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The HCCH 2019 Judgments Convention:

Prospects for Judicial Cooperation in Civil and
Commercial Matters between the EU and Third Countries

Pre-Conference Video Roundtable
University of Bonn / HCCH

Thursday, 29 October 2020, 6.30 p.m. (UTC+1) (via Zoom)

 

Speakers:

Dr Christophe Bernasconi, Secretary General of the HCCH

Colin Brown, Unit Dispute Settlement and Legal Aspects of Trade Policy, DG Trade, European Commission

Dr Alexandra Diehl, White & Case LLP, Frankfurt, Chair of the Arbitration/Litigation/Mediation (“ALM”) Working Group of the German-American Lawyers Association (DAJV)

Dr Veronika Efremova, Senior Project Manager GIZ, Open Regional Funds for South East Europe-Legal Reform

Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”, European Commission

Dr Jan Teubel, German Federal Ministry of Justice and Consumer Protection

Moderators:                         

Dr João Ribeiro-Bidaoui, First Secretary, HCCH

Prof Dr Matthias Weller, University of Bonn

The largest proportion of EU economic growth in the 21st century is expected to arise in trade with third countries. This is why the EU is building up trade relations with many states and other regional integration communities in all parts of the world. The latest example is the EU-MERCOSUR Association Agreement concluded on 28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020, extra-EU trade with neighbouring countries will further increase in importance. Another challenge for the EU is China’s “Belt and Road Initiative”, a powerful global development strategy that includes overland as well as sea routes in more than 100 states around the globe. The USA are currently the largest trade partner of the EU. The increasing volume of trade with third states will inevitably lead to a rise in the number and importance of commercial disputes. This makes mechanisms for their orderly and efficient resolution indispensable. China is already setting up infrastructures for commercial dispute resolution alongside its belts and roads. In contrast, the EU still seems to be in search of a strategy for judicial cooperation in civil matters with countries outside the Union. The HCCH 2019 Judgments Convention may be a valuable tool to establish and implement such a strategy, in particular alongside the EU’s external trade relations. These prospects will be discussed by the speakers and a global audience in this Pre-Conference Video Roundtable.

We warmly invite you to participate and discuss with us. In order to do so, please register with sekretariat.weller@jura.uni-bonn.de. You will receive the access data for the video conference via zoom per email, including our data protection concept, the day before the event.

If you have already registered and received a confirmation from our office (please allow us a couple of days for sending it back to you), your registration is valid and you do not need to re-register.

Please do not hesitate to forward our invitation to friends and colleagues if you wish.

 

Main Conference “The HCCH 2019 Judgments Convention”, 13 and 14 September 2021

Our event intends to prepare the main conference on the HCCH 2019 Judgments Convention at the University of Bonn (Professors Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, Wulf-Henning Roth, Philipp Reuss, Matthias Weller), co-hosted by the HCCH (Dr Chistophe Bernasconi, Dr João Ribeiro-Bidaoui), on 13 and 14 September 2021 (originally scheduled for 25 and 26 September 2020, but rescheduled to avoid Covid-19 risks). At this conference on the campus of the University of Bonn, leading experts will present on the legal concepts and techniques of the Convention, and policy issues will be further developed.

Speakers will include (listed chronologically):

Hans van Loon (key note), Former Secretary General of the Hague Conference on Private International Law, The Hague;

Prof Dr Xandra Kramer, Erasmus University Rotterdam;

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich;

Prof Dr Pietro Franzina, Catholic University of Milan;

Prof Dr Francisco Garcimartín Alférez, Autonomous University of Madrid;

Dr Ning Zhao, Senior Legal Officer, HCCH;

Prof Paul Beaumont, University of Stirling;

Prof Dr Marie-Elodie Ancel, University Paris 2 Panthéon-Assas;

Dr Pippa Rogerson, Reader in Private International Law, Faculty of Law, Cambridge;

Ass. Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia;

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh;

Prof Zheng (Sophia) Tang, University of Newcastle;

Jose Angelo Estrella-Faria, Principal Legal Officer and Head, Legislative Branch International Trade Law Division, Office of Legal Affairs, United Nations, Former Secretary General of UNIDROIT.

 

For the full programme see https://www.jura.uni-bonn.de/professur-prof-dr-weller/conference-on-the-hcch-2019-judgments-convention-on-13-and-14-september-2021/. You will receive an invitation for registration in due time. A registration fee of € 100.- will be asked for participating.

The Universities of Genoa, Valencia, Turiba, the Institute of Private International Law in Sofia, the European Association for Family and Succession Law, and Defence for Children Italy are currently conducting a research Project to collect and develop best practices on the right of the child to information in cross-border family proceedings.

The “MiRI Project” (Minor’s Right to Information in EU civil actions), co-funded by the European Union (JUST/2018/JCOO/AG/CIVI/831608), foresees the involvement of lawyers and judges which may contribute to a truthful reconstruction of how children are effectively informed of their rights, of the circumstances litigated before courts, of the consequences following specific decisions, etc. during cross-border proceedings.

Lawyers and judges may provide their knowledge and expertise by fulfilling a questionnaire – answers to the questionnaire will help Partners to the Project to identify, disseminate already existing good practices, and possibly elaborate new ones.

The questionnaire is available in English, Spanish, Bulgarian, Latvian, French and Italian.

Answering the questionnaire takes approximately 25-30 minutes; consultations are open until the end of November 2020. Answers are anonymous and will not be published. Answers can be sent to info@europeanfamilylaw.eu

The Partners to the Project appreciate your involvement!

The October issue of International and Comparative Law Quarterly was recently published. It features two articles on private international law:

S Donelly, “Conflicting Forum-Selection Agreements in Treaty and Contract” (2020) 69  International and Comparative Law Quarterly 759 – 787.

When an investor submits a claim to arbitration under a treaty that falls within the scope of an existing, contractual forum-selection clause between it and the host State, which prevails: the agreement to arbitrate under the treaty or the contractual clause? This is a vexed and commonly arising question. This article argues that by placing it in the context of both private and public international law and reasoning from first principles it is possible to arrive at a coherent, reliable and satisfactory approach. The true question is whether the contractual clause is a waiver of the investor’s right to recourse to an investment tribunal.

 

TC Hartley, ““Recent Developments under the Brussels I Regulation” (2020) 69  International and Comparative Law Quarterly 779 – 790.

This article considers recent CJEU case law on the Brussels I Regulation. Two aspects of Article 7(1) (which applies to matters relating to a contract) are considered: the first is whether the contract must be between the parties to the case; the second is whether membership of an association should be regarded as constituting implied consent to be bound by decisions of the association so that jurisdiction to enforce them may be taken under Article 7(1). The article also discusses recent case law on who counts as a ‘consumer’ in terms of Article 17.

Le 30 septembre dernier, la Commission européenne publiait son premier rapport sur l’État de droit. Celui-ci analyse l’évolution du respect de l’État de droit dans les États membres sur le fondement de quatre critères : le système judiciaire, les mécanismes de lutte contre la corruption, l’équilibre des pouvoirs dans les institutions et la liberté de la presse et le pluralisme. Il pointe des défaillances importantes, notamment en Hongrie et en Pologne et rappelle plus généralement la nécessité de préserver ces garanties même durant la pandémie.

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Complaints about the inefficiency of enforcement mechanisms at national and transnational level are not new. The insufficiency of existing national and international legal frameworks is a growing cause for concern at all levels. Academics and practitioners acknowledge the fundamental importance of procedures and mechanisms for the effective enforcement of creditors’ claims both in domestic and in cross border situations. They also agree on the existence of numerous obstacles for enforcement in most jurisdictions, and on the need for a comprehensive and  detailed international instrument providing for guidance for national legislators to overcome such challenges.

In the agenda UNIDROIT (the International Institute for the Unification of Private Law) has published for the triennial period 2020 – 2022, transnational principles of civil procedure are included with
– high priority:  Formulation of regional rules;
– medium priority : Principles of effective enforcement (NoA: priority was moved to “high” by the UNIDROIT Governing Council at its 99th session);
– low priority:  International Civil Procedure in Latin America.

As a matter of fact, UNIDROIT has been actively working towards a soft harmonisation of civil procedural rules – mainly to be applied in transnational disputes but also meant to provide guidance in domestic law reforms- already for a while. In 2004, the Governing Council of UNIDROIT adopted the so-called ALI/UNIDROIT Principles of Transnational Civil Procedure (ALI=American Law Institute), which the organization itself defines as its “landmark instrument in this area”.

The ‘Principles’ consist of 31 provisions accompanied by a commentary. They aim to reconcile differences among various national rules of civil procedure, taking into account the peculiarities of transnational disputes as compared to purely domestic ones. They are intended to serve as guidelines for code projects in countries without long procedural traditions; also, as a basis for reform in countries with long and high-quality procedural traditions. They may also be applied by analogy in international commercial arbitration.

In 2013, UNIDROIT and the European Law Institute (ELI) started working together towards the development of European Rules of Civil Procedure. The ELI – UNIDROIT Rules were presented in an International Workshop Webwinar held as a closing event of the 99th session of the UNIDROIT Governing Council, on 25 September 2020.

In addition, UNIDROIT Work Programme 2017-2019 envisaged the preparation of Transnational Principles of Effective Enforcement to bridge the gaps of the ALI/ UNIDROIT Principles of Transnational Civil Procedure in this regard. A preliminary feasibility study was conducted by Rolf Stürner, Emeritus Professor at the University of Freiburg (Germany) and former co-reporter of the ALI/UNIDROIT Principles of Transnational Civil Procedure, and submitted to the Governing Council at its 95th session (2016). According to its final conclusion

Principles will set common minimum standards of enforcement, they will motivate legislatures to evaluate and improve the quality of their laws and thereby strengthen the efficiency of enforcement in foreign countries. Common minimum standards will be a source of increasing harmonization of enforcement laws, as well as predictability of the results of enforcement measures in foreign countries and facilitation of enforcement in cross border cases. A certain degree of harmonization is a necessary precondition of international cooperation in the field of cross border enforcement, which is designed to avoid conflicts of sovereignty and conflicting or superfluous parallel and cost intensive enforcement measures. Worldwide, there is sufficient common ground for specific principles of individual modes of enforcement and for overarching general principles of an overall system of efficient civil enforcement. The variety of organizational structures should not be considered a decisive obstacle to harmonizing principles. It will be possible to develop principles, which define managerial standards to be met by the enforcement mechanisms and the individual enforcement authorities and which at the same time leave necessary leeway for successful regional traditions and local needs. Co-operation with other organizations dealing with the harmonization of law could result in a helpful increase of human and financial resources. The experience of the first joint project with the American Law Institute was very encouraging.

At the time, the topic was nevertheless accorded low priority, which meant the work would only commence after the completion of the preparation of European Rules of Civil Procedure. In this context, the Secretariat received in December 2018 a proposal for the 2020-2022 Work Programme by the World Bank regarding a project on the “Development of a Working Paper to Outline Best Practices on Debt Enforcement”, which it presented on the occasion of the discussion of the 2020-2022 Work Programme at the 98th Session of the Governing Council. The proposal was discussed as a continuation, and a refinement, of the scope of the  “Principles of Effective Enforcement”, and eventually included in the new Work Programme by the General Assembly.

On 21 September 2020, the UNIDROIT Secretariat, as mandated by the Governing Council at the first meeting of the 99th  session, convened an internal consultation workshop on the project on Best Practices of Effective Enforcement. The UNIDROIT Governing Council, at its 99th session, approved the guidelines provided by the Secretariat regarding the proposed scope of the project, and authorised the establishment of a Working Group, to meet in Rome and on Zoom on 30-November – 2 December 2020. The composition of the group has not yet been disclosed; the MPI Luxembourg will be represented as an observer.

If the initial schedule is kept, the project will be a quick one, coming to an end already in 2022. No doubt it is worth to follow its development and to reflect on its potential impact on the law and practice of cross-border enforcement within the EU and beyond.

Ilaria Viarengo and Francesca C Villata recently published a new book titled: “Planning the Future of Cross Border Families: A Path Through Coordination“ under the prestigious Hart Studies in Private International Law. The abstract reads as follows:

This book is built upon the outcomes of the EUFam’s Project, financially supported by the EU Civil Justice Programme and led by the University of Milan. Also involved are the Universities of Heidelberg, Osijek, Valencia and Verona, the MPI in Luxembourg, the Italian and Spanish Family Lawyers Associations and training academies for judges in Italy and Croatia. The book seeks to offer an exhaustive overview of the regulatory framework of private international law in family and succession matters. The book addresses current features of the Brussels IIa, Rome III, Maintenance and Succession Regulations, the 2007 Hague Protocol, the 2007 Hague Recovery Convention and new Regulations on Property Regimes.
The contributions are authored by more than 30 experts in cross-border family and succession matters. They introduce social and cultural issues of cross-border families, set up the scope of all EU family and succession regulations, examine rules on jurisdiction, applicable law and recognition and enforcement regimes and focus on the current problems of EU family and succession law (lis pendens in third States, forum necessitatis, Brexit and interactions with other legal instruments). The book also contains national reports from 6 Member States and annexes of interest for both legal scholars and practitioners (policy guidelines, model clauses and protocols).

This CEPEJ report, published on 22nd October 2020, contains data on the functioning of the judicial systems of 45 European States and 3 Observer States (Morocco, Israel and Kazakhstan). The findings are the following:

“Budget

– In 2018, European States spent on average more than 1 billion Euros for their judicial systems, equal to 72 € per inhabitant (8 € more than in 2016) and 0,33% of GDP. On average, member States allocated 65% of judicial system budget to courts, 24% to prosecution services and 11% to legal aid. Switzerland and Monaco are the countries that spend the most significant amount per inhabitant (220 € and 197 €), while Montenegro and Bosnia and Herzegovina dedicate to judicial system the highest percentage of their GDP (0.88% and 0.72%).

– Countries with a higher GDP per capita invest more per inhabitant in judicial systems, while less wealthy countries allocate more budget as a percentage of GDP, showing a greater budgetary effort for their judicial systems.

– Between 2010 and 2018, the member States and entities have slightly increased the average budget allocated to the judicial system. In 2018, all States and entities have increased the budget allocated to their judicial systems (+8%). The most significant increase (between 2016 and 2018), equal to 13% on average, has been recorded for courts’ budget and it concerns, in particular, investments in new buildings and computerisation.

– Less wealthy countries invest proportionally more on prosecution services (32% on average), while States and entities with higher GDP per capita spend relatively more in legal aid (19% on average).

– The budget allocated to courts seems to be related not only to the wealth of the country, but also to the number of courts. This may seem logical given that 65% of the court budget is spent on salaries.

– In order to rationalise budgetary resources of courts and, at the same time, reinforce specialisation and expertise, an increasing trend to outsource certain services is confirmed.

– Generally speaking, all the countries have implemented a legal aid system in criminal and other than criminal matters (representation by a lawyer before the court or legal advice), in compliance with the requirements of the European Convention on Human Rights and the case-law of the European Court which advocates an appropriate legal aid system to ensure access to justice for everyone.

– Some countries tend to have a low cost per legal aid case and a high number of cases granted legal aid, while others choose to provide a higher amount for a smaller number of cases.

Professionals

– While the number of professional judges remains globally stable, 21 judges per 100 000 inhabitants on average, significant differences are still noticed between States and entities (from 3.1 in UK-England and Wales to 101.8 in Monaco per 100 000 inhabitants). The latter can be partly explained by the diversity of judicial organisations, use of occasional professional judges and/or lay judges. Variations over the years have not led towards harmonisation.

– The number of prosecutors is tending to increase, on average 12 prosecutors per 100 000 inhabitants (in 2018, the number varies from 2.2 in Ireland to 25.1 in Ukraine).

– 31 Member States of 47 declared that public prosecutors are statutorily independent.

– While the number of prosecutors increased, their workload decreased since 2010 from 4.2 to 3.1 cases per 100 inhabitants.

– The trend towards the feminisation of judges and prosecutors is confirmed but the glass ceiling remains a reality: in 2018, at the level of all instances, there was 46% of men and 54% of women judges but 66 % male court presidents as opposed to 34 % of female court presidents; for the prosecutors : 48% of men and 52% of women but 64% of male and 36 % of female head of public prosecution offices. More and more States and entities seem to be focusing on the topic of specific provisions in favour of

– gender parity in the procedures for the recruitment and promotion of judges and prosecutors. Taking measures to promote gender balance in the higher and highest justice functions should be encouraged.

– The ratio between non-judge staff and professional judges is about 4 in 2018, this figure being quite stable through the years, the minimum being 1 in Luxembourg and the maximum 10 in UK – Northern Ireland.16 European States set up Rechtspfleger.

–  Salaries of judges vary widely between States and entities, but also between instances. The changes in salaries in recent years are not uniform and do not lead to harmonisation. The ratio between salaries of judges and national average salary shows significant disparities in Europe: from 0.9/1.6 in Germany (at the beginning /the end of career) to 4.8/31.5 in Ukraine (at the beginning /the end of career).

– Meaningful disparities also persisted in the salaries of prosecutors. The ratio between salaries of prosecutors and national average salary shows significant disparities in Europe: from 0.8 in Ireland and 4.0 in Romania (at the beginning of the career); 1.6 in Germany and 6.4 in Italy (at the end of the career). 

– Prosecutors’ salaries are, on average, lower than those of judges.

– The number of lawyers is also continuing to increase in Europe, with an average of 164 lawyers per 100 000 inhabitants, with important disparities between States (in 2018, from 16 per 100 000 inhabitants in Azerbaijan to 488 per 100 000 inhabitants in Luxembourg). This constant increase between 2010 and 2018 (27%) is mainly due to economic growth.

– Recent developments suggest that the topic of gender balance with regard to lawyers is being taken into account by an increasing number of States and entities. Currently, however, European lawyers are still predominantly male.

Courts

– Between 2010 and 2018 there was a reduction in the number of courts in Europe, both in terms of legal entities (-19% on average for the first instance courts of general jurisdiction) and geographical locations (-10 % on average).

–  For the same period, we can also notice an increase in the specialization of courts (the average share of specialized courts increased from 21% to 26,7% from 2010 to 2018).

– Small claims were only slightly affected by the above-mentioned developments. Only the average amount of what constitutes a small claim has increased (from 4 029 € in 2016 to 4 836 € in 2018).

Court users

– More and more member States provide specific information to users, both on the judicial system in general and on individual court proceedings.

– States address more and more specific information and arrangements to vulnerable categories of users (the complaints procedures regarding functioning of justice exist in 43 States, implementation of compensation systems (the average amount of compensation is 6 353 € in 2018), user satisfaction surveys, establishment of monitoring mechanisms in respect of violations of the European Convention on Human Rights).

– In order to improve further social responsibility and trust in the judicial system, member States should devote additional resources and staff to improvecommunication with the users of justice.

– The analyses and use of data, gathered through quantitative and qualitative research into the satisfaction of court users, increases the legitimacy of judicial systems and helps court leaders and administrations provide a better and more efficient service of justice.

– The use of information systems to support such activities is crucial. However, it is “interactional justice “- the human touch, the treatment of all involved in judicial proceedings with dignity and respect, that substantially helps to provide just decisions and consequently build trust in justice.

Information and communication technology (ICT)

–  ICT has become a constitutive part of justice service provision. States have focused their efforts on court and case management tools, more then on decision support and communication tools. The general ICT index (court and case management, decision support and communication with courts) varies from 1.52 in Cyprus to 9.79 in Latvia.

– European judicial systems are increasingly moving from paper-based procedures to electronic ones. This is true for the activities carried out within the courts, as well as for the communication exchanges between courts and all parties.

– The economic cost of this innovation should be considered with caution as the ICT budget may vary considerably during the development, deployment and maintenance phases.

– Court systems with comparatively higher resources generally tend to invest a higher percentage of the court budget in ICT.

– ICT are an integral component of the judicial systems, which is reflected both in the regulatory and governance choices implemented by the member States.

– Member States and entities have set up various solutions regarding leadership in ICT governance: most States tend to consider both of them equally relevant, with a slight prevalence of the judicial one.

– As basic technologies are now generally fully deployed in member States and entities, this analysis has focused on court and case management tools, decision support tools and tools for communication between courts, professionals and/or court users, showing very high levels of deployment.

– The high levels achieved in the areas of decision support, e-communication and remote proceedings increase the need to monitor the impact of these tools on principles such as fairness, impartiality and judicial independence.

Justice in the context of the Covid-19 crisis

– ICTs have proven to be valuable and even indispensable tools for the continued work of judicial systems during the COVID-19 crisis in Europe.

– In many cases, their use has required not only changes in legislation but also technical improvements, as has been observed in member States and entities.

– Concerns have been expressed about the use of certain ICT tools in court proceedings, but it is still too early to assess their actual impact on the parties’ rights.

– To address these issues, the CEPEJ has adopted on 10 June 2020 a  Declaration on lessons learnt and challenges faced by the judiciary during and after the Covid-19 Pandemic.

Efficiency

– The clearance rates give a generally positive balance sheet (stable and close to 100%) and conclusions can be more usefully drawn from the disposition time analysis. Criminal justice is the most effective at all three levels of court (disposition time at first instance: 122 days; second instance: 104 days ; third instance: 114 days) and the second instance courts appear as the most efficient in all areas (disposition time in civil and commercial cases: 141 days; administrative cases: 209 days; criminal cases: 104 days). It should be noted that although the results are unquestionably positive, they have deteriorated over time in several States and entities analysed.

– Conversely, it is at first instance and in the field of administrative law that the courts have proven to be the least efficient. Administrative cases tend to record the highest DT (241 days at 1st instance, 209 days at 2nd instance, 228 days at 3rd instance) with, however, considerable disparities between States and entities.

– Cases concerning asylum seekers and the right to entry and stay for aliens continue to have a strong impact on European jurisdictions. Many States and entities reported productivity problems related to these case types. In 2018, States received 291 443 cases concerning asylum seekers or 8 % fewer than in 2016. 183 920 incoming cases pertaining to the right to entry and stay for aliens represent an increase of 84 %. The highest number of incoming cases concerning asylum seekers was recorded in Germany, 149 593 cases. The second highest inflow is in France which received 58 671 asylum seekers cases and 79 807 right of entry and stay for aliens cases. Italy, then, received 48 891 asylum seekers cases and 2 224 right of entry and stay for aliens cases.

– The share of cases older than two years is available for a limited set of States and entities. Within these, the shares of cases older than two years do not vary over time.

– A number of States and entities have undergone or are currently undergoing significant justice sector reforms which have influenced the performance of their systems. The results of these States and entities need to be monitored cautiously and with an understanding of the context”.

Source: https://rm.coe.int/link-to-the-presentation-note-en/16809fdc75

For further information, see https://www.coe.int/en/web/cepej/special-file-publication-of-the-report-european-judicial-systems-cepej-evaluation-report-2020-evaluation-cycle-2018-data-

The ANNUAL MEETING OF THE ROYAL NETHERLANDS SOCIETY OF INTERNATIONAL LAW (ILA Dutch Branch) is online accessible on Friday 6 NOVEMBER 2020 (13:30 – 16:30 CET).  

 Over the decades, international law adapted in many ways to the quickly evolving, multi-facetted digital reality, and one of the central questions now is whether or not concepts and ideas developed in the ‘predigital era’ still fit the digitalised world. Is international law, both public and private, ready for the digital era or has it rather been a ‘fragmented follower of developments’ and should it fundamentally rethink a number of notions and approaches? 

Four speakers will present their papers on the adaptability of (private) international law to the digital environment. Two officials of the Dutch Ministry of Foreign Affairs (M. BUSSTRA and W. THEEUWEN) will give an overview on “International Law in the Context of Cyber Operations”. Y. BURUMA, a Justice of the Supreme Court of The Netherlands, will present his views on “International Law and Cyberspace – Issues of Sovereignty and the Common Good”, while D. SVANTESSON, Professor at the University of Bond (Australia) will consider whether “International Law [Is] Ready for the (Already Ongoing) Digital Age: Perspectives from Private and Public International Law”. 

There is ample room for debate after these presentations. Given the topical theme and the open debate with public and private international lawyers, this event may be of interest to some readers of this blog. Should you be interested, please register no later than 3 November 2020 by sending an email to info@knvir.org.

Thanks to Marta Pertegás Sender for providing the text

In the very recent case of Yankey v Austin (2020) LPELR-49540(CA)  the Nigerian Court of Appeal was faced with the issue of whether a court in the United State has jurisdiction to make an order affecting immovable property in Lagos, Nigeria.

The facts of the case was that the claimant/respondent previously sued the defendant/appellant before the Family Court Division, of the District of the Fourth Judicial District, County of Hennepin, State of Minnesota (“US Court”) – where they resided at the time, for dissolution of their marriage that was celebrated in Nigeria. The defendant/appellant as respondent before the US Court did not contest the dissolution of the marriage. They entered into a Mutual Termination Agreement, which is called Terms of Settlement in the Nigerian legal system. There was no trial and no evidence was adduced. Their homestead at 4104 Lakeside Avenue, Brooklyn Center, Minesota was awarded exclusively to the claimant/respondent as petitioner before the US Court. It did not end there.

The claimant/respondent subsequently instituted proceedings before the Lagos State High Court, Nigeria, and claimed joint ownership of the defendant/appellant’s property situated in Lagos, by relying on the US judgment. The lower court granted the claim.

The defendant/appellant appealed to the Court of Appeal, which unanimously allowed the appeal by overturning the decision of the lower court. The Court of Appeal (Ogakwu JCA) thoroughly analysed the documents which were in issue: (1) Mutual Termination Agreement, (2) Judgment of the US Court, and (3) petition for the dissolution of the parties marriage in the US Court. The Court of Appeal reached the conclusion that there was nothing in the documents in issue which suggests that the US judge granted joint ownership of the defendant/appellant’s landed property with the plaintiff/respondent. It also held that based on the principle of lex situs the US Court cannot make an order affecting immovable property in Nigeria.

The decision in Yankey  is an important decision from the perspective of public and private international law. Based on the principle of territorial sovereignty, a foreign court cannot make an order affecting immovable property in another country.  This rule as applied in Nigeria  –  often referred to as the  Mocambique  rule  –  is derived from the English case of British South Africa Company v Companhia de Mocambique [1893] AC 602. In that case, the plaintiff s’   statement of claim alleged that they were rightful owners of large tracts of land in South Africa, yet agents of the defendants unlawfully took possession of the lands and displaced the plaintiff  company and its servants, agents, and tenants. The plaintiffs also alleged that the defendants not only stole the plaintiff s’  personal property, but also assaulted and imprisoned some of them. It was held that an English court would not entertain an action to recover damages for a trespass to land situated abroad.

It is worth mentioning that in Nigeria, an  exception to the Mozambique rule exists where the action between the parties is founded on some personal obligation arising out of a contract or implied contract, a fiduciary relationship, fraud or other unconscionable conduct, and does not depend on the law of the  locus  of the immovable property to exist (British Bata Shoe Co Ltd v Melikian   ( 1956 )  1 FSC 100;     Aluminium Industries Aktien Gesellschaft  v Federal Board of Inland Revenue   ( 1971 )  2 ALR Comm 121   , (1971) 2 NCLR 1)

The Mozambique rule has been applied  by the Nigerian  Supreme Court only in inter-state matters such as in Lanleyin v Rufai  ( 1959 )  4 FSC 184. Yankey is the first case where it was applied in a case with truly international dimensions. Admittedly, the Court of Appeal did not explicitly mention the Mozambique rule or the Nigerian Supreme Court cases that have applied it in inter-state matters. The truth is that there was no need for the Court of Appeal to do so. Based on the facts of the case, the US Court never made an order for joint ownership of landed property in Lagos.

Yankey is a most welcome decision. If the lower court’s decision was allowed to stand, it would mean that any foreign court can generally make an order affecting landed property in Nigeria. The Court of Appeal was therefore right to hold that the US Court never made an order for joint ownership of landed property for the parties in this case. It was also right to hold that a foreign court cannot make an order of joint ownership of immovable property in Nigeria.