Journal of Private International Law Conference 2007

IV. CONCLUSION

The present state of private international law in the legal systems of individual African countries, and generally, on the continent as a whole, is nothing to write home about. Africa has remained impervious to many of the factors that have propelled the development of the subject in other parts of the world. The historical evolution of the subject in Africa has put much emphasis on internal conflict of laws problems to the neglect of equally important private international law issues. Today, however, Africa is faced with challenges that cannot be effectively met without the tools, techniques, and rules of private international law. Experience in other jurisdictions demonstrates that economic integration, the promotion of trade and investment, respect for human rights, and constitutionalism will give rise to issues which African private international law is currently ill-prepared to meet.

It is encouraging that academic interest in the subject is growing in Africa. This development, reflected in the emergence of leading texts, commentaries, and academic institutions dealing with the subject, must be fostered. Even more importantly, interest in private international law should also grow in our law faculties where the subject currently occupies a marginal position in the curriculum. This is partly because of the mystery that surrounds it, and partly because of the belief that it is not important for practitioners—a belief made both anachronistic and dangerous in light of the internationalization of commerce and legal practice.
The future of private international law in Africa is promising. But we will be able to fulfil this promise only if we succeed in creating a new constituency for the subject, consisting of students, judges, practitioners, and researchers. The international academic community and the institutions dealing with private international law have a role to play in the realization of this promise as well. By providing fellowships, internships, avenues for publication and sharing of ideas, as well as by actively soliciting African perspectives on developing issues, the international academic community and the specialized institutions can make much needed contributions to the development of private international law in Africa.

 This article is written mainly from the perspective of English speaking Africa.

 Lecturer in Law, Lancaster University Law School. LL.B., BL (Ghana), LL.M (Cantab), LL.M (Harvard). Contact: [e-mail].

1 1 Int’l L. Q. 14 (1947).

2 65 S. Afr. L. J. 213 (1948).

3 Christopher F. Forsyth, Private International Law: The Modern Roman-Dutch Law including the Jurisdiction of the High Court 43 (2003).

4 P.S.G. Leon, Roma non locuta est: The Recognition and Enforcement of Foreign Judgments in South Africa, 16 Comp. & Int’l L. J. Southern Afr. 325 (1983).

5 The few recent texts on the subject include, Forsyth, supra note 3; Christian Schulze, On Jurisdiction and the Recognition and Enforcement of Foreign Money Judgments (2005); John Kiggundu, Private International Law in Botswana, Cases and Materials (2002); John Ademola Yakubu, Harmonisation of Laws in Africa (1999); Oluwole Agbede, Themes on Conflict of Laws (1989).

6 Pavel Kalensky, Trends of Private International Law 23 (1971).

7 See e.g., Qingjiang Kong & Hu Minfei, The Chinese Practice of Private International Law, 3 Melbourne J. Int’l L. 414 (2002) (reporting that this aspect of the Chinese legal system has developed so rapidly that it is a formidable task for academic lawyers to keep abreast of its changes); Mo Zhang, Choice of Law in Contracts: A Chinese Approach, 26 Nw. J. Int’l L. & Bus. 289 (2006); Huang Jin & Du H. Fang, Chinese Judicial Practice in Private International Law 2002, 4 Chinese J. Int’l L. 647 (2005); Yongping Xiao & Zhengxin Huo, Ordre Public in China’s Private International Law, 53 Am. J. Comp. L. 653 (2005).

8 This can be seen as partly evidencing the increasing interaction between public and private international law. See generally Lucy Reed, Mixed Private and Public International Law Solutions to International Crisis, 306 Recueil de Cours 177 (2003).

9 See, e.g., art. 25 of the Treaty Establishing the Organisation for the Harmonisation of Business Laws in Africa; art. 44 of Treaty Establishing the East African Community; art. 32(1)(2)(3) of Southern African Development Community, Protocol on Tribunal and Rules of Procedure Thereof; art. 40 of Treaty Establishing the Common Market of East and Southern Africa. This departs from the classic public international law means of enforcing judgments of international courts such as reliance on international non-judicial institutions, diplomacy, self-help, and negotiations. The goal of these provisions appears to be to provide an effective and expedited judicial means of enforcing judgments of international courts. This mode of enforcement is particularly important for individuals who litigate directly before international courts, and are subsequently disadvantaged by the power-centered traditional international law enforcement mechanisms.

10 In cases, African courts have been grappling with questions relating to service of documents abroad and the admissibility of foreign evidence and documents. See e.g., Fonville v. Kelly III, [2002] 1 E.A. 71; Willow Investment v. Mbomba Ntumba, [1997] T.L.R. 47; Microsoft Corp. v. Mitsumi Computer Garage Ltd., [2001] K.L.R. 470; Pastificio Lucio Garofalo SPA v. Security & Fire Equipment Co., [2001] K.L.R. 483; Mashchinen Frommer GmbH v. Trisave Engineering & Machinery Supplies (Pty) Ltd., 2003 (6) SA 69; Blanchard, Krasner & French v. Evans, 2004 (4) SA 427.

11 Ch. 8:02. An international tribunal is defined as:

any court or tribunal which, in pursuance of any international agreement or any resolution of the General Assembly of the United Nations—(a) exercises any jurisdiction or performs any function of a judicial nature or by way of arbitration, conciliation or inquiry; or (b) is appointed, whether permanently or temporarily, for the purpose of exercising any jurisdiction or performing any such function.

12 This section appears to have been borrowed. See, e.g., § 6(1) of the UK Evidence (Proceedings in Other Jurisdictions), Act 1975, which allows Her Majesty by Order in Council to extend the operation of the Act to international tribunals, including arbitration tribunals appointed pursuant to international agreements or resolution of the General Assembly of the United Nations, and § 1782(a) of the United States Code, ch. 28, which applies to “international tribunals.”

13 See, e.g., § 25 of the Protocol on the Court of Justice of the African Union [Protocol of Court of Justice], reprinted in 13 Afr. J. Int’l & Comp. L.115 (2005), that relies on the government of the relevant State to serve documents and procure evidence. In the absence of a specific legislation, like in Zimbabwe, it is doubtful whether and how the government can do this. Compare art. XXVI (a) of the Agreement Establishing the Caribbean Court of Justice that obliges national governments to enact legislation to ensure that all national authorities “act in aid of the Court . . .” http://www.caricomlaw.org/docs/agreement_ccj.pdf (last visited Feb. 16, 2007).

14 In 2004, Zambia was admitted to the Conference but has yet to accept the Statute of the Conference. Until then it can attend proceedings of the Conference as an observer. I examine the relationship between the work of The Hague Conference and Africa in greater detail elsewhere. See Richard F. Oppong, The Hague Conference and the Development of Private International Law in Africa: A Plea for Cooperation, 8 Ybk. Priv. Int’l L. 189 (2006).

15Http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html (last visited Feb. 16, 2007). For common law jurisdictions that are not party to this convention, a foreign arbitral award may still be enforced under the common law or in some instances reciprocal legislation.

16 See, e.g., McCabe v. McCabe, [1994] 1 F.L.R. 410 (involving a Ghanaian woman and Akan customary law of marriage); Re Bethell, Bethell v. Hildyard, (1998) 38 Ch. 220 (facts emanating from Botswana); Bambgbose v. Daniel, [1955] A.C. 107 (facts from Nigeria); Coleman v. Shang, [1961] A.C. 481 (facts from Ghana); Connelly v. RTZ Corp. plc, [1998] A.C. 854 (facts from Namibia); Lubbe v. Cape plc, [2000] 4 All E.R. 268 (facts from South Africa); British South Africa Co. v. Companhia de Mocambique, [1893] A.C. 602 (facts from South Africa); Mark v. Mark, [2005] UKHL 42 (involving Nigerian nationals). I assume from the name of the complainant in the ECJ decision of Owusu v. Jackson, [2005] 2 W.L.R 942 that the he has Ghanaian roots.

17 Forsyth, supra note 3, at 298.

18 See, e.g., Friendship Container Manufacturers Ltd. v. Mitchell Cotts (K) Ltd., [2001] 2 E.A. 338 (Kenya); C.I.L.E.V. v. Chiavelli, [1967] G.L.R. 651 aff’d in [1968] G.L.R. 160 (Ghana); Commet Shipping Agencies (Nigeria) Ltd. v. Panalpina World Transport (Nigeria) Ltd., [1990] L.R.C. (Comm.) 206 (Nigeria).

19 Supra note 10.

20 Id. 80. See also Sonnar (Nigeria) Ltd. v. Partenreedri M S Nordwind, [1988] L.R.C. (Comm.) 191, 211(Nigeria) where Oputa J.S.C. characterized these clauses as attempts to “remove” the jurisdiction properly and legally vested in our courts or “rob” the courts of its jurisdiction.

21 Sonnar id.

22 Id. 210. He described this as a “vital and radical question.”

23 Id. 210.

24 African Continental Bank Ltd. v. Swissair Air Transport Company Ltd., [1968] 1 A.L.R. (Comm.) 202, 205-06 (Nigeria).

25 Karachi Gas Company Ltd. v. Issaq, [1965] A.L.R. (Comm.) 35, 47-48 (Kenya).

26 Adan Deria Gedi v. Sheik Salim El Amoudi, [1964] 1 A.L.R. (Comm.) 385, 390-91 (Somalia).

27 Western Credit (Africa) (Proprietary) Ltd. v. Mapetla, [1965] A.L.R. (Comm.) 361, 365 (Basutoland, now Lesotho); Ackerman v. Societe Generale de Compensation, [1972] 3 A.L.R. (Comm.) 329 (Ghana).

28 [2005] eKLR.

29 See generally Reid Mortensen, Homing Devices in Choice of Tort Law: Australian, British, and Canadian Approaches, 55 I.C.L.Q. 839 (2006).

30 Regie National des Usines Renault SA v. Zhang, (2002) 210 C.L.R. 491.

31 Tolofson v. Jensen, [1994] 3 S.C.R. 1022, 120 D.L.R. (4th) 289.

32 Private International Law (Miscellaneous Provisions) Act 1995.

33 Agbede, supra note 5, at 159-79.

34 Signal Oil & Gas Company v. Bristow Helicopters Ltd., [1976] 1 G.L.R. 371, 379 (Ghana).

35 Forsyth, supra note 3, at 326-27 and the writers cited therein.

36 This is by no means only an African problem. See, e.g., Pim Haak, Domestic Conflict of Laws: A Negligible Area in Conflict of Laws? A Dutch Opinion, in International Conflict of Laws for the Third Millennium, Essays in Honour of Friedrich K. Juenger 215 (Patrick J. Borchers & Joachim Zekoll eds., 2000).

37 Other terms used for this area of study include interregional law, non-international conflict of laws, internal private international law, quasi-private international law, inter-provincial law and interterritorial law.

38 See, e.g., Kwamena Bensti-Enchill, Choice of Law in Ghana since 1960, 8(2) Uni. Ghana L. J. 59 (1971); Antony Allott, New Essays in African Law 107-44 (1970); E.G. Unsworth, The Conflict of Laws in Africa, 2 Rhodes-Livingstone J. 49 (1944); J.N. Matson, Internal Conflicts of Laws in the Gold Coast, 16 M.L.R. 469 (1953); J.N.D. Anderson, The Conflict of Laws in Northern Nigeria, 1 J. Afr. L. 87 (1957); G.F.A. Sawyerr, Internal Conflict of Laws in East Africa, in East African Law and Social Change 110 (G.F.A. Sawyerr ed., 1967).

39 Allott, supra note 38, at 116 where he notes “. . . the courts must exercise extreme caution in making use of private international law and its solutions. Private International Law, it hardly needs saying, is organised on a quite different basis from that upon which internal conflict rest.”

40 See, e.g., Rene David, A Civil Code for Ethiopia: Considerations on the Codification of the Civil Law in African Countries, 37 Tul. L. Rev. 187 (1962-63).

41 Alain A. Levasseur, The Civil Code of Ivory Coast 21 (1976).

42 See Filip Reyntjens, The Development of the Dual Legal System in Former Belgian Central Africa (Zaire-Rwanda-Burundi), in European Expansion and Law, The Encounter of European and Indigenous Law in the 19th and 20th Century Africa and Asia 111 (W.J. Mommsen & J.A. De Moor eds., 1992).

43 See, e.g., Ghana: Courts Act 1993 Act 459, § 54.

44 See, e.g., Kenya: Judicature Act Ch. 8, § 3 which provides:

. . . courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.

Zimbabwe: Customary Law and Local Courts Act Ch. 7: 05, § 8.

45 See, e.g., Akolda M. Tier, Conflict of Laws and Legal Pluralism in the Sudan, 39 I.C.L.Q. 611 (1990); T.W. Bennett, Conflict of Laws-The Application of Customary Law and the Common Law in Zimbabwe, 30 I.C.L.Q. 59 (1981); The Internal Conflict of Laws in South Africa (A.J.G.M. Sanders ed., 1990).

46 In recent times the conflicts have taken the form of conflicts between customary laws and legislation on human rights norms. See, e.g., Ephrahim v. Pastory and Kaizilege, (1992) 87 I.L.R. 106 (on conflict between human rights law and a customary rule barring women from selling land); Amaning alias Angu v. Angu II, [1984-86] 1 G.L.R. 309, 324 where it was held that where customary law is in conflict with equity the latter would prevail; Otieno v. Ougo (No 4), [1987] K.L.R. 407 (on the law applicable to the burial of a native of the Luo tribe of Kenya).

47 Internal conflict of laws problems are not limited to these areas. See, e.g., Shaheen v. Duralia, (1920-36) A.L.R. (Sierra Leone) 3, involving a contract between a native of Sierra Leone and a Syrian in which the former sought to rely on a local custom.

48 Various parts of Africa came under colonial domination at different times. In this article, “pre-colonial” is meant to cover the period before 1900, and “colonial” the period after 1900.

49 See Jay Gordon, African Law and the Historian, 8 J. Afr. History 335 (1967).

50 E.Kofi Tetteh, Law Reporting in Anglophone Africa, 20 I.C.L.Q. 87 (1971).

51 Ronald Graveson, The Origins of the Conflict of Laws, in Festchrift Fur Konrad Zwiegert 93, 99 (Herbert Bernstein et. al. eds., 1981).

52 Rodolfo de Nova, Historical and Comparative Introduction to the Conflict of Laws, 118 Recueil des Cours 441-77 (1966). For an account of earlier conflict of laws situation in Europe see generally Simeon L. Guterman, The First Age of European Law: The Origin and Character of the Conflict of Laws in the Early Middle Ages, 7 New York Law Forum 131 (1961).

53 In recent times, the enactment of statutes providing for uniform laws on inheritance has done away with some of these problems. See e.g., Intestate Succession Law 1981 PNDC Law 111 of Ghana.

54 See generally F.J. Nothling, Pre-Colonial Africa: Her Civilisations and Foreign Contacts (1989).

55 Walter Rodney, A History of the Upper Guinea Coast, 1545-1800 19-20 (1970); Pre-Colonial Africa Trade, Essays on Trade in Central and Eastern Africa before 1900 (Richard Gray & David Birmingham eds., 1970).

56 Kalensky, supra note 6, at 46, n.1, 47 n.4.

57 Ed Metzler, Conflict of Laws in the Israelite Dynasty of Egypt (1991).

58 Friedrich K. Juenger, Choice of Law and Multistate Justice, Special Edition 7-8 (2005).

59 Robert Smith, Peace and Palaver: International Relations in Pre-Colonial West Africa, 14 J. Afr. History 599 (1973).

60 Bennett, supra note 45, at 65 (where he notes that there is little record of the choice of law rules developed by African courts to govern conflicts between different systems of native law). Aside the absence of documentation, a characteristic of native administration of justice was its focus on reaching equitable solutions rather than providing and enforcing clear-cut propositions of law.

61 Juenger, supra note 58, at 10.

62 Peter M. North & J. J. Fawcett, Cheshire and North’s Private International Law 533-34 (1999).

63 See Yash P. Ghai, Customary Contracts and Transaction in Kenya, in Ideas and Procedures in African Customary Law 333, 344 (Max Gluckman ed., 1969), where he denies the existence of a generalized concept of executory contracts in customary law of Kenyan tribal societies.

64 Rodney, supra note 55, at 35.

65 See, e.g., Amodu Tijani v. Secretary, Southern Nigeria, [1921] 2 A.C. 399, 404, where the Privy Council held “the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual.”

66 Omane v. Poku, [1972] 1 G.L.R. 295.

67 Andrew Chukwuemerie, The Internationalisation of African Customary Arbitration, 14 Afr. J. Int’l & Comp. L. 143, 150-51 (2006).

68 To modern day private international lawyers, these techniques presage present day conflicts avoidance techniques founded on party autonomy, standard form contracts, resort to arbitration, and international unification of substantive law. See generally Clive M. Schmitthoff, Conflict Avoidance in Practice and Theory, 21 Law & Contemp. Probs. 429 (1956).

69 See, e.g., William Burge, Commentaries on Colonial and Foreign Laws: Generally, and in their Conflict with each other, and with the Law of England Vol. 1, 3 (1838), who suggests that states of remote antiquity admitted no other law than that of “the country in which the right is adjudicated.”

70 Remigius N. Nwabueze, Historical and Comparative Contexts for the Evolution of Conflict of Laws in Nigeria, 8 Ilsa J. Int’l. & Comp. L. 31 (2001).

71 Bennett, supra note 45, at 65.

72 Law in Colonial Africa 9-11 (Kristin Mann & Richard Roberts eds., 1991).

73 Rodney, supra note 55, at 86-88.

74 Id., 83-84. The word “lancados” was used to refer to the early European trader. The applicability of native law to issues, such as maintenance and childcare involving Europeans in concubinal relations with Africans, has been consistently affirmed in subsequent case law. See Duncan v. Robertson, (1891) Sarbah Fanti Customary Law Report 134; Adjei and Dua v. Ripley, [1956] W.A.L.R. 62.

75 See Bond of 1844, reprinted in John M. Sarbah, Fanti Customary Law 281-82 (3d ed., 1968).

76 Treaty of Friendship and Protection, reprinted in J.M. Sarbah, Fanti Customary 306-10 (3d ed., 1968).

77 Reprinted in John Westlake, Chapters on the Principles of International Law 153 (1894).

78 But see Nwabueze, supra note 70, at 31-60.

79 U.U. Uche, Conflicts of Laws in a Multi-Ethnic Setting: Lessons from Anglophone Africa, 228 Recueil des Cours 273 (1991).

80 See generally Alexander N. Sack, Conflict of Laws in the History of English Law, in Law: A Century of Progress Vol. 3, 342 (A. Reppy ed., 1937).

81 See, e.g., William Burge, Commentaries on Colonial and Foreign Laws: Generally, and in their Conflict with each other, and with the Law of England Vol 1, 2, 3, 4 (1838); John Westlake, A Treatise on Private International Law, or, the Conflict of Laws: With Principal Reference to its Practice in the English and other Cognate Systems of Jurisprudence (1858).

82 See Sack, supra note 80.

83 Hughes v. Davis, (1909) Renner Reports 550, 551; Angu v. Atta, (1916) Gold Coast Privy Council Judgments (1874-1928) 43, 44. Writers generally attribute this to the lack of personnel knowledgable in customary law. This however, ignores the potential influence of similar treatment of foreign law in English legal history. Even to this day proof of foreign law is still a question of fact in an English court.

84 For example, until the merger of the administration of law and equity by the Supreme Court of Judicature Act, 1873, separate courts administered law and equity that were distinct bodies of law.

85 Matson, supra note 38, at 471.

86 See, e.g., Matson, supra note 38; J.N.D. Anderson, Conflict of Laws in Northern Nigeria: A New Start, 8 I.C.L.Q. 442 (1959); A. Arthur Schiller, Conflict of Laws in East Africa, 9 Netherlands Int’l L. Rev. 430 (1962).

87 See, e.g., G.C. Frames, Domicil, 1 Cape L.J. 253 (1884); G.C. Frames, Domicil, 1 Cape L.J. 301 (1887). This set the stage for the influence of African academics on the development of the subject. From this, it is no happenstance that a number of leading African texts on the subject have South African authors.

88 Heinaman v. Jenkins-Re “Peytona,” (1853-56) II Searles’ Reports 10 (court has no jurisdiction as to a contract entered into in New York to be performed in Melbourne where the parties are not domiciled in the Colony).

89 Dunell and Stanbridge v. Van der Plank in Re Schooner “Louisa,” (1828-49) III Menzies’ Reports 112 (ship on anchor at Table Bay arrested to found jurisdiction at the instance of an English creditor on an English contract).

90 Norden v. Solomon, (1828-49) II Menzies’ Reports 375 (notwithstanding an English bankruptcy, the court has jurisdiction to try whether a hypothec claimed by a creditor has been acquired prior to the bankruptcy over any of the bankrupt’s property situated within the courts jurisdiction).

91 Wallace v. Hill, (1828-49) I Menzies’ Reports 347 (parties to this action were foreigners; plaintiff commenced action by causing defendant to be arrested; the defendant did not object to the jurisdiction of the court; and the court applied the law of the Colony). See also Hornblow v. Fotheringham, (1828-49) I Menzies’ Reports 352 (where court held as a question “attended with very great doubt” whether it was competent for an English plaintiff to arrest an English defendant to found jurisdiction for a cause of action arising under a contract made in England and governed by English law).

92 McDonald v. McDonald, (1861-63) IV Searles’ Reports 121.

93 Reeves v. Reeves, (1828-49) I Menzies’ Reports 244 (court has jurisdiction to dissolve a marriage contracted in Ireland where the husband has subsequently become domiciled in the Colony although the wife has never been resident there).

94 Executors of Muter v. Jones, (1857-60) III Searles’ Reports 356 (liability for damage to good shipped from London to Cape Town, under a bill of lading, freight payable in London must be determined by the law of England). See also Greef v. Verreaux, (1828-49) I Menzies’ Reports 151 (a promise made in the Colony by a French defendant to marry a resident of the Colony was governed by the law of the Colony as the lex loci contractus).

95 Pappe v. Home, Edgar & Co. and Bam’s Executors, (1828-49) I Menzies’ Reports 212 (interest in a trust estate in personal property situated in England must be regulated by the law of the domicile of the beneficiary and the law of England as regards real property situated there).

96 In Re Zeederberg, (1864-67) V Searles’ Reports 307.

97 De Costa v. Le Sueur, Civil Commissioner, (1828-49) III Menzies’ Reports 545 (a Portuguese subject resident in the Colony only for a temporary purpose, and sine animo remanendi has not acquired a domicile in the Colony). See also Bestandig v. Bestandig, (1828-49) I Menzies’ Reports 280 (domicile of a wife is the same as the husband’s).

98 In re West (deceased), (1861-67) 1 Supreme Court Cases (Cape) 370.

99 For a comparable deployment of public international law, see D. C. J. Dakas, The Role of International Law in the Colonisation of Africa: A Review in the Light of Recent Calls for Re-Colonisation, 7 Afr. Ybk Int’l L. 85 (1999).

100 The French, Belgian, and Portuguese embarked on a similar conflict avoidance technique by enacting legislation which made the applicable law dependent on a pre-determined status of the individual. With these colonial powers, there was the distinct possibility for a native to change his status through assimilation and become wholly subject to law of the colonial power. This option was not available to natives in British administered colonies. See A. Robert, A Comprehensive Study of Legislation and Customary Law Courts in the French, Belgian and Portuguese Territories in Africa, 11 J. Afr. Administration 124 (1959).

101 Allott, supra note 38, at 122.

102 Schiller, supra note 86, at 442 where he suggests these problems were relatively few. Francis A.R. Bennion, The Constitutional Law of Ghana 446-48 (1962). But see Julius Lewin, The Conflict of Tribal Laws, 61 South Afr. L.J. 269 (1944).

103 See, e.g., Ghamson v. Wobill, (1947) 12 W.A.C.A. 181, where the court in overruling a lower court decision noted that the application of the private international law rule that rights in immovable property is governed by the lex situs will deprive many natives the benefit of their distinct laws on succession.

104Customary Law and Local Courts Act Ch. 7:05. See also Ghana: Courts Act 1993 Act 459 § 54 rule 5 which provides the applicable law to any issue arising between two or more persons shall, where they are subject to the same personal law, be that law; and where they are not subject to the same personal law, the court shall apply the relevant rules of their different systems of personal law to achieve a result that conforms with natural justice, equity, and good conscience.

105 See, e.g., Ghana: Intestate Succession Law 1981 (PNDC Law 111), which abolished the customary law rules on intestate succession and instituted a uniform regime for that purpose. A defined but small proportion of most estates, however, still passed under the customary law of the deceased.

106 Keith W. Patchett, Recognition of Commercial Judgments and Awards in the Commonwealth 20 (1984).

107 See, e.g., Gambia: Foreign Judgment Extension Ordinance 1908, No 5, Northern Nigeria: Foreign Judgment Extension Ordinance 1908, No 21, Southern Nigeria: Foreign Judgment Extension Ordinance 1908, No VI. Sierra Leone: Foreign Judgment Extension Ordinance 1908, No 4.

108 But see William L. Twining, The Place of Customary Law in National Legal Systems in East Africa 55 (lecture delivered at the University of Chicago Law School in Apr.-May 1963) where J.P.W.B. McAuslan, in a note to the writer, reports that although lawyers and judges of East Africa were not always aware they were dealing with a conflict of laws problem, he has identified about 165 cases which “I consider raise in some form or other conflict of laws problems. Of these 90 raise international or inter-state conflicts problems and 75 raise inter-personal or internal conflicts problems.” This claim by McAuslan is, however, not supported by the law reports I have examined, at least for countries outside East Africa.

109 Official Administrator v. Anba Bola Convent, (1900-31) 1 S.L.R. 521, 529-30.

110 See, e.g., Dewhurst v. Wilson, (1954) 27 K.L.R. 41 (money judgment from Tanganyika (now Tanzania)); In re Roderick Fountaine Antrobus Johnston, (1954) 27 K.L.R. 94 (maintenance order from Southern Rhodesia (now Zimbabwe)); Khoury v. Khoury, (1957) 3 W.A.L.R. 52 (recognition of Lebanese divorce decree in Ghana. This case was decided after the independence of Ghana but before it attained Republican status); Zakia Hanna Ibrahim v. Tawfik Ibrahim Mikael, [1932-40] S.L.R. 98 (money judgment from Egypt).

111 Fuhrmeister and Company v. Abdel Ghani Ali Mousa and Sons, [1959] S.L.J.R. 38.

112 Mohammed Ahmed Radwan v. Pearson & Son Ltd., (1900-31) 1 S.L.R. 218.

113 Tawfik Abdel Sayed v. Ahmed Hashim Baghdadi, (1900-31) 1 S.L.R. 227; Antonious Saad v. Aziz Kfouri, (1900-31) 1 S.L.R. 114; Misr Printing Press v. Kamil Mohamed Kamil, [1959] S.L.J.R. 3.

114 John Grisby v. Jubwe, (1952-55) 14 W.A.C.A. 637; Elias J. Moubarak v. Holland West Afrika Lijn, (1952-55) 14 W.A.C.A. 262.

115 Yanni Krithary v. Mariam Bint Dasta, (1900-31) 1 S.L.R. 91 (maintenance); Adjei and Dua v. Ripley [1956] W.A.L.R. 62 (maintenance); Madame Olympia v. William Bey Zalzal, (1900-31) 1 S.L.R. 28 (marriage).

116 George Michailides v. Nerves Yacoub, (1900-31) 1 S.L.R. 190.

117 Estate of Jacques Maqridis, (1932-40) 2 S.L.R. 1; Official Administrator v. Anba Bola Convent, (1900-31) 1 S.L.R. 521; Hanna Kattan v. John Kattan, [1957] S.L.J.R. 35; Mary Ekem v. Ekua Nerba, (1946-49) 12 W.A.C.A. 258.

118 Mohammed Wahib Huzaifeh v. Hussein Saba, (1939) 5 W.A.C.A. 181; Said Ajami v. The Comptroller of Custom, (1952-55) 14 W.A.C.A. 34 aff’d (1952-55) 14 W.A.C.A. 37.

119 Schulze, supra note 5; Forsyth, supra note 3; Kiggundu, supra note 5.

120 18 S. Afr. Mercantile L.J. (2006).

121 Christian Schulze, Electronic Commerce and Civil Jurisdiction, with Special Reference to Consumer Contracts, 18 S. Afr. Mercantile L.J. 31 (2006).

122 Christa Roodt, The Law Applicable to Certain Rights in Respect of Securities held with an Intermediary: The Hague Securities Convention, 18 S. Afr. Mercantile L.J. 83 (2006).

123 John Kiggundu, Choice of Law in Delict: The Rise and Rise of the Lex Loci Delicti Commissi, 18 S. Afr. Mercantile L.J. 97 (2006).

124 See, e.g., Christopher Forsyth, “Mind the Gap”: A Practical Example of the Characterisation of Prescription/Limitation Rules, 2 J. Priv. Int’l L. 109 (2006); Christopher Forsyth, “Mind the Gap II”: The South African Supreme Court of Appeal and Characterisation, 2 J. Priv. Int’l L. 425 (2006); Jan L. Neels, Private International Law of Succession in South Africa, 7 Yearbook of Private International Law 183 (2005); Richard F. Oppong, Private International Law and the African Economic Community: A Plea for Greater Attention, 55 I.C.L.Q. 911 (2006); Oppong, supra note 14.

125 Http://general.rau.ac.za/law/English/ipr/ipr.htm (last visited Feb. 16, 2007).

126 Http://www.unisa.ac.za/Default.asp?Cmd=ViewContent&ContentID=675 (last visited Feb. 16, 2007).

127 Http://www.hcch.net/index_en.php?act=events.details&year=2006&varevent=119 (last visited Feb. 16, 2007).

128 Uche, supra note 79, at 273.

129 See, e.g., Turner v. Grovit, [2004] 2 Lloyd’s Rep. 169; Owusu v. Jackson, [2005] 2 W.L.R. 942; Trevor C. Hartley, The European Union and the Systematic Dismantling of the Common Law of Conflict of Laws, 54 I.C.L.Q. 813 (2005).

130 See, e.g., Morgaurd Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, 76 D.L.R. (4th) 256; Hunt v. T & N plc, [1993] 4 S.C.R. 289, 109 D.L.R. (4th) 16; Tolofson, supra note 31.

131 Diego P. Fernandez Arroyo & Jan Kleinheisterkamp, The VIth Inter-American Specialized Conference on Private International Law (CIDIP VI): A New Step Towards Inter-American Legal Integration, 4 Ybk Priv. Int’l L. 237, 254 (2002).

132 In Valentine Investment Company (msa) Ltd. v. Federal Republic of Germany [2006] eKLR, the court was attentive to the concern of offering protection to Africans engaging in international transactions. The case involved an application for a stay of the Kenya proceedings on the grounds that the parties had agreed on a Bonn, Germany choice of law and forum clause. The subject matter of the dispute was a contract for the supply of motor vehicles with drivers. Two earlier contracts between the parties had Kenya choice of forum clauses. In dismissing the application, the court held that the parties were not negotiating on level ground; the relevant evidence was in Kenya, litigation would be convenient and less expensive in Kenya; Kenya was a common law country and the plaintiffs will be greatly prejudiced by having to sue in Germany and the German defendants were operating in Kenya and contracted with a Kenyan businessman.

133 See, e.g., William L. Prosser, Interstate Publication, 51 Mich. L.Rev. 959, 971 (1952-53): “The realm of the conflict of laws is 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. The ordinary court, or lawyer, is quite lost when engulfed and entangled in it.”

134 Reprinted in (1991) 3 Afr. J. Int’l. & Comp. L. 792-839 (1991), 30 I.L.M. 1241 (1991).

135 By this I include questions regarding the impact of integration on national sovereignty, domestic implementation of international commitments, dispute settlement, etc.

136 Art. 126 of the Treaty of the East African Community which enjoins member states to “encourage the standardisation of judgments of courts within the Community,” and “harmonise all their national laws appertaining to the Community,” and art. 57(1) of the Treaty of the Economic Community of West African States under which “Member States undertake to co-operate in judicial and legal matters with a view to harmonising their judicial and legal systems,” may broadly be interpreted to encompass issues of private international law. I am, however, not aware of any initiative taken under these articles of significance for private international law.

137 See generally Diego P. Fernandez Arroyo, What is New in Latin American Private International Law, 7 Ybk. Priv. Int’l L. 86 (2005); Marie-Odile Baur, Projects of the European Community in the Field of Private International Law, 5 Ybk. Priv. Int’l L. 177 (2003).

138 I examine some of these issues more extensively in Oppong, supra note 124.

139 Robert C. Casad, Civil Judgment Recognition and the Integration of Multi-state Associations: A Comparative Study, 4 Hastings Int’l & Comp. L. Rev. 1 (1980-81).

140 For example, South Africa’s regime designates only Namibia; Namibia’s regime designates only South Africa; Swaziland’s regime has been extended to Lesotho, Botswana, Zimbabwe, Zambia, Zanzibar, Malawi, Kenya, and Tanzania. For Ghana’s regime, Senegal is the only African country designated; see First Schedule of Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (LI 1575); Tanzania’s Reciprocal Enforcement of Foreign Judgments Order (GN No 8 & 9 of 1936) names in its schedule Lesotho, Botswana, Mauritius, Zambia, Seychelles, Somalia, Zimbabwe, and the Kingdom of Swaziland.

141 Compare art. 220 of the Treaty Establishing the European Economic Community (1957).

142 Art. 126 of the Treaty of the East African Community and art. 57(1) of the Treaty of the Economic Community of West African States.

143 See Kiggundu, supra note 123; Forsyth, supra note 3, at 326-27.

144 Muna Ndulo, The Promotion of Intra-African Trade and the Harmonisation of Laws in the African Economic Community: Prospects and Problems, in African Economic Community Treaty, Issues Problems and Prospects 107, 111-12 (M.A. Ajomo & Omobolaji Adewale eds., 1993).

145 The AEC Treaty provides for the gradual establishment of the community through six stages over a period of 34 years. The final stage involves, among others, the strengthening of the African common market, the application of free movement of people, goods, capital and services, the integration of the social, economic, political and cultural sectors, and the establishment of a single domestic market.

146 AEC Treaty, supra note 134, art. 6(2)(f)(ii).

147 See