Journal of Private International Law Conference 2007

Council Regulation (EC) No 2201/2003 of Nov. 23, 2003, Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, repealing Regulation (EC) 1347/2000.

148 Green Paper on Wills and Succession. COM (2005) 65 Final. The European Parliament accepted this Paper in Nov. 2006, and a legislative proposal is due from the Commission to the Parliament in 2007.

149 See generally Maurice Oduor, Resolving Trade Disputes in Africa: Choosing between Multilateralism and Regionalism: The Case of COMESA and the WTO, 13 Tulane J. Int’l & Comp. L. 177 (2005); Joost Pauwelyn, Going Global, Regional, or Both - Dispute Settlement in the Southern African Development Community (SADC) and Overlaps with the WTO and Other Jurisdiction, 13 Minn. J. Global Trade 231 (2004); Kenneth P. Kiplagat, Jurisdictional Uncertainties and Integration Processes in Africa: The Need for Harmony, 4 Tulane J. Int’l & Comp. L. 43 (1995-96).

150 See, e.g., art. 292 of the Treaty Establishing the European Community, art. 42(1) of the Treaty Creating the Court of Justice of the Andean Community, and art. 2005 of North American Free Trade Agreement.

151 Although arts. 17, 18, & 19, of the SADC Protocol on Tribunal grants the Tribunal “exclusive jurisdiction over all disputes between the States and the Community, natural or legal persons and the Community and between the Community and its staff,” this is not enough since they do not appear to bar parties from litigating elsewhere even if the latter court may subsequently decline jurisdiction.

152 Reprinted in 10 Afr. J. Int’l & Comp. L. 157 (1998).

153 See generally Jenny S. Martinez, Towards an International Judicial System, 56 Stanford L. Rev. 429 (2003-04).

154 [2003] 1 E.A. 294. Compare Healthwise Pharmaceuticals Ltd. v. Smithkline Beecham Consumer Healthcare Ltd., [2001] L.L.R. 1279, where a similar argument was unsuccessful.

155 See generally Paolo Mengozzi, Private International Law and the WTO Law, 292 Recueil des Cours 249 (2001).

156 Morgaurd, supra note 130, at 1096.

157 See, e.g., Ronald A. Brand, Recognition and Enforcement of Judgments as a Trade Law Issue: The Economics of Private International Law, in Economic Dimensions of International Law: Comparative and Empirical Perspectives 592 (Jagdeep Bhandari & Alan O. Sykes eds., 1997); Alan O. Sykes, Transnational Tort Litigation as a Trade and Investment Issue, (Stan. L. & Econ. Olin, Working Paper No. 331, Jan. 2007), http://ssrn.com/abstract=956668 (last visited Feb. 16, 2007); Joseph J. Derby, The Conflict of Laws and International Trade, 4 San Diego L.Rev. 45 (1967).

158 See, e.g., American Flag plc v. Great African T-shirt Corp., 2000 (1) S.A. 356, 375; Hay Management Consultants (Pty) Ltd. v. P3 Management Consultants (Pty) Ltd., 2005 (2) S.A. 522.

159 Argos Fishing Co. Ltd. v.Friopesca SA, 1991 (3) SA 255.

160 On the enforcement of judgments in South Africa, see Forsyth, supra note 3, 387-445; Schulze, supra note 5, at 16-32.

161 See, e.g., UK: Protection of Trading Interest Act of 1980; Australia: Foreign Anti Trust Judgments (Restrictions on Enforcement Act 1979 (Cth); Canada: Foreign Extra-Territorial Measures Act 1984 § 8 & 9.

162 Forsyth, supra note 3, at 435.

163 Schulze, supra note 5, at 32.

164 Id. at 31.

165 See Miliangos v. George Frank (Textiles) Ltd., [1976] A.C. 443; Barclays Bank of Swaziland Ltd. v. Mnyeketi, 1992 (2) S.A. 425; Royal Dutch Airlines (KLM) v. Farmex Ltd., [1989-90] 1 G.L.R. 46; R.E. Bannermah, Award of Damages in Foreign Currency: A Critical Look at the Judgments, 19 Rev. Ghana L. 231 [1993-95]; Lisa Niewoudt, The Power of the South African Court to Give Judgment in Foreign Currency, 18 South Afr. Ybk. Int’l L. 147 (1992-93).

166 Echodelta Ltd. v. Kerr and Downey Safaris, 2004 (1) S.A. 509 (the foreign plaintiff ended up with a judgment in Zimbabwe dollars equivalent to about U.S.D. $18,000 for a debt of U.S.D. $90,385.60). Compare Chiraga v. Msimuko, 2004 (1) S.A. 98 (the foreign defendant successfully resisted the conversion of a debt denominated in South African Rands into Zimbabwe dollars). Eden v. Pienaar, 2001 (1) S.A. 158 (the court held that the enforcement of an Israeli judgment given in U.S. dollars with a linkage provision designed to ensure that depreciation of the Israeli currency does not redound to the benefit of the judgment debtor was not contrary to South African public policy). Charles Thys v. Herman Steyn, [2006] eKLR (court held that it will be contrary to public policy for judicial procedure to be exploited to rake in supernormal profits associated with the rapid fluctuations of the Kenyan shilling on the international money markets.)

167 Botswana: Judgments (International Enforcement) Act 1981 Ch. 11:04 § 5(5); Namibia: Enforcement of Foreign Civil Judgments Act 1994 Act 28 of 1994 § 3(4); Tanzania, Foreign Judgments (Reciprocal Enforcement Ordinance 1935 § 4(3); Ghana: Courts Act 1996 Act 459 § 82(7); Zambia: Foreign Judgment (Reciprocal Enforcement) Act Ch. 76 § 4(3); Uganda: Foreign Judgment (Reciprocal Enforcement) Act Ch. 9 § 3(3); Nigeria: Foreign Judgments (Reciprocal Enforcement) Act Ch. 152 LFN 1990 § 4(3). But see Kenya: Foreign Judgment (Reciprocal Enforcement) Act § 7(1) which uses the discretionary language “may be registered.”

168 Ghana: Courts Act 1996 Act 459 § 82(7).

169 Ssebaggala & Sons Electric Centre Ltd. v. Kenya National Shipping Line Ltd., [2000] L.L.R. 931.

170 Australia: Foreign Judgment Act 1991 § 6(11)(a); New Zealand: Reciprocal Enforcement of Judgment Act, 1934 § 4(3).

171 Kenya: Foreign Judgment (Reciprocal Enforcement) Act § 7(1).

172 The Atlantic Star [1973] Q.B. 364, 382.

173 An explicit admission of this is art. 65 of the Treaty Establishing the European Community providing that private international law issues may be necessary for the “proper functioning of the internal market.”

174 Christopher Forsyth, The Impact of the Domestic on the International: Some Crucial Deficiencies in the South African Law of Jurisdiction with their Regional and International Consequences, 18 South Afr. Mercantile L.J. 1 (2006). For judicial support for this position, see Chong Sun Wood Products Pte Ltd. v. K & T Trading Ltd., 2001 (2) S.A. 651; Hulse-Reutter v. Godde 2001 (4) S.A. 1336.

175 The importance of jurisdiction agreements has been given a further boost under the Hague Convention on Choice of Court Agreements 2005. The convention is not yet in force and there are no African countries currently party to it.

176 Forsyth, supra note 3, at 216, where he advocates South Africa courts develop an international role akin to that of the Commercial Court in London for Southern and Central Africa.

177 See art. 32 of the Treaty Establishing the East African Community and art. 28 of the Treaty Establishing the Common Market of Eastern and Southern Africa. Art. 16 of the Treaty Establishing the Economic Community of West African States also establishes an Arbitration Tribunal for the Community. The status, composition, powers, procedure, and other issues concerning the Arbitration Tribunal is to be set out in a Protocol relating thereto. Until that time, art. 9(5) of the ECOWAS Court Protocol (as amended) provides that the ECOWAS Court of Justice exercises the powers of the Tribunal.

178 A. N. Allott, Towards the Unification of Laws in Africa, 14 I.C.L.Q. 366, 374 (1965).

179 See, e.g., Yakubu, supra note 5; Muna Nudlo, Harmonisation of Trade Laws in the African Economic Community, 42 I.C.L.Q. 101 (1993); O. Anukpe Ovrawah, Harmonisation of Laws within the Economic Community of West African States (ECOWAS), 6 Afr. J. Int’l & Comp.L. 76 (1994).

180 They are Benin, Burkina Faso, Cameroon, the Central African Republic, the Comoros, Congo-Brazzaville, Cote d'Ivoire, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Niger, Senegal, Chad, and Togo. Liberia, Angola, and the Democratic Republic of Congo on record to have expressed interest in becoming members. See Sebastien Thouvenot, News on the Development of the Organisation for the Harmonisation of Business Law in Africa (OHBLA), 5 Int’l Bus. L.J. 704 (2006).

181 Treaty establishing the Organisation for the Harmonization of Business Laws in Africa http://www.ohada.com/traite.php (last visited Feb. 16, 2007). There is a dearth of English writings on this organization. See generally Boris Martor et. al., Business Law in Africa, OHADA and the Harmonisation Process (2002); Claire M. Dickerson, Harmonising Business Laws in Africa: OHADA Case Calls the Tune, 44 Colum. J. Transnt’l. L. 17 (2005); Nelson Enonchong, Harmonization of Business Law in Africa: Is article 42 of the OHADA Treaty and Problem? 51 J. AFR. L. 95 (2007).

182 OHADA Treaty, supra note 181, art. 1.

183 Thouvenot, supra note 180.

184 See, e.g., Joost Blom, Reform of Private International Law by Judges: Canada as a Case Study, in Reform and Development of Private International Law: Essays in Honour of Sir Peter North 31 (James Fawcett ed., 2002).

185 See generally Christopher Forsyth, The Value of Comparative Ethos to the Judicial Process in the Conflict of Laws, in Essays in Honour of Ellison Kahn 151-72 (Coenraad Visser ed., 1989), especially at 171 where he notes “. . . many conflict-of-laws courses lack historical and substantial theoretical element, let alone a comparative introduction!”

186 See Chang W. Cheong, The Law in Singapore on Child Abduction, [2004] Singapore J.Legal Stud. 444, 458-61, where the writer discusses a Singapore case in which the judge held that although Singapore was not a signatory to the Hague Convention on the Civil aspects of International Child Abduction, its principle that it was in the best interest of the child for questions of custody to be decided by the court of habitual residence unless there were exceptional circumstances, should be followed.

187 See Christophe Bernasconi, Rules of Interpretation Applicable to Private International Law Treaties: An Overview, in International Law and The Hague’s 750th Anniversary 139 (Wybo P. Heere ed., 1999).

188 See generally Hartley, supra note 129.

189 Supra note 154.

190 See generally Elizabeth Edinger, The Constitutionalization of the Conflict of Laws, 25 Can. Bus. L.J. 38 (1995). James Stellios, Choice of Law and the Australian Constitution: Locating the Debate, 33 Federal L. Rev. 7 (2005).

191 See, e.g., Namibia: Enforcement of Foreign Civil Judgments Act 28 of 1994, Foreign Courts Evidence Act 2 of 1995, Reciprocal Service of Process Act 27 of 1994; Zimbabwe: Civil Matters (Mutual Assistance) Act 14 of 1995, Child Abduction Act 12 of 1995 (implementing the Hague Convention on the Civil Aspects of International Child Abduction (1980)); Ghana: Courts Act 1993 Act 459 § 81-99 (on the enforcement of foreign judgments); Nigeria: Admiralty Jurisdiction Decree No 59 of 1991; South Africa, Hague Convention on the Civil Aspects of International Child Abduction Act No. 72 of 1996; Domicile Act No. 3 of 1992.

192 South African Law Reform Commission, Consolidated Legislation Pertaining to International Co-operation in Civil Matters (Project 121, Discussion Paper 106), 57-59, http://www.doj.gov.za/salrc/dpapers/dp106_prj121/dp106_prj121_b.pdf (last visited Feb. 16, 2007).

193 Forsyth, supra note 3, at 17-19.

194 See e.g., Edinger, supra note 190; Stellios, supra note 190; Trevor C.W. Farrow, Globalization, International Human Rights, and Civil Procedure, 41 Alberta L. Rev. 671 (2003); Patrick Kinsch, The Impact of Human Rights on the Application of Foreign Law and the Recognition and Enforcement of Judgments-A Survey of the Decided cases by the European Human Rights Institutions, in Intercontinental Cooperation Through Private International Law Essays In Memory Of Peter Nygh 197 (Talia Einhorn & Kurt Siehr eds., 2004); James J. Fawcett, The Impact of Article 6(1) of the ECHR on Private International Law, 56 I.C.L.Q. 1 (2007).

195 Proposed New Constitution of Kenya, Kenya Gazette Supplement No. 63, available at http://confinder.richmond.edu/admin/docs/KenyaProposed220805.pdf (last visited June 06, 2007).

196 [2005] eKLR.

197 Himelsein v. Super Rich, 1998 (1) S.A. 929, 936. See also Naylor v. Taylor, 2006 (3) S.A. 546, 557; Tsung v. Industrial Development Corp. of SA Ltd., 2006 (4) S.A. 177, 181.

198 2001 (1) S.A. 1171.

199 The challenge was that the Act obliges the courts to act in a manner that is inconsistent with the provisions of art. 28(2) of the Constitution that requires that a child’s best interests are of paramount importance in every matter concerning the child.

200 Richard F. Oppong, The Recognition and Enforcement of Foreign Judgments in Ghana: A Second Look at a Colonial Inheritance, 31 Commonwealth L. Bull. 19, 31 (2005).

201 In Nku v. Nku, [1998] B.L.R. 187 the Botswana High Court refused to reform the common law rule that a married woman acquired the domicile of the husband on marriage on the ground that the rule discriminated against women.

202 The impact of human rights law is also likely to be felt in the area of internal conflict of laws as communities try to protect the customary laws by invoking their cultural rights and individuals resist the application of customary laws on human rights grounds.

203 Civil partnership is defined in s 1 as “the voluntary union of two adult persons of the same sex that is solemnised and registered in accordance with the procedures prescribed by this Act to the exclusion, while it lasts, of all others.”