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The Conflict-of-Laws Provision in the French Influencer Legislation
by Ennio Piovesani
Certain EU Member States have enacted special rules governing the activities of content creators and influencers. In this context, the French legislature passed Law No. 2023-451 on June 9, 2023, aimed at regulating influencer marketing and addressing potential misconduct by influencers on social media platforms (1). Article 8, I, of Law No. 2023-451 requires that contracts between influencers and (influencer marketing) agents or advertisers, or their representatives, must be made in writing and include a specified set of clauses; failure to comply results in the contract being null.
One such clause mandates ‘[t]he submission of the contract to French law, notably to the Consumer Code, the Intellectual Property Code, and the present Law, when said contract has as its object or effect the implementation of influencer marketing activities through electronic means targeting notably an audience established on French territory’ (Article 8, I, 5°, Law No. 2023-451). Scholars have highlighted the ‘innovative’ nature of the mechanism set forth in Article 8, I, 5°, Law No. 2023-451 and its resemblance to the (more established) concept of overriding mandatory provisions (2).
(2) See Sandrine Clavel, Fabienne Jault-Seseke, Droit international privé, Recueil Dalloz 2024, 987, accessed online at Dalloz.fr; see also Ermanno Calzolaio, L’attività pubblicitaria dell’influencer nel diritto francese (Loi n. 451 del 9 giugno 2023), Il Diritto dell’Informazione e dell’Informatica, 2023, no. 6, p. 909, accessed online at Dejure.it).
Israel is not Ukraine: German court orders the return of the child to Israel under the Hague Convention on the Civil Aspects of International Child Abduction
This case note is kindly provided by Dr. Samuel Vuattoux-Bock, LL.M. (Kiel), Freiburg University (Germany)
On May 23, 2024, the Stuttgart Higher regional Court (Oberlandesgericht), Germany, ordered the return of a child to Israel under the Hague Convention on the Civil Aspects of International Child Abduction. The war waged by Israel following the terrorist attack of October 7, 2023 is not sufficient in itself to establish a concrete risk of physical or psychological harm to the one-year-old child.
1. Facts
The decision is based on the following facts. A couple moved to Israel in 2020. They had a child together in 2023 (with Greek citizenship) in Haifa (northern Israel). In February 2024, the mother of the child (German citizenship) flew to Reutlingen (Germany) without the knowledge and consent of the father. Thereupon, the father filed an application for the return of the child to Israel under the regime of the Hague Convention on the Civil Aspects of International Child Abduction, as Israel is a member state thereof. Both the District Court (Amtsgericht) and the Higher Regional Court of Stuttgart ordered the return of the child to Israel.
2. Decision of the Court
The Higher Regional Court ruled that there was no actual, concrete risk of physical or psychological harm within the meaning of Art. 13(1)(b) of the Hague Convention for the child in Israel. The formal state of war in Israel and the region is not sufficient to justify such a risk. Furthermore, the situation is not comparable to the situation in Ukraine, where the same court refused to order the return of the child in 2022. The court based its reasoning on three main points: the alert levels of both the German and Israeli authorities do not indicate a concrete risk to the child’s safety; in light of the recent situation in Israel, and in particular the “Iron Dome”, there is no concrete risk to the child being in Israel; the situation, despite the state of war in the Middle East, is not comparable to the war situation in Ukraine.
a. Sufficient security level and no concrete danger for the child
The mother argued in court that the threat of “massacres and attacks” in Israel is growing, as is the threat of Hezbollah attacks from Lebanon. The mother also claimed that Hezbollah rockets had been fired into the suburbs of Haifa, where the child lived.
The court first referred to both German and Israeli travel warnings. According to the German authorities, Israel is in a “formal state of war” and an escalation is possible at any time. On the contrary, the Israeli National Emergency Portal of the Home Front Command shows the regions of Tel-Aviv/Haifa/Ashdod-Gimmel and Netanya-West as secured (lowest emergency level “green- full activity”). Since travel warnings alone are not sufficient to establish a danger under Art. 13(1)(b) of the Hague Convention, the Court gave precedence to the security assessment of the Israeli authorities.
For the Court, the risk associated with the current conflict in the Middle East is not sufficiently concrete with respect to the child’s situation. To justify its decision, the Court analyzed the various actual security and war events of the past month in Israel. The hostage-taking by the terrorist group Hamas on October 7, 2023 cannot be considered an actual risk today. For the Court, the Israeli offensive in the Gaza Strip makes a repetition of such events “from a realistic point of view” very unlikely (No. 87). Furthermore, the drone and missile attacks of April 14, 2024, from foreign countries, in particular from Iran, must be analyzed as exceptional and, as such, cannot be taken into account in the assessment of the risk to the child (No. 88). Moreover, the Israeli air defense system “Iron Dome” has been effective in this context (No. 88, 96).
The Court draws the same conclusions with regard to the suicide bombings, explosions and other rocket fire that have occurred on Israeli soil. The Court sees only an abstract risk and a need for increased vigilance. These attacks, as terrorist attacks, are merely “criminal activities of individuals” (No. 91). These events were not presented by the mother in a sufficiently concrete manner to allow the court to see a concrete physical or psychological risk for the child. Finally, the Court bases its decision on the fact that the parents moved to Israel in 2020, informed of the complex situation in the Middle East. The Court cannot ignore that the security situation in Israel has been “tense” for some time (No. 91). For the Court, the situation here is definitely different from the situation in Ukraine.
b. Situation not comparable to Ukraine
The Higher Regional Court of Stuttgart decided in 2022 to refuse the return of a child to Ukraine (specifically Odessa) based on the actual risk according to Art. 13 (1) b) due to the war provoked by Russia. The court explained in detail why the situation in Israel was not comparable.
In contrast to Israel, Ukraine faces a massive, formally organized war, with military troops on its soil (No. 94), coming from a “militarily dominant great power” (No. 97). Israel, on the other hand, faces attacks coming from outside its own country (besides the concrete events around the Gaza Strip). Even taking into account Iran, the concrete threat is not comparable (No. 97). Moreover, the number of victims in the Russian-Ukrainian war since February 2022 is massively not comparable with the (civilian and military) victims in Israel, even taking into account the victims of the Hamas attack on October 7, 2023 (No. 95). Finally, according to the Court, the (so far) efficient Israeli “Iron Dome” provides good security for the entire Israeli territory, in contrast to Ukraine, whose large territory is much harder to defend against air attacks. (No. 96).
3. Comparison with decision from neighbor states toward Israel (France, Belgium)
In the past, some other European courts have found that the explosive situation in the Middle East and Israel constituted a risk within the meaning of Art. 13(1)(b) of the Hague Convention. The Court of Appeal of Brussels, in a decision of 2003, did not find a concrete risk for the child in Israel, but (very similar to the Stuttgart Court) only a general situation for the civilian population, including in view of the then possible war of the USA against Iraq and the training of children with gas masks. A decision of the French Court of Appeal of Chambéry in 2016 (confirmed by the French Cour de Cassation in 2017) decided to order the return of children suffering from AIDS to Israel, justified by the fact that Israel offers a good treatment for AIDS patients and that Israel, even if it experiences difficulties, is “definitely not at war”. The question remains whether the court would have made a similar decision today, given the current situation in Israel and the Gaza Strip.
4. Final remarks
It appears that for the Court, the fact that the one-year-old child has not yet experienced a concrete attack in Israel is sufficient to establish a risk under Art. 13(1)(b) of the Hague Convention (this was the case, for example, in the Ukraine decision 2022). In view of the highly unstable situation and the escalation in the region, it is at least questionable to disregard the psychological aspects of experiencing, for example, air defense alerts and such stressful war situations – especially for a very young child. Since the political time is much faster than the judicial time, a strong discrepancy of decision can occur regarding the abduction of children in war zones. On the other hand, the interests of such a young child, who will soon be sent to school and separated from his father for an unknown period of time, must be taken into consideration. It is regrettable that this aspect did not play a major role in the Court’s decision. Thus, the state of war in Israel and the Middle East is not only extremely complex in terms of diplomacy and public international law, but also in terms of private international law.
Who is bound by Choice of Court Agreements in Bills of Lading?
According to the doctrine of privity of contract, only parties to a choice of court agreement are subject to the rights and obligations arising from it. However, there are exceptions to the privity doctrine where a third party may be bound by or derive benefit from a choice of court agreement, even if it did not expressly agree to the clause. A choice of court agreement in a bill of lading which is agreed by the carrier and shipper and transferred to a consignee, or third-party holder is a ubiquitous example. Read more
News
Revue critique de droit international privé – Issue 2025/3
Written by Hadrien Pauchard (assistant researcher and doctoral student at Sciences Po Law School)
The third issue of the Revue critique de droit international privé of 2025 has been released last month. It gathers four articles, six case notes and seven book reviews. In line with the Revue Critique’s recent policy, the doctrinal part will soon be made available in English on the editor’s website (for registered users and institutions).
The issue opens with Prof. Thibaut Fleury Graff’s (Université Paris Panthéon-Assas) and Dr. Inès Giauffret’s (Université Paris-Saclay, UVSQ) survey of Le droit des étrangers et ses temporalités. Retours choisis sur la jurisprudence 2024 en matière de migrations (Immigration law and its temporalities. Selected reviews of 2024 case law on migration). A valuable addition to the dossier that the Revue critique recently devoted to the reform of French immigration law, its abstract reads as follows:
The adoption of the Law of 26 January 2024 “on controlling immigration and improving integration” marked the beginning of 2024 in the field of migration. Supplemented by its implementing decrees, the law has already given rise to initial litigation, discussed in this paper, alongside the more traditional case law interpreting the rules governing the rights and status of foreigners in France, as well as the conditions of their detention. These rulings reflect the current period, caught between legislative facilitation of detention and removal on the one hand, and judicial protection of the rights and freedoms of non-nationals on the other.
In the second article, Prof. Étienne Farnoux (Université de Strasbourg) elucidates the subtle connections between Les droits fondamentaux, l’exception d’ordre public et la prohibition de la révision au fond dans le système de Bruxelles I (Fundamental rights, public policy exception and the prohibition of review on the merits in the Brussels I system) from the Real Madrid case. At the crossroads of private international law and European integration, the contribution answers fundamental questions raised by this now notorious judicial saga. Its abstract reads as follows:
The case, which arose when recognition was sought in France of a Spanish court’s ruling against a French newspaper ordering it to pay heavy damages, highlights the conflict between the European objective of mutual trust and the protection of fundamental rights, particularly the freedom of the press. In a decision dated October 4, 2024, the Court of Justice (on a preliminary reference by the Cour de cassation) outlined the general methodology for controlling the proportionality of a financial penalty imposed abroad, on the basis of international public policy, a mechanism strongly influenced by European law. This control, which was subsequently implemented by the Court de cassation in a ruling dated May 28, 2025, is severely limited by the European principle of prohibition of the review on the merits.
In the third article, Prof. Fabienne Jault-Seseke (Université Paris-Saclay, UVSQ) points out Les non-dits du droit européen du numérique en matière de droit international privé : l’exemple du règlement sur les services numériques (DSA) (The unspoken private international law aspects of European digital law: the example of the Digital Services Act (DSA)). In light of cyberspace’s peculiarity, the study paves the way for a clearly articulated policy of private international law in the digital sphere. Its abstract reads as follows:
The Digital Services Act (DSA) addresses issues of private international law in a very limited way. It mainly defines its territorial scope using a unilateral rule : it applies to any intermediary service provider that targets users in the European Union, regardless of its place of establishment. It is largely silent on other aspects of the private international law, such as determining the law applicable to illegal content or to actions for injunctions and damages. In terms of jurisdiction, it refers to the Brussels I bis Regulation, whose provisions are poorly adapted to the specificities of the digital world. The preference that the DSA seems to give to public enforcement rather than private enforcement cannot justify its silence on most questions of PIL, which are essential if we are to ensure effective protection of rights in the digital environment, which is almost always cross-border.
The doctrinal part wraps up with Dr. Marcel Zernikow (Université d’Orléans) study of Le renouvellement des méthodes de la coopération judiciaire au service du droit au procès équitable : l’instrument du certificat et la numérisation (Renewing judicial cooperation methods to uphold the right to a fair trial: the instrument of the certificate and digitalisation). The growing importance of international cooperation in cross-border proceedings indeed requires a modernized approach, which the author proposes to pursue as follows:
Judicial cooperation is an object of study in private international law that is justified by the need to make the State’s jurisdictional activity effective in a foreign territory. Since it describes the connection between State or judicial authorities of two different States, it is governed by their respective territorial procedural laws. This field is nevertheless undergoing a renewal of its methods, which will be studied through the prism of the introduction of a new instrument: the certificate. The latter is gradually being used to accompany public documents or judicial decisions or for evidentiary purposes. How has this development become the basis for digitalization, which relies on the interconnection of legal systems and individuals via the internet? The renewal of methods is universal insofar as it is based on the guarantee of the right to a fair trial in international civil proceedings.
The full table of contents is available here.
Previous issues of the Revue critique (from 2010 to 2024) are available on Cairn.
RabelsZ 89 (2025): Issue 3
The latest issue of RabelsZ has just been released. It contains the contributions to the symposium in honor of Jürgen Basedow that was held in Hamburg in November 2024. The table of contents is available here. All content is Open Access: CC BY 4.0 and more articles are available Online First.
Eva-Maria Kieninger, Konrad Duden and Ralf Michaels, Preface to the Symposium Issue, pp. 409–410, https://doi.org/10.1628/rabelsZ-2025-0046
Hannah L. Buxbaum, The New Unilateralism in EU Cross-Border Regulation: Objectives, Methods, Institution, oo. 411–431, https://doi.org/10.1628/rabelsZ-2025-0043
For years, Europe was a site of resistance to regulatory unilateralism, particularly as practiced by the United States. Today, though, there are signs of a robust unilateralism at work in EU regulatory practices. To some extent it simply mirrors practices adopted in the United States and elsewhere: Like other lawmakers, the EU has begun to act unilaterally where necessary to achieve effective regulation of its own markets and to protect local interests. In other respects, though, the new unilateralism in the EU presents quite differently. First, the EU increasingly uses its own legislation not to advance purely local regulatory interests, but rather to achieve international or global goals – classically a more multilateral objective. Second, under EU law individual regulations in particular substantive areas are embedded in a larger framework of norms and values that claim universal appeal. In both of these regards, the EU version of unilateralism appears more benign than purely »self-interested« unilateralism. It nevertheless raises important questions about the way that local laws and institutions are used to project regulatory power in the international arena. The goal of this article is to explore these questions. It begins by describing the characteristics of this new unilateralism, in terms of both its doctrinal foundations and its regulatory objectives. It then focuses on one particular mechanism: the adequacy regime established under EU data protection law.
Launch of the Bahrain International Commercial Court
The Bahrain International Commercial Court (BICC) was launched on 5 November 2025. It joins the long established Dubai International Financial Centre Courts, Abu Dhabi Global Market Courts and Qatar International Court and Dispute Resolution Centre in the Middle East as a specialist court devoted to resolving international commercial disputes and operating under special procedural rules.
The BICC was developed in partnership with the Singapore International Commercial Court (SICC). It shares many key features with the SICC such as a multinational bench, foreign counsel representation and use of the English language in proceedings. Of particular note is the appeal mechanism for BICC judgments; as discussed previously here, appeals from the BICC will be heard by the International Committee of the SICC.