Corporation of India (“GIC”), a state-owned-entity. The transaction involved two agreements; a Market Reforms Contract (“MRC”) and second Facultative Certificates (“Certificates”). The MRC contained an explicit choice of law and an exclusive jurisdiction clause, submitting disputes to English courts to be governed by the laws of England and Wales (“English DRC”). However, the subsequently issued Certificates introduced an arbitration clause referring disputes to arbitration in New York to be governed by the laws of New York (“Arbitration Clause”). A pivotal provision, termed the “Confusion Clause,” was embedded within the Certificates, stipulating that in the event of a confusion, the MRC would take precedence over the Certificates.

The dispute arose when GIC claimed that Tyson had undervalued certain commercial numbers on which the insurance premium was based. Therefore, GIC sought to initiate arbitration in New York pursuant to the arbitration clause in the Certificates. In response, Tyson approached the High Court for an anti-suit injunction against the arbitration, arguing that  pursuant  to the English DRC, English courts would have exclusive jurisdiction over any dispute emanating from the transaction.

The Court stressed on the importance of circumspect judicial intervention when interfering in arbitration. However, considering the existence of the “confusion clause”, Tyson argued that the arbitration agreement did not come into existence. Therefore, the principal  question before the Court was: what is the effect of the confusion clause when interpreting the two agreements? If the confusion clause had the effect of a hierarchy clause (as argued by Tyson) and hence gave precedence to the MRC, the arbitration agreement wouldn’t come into existence and the anti-suit injunction would be granted. On the other hand, if the confusion clause was merely to give meaning to confusing terms in the Certificates (as argued by GIC), the two agreements would be read harmoniously without giving preference to either. GIC argued this can be done in two ways. First, the conflicting clauses could be read as an agreement between parties to treat the arbitration as a condition precedent to raising any claims before the English Courts. Or in the alternative, the two agreements would be read together to mean that English Courts will have jurisdiction to supervise the New York arbitration. Either ways, the arbitration agreement would be valid and hence the anti-suit injunction should fail.

Submissions of Parties

The Court summarised the principles governing anti-suit injunctions in Times Trading Corp v National Bank of Fujairah[1] to hold that an anti-suit injunction can be granted in all cases where it is just and convenient to do so.[2] However, such power must be exercised with circumspection where the claimant can demonstrate a negative right to not be sued. Tyson can establish such a right if it can demonstrate that an arbitration agreement was not concluded between the parties. Crucial to this conclusion would be determining the effect of the confusion clause in the Certificates.

The judge cited various authorities; specifically Surrey County Council v Suez Recycling and Recovery Surrey Limited[3], to discuss principles of contractual construction and summarised the position in that the role of the court is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. GIC made the following submissions in this regard: First, the phrase “confusion” in the clause refers to obscurity or uncertainty in the meaning of provisions and does not refer to a conflict or a contradiction. They relied on the meaning of the word “confusion” in the Oxford dictionary to support this premise and submitted that the clause operates to address any uncertainty that may arise when reading the provisions of the Certificates. Such uncertainties must then be addressed by interpreting the provisions in light of the MRC. However, the clause does not operate to address a conflict between the MRC and the Certificates, for such an instance is a “conflict” and not a “confusion”. Lastly, they submitted that there is no confusion because the arbitration clause in the Certificates should be read as a Scott v. Avery[4] clause[5] or, a clause conferring English Courts with supervisory jurisdiction over the New York arbitration.

Tyson submitted that by using the phrase “takes precedence” in the confusion clause, the clear objective intent of the parties is to create a hierarchy between the MRC and Certificates whereby in case of a confusion, the terms contained in the MRC will prevail over those in the Certificates. They further submitted that GIC is taking a very narrow interpretation of the word “confusion” and is reading it in isolation of the remainder of the clause to arrive at its conclusion. The word “confusion”, when read in the context of the provision, has a broader purport to cover circumstances of contradicting terms between the MRC and the Certificates that create confusion regarding which clause will prevail. Thus the clause operates as a hierarchy clause whereby it clears the confusion by giving precedence to clauses in the MRC.

 

The Judgement

The Judge agreed with the submissions of Tyson and found that GIC’s interpretation of “confusion” was too narrow to reflect an objective meaning of the language used by parties. He ruled that confusion can also arise where there are two clauses within a contract which are inconsistent such that there is confusion as to the intent of the parties as to their respective rights and obligations under the contract because of such inconsistency. Second, when the MRC grants exclusive jurisdiction to English Courts and the Certificates provide for disputes to be resolved through arbitration in New York, there is an obvious confusion as to which dispute resolution clause should apply. The judge noted that English courts must give generally give effect to an arbitration clause but this is a case of routine construction of contracts wherein courts cannot rewrite the parties’ agreement. Accordingly, when parties have explicitly agreed that the MRC must take precedence in case of a confusion, such intention must be given effect. The Court opined that any attempt to resolve the confusion through any other means such as viewing arbitration as a condition precedent to any right of action or allowing the arbitration to continue under the supervision of English Courts would amount to rewriting the contract. As a sequitur, the court ruled in favour of Tyson and granted an anti-suit injunction against GIC.

 

GIC’s Attempt to Appeal

In response to the judgment, GIC sought permission to appeal on two grounds (i) the court misconstrued the Confusion Clause in the Certificates and (ii) the court misconstrued the MRC and the Certificates in concluding that the English Court did not have jurisdiction over New York arbitration. When considering whether to grant an appeal, the test is whether GIC has a real prospect of success in relation to any of its grounds.

In order to discharge this burden, GIC made the following arguments: (1) the ‘confusion’ language is novel and has not been interpreted by courts in the past which gives it considerable scope to argue about its meaning; (2) the Certificates were contractual documents intended to supersede the MRC and not merely administrative documents; and (3) the Court has failed to consider the strong policy adopted by English courts in favour of giving effect to arbitration agreements whereby the conflict should be interpreted in a manner that upholds the agreement to arbitrate. Tyson in response argued that (1) the Court’s construction of the word “confusion” gives effect to the meaning of the word in light of the clause as a whole whereas GIC’s construction focuses only on the word ‘confusion’ in isolation of the entire clause. (2) GIC’s interpretation of the Confusion Clause runs against commercial common sense; for an overriding effect would essentially nullify many of the provisions contractually agreed to in the MRC. (3) judicial precedents[6] that have ruled in favour of arbitration by resolving potential conflicts between contractual provisions lacked a hierarchy clause necessitating the courts to engage in the endeavour of contractual interpretation. In this case, where a hierarchy clause exists, it is not a matter of resolving conflicts by applying judicial standards of interpreting contracts but one giving effect to the parties’ method of resolving confusion between conflicting provisions.

Based on the submissions, the Judge concluded that GIC did not have a realistic prospect of success on either of its grounds. At the outset, although one could accept GIC’s construction of the Confusion Clause, it still lacks the realistic prospect of persuading the Court of Appeal to eschew the construction adopted by the Court and instead acceding to GIC’s construction. Finally, the Confusion Clause in this case is a relevant factor that distinguishes this case from  previous cases favouring arbitration because it operates as a hierarchy clause to mitigate any confusion when reading the Certificates and the MRC together. Since the parties have contractually agreed to the hierarchy clause when resolving any confusion, the court must give effect to the clause when resolving conflicts and cannot apply its own principles of interpreting conflicting terms of a contract; for any such attempt would amount to rewriting the parties’ agreement. Therefore, even the second ground lacks a realistic prospective of succeeding before the court of appeals. Since both the grounds for appeal lacked a realistic prospective of succeeding, the application for leave to appeal was refused.

 

Key Takeaways and Implications

The said ruling in underscores the Court’s role in upholding contractual intention of parties when resolving conflicts between competing dispute resolution clauses. By affirming the primacy of the Market Reform Contract through the Confusion Clause, the court reinforced the principle that hierarchy clauses serve as decisive mechanisms in contractual interpretation. Furthermore, the court’s refusal to grant leave to appeal solidifies the precedent that courts will not rewrite contracts but will instead give effect to unambiguous terms agreed upon by parties. This case sets as an important judicial precedent for interpreting confusion clauses and strengthens the predictability of contractual enforcement in commercial agreements. As a takeaway, when drafting multiple contracts for the same transaction, it is worth considering the harmonious impact of differing clauses in the various agreements. Parties, must discuss their commercial objectives and have a clearer communication of their intended outcomes before agreeing to multiple dispute resolution clauses that cover the same transaction.

 

[1] Times Trading Corp v National Bank of Fujairah (Dubai Branch) [2020] EWHC 1078 (Comm)

[2] Girish Deepak, ‘ANALYSIS: UK HIGH COURT ISSUES ANTI-SUIT INJUNCTION AGAINST NEW YORK-BASED COURT ANDARBITRATION PROCEEDINGS IN DISPUTE INVOLVING INDIAN STATE-OWNED INSURANCE COMPANY’ (IA Reporter, 27 February 2025) <https://www.iareporter.com/articles/analysis-uk-high-court-issues-anti-suit-injunction-against-new-york-based-court-and-arbitration-proceedings-in-dispute-involving-indian-state-owned-insurance-company/> accessed 11 March 2025

[3] Surrey County Council v Suez Recycling and Recovery Surrey Limited [2021] EWHC 2015 (TCC)

[4] Scott v Avery (1856) 5 HL Cas 811

[5] Keren Tweeddale, Andrew Tweeddale, ‘Scott v Avery Clauses: O’er Judges’ Fingers, Who Straight Dream on Fees’ [2011] 77(4) Arbitration: The International Journal of Arbitration, Mediation and Dispute Management, pp. 423 – 427

[6]Sulamerica CIA Nacional de Seguros SA & Ors v Enesa Engenharia SA & Ors [2012] EWHC 42 (Comm), Surrey County Council v Suez Recycling and Recovery Surrey Limited. [2021] EWHC 2015 (TCC)