Views
The New Zealand Supreme Court’s judgment in Kea Investments Ltd v Wikeley on anti-enforcement relief
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.
Beyond Domicile: The BHP Litigation and the Functional Interconnection of Public and Private International Law
from Marcel Vitor de Magalhães e Guerra
On 14 November 2025, the English High Court handed down its Stage 1 judgment in Município de Mariana and others v. BHP Group Plc and BHP Group Limited [2025] EWHC 3001 (TCC), finding the defendants liable — under Brazilian law — for the 2015 collapse of the Fundão tailings dam: over 600,000 claimants, an estimated £36 billion, the largest group litigation in English legal history. This post argues that Mariana exposes a functional interconnection between public and private international law at the stage of determining jurisdiction itself: although doctrinally distinct, the court’s application of a private international law rule required engaging questions of corporate organisation, adjudicatory legitimacy, and transnational responsibility that traditionally belong to public international law. Read more
Conflicts of jurisdiction in Senegal: lesson from the Senegalese Supreme Court on Lis Pendens and the Exequatur of foreign judgments
This post was kindly prepared by Véronique Carole Ngono, Professor of Private Law (agrégée), University of Douala, Cameroon.
I. Introduction
The recognition and enforcement of foreign judgments in French-speaking sub-Saharan Africa has not been the subject of many studies. Although a few such studies do exist, this is in contrast to the field of conflict of laws and personal status law in particular. Consequently, the two rulings issued by the Supreme Court of Senegal on August 12, 2020, in connected disputes went practically unnoticed, even though they offer valuable insights into determining the jurisdiction of Senegalese courts in international disputes and the enforcement of foreign judgments.
The purpose of this note is therefore to shed light on the law and practice of conflict jurisdictions in Senegal.
News
Private International Law and European Society
from Marlene Tiede, a Research Fellow and PhD Candidate at the Max Planck Institute for Comparative Public Law and International Law.
Can one speak of a European society without speaking about private relations? Recent scholarship on European society has largely approached the concept through the lens of public law. Yet societies are constituted at least as much by the horizontal relations between individuals and groups as by public institutions. In the absence of a comprehensive European private law, this blogpost turns to EU private international law (PIL), the principal framework for coordinating interactions between the diverse private laws of the Member States and structuring cross-border private life within the Union. I will argue that EU PIL brings into view the importance of coordination frameworks for organising a mode of integration based not on unification, but on interdependence.
Unity Through Interdependence
The Commission v Hungary judgment refers to “a society in which pluralism prevails” (paras. 551, 556). By placing that formula in the context of the Union and its common legal order (paras. 551, 556) and explicitly invoking European society (para. 554), the judgment leaves little room for doubt that it understands “a society in which pluralism prevails” as denoting a single European society. Yet this raises a fundamental question. If European society is constituted by pluralism – that is, by heterogeneity rather than homogeneity – what holds it together? Much like the Union’s own aspiration to be “united in diversity”, the notion of a single European society defined by pluralism appears almost oxymoronic. How is unity achieved under conditions of diversity?
A clue may lie in the particular mode through which European integration has proceeded in important domains. Read against the background of more than seventy-five years of integration, “a society in which pluralism prevails” appears as a fitting description of a European project in which integration has often advanced not by replacing the plurality of national legal orders with a single one, but by weaving them together into an increasingly dense web of legal, economic, and social interdependence. Rather than pursuing unification, integration in many domains has relied on ever closer cooperation between the diverse legal orders of the Member States. The resulting web of relations and interdependencies is sufficiently deep to sustain the idea of a single European society, while leaving intact the plurality of national legal orders. From this view, unity is achieved not through unification, but through interdependence.
I explore this mode of integration through the lens of EU PIL, a field particularly well suited to bringing into view both the horizontal relations between individuals and groups that have largely remained overlooked in accounts of European society and the coordinating structures through which interdependence is organised.
Mutual Trust and the Case for Private International Law
Mutual trust provides the normative foundation for cooperation between the diverse legal orders of the Member States. Although criticised as a judicial construct lacking a clear legal and empirical basis, it has become a structural principle of EU constitutional law. Resting on the presumption that all Member States comply with the values enshrined in Art. 2 TEU, mutual trust is a precondition for the functioning of the Union’s legal order. By requiring Member States to presume the adequacy of one another’s legal systems, it enables them to enter into relations of growing mutual dependence. Its significance is particularly pronounced in areas that remain only marginally harmonised, where cooperation relies less on common substantive standards than on confidence in the adequacy of the legal solutions adopted by the Member States.
Mutual trust occupies a central place within the Area of Freedom, Security and Justice (AFSJ), a policy area based on cooperation rather than unification. Within the AFSJ, the following reflections turn to judicial cooperation in civil matters – better known outside the Treaties as PIL – to investigate more closely how integration through interdependence operates in practice.
Admittedly, one might hesitate before venturing deeper into a field of law famously disparaged as a “dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon”. Yet, before the reader hastily retreats to firmer ground, two considerations make this “swamp” particularly worth exploring. First, accounts of European society, as developed most prominently by Armin von Bogdandy and Loïc Azoulai, have so far focused primarily on its public law dimension, leaving largely unexplored the horizontal relations between private individuals and groups – despite their centrality to any notion of society. Second, PIL brings into view the importance of coordination frameworks for a mode of integration based on interdependence rather than unification.
PIL deals with legal issues arising from private relations connected to more than one legal system and, in doing so, provides a framework for coordinating the interaction between diverse private legal orders. While substantive private law remains only marginally harmonised at the EU level – save for specific areas such as consumer protection, intellectual property, anti-discrimination law, and parts of labour and company law – PIL has been extensively harmonised. The result is a highly integrated coordination framework governing interactions between substantive laws that continue largely to be constituted by the diverse legal orders of the Member States. To return to the “dismal swamp” metaphor, what was once dismissed as an obscure and largely technical discipline has become a framework of central importance for the everyday lives of individuals and businesses throughout the Union. The denser the web of cross-border relations, the more indispensable coordination frameworks become.
In the following two sections, I demonstrate that EU PIL performs a dual function: first, it renders growing social and economic interdependence compatible with the continued plurality of national private laws; second, through the design of conflict rules, it regulates the externalities generated by interdependence.
Mobility Across Private Legal Orders
By facilitating mobility, openness, and cooperation across diverse private legal orders, EU PIL renders the growing density of cross-border relations compatible with the continued plurality of national private laws.
The increasing free circulation of civil judgments provides a prominent illustration of this dynamic. Following the abolition of exequatur – an intermediary procedure under which a judgment rendered in one Member State first had to be declared enforceable by the courts of another in order to be enforced there – judgments rendered in one Member State are, in most cases, recognised and enforced in another under the same conditions as domestic judgments. By rendering the outputs of one national judicial system effective throughout the Union, this closer form of cooperation reduces the costs and uncertainties associated with cross-border litigation and, in doing so, lowers the barriers for individuals and businesses to enter into cross-border relationships.
The growing mobility of individuals within the EU is further reflected in the reconfiguration of the connecting techniques of classical continental PIL. EU instruments have shifted the principal connecting factor from nationality to habitual residence and expanded the scope for party autonomy. By relying on less static connecting factors, EU legislation adapts conflict rules to increasingly transnational patterns of life and facilitates engagement with the private legal orders of other Member States.
Where harmonised PIL rules are absent or prove insufficient to structure cross-border social life within the EU, recognition-based mechanisms grounded in EU primary law have come to complement traditional PIL. Legal statuses validly established in one Member State increasingly circulate throughout the Union by virtue of fundamental freedoms, Union citizenship, and fundamental rights. These recognition-based mechanisms enable legal statuses created under one legal order to produce effects across borders irrespective of the law designated by traditional choice-of-law rules. Prominent examples can be found in both economic and family law: corporationsvalidly incorporated in one Member State must, on the basis of fundamental freedoms, be recognised throughout the Union; same-sex marriages or surnames lawfully established under the law of one Member State increasingly require recognition in other Member States on the basis of Union citizenship. Rather than replacing national private laws with a uniform European law, these recognition-based mechanisms render the private legal orders of the Member States progressively more interdependent by allowing individuals and businesses to carry their legal identities and relationships across borders.
Regulating Interdependence Through Conflict Rules
The growing interdependence of diverse legal orders gives rise not only to new forms of cooperation, but also to new governance challenges. A common concern is that private actors will exploit differences between legal regimes, circumventing regulation and triggering a race to the bottom. Yet, unlike mechanisms based solely on mutual recognition or the country-of-origin principle, which generally privilege the legal order of the Member State of origin, PIL is capable of employing more finely calibrated connecting factors that take account of the regulatory consequences of the applicable law. In this way, PIL does not merely accommodate legal diversity but also governs the externalities generated by interdependence, thereby assuming a regulatory function.
Art. 7 Rome II Regulation provides an instructive example of how conflict rules can be used to pursue substantive policy objectives. The provision allows claimants in environmental damage cases to choose between the law of the place of conduct and the law of the place of injury. Either connecting factor, if applied in isolation, would create opportunities for undertakings to exploit differences in national environmental standards. A pure place-of-conduct rule might encourage undertakings to locate polluting activities in low-protection jurisdictions, while a pure place-of-injury rule could create incentives to establish operations in higher-protection Member States where natural conditions, e.g. downwinds, ensure that the harmful effects are realised elsewhere. By conferring the choice upon the injured party, who is likely to opt for the more favourable law, Art. 7 Rome II seeks to reduce incentives for regulatory arbitrage, thereby aligning the operation of PIL with the Union’s objective of ensuring a high level of environmental protection.
Art. 7 Rome II thus demonstrates that conflict rules are not neutral techniques for allocating claims of regulatory authority. Their design can itself pursue substantive objectives and shape the conditions under which cross-border private relations unfold. More broadly, the extensive incorporation of PIL into the EU legal framework has transferred the design of conflict rules to a supranational level that stands above the legal systems whose interactions it seeks to organise.
I would like to thank Iris Canor, whose forthcoming contribution, “In Mutual Trust We Trust – A Structural Principle of a Diverse Union”, in Bast/von Bogdandy (eds.), The Constitutional Core of the Union (OUP, forthcoming), articulated with particular force the idea of European integration as a process driven by interdependence rather than unification. This contribution has greatly benefited from her insights.
This was first published at verfassungsblog.de
CfP: 3rd International Seminar “The Challenges of Private International Law in Contemporary Society” – Belo Horizonte, Brazil, 4-6 November 2026
Call for Papers: 3rd International Seminar “The Challenges of Private International Law in Contemporary Society” – Belo Horizonte, Brazil, 4-6 November 2026
This Call for Papers has been kindly shared with us by Inez Lopes / University of Brasilia (UnB) and Fabricio B. Pasquot Polido / University of Minas Gerais (UFMG)
Following the previous editions hosted by the University of Brasilia in 2019 and 2024, the Third Seminar “The Challenges of Private International Law in Contemporary Society”, will be held from 4 to 6 November 2026 at the Faculty of Law of the Federal University of Minas Gerais, Brasil. The theme of the 2026 edition is:
“Jurisdiction and Transnational Access to Justice between New Technologies and ‘The Human Side of Artificial Intelligence’” Read more
AMEDIP: Annual seminar to take place from 15 to 16 October 2026 (in Spanish)
The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its XLIX Seminar entitled “Towards a new codification of Private International Law in Mexico” (Hacia una nueva codificación del Derecho Internacional Privado en México) from 15 to 16 October 2026. The venue of the seminar will be the Universidad Autónoma de Yucatán (Mérida, Mexico).
This edition of the seminar will primarily focus on the draft bill on Private International Law for the state of Yucatán, an initiative presented by AMEDIP to the authorities of that state. This draft breaks from previous practice, according to which state PIL rules are contained in civil codes, by suggesting the adoption of a standalone Act (available here). Read more