Content IPRax-Issue 6/2025 (November 2025)

After 25 years of restitution practice under the “Washington Principles on Nazi-Confiscated Art”, two fundamental innovations are emerging for the restitution of Nazi-looted art: Firstly, a “Restatement of Restitution Rules for Nazi-Confiscated Art” was generated from case practice in six states (Germany, Austria, the Netherlands, France, the United Kingdom, Switzerland). Secondly, Germany has decided to set up an “Arbitral Tribunal for Nazi-Confiscated Art”. This article outlines the history and main features of these innovations.

The Anti-SLAPP Directive, which was adopted in 2024 and has to be transposed by EU Member States by May 2026, is the reaction of the EU legislator to the growing phenomenon of abusive civil litigation that has as its main objective the prevention, restriction or penalisation of participation in the public discourse or, in other words, a chilling effect on the freedom of expression and media freedom. The Directive obliges Member States to guarantee the existence of certain procedural safeguards including the early dismissal of manifestly unfounded claims, remedies against abusive court proceedings and protection mechanisms in relation to proceedings in third countries. This contribution presents the different elements of the Directive, placing a particular focus on changes the text has undergone in the legislative negotiation process, and takes into account the recently published proposal for transposition in Germany.

The rule of law is not immune to attacks within the EU either. This is demonstrated in particular by the Article 7 TEU procedures initiated in the past against Hungary and Poland. With regard to the European order for payment procedure, a lowered level of legal protection appears to be particularly problematic, as European orders for payment are recognized and enforceable within the Union largely without preconditions. This system of accelerated prosecution is based on the premise that the rule of law in the state of origin is in line with Union values. This paper deals with the question of whether – from the perspective of the absence of an expressly stated ordre public reservation in the European order for payment procedure – possibilities for refusing the enforcement of European orders for payment can be derived from the case law of the ECJ if it was issued merely due to inadequacies in the rule of law. At the same time, dangers in connection with politically motivated SLAPP actions that are relevant in the context of a European order for payment procedure are also explored.

The decision of the OLG Schleswig deals with the international jurisdiction in an application for a certificate of inheritance involving a German-French couple. At issue was whether German or French courts should decide over the estate, particularly in view of a marriage contract under French law. The OLG overturned the decision of the first instance and declared German courts to be competent, as French inheritance law was deemed not particularly complicated in this case. This assessment is open to criticism. French inheritance law, especially concerning the rights of reserved heirs, is indeed complex. The fact that the French courts would have been better placed to rule on the matter, and that their jurisdiction under Article 6(a) of the Regulation No 650/2012 should have been recognised, ultimately becomes evident in the misclassification of the daughters’ legal position by the OLG itself.

The decision of the OLG Schleswig deals with the international jurisdiction in an application for a certificate of inheritance involving a German-French couple. At issue was whether German or French courts should decide over the estate, particularly in view of a marriage contract under French law. The OLG overturned the decision of the first instance and declared German courts to be competent, as French inheritance law was deemed not particularly complicated in this case. This assessment is open to criticism. French inheritance law, especially concerning the rights of reserved heirs, is indeed complex. The fact that the French courts would have been better placed to rule on the matter, and that their jurisdiction under Article 6(a) of the Regulation No 650/2012 should have been recognised, ultimately becomes evident in the misclassification of the daughters’ legal position by the OLG itself.

The question brought before the ECJ in HUK COBURG II is whether a court may apply its national rules on non-material damages as overriding mandatory provisions within the meaning of Art. 16 Rome II Regulation on the ground that “fair” compensation for non-material damage in cases where the death of a close person has occurred as a result of a tort or delict is considered a fundamental principle of the lex fori. Pursuant to Art. 4(1) Rome II Regulation, the terrible shock and grief suffered by family members learning that a loved one has been killed in an accident abroad is an “indirect consequence” of that accident. The family members’ claims for compensation of non-material damages are therefore governed by the law of the country in which the primary damage occurred, i.e. where their loved one was hurt in the accident. Art. 4(1) Rome II Regulation prevents unpredictable outcomes by ignoring the whereabouts of the remaining family members who may be scattered across the globe. However, compensation for grief may vary considerably. German law was (and still is) rather reluctant to award non-material damages. In the HUK COBURG II case, Bulgarian courts therefore sought to apply their national rules on non-material damage as overriding mandatory provisions irrespective of German law otherwise applicable. The ECJ reaffirms its restrictive approach to overriding mandatory provisions: The Court held that the Bulgarian provision does not fall within the scope of Art. 16 Rome II Regulation because the rule on non-material damage aims at compensating individual loss rather than at protecting fundamental public interests.

If a state court is called upon to decide on a legal dispute, the court must determine the applicable law in accordance with the conflict of laws of the lex fori, particularly in the case of a choice of law. In Germany – as in the other EU member states – the Rome I Regulation and Rome II Regulation are primarily applicable. Section 1051 ZPO, on the other hand, stipulates for arbitration awards that the arbitral tribunal must decide the dispute in accordance with the legal provisions designated by the parties as applicable to the content of the dispute. It has always been disputed whether Section 1051 ZPO constitutes a special conflict rule for arbitration proceedings in the sense that it is lex specialis to the – for the state courts undisputedly – binding Rome Regulations and other EU Regulations. The question also arises as to how the special sub-case of the choice of German law to the exclusion of the law on general terms and conditions is to be assessed and what legal consequences are to be assumed if this should constitute a breach of mandatory law. The decision of the First Civil Senate of the Federal Court of Justice of 9 January 2025 (I ZB 48/24) provides an opportunity to deal with these questions at the interface of arbitration law and conflict of laws.

During times of martial law applicable in Ukraine German courts are dealing more frequently with applications on the return of children under the 1980 Hague Convention to Ukraine. The main question is whether the actual situation in Ukraine leads to a grave risk of harm for the child according to the exception of Art. 13 (1)(b) 1980 Hague Convention. The Court of Appeal Stuttgart as well as the Court of Appeal Thuringia refused in October 2022 and February 2024 the return of a child to Ukraine because of a grave risk of harm. In May 2024 the Court of Appeal Stuttgart denied a grave risk of harm in relation to Israel. It distinguished the situation in Israel from that in Ukraine. On 23 April 2024, the German Constitutional Court made important statements on the topic which are included in the analysis.

In its decision of 14 November 2024, the French Cour de cassation once again ruled that a foreign decision pertaining to surrogacy must be recognized and enforced in France. It argued that the recognition of parentage does not constitute a violation of public policy just because the parents are not the child’s biological forebears, as long as it can be inferred from the foreign decision that the surrogate mother acted voluntarily. There does not have to be a biological relationship between the intended parents and the child. The parentage relationship established in a foreign court decision must then be recognized as such in France.

This article examines the legal institution of disinheritance by unworthiness in the case of German-English cross-border succession. The analysis is structured by four questions that will be addressed in detail: 1. What does the term “disqualification by conduct” encompass in the sense of Article 23(2)(d) Alternative 2 of the EU Succession Regulation (Brussels IV) (infra, II.)? 2. How is disinheritance by unworthiness treated in English law from a conflict of laws perspective (infra, III.)? 3. What does the answer to the previous question imply for understanding whether the EU Succession Regulation refers to English law including or excluding its private international law rules in German-English succession cases (infra, IV.)? 4. Given that English succession law applies: Does English succession law recognize the institution of disinheritance by unworthiness, and if so, what type of conduct does it cover (infra, V.)?