South Africa occupies a strategic position in African and Global South trade networks, yet its economy continues to lag behind its BRICS partners and many of its African peers. A recurring, if underexamined, contributor to this underperformance is the state of its private international law governing the recognition and enforcement of foreign judgments (REFJ). The article, published in the Journal of African Law (2026), investigates why and how the principle of comity might help resolve this issue.

The empirical picture is striking. Of the reported South African REFJ cases collated for this study, roughly 44 per cent of foreign judgments brought for enforcement are refused. Contrary to what one might expect, the leading cause is rarely fraud or public policy. Instead, over half of all refusals (53 per cent) turn on a single, narrow ground: the rendering court’s lack of “international competence” under South African law. Under the framework laid down in Jones v Krok (1995), a foreign court is internationally competent only where the debtor was resident in, or voluntarily submitted to, that court’s jurisdiction. Every other basis for jurisdiction recognised elsewhere – the place of contractual performance, the place where harm occurred, or a valid choice-of-court agreement standing alone- is, on the weight of authority, insufficient.

The doctrinal puzzle at the heart of the article is comity’s curious position within this framework. South African courts have invoked comity rhetorically and sporadically for well over a century, from Acutt, Blaine & Co v Colonial Marine Assurance Co (1882) through to Richman v Ben-Tovim (2006) and Government of the Republic of Zimbabwe v Fick (2013). Yet in each instance, comity’s role has been exceptional, ad hoc, and ultimately subordinate to the ad personam residence-or-submission requirement. Even the closest thing to an operative use of comity: Duarte v Lissack (1973), where enforcement followed despite the absence of personal jurisdiction, was swiftly confined and effectively overruled. The result is a doctrine that is normatively invoked but structurally inert: comity as symbol, not substance.

The article argues that this need not remain the case. Drawing on the Canadian Supreme Court’s development of the “real and substantial connection” test (Club Resorts v Van Breda; Chevron Corp v Yaiguaje), it proposes a tailored adaptation for South Africa, allowing courts to recognise a foreign court’s competence where a genuine and substantial connection exists between the dispute and that forum, without collapsing into an unbounded “doing justice” inquiry that risks forum shopping, particularly in cross-border IP and e-commerce disputes. To guard against the corresponding risk of default judgments enforced against debtors with only tenuous links to the foreign forum, the article further proposes strengthening the natural justice defence, requiring proof of adequate notice and a proper evidentiary basis for the judgment, bringing South Africa closer to the approach already taken in India and other Commonwealth African jurisdictions.

Finally, the article situates this proposed judicial reform in relation to the possibility of treaty accession, considering what ratification of the 2005 Hague Choice of Court Convention and the 2019 Hague Judgments Convention would mean for South Africa’s REFJ regime, as the UK and Singapore have both illustrated in recent years.

The full article, including an appendix collating 39 reported South African REFJ decisions and their outcomes, is open access at the Journal of African Law: https://doi.org/10.1017/S0021855326101089

A. The Impetus for Presenting the Issue
In light of the publication of three judgments of the Thessaloniki First Instance Court concerning the service of documents in Contracting States to the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters [hereinafter: HSC], the issue examined was whether proceedings may continue despite the absence of a certificate of service from the State addressed. In this context, a decisive role for the judge is played by the answer to the question whether “persistent efforts” within the meaning of the Greek version of Article 15(2)(c) HSC, or “reasonable efforts” (in the English-language formulation), were undertaken by the competent authorities of the State addressed in order to obtain a certificate. The same issue arises under the relevant EU Regulation (Article 22 Regulation 2020/1784), concerning cross-border service within the EU. Finally, the very recent amendment of the Greek Code of Civil Procedure, introducing new Article 134A GCCP, is also of particular interest.
The discussion will begin with the case law referred to above, examined in the light of the HSC (B). This will be followed by a reference to the corresponding provision of the EU Regulations (C). Next, a preliminary account will be given of the recent provision of Article 134A GCCP and its innovative features (D). This will be followed by an analysis of the terms “persistent effort” and “reasonable effort” (E-F). The study concludes with a detailed presentation of German legal scholarship (G), followed by a brief conclusion (H).

B. Case Law under the 1965 Hague Convention
The three judgments published examine the application of the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (ratified by Law 1334/1983). More specifically, the question is whether, under Article 15 HSC, proceedings may continue when the defendant resides in another Contracting State, and no certificate of service has been produced at the hearing.
1. In the first judgment, the court held that actual service of the statement of claim and summons on a defendant residing in Northern Ireland had not been established. Although the documents had been transmitted through the Prosecutor of the Thessaloniki Court of First Instance to the competent foreign authorities, and those authorities had informally confirmed receipt of the documents, no certificate of service had been returned by the time of the hearing.
The court held that it could not render a final judgment in default of the defendant because the requirements of Article 15(2) of the Convention had not been satisfied, in particular because it had not been established that the authorities of the State addressed had undertaken persistent efforts to complete service and obtain the relevant certificate. For that reason, the Greek Court stayed the delivery of a judgment until service had been established in the manner described above.
2. In the second judgment (concerning a divorce action against a defendant residing in the United Kingdom), the court adopted a different approach. Although no proof of actual service of the summons on the defendant had been produced, it was established that the documents had been duly transmitted to the competent UK authorities, that more than six months had elapsed, and that the failure to complete service was attributable to mishandling by the British authorities, which had unjustifiably returned the documents to the Greek Agency, making a new transmission necessary. The court held that the claimant should not bear the consequences of that error and that the requirements of Article 15(2) of the Convention had been satisfied. It therefore held that the hearing could proceed in the defendant’s absence.
3. In the third judgment, the court considered an application for revocation of an interlocutory decision which had stayed the delivery of a final judgment until service on the first defendant, who resided in India, had been established.
The claimant sought revocation of the previous decision, but produced neither the certificate referred to in Article 6 HSC, nor any other document establishing that the document had been transmitted to the competent Indian authority and that, despite the relevant reminders or persistent efforts, it had not been possible to obtain a certificate of service. The court held that actual service had not been established and that the condition laid down in Article 15(2)(c) HSC, namely, the inability to obtain a certificate despite persistent efforts by the competent authorities, had not been satisfied. For that reason, it dismissed the application.
4. Taken together, the three judgments demonstrate that the mere transmission of judicial documents through the Prosecutor to the foreign authorities is not, in itself, sufficient. What is decisive is either that actual service on the foreign party be established or, by way of exception, that it be shown that the cumulative conditions of Article 15(2) HSC have been satisfied, so that the proceedings may continue without the relevant certificate. Nevertheless, the judgments differ precisely as to whether the necessary efforts were established and whether the conditions for this exception were satisfied.
C. The Corresponding Provision of the EU Regulations
It is universally acknowledged, and beyond dispute, that the Regulation governing cross-border service within the EU almost reproduces the substance of the HSC. In particular, with regard to the functional equivalent of Article 15(2)(c) HSC, the wording of the European Regulations leads, in virtually identical terms, to the same legal result. To illustrate:
1. Regulation 1348/2000 [Article 19(2)(c)]: “no certificate of any kind has been received, even though every reasonable effort has been made through the competent authorities or bodies of the Member State addressed.”
2. Regulation 1393/2007 [Article 19(2)(c)]: “no certificate of any kind has been received, even though every reasonable effort has been made through the competent authorities or bodies of the Member State addressed.”
3. Regulation 2020/1784 [Article 22(2)(c)]: “no certificate of any kind has been received, even though every reasonable effort has been made to obtain one through the competent authorities or bodies of the Member State addressed.”
4. In contrast to the earlier versions of the EU Regulation (1348/2000 and 1393/2007), the explanatory material accompanying the Regulation currently in force (2020/1784) contains a much more extensive reference to the issue. In particular, Recital 35 states as follows:
Where national law and this Regulation allow the court to give judgment even if no certificate of service or delivery of the document instituting the proceedings or its equivalent has been received, every reasonable effort should be made to obtain the certificate through the competent authorities or bodies of the Member State addressed before any judgment is given, in compliance with any other requirements safeguarding the interests of the defendant. Unless incompatible with national law, all reasonable efforts should be made to inform the defendant that court proceedings have been instituted using any available channels of communication, including modern communications technology, for which an address or an account is known to the court seised of the proceedings.
D. The New Greek Provision on (Article 134A GCCP)
The new provision, entitled “Procedure for the Service of a Judicial Document Abroad,” provides in its second paragraph as follows: The court may, even if no certificate of service of the document or other equivalent document on the addressee residing abroad has been received, immediately render judgment if:
(a) the document was transmitted in accordance with the international rules applicable to the particular service or paragraph 3 of Article 134;
(b) a period of at least six (6) months has elapsed between the transmission of the document and the hearing; and
(c) it is established that the document was transmitted to the State addressed in sufficient time, so that further service on the addressee has been possible.
A reading of the above provision makes it clear that persistent or reasonable efforts are no longer required. It is therefore sufficient that the timely transmission be established and that the possibility of service upon the addressee in the State addressed be confirmed. It remains for the courts to interpret and define the possibilities embodied in the formal wording of the provision, namely, in the direction of expeditious service resulting from the timely transmission of the document from Greece to the State of destination.
E. Persistent & Reasonable Efforts
The assessments of the Hague Conference on Private International Law concerning this issue are, of course, of particular interest, namely, with regard to the third condition of the provision (failure to obtain the certificate). The type of certificate depends on the channel used to transmit the document. If the principal channel (Article 5 HSC) was used, the certificate is the one required under Article 6 HSC. However, a United States court has held that a police report documenting attempts to effect service constitutes a certificate within the meaning of Article 15(2)(c) HSC. In the case of alternative channels, any evidence of service could qualify as a certificate. The Special Commission of the Hague Conference has expressly noted that receipt of a certificate stating that service could not be effected does not constitute an obstacle to the rendering of a judgment in accordance with the domestic law of the Requesting State, where that State has made the relevant declaration.
The requirement that every reasonable effort be made to obtain the Certificate has been considered by a number of United States courts. In one case, a federal district court held that making a single telephone call to the Central Authority in order to obtain oral confirmation of service was insufficient to satisfy that requirement.
In another case, an appellate court held that, in proceedings against the Consulate General of a Contracting State, notification of the defendant’s attorney amounted to “every persistent effort,” given that the rules of professional conduct under the law of the forum prohibited the claimant’s attorney from communicating with the defendant except through the defendant’s attorney. The court’s decision was based on the premise that the legal personality of the defendant extended to all officials of the foreign State. By contacting the defendant’s attorney, the claimant had accomplished “the only step ethically permitted.”
F. Persistent Efforts vs. Reasonable Efforts?
Is there a difference between the persistent efforts required under the Greek version of the HSC, and the reasonable efforts contemplated by the Regulations? Attempting a preliminary comparison, it could be argued that the “treaty-based” version perhaps indirectly emphasizes the temporal dimension of the efforts. In other words, repeated attempts to locate the addressee are required and expected. From the EU perspective, the center of gravity is not linked to the temporal dimension, but rather to a somewhat indeterminate prerequisite, namely, the
Returning to the “duel” between the Greek version of the HSC and the EU and multilateral treaty legislative frameworks, we arrive at the following conclusion: even assuming that the above distinction offers some useful clarification, in practice everything will depend on the court’s discretion in assessing each individual case. Delay attributable to an error by the foreign authority of the State of destination; inability to locate the addressee, even where the addressee is a legal person; an oral assurance that service has taken place, without the certificate of service nevertheless being produced before the Greek courts; complete silence on the part of the foreign authority, whether or not following a request or reminder from the Greek side, all of the foregoing constitute a mixture of circumstances requiring classification.
G. The Discussion in the German Legal Order
Without intending to diminish the importance of other legal systems, the scholarly debate originating in German legal thought has historically been of considerable value and is, for that reason, indispensable. At the outset, it is understood and expected by legal scholarship that the competent authorities of the State of destination have taken the necessary measures to obtain a certificate of service. General assumptions and conjecture that the defendant received the document do not render the production of proof of service unnecessary. Quite the contrary: Schlosser interprets the critical provision by formulating the rule of the threshold of reasonableness (Zumutbarkeitsgrenze). Within this framework, he considers it sufficient, both on the part of the competent authority and on the part of the claimant, to submit an inquiry concerning the stage reached in the service procedure, in the form of a good-faith effort. In general terms, his position leans toward limited involvement by the competent authorities of the State of origin, apparently in order to avoid slowing down the system as a whole.
Much more detailed is Ulrici’s analysis in Rauscher’s article-by-article commentary on Regulation 2020/1784. First, in contrast to the Greek focus on the basic model of judicial cooperation (Transmitting and Receiving Agencies), German legal scholarship approaches the problem from other perspectives as well. Thus, what efforts have been undertaken by the Receiving Authorities is not decisive. This already follows empirically: The Authority cannot become involved in every cross-border service.
It is emphasised that the authority ordering service abroad and bearing the obligation to take all reasonable measures is the court seised of the dispute. In the case of direct service, that role is assumed by the person designated pursuant to Article 20 Regulation 2020/1784.
The purpose of the efforts, contrary to the relatively vague wording of paragraph 2(c), is to obtain a certificate concerning service that has already been effected, as well as confirmation that the procedure has been effectively carried out and completed. The purpose of the efforts is also to make a possible new attempt at transmission feasible, either at the initiative of the party seeking to expedite the proceedings or as an expression of the effort to make a new attempt in order to obtain a certificate. This is required equally by the defendant’s right to a fair trial and by the claimant’s right to effective judicial protection.
If no certificate within the meaning of Article 10(1) of Regulation 2020/1784 is received, the matter requires immediate reconsideration and intervention by the Central Authority after the expiry of a further reasonable period. The same applies where no certificate is received in cases of direct service. If the Receiving Agency indicates that a request for service is deficient or does not fall within the scope of the Regulation, an appropriate response must be provided (Article 10(2) and (3) Regulation 2020/1784).
The competent authority may also have an obligation to order a new attempt at service by another procedure provided for by the Regulation, for example, where no acknowledgement of receipt has been received, by using direct service, or by service through judicial assistance. Where there are indications concerning the possibility of locating the address, it is recommended that they be pursued, provided that the law of the State of origin does not preclude an attempt at informal notification by any means recognisable to the authority ordering service, provided that such means permits notification exclusively to the addressee and therefore not publicly. It may be necessary to notify the defendant through a known email address, mobile telephone number, etc., and then allow a reasonable period of time for the defendant to respond.
H. Conclusion
I conclude my reflections by assessing the ruling of the First Instance Court in Judgment No. 3118/2025. The judge held that “the claimant should not bear the consequences of the error of others” and, for the aforementioned reason, considered that the hearing could proceed in the absence of the defendant. Prima facie, there does not appear to be, at least within Greece, a reported case corresponding to this situation under Article 22(2)(c) of the Regulation and Article 15(2)(c) HSC. Nevertheless, beyond safeguarding the right of the addressee-defendant to be heard, this interpretative approach also highlights the intention to safeguard the claimant’s right to effective judicial protection. It is to this potentially balanced position of the parties that we look for the sober and harmonising approach of the country’s judges, so that a common line may be developed and secured within the Greek legal order.

by Marta Liduma, LLB candidate in International and European Law, University of Groningen

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.

Update (September 2026): Since publication, I have become aware that the proposal to locate jurisdiction at the deceased’s last centre of interests was developed earlier by Lisa-Charlotte Krause, Der Schutz des postmortalen Persönlichkeitsrechts im Internet: Internationale Zuständigkeit und Kollisionsrecht (Duncker & Humblot 2022) 117–118, who confines it to the non-material components of the right (124–130). Readers should consult that work.

This review concentrates principally on the private international law dimensions of Andrew Dickinson and Alexander Thompson’s The State Immunity Act 1978. Although state immunity is fundamentally a subject of public international law, the legislation operates at the point where public and private international law intersect. It determines whether the English courts may adjudicate disputes involving foreign states, how proceedings may be served, and whether judgments or arbitral awards may be recognised and enforced against state property. These questions are of direct importance to private international lawyers, particularly in transnational commercial, employment, property and arbitration disputes.

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.

By Faraz Firouzi Mandomi

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.

by Sibusiso Mabaso, Lecturer in Private International Law, University of South Africa

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.

Thalia Kruger, University of Antwerp & Senior Research Associate, University of Johannesburg

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.

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.

This was first published at verfassungsblog.de

In Kea Investments Ltd v Wikeley [2026] NZSC 97, the New Zealand Supreme Court recently delivered its reasons for reinstating world-wide anti-enforcement orders in relation to a fraudulently obtained default judgment from Kentucky. The judgment, given by Kós J, contains a useful analysis of the principles on anti-suit and anti-enforcement injunctions and offers guidance on the interrelationship between fraud and comity.

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.