Agrégateur de flux

Le 18 novembre 2020, trois ordonnances ont été prises pour adapter les règles applicables devant les juridictions. L’une d’entre elles est relative aux juridictions de l’ordre judiciaire statuant en matière pénale. Elle signe le retour de certains ajustements procéduraux pour permettre, durant la crise sanitaire, la continuité de l’activité des juridictions pénales.

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Decisions on the definition of waste under the EU waste framework Directive 2008/98 inevitably involve quite a bit of factual analysis and Safety-Kleen UK Ltd v The Environment Agency [2020] EWHC 3147 (Admin)  is no exception.

Safety-Kleen UK Ltd, the Claimant, provides specialist mechanical parts washers, containing kerosene, to businesses, such as those undertaking automotive repairs and to small engineering businesses. They are used for cleaning the parts of heavy oil, grease, paint, ink, glues and resins. The machines enable a cleaning process by physical means, such as scrubbing and automatic agitation with kerosene, and by kerosene acting as a solvent. Safety-Kleen collects the used kerosene from its customers in drums and replaces it with cleaned kerosene. Safety-Kleen takes the drums of used kerosene back to a depot, empties them into a sump or reservoir and then rinses out the drums with used kerosene from the reservoir, to which the now re-used kerosene returns. From there, the re-used kerosene is pumped into the “dirty” tanks, whence it is tankered away to a different company for a specialised industrial waste recovery or regeneration process, by which the dirty kerosene is distilled and cleaned. The cleaned kerosene is returned to a Safety-Kleen depot, and placed into the cleaned drums.

There was no issue but that the dirty kerosene, when it reached the “dirty” tanks at the depot was “waste”, within the WFD, and remained waste when transferred to the depot for distillation and waste until it was cleaned for re-use by customers. Until 2017, there had been no issue between Safety-Kleen and the Environment Agency but that the used kerosene was waste when it was collected by Safety-Kleen from its customers’ premises. However, in 2017, Safety-Kleen concluded that the kerosene did not become waste until it had been used for the cleaning of the drums back at the depot, and was sent to the “dirty” tanks, to await removal for recovery or regeneration. The Agency thought otherwise.

Ouseley J discussed the classics with particular focus on Arco Chemie and  Shell, and at 50-51 a rather odd deference even in judicial review, to what the regulator itself held. The EU definition of waste is a legal concept; not one to be triggered by the Agency’s conviction. Nevertheless he reaches his ‘own judgment’ (52) fairly easily and, I believe on the basis of the facts available, justifiably, that the kerosene is being discarded by the holder, it being ‘indifferent to what beneficial use Safety-Kleen may be able to make of it back at the depot’ (at 56).

Claimant’s reliance on Shell seemed not the most poignant, seeing as the case here is not one of reverse logistics but rather one of truly spent raw materials on their way to perhaps receiving a second life following treatment.

Geert.

Handbook of EU Waste law, OUP, second ed, 2015.

Definition of waste under the EU Waste framework Directive
Re-used kerosene pumped into tanks
CJEU Shell authority featuring
Held for the Agency https://t.co/FMH1dK3DXE

— Geert Van Calster (@GAVClaw) November 20, 2020

On Tuesday, December 1, the Hamburg Max Planck Institute will host its sixth monthly virtual workshop in private international law at 11:00-12:30. Marc-Philippe Weller (Heidelberg University) will speak, in German, about the topic

„Nationalismus, Territorialismus und Unilateralismus: Pandemiebewältigung durch IPR?
(“Nationalism, Territorialism, Unilateralism: Managing the Pandemic Through Private International Law”?

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

This is the sixth such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, Giesela Rühl in September, Anatol Dutta in October, and Susanne Gössl in November. Starting in January 2021,  we plan to alternate between German and English, in order to enable more interested scholars to participate. We found a special speaker to start us off in English – stay tuned!

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

Pourvoi c/ Cour d'appel de Nancy, 9 juillet 2020

Pourvoi c/ Cour d'appel de Rennes, 16 octobre 2020

Pourvoi c/ Cour d'appel de Bordeaux, 19 novembre 2019

Pourvoi c/ Cour d'appel de Paris, 22 juin 2020

Cour d'appel de Versailles, 16 octobre 2020

Pourvoi c/ Cour d'appel de Toulouse, 30 juin 2020

Pourvoi c/ Cour d'assises de Paris, 10 juillet 2020

The topic of international commercial courts or chambers was a trendy one a couple of years ago. It has been dropped to a large extent in academia – although, if I am not wrong, it will come up again in the form of a course at The Hague Academy in the next future. It remains important in practice.

On 1 November 2020, two Commercial Courts were inaugurated in Baden-Württemberg: one in Stuttgart, the other one in Mannheim. A dedicated website in German, English and French, provides information about their main features which, to the extent it is possible under German law, are cut to fit the specificities of cross-border disputes in the following commercial matters: disputes in connection with the acquisition of companies or shares of companies (both courts); disputes resulting from mutual commercial transactions with a value in dispute of at least € 2 million (both courts); corporate disputes (both courts); and disputes resulting from bank and financial transactions (Mannheim).

The website has definitely been designed with care and with the purpose to attract litigants; it may therefore be looked at as an example to be followed in other Länder. Hessen, where a Chamber for International Commercial Disputes at the Landgericht Frankfurt am Main was established already in 2018, opted for a much more sober model: no pictures, no colours, no links, most basic information in one sheet in German and English; possibly not the best-selling strategy. The same applies to Hamburg. This being said, relevant information is still lacking in the Baden-Wüttemberg site in comparison, for instance, with the NCC in Amsterdam.

Among the interesting features of the new courts, I would like to highlight that they are staffed with German judges: the system would not allow hiring foreigners as it happens in other courts for international commercial litigation, such as the DIFC Courts. However, all the judges in the Stuttgart and Mannheim commercial courts have been appointed in light of their expertise in commercial matters, and because (so the website) they will be able to conduct the proceedings in English if the litigants choose the option. Their academic background, former positions, command of a foreign language, excerpts of their cv regarding academic publications, as well as their age, have been made public on the website: a novelty in Germany, by all means. It is worth noticing that not all other international commercial courts provide information regarding their judges. A curiosity: those who make it include even personal data like whether married or not, and number of children; difficult not to wonder why.

On the language of the proceedings, in spite of the reference to a choice of English by the parties I am not sure it is possible to have the whole process, nor the decision, in English. In any event, documents in English can be used so that it is not necessary to obtain extensive translations of contractual documents or engage the services of interpreters.

It looks as if the new courts are better suited than the average German ones (at least, in pre-covid19 times) regarding the IT equipment in the courtrooms and the support staff: ‘Hearings can be held using state-of-the-art technology in both Stuttgart and Mannheim. The technical equipment includes modern video-conference technology and the latest presentation technology’.

On the conduct of the proceedings, the commercial courts of Bade-Württemberg will follow the common rules, but are willing to reinvent already existing faculties under German procedural law: regarding the length of the proceedings, it is acknowledged that speedy determination is of the essence, therefore a ‘case management conference’ is possible in order to structure the later stages of the proceedings. In addition, the parties may agree to limit the opportunities to file appeals by a mutual agreement not to seek legal remedies, even at the start of the proceedings; in this way, the dispute is to be decided quickly and conclusively in just one court. This possibility is highlighted in the website together with other features bringing to mind immediately the traditional disadvantages of arbitration: easy involvement of third parties, effective coercive measures and efficient enforcement. As it happens, the comparison is even explicit at some point: ‘Additionally, unlike arbitration tribunals, the courts can administer oaths or declarations in lieu of an oath’. In a similar vein, the indication to the court fees being moderate and capped when the value in dispute reaches € 30 million can be read as an indirect hint to the expensive costs of litigation in other countries (EU and non EU) with similar judicial bodies.

Should the parties not agree on excluding appeals, specialised appeal panels have been set up at the Stuttgart and Karlsruhe Higher Regional Courts, which are responsible for appeals and complaints against the decisions of the Stuttgart and Mannheim Chambers and also offer comparable advantages.

Finally, the Baden-Württemberg commercial court’s website refers to relevant systemic features of the German judiciary and legal system, in particular to compliance with the rule of law, the impartiality and independence of the judges: an added value not to be taken for granted any longer (let me refer you to this shocking, but also saddening editorial in Verfassungsblog).

NoA: Because of the federal order of the Federal Republic of Germany, the court system is also structured federally. Jurisdiction is exercised by federal courts and by the courts of the 16 federal states (Länder). The main workload of the administration of justice lies with the Länder. The decision to have specialized chambers or divisions devoted to cross-border commercial litigation lies with the Ministry of the respective Land.

As announced earlier on this blog, EAPIL will hold its first Virtual Seminar on 11 December 2020, from 11 a.m. to 1 p.m. (MET).

Devoted to the impact of Brexit on Private International Law, the seminar will feature speakers from the United Kingdom and the European Continent.

They will analyze the legal framework that will apply to cross-border cases in the short-term, i.e. as of 1 January 2021 when the transition period provided for in the Withdrawal Agreement expires. Speakers will also discuss what the future relationship between the EU and the UK could and should look like.

Special emphasis will be placed on the question of whether the EU and the UK should strive to adopt a new – bespoke – bilateral agreement (or whether it should simply join existing international conventions).

The speakers of the first session, on civil and commercial matters, will be Alexander Layton (Twenty Essex Street Chambers, London), Eva Lein (University of Lausanne) and Michiel Poesen (KU Leuven).

In the second session, Sir Andrew Moylan (Court of Appeal of England and Wales), Pietro Franzina (Catholic University of the Sacred Heart, Milan) and Anatol Dutta (Ludwig Maximilian University Munich), will focus, instead, on family matters.

Register here if you wish to discuss with us. Registered participants will receive the details to join the seminar on 10 December 2020.

We are glad to announce that registration for the first (Virtual) Seminar of the European Association of Private International Law (EAPIL) is now open. If you wish to join, just fill out this form.

The Seminar will take place on 11 Dezember 2020 from 11 am to 1 pm (MET).  Devoted to the impact of Brexit on Private International Law it will feature speakers from the United Kingdom and the European Continent:

• Alexander Layton (Twenty Essex Street Chambers, London)
• Eva Lein (University of Lausanne)
• Michiel Poesen (KU Leuven)
• Sir Andrew Moylan (Court of Appeal of England and Wales)
• Pietro Franzina (Catholic University of the Sacred Heart, Milan)
• Anatol Dutta (Ludwig Maximilian University Munich).

For more information see our earlier post as well as the information available on the EAPIL website.

If you have questions concerning the first EAPIL Seminar or the EAPIL Seminar Series as such please get in touch with the Secretary General of EAPIL, Giesela Rühl, at secretary.general@eapil.org.

Background:

The EAPIL (Virtual) Seminar Series seeks to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

Il incombe à la chambre de l’instruction, saisie de l’appel d’un placement en détention provisoire, d’examiner l’existence d’indices graves ou concordants de la participation du requérant aux infractions qui lui sont reprochées.

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Conference ‘Frontiers in Civil Justice’ held on 16 and 17 November 2020 (online)

By Jos Hoevenaars & Betül Kas, Erasmus University Rotterdam (postdocs ERC consolidator project Building EU Civil Justice)

As announced earlier on this blog, the Conference Frontiers in Civil Justice organized by the ERC team together with Ilja Tillema of Erasmus School of Law in Rotterdam, took place on 16 and 17 November 2020.

The conference addressed four key issues in civil justice, which require a deeper and renewed reflection in light of their contribution to facilitating access to justice. Those concern the shaping of the interaction between formal and informal justice (panel I), the digitalization of consumer dispute resolution (panel II), the collectivizing and monetizing of civil litigation (panel III) and justice innovation and frontier developments in civil justice (panel IV). Renowned speakers and selected speakers following a call for papers gave their views during the two-day conference that, although set up previously as a blended event with online as well as live attendance at Erasmus University in Rotterdam, was forced to move fully online due to the tightening of Covid-19 measures in the Netherlands.

The Needs and Challenges of Digitizing Justice in Europe (Keynote 1)

The first day of the conference was kicked-off by the keynote speech of Hrvoje Grubisic (DG Justice and Consumers, European Commission). Grubisic underlined the necessity of digitalisation in the justice field in order to guarantee Europe’s citizens access to justice. The EU’s efforts of furthering the employment of digital technologies in the justice area is particularly warranted by the persistent increase in cross-border activities in civil and commercial matters. Grubisic pointed to the importance of the principles contained in the Tallinn ministerial declaration in framing and guiding the Commission’s strategy of the digitalisation of justice in the EU. The current COVID-19 crisis has accelerated the Commission’s activities. On the basis of its roadmap setting out the need to steer and coordinate the digitalisation of justice at EU level, the Commission plans to publish a communication of its policy priorities by the end of 2020. In practical terms, the Commission intends to employ a toolbox approach, starting with the identification of cross-border judicial procedures that can be digitised, ascertaining the appropriate IT tools (e.g. e-CODEX based systems) and ensuring funding sources for the Member States.

Shaping the Interaction between Formal and Informal Justice (Panel I)

Subsequently, Elisabetta Silvestri (University of Pavia) introduced the first panel dealing with the interaction between formal and informal justice. Silvestri stressed the importance of understanding how formal and informal justice can coexist in a balanced relationship that is able to grant individuals access to justice. According to her, the need for a fruitful cooperation between courts and ADR providers in the best interest of stakeholders became even more pronounced in the current pandemic. The presentation of Diana Wallis (Hull University; former ELI president) reflected on the differing nature of formal and informal justice. Wallis traces how the EU has promoted the shift of the delivery of justice away from the nation states’ courts to ADR bodies. While the ELI Statement addressed the practicalities of the relationship between private and public justice, the deeper question about how to address the dangers and drawbacks of privatized justice remains unresolved. Anna Nylund (The Arctic University of Norway) submitted in her presentation that many ADR processes fail to deliver on their promises of improved access to justice. Nylund sees ADR to be based predominantly on individualistic values, expecting citizens to exercise self-determination, and as such therefore geared towards the highly educated middle class. The gap between theory and practice contributes to the reluctance towards ADR processes in Europe. She therefore proposed a step-by-step approach of re-designing ADR according to context-dependent goals. The following two presentations provided insights into the relationship between formal and informal justice by drawing on the concrete experiences of two national legal systems: Masood Ahmed (University of Leicester) presented the experience of the English civil justice system with compulsory ADR. While compulsory ADR has been traditionally dismissed by the English judiciary, a divergent judicial approach has emerged which impliedly obliges the parties to engage with ADR. Ahmed criticises the persistence of the traditional approach and calls upon the courts to fully embrace their case management powers in making ADR orders. Stefaan Voet (KU Leuven) reports how informal justice has been introduced by a number of procedural reforms in Belgium. Voet’s presentation addresses five critical issues regarding informal justice processes, namely (1) their possible mandatory nature; (2) their quality; (3) the procedural guarantees offered by them; (4) the enforcement of their outcomes; and (5) the interaction with the formal justice process.

Digitalization of Consumer Dispute Resolution (Panel II)

The second day of the conference started with a panel, chaired by Burkhard Hess (Max Planck Institute Luxembourg), focusing on online dispute resolution (ODR) for consumer claims, using case-studies as a starting point to discuss how different types of cODR procedures can contribute to consumers’ access to justice. Martin Ebers (University of Tartu) presented on the promise and challenge of AI based techniques in cODR and its impact on due process. Giving an overview of current uses of AI in different phases of disputes, from case management and automated anonymisation to data inference and automated decision-making, Ebers laid out the framework for future regulation of the use of AI in European ODR. Subsequently, Marco Giacalone (Vrije Universiteit Brussels) used examples from the US, Canada, Australia and Slovakia to zoom in on the concept and application of e-negotiation. Reflecting on the potential of this mode of assisted and automated negotiation in resolving disputes, Giacalone considers EU practices of e-negotiation for consumer dispute resolution as significant yet insufficient, with considerable room for improvement in enhancing consumer access to justice in the EU?. Eline Verhage (Leiden University) presented on the recent experience of the Dutch Foundation for Consumer Complaints Boards (Geschillencommissies) in responding to the Covid-19 crisis. Presenting very recent data on the move to online hearings she reflected on the impact on the ‘voluntariness gap’ in these out-of-court alternative dispute schemes, concluding that virtual hearings seem a promising cODR tool for enhancing business participation, due to the increased option and lower costs. Finally, Emma van Gelder (Erasmus University Rotterdam) discussed observations from empirical research on Klachtencompas (a free online complaint platform of the Dutch consumer protection organization Consumentenbond) and the in-house dispute resolution platform used by Paypal, to discuss the benefits and drawbacks of these ‘first-line’ complaint resolution mechanisms. The main point of discussion following the various examples presented during the panel was on the applicability of Article 6 ECHR and Article 47 of the EU Charter, and on the question of how to apply the notions of fair trial and due process to both certified and uncertified ADR schemes in the EU.

Current Issues in Access to Justice: An English Perspective (Keynote 2)

In the second keynote of the conference, professor Dame Hazel Genn (University College London) provided a very timely insight into current developments in the English civil justice system in the context of the Covid-19 pandemic. Bringing together the most recent insights from (some unpublished) rapid reviews of the rush to mostly online justice administration and reflecting on the impact of online courts and tribunals on access to justice especially for those that are in most dire need of legal assistance and resolution. Quite in contrast to previous discussions about the great potential of technological innovations in the areas of small claims and consumer dispute resolution, Professor Genn stressed the need to also look at what we potentially lose in procedural and substantive terms when hearings are undertaken remotely or on paper. Contrasting the great benefits of technology in terms of convenience, economy and efficiency with its downsides apparent in both the experiences of litigants as well as the judiciary, Genn ended on the pertinent question: Are we processing cases or are we doing justice?

Collectivizing & Monetizing Civil Litigation (Panel III)

The third panel chaired by John Sorabji (Barrister, 9 St John Street; University College London) turned attention to collective redress via adjudication and, specifically, the funding of civil litigation. Ianika Tzankova (Tilburg University) drew lessons for the funding of collective redress in global disputes from the Dutch experience. In particular, Tzankova explored and compared the financing of collective civil litigation on the basis of the Dexia case which was the first major consumer mass claim in the Netherlands and the investor litigation in the Fortis collective action, which resulted in the first global collective settlement that can be considered ‘EU-originated’. Astrid Stadler (University of Konstanz) explained in her presentation the German situation regarding litigation funding of collective actions. In particular, Stadler presented on how the judiciary dealt with third-party funding arrangements and funding by legal tech companies and SPVs in recent case law. The judiciary’s strong aversion against entrepreneurial litigation endangers the effective enforcement of the law. Stadler concluded that third-party funding must be available for representative claimants and should be regulated by the legislator. Complementing Tzankova’s presentation, Ilja Tillema (Erasmus University Rotterdam) reflected on the rise of entrepreneurial mass litigation in the Netherlands. Particularly in the last decade, spurred by the potential of large earnings, entrepreneurial parties have started to diversify the Dutch mass litigation landscape. Tillema reflected on the pros and cons of their involvement, presented empirical material of the amount and types of cases in which entrepreneurial parties are involved, and evaluated the way that the legislator and courts have dealt with this development. Catherine Piché (Université de Montréal) elucidated Quebec’s experience with public forms of financing class litigation. According to Piché, the Canadian province of Quebec’s Fonds d’aide aux recours collectifs (the assistance fund for class action lawsuits) serves not only as an effective class litigation funding mechanism, but also as a mandatory independent oversight body. Piché evaluates that financing class actions publicly through assistance by such entities is the most appropriate and effective way to finance class action litigation and could therefore serve as a model for other legal systems.

Innovations in Civil Justice (Panel IV) 

Chaired by professor Alan Uzelac (University of Zagreb) the final panel brought together speakers following a call for papers. The call invited submissions on topics relating to justice innovation, specifically about the development of initiatives aimed at bringing justice closer to citizens, their relevance for access to justice and the judicial system, and the challenges they may pose for judicial administration, litigants and other stakeholders. The presentation of Iris van Domselaar (UvA) kicked off with legal philosophical reflections on civil justice innovations that aim to ‘bring justice closer to the citizen’, and posed the question to what extent the ‘pragmatic turn’ in civil justice systems is reconcilable with courts being objective justice-affording institutions, as such setting the scene for the specific examples of innovation and developments that were to follow. Pietro Ortolani (Radboud University Nijmegen) & Catalina Goanta (Maastricht University) and next Naomi Appelman & Anna van Duin (UvA) presented to the audience two specific examples that raised divergent questions about the frontier civil justice development playing out in the realm of online social media. The former, by comparatively analyzing reporting systems and underlying procedural rights of users related to content moderation by four social media platforms (Facebook, Twitch, TikTok and Twitter), presented an example where innovation may actually pose a threat to access to justice. While the latter, reporting on the findings of empirical research on the need for procedural innovation in the Netherlands to quickly take down online content that causes personal harm, presented how innovations in civil justice could contribute to the effective protection of rights in the digital realm. The final topic of this panel was presented by Nicolas Kyriakides & Anna Plevri (University of Nicosia) who, taking Zuckerberg’s predictions on AI’s role in guaranteeing access to justice as a starting point, presented their own evaluation on this matter, encouraging further debate on AI’s role in adjudication. By elucidating the potential of AI to render the familiar open-court, multi-party process of justice completely unrecognisable, they warned about the potential loss of perceived legitimacy of the justice system as a whole, should AI systematically penetrate the entire justice system.

Although the conference was forced to move fully online, the digital setting did not stifle the interaction with the audience. Through the use of the chat function and live chat moderators the speakers were able to answer questions from the audience in the chat and the chairs were able to open up the floor to members of the audience. This led to lively discussions very much resembling a live setting.

This conference was organised by Erasmus School of Law of Rotterdam University and funded by an ERC consolidator grant from the European Research Council for the project ‘Building EU Civil Justice’.

 

Jonathann Daval comparaît devant la cour d’assises de Haute-Saône, à Vesoul, pour le meurtre de son épouse Alexia Daval, en 2017. Un meurtre qu’il a fini par reconnaître trois mois après les faits. Il encourt la réclusion criminelle à perpétuité (C. pén., art. 224-1).

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Orji Agwu Uka (the author of this piece) is a Senior Associate at Africa Law Practice NG & Company, Lagos. He holds a Masters’ Degree in International Business Law from King’s College London and an LLB from Abia State University, Uturu Nigeria.

 

Introduction

Over three score and ten years ago, Professor G. C. Cheshire, then Vinerian Professor of Law at the University of Oxford, issued a clarion call for the wider study of private international law in general and the renaissance of English private international law in particular.[1] As explored below, it is pertinent for African States to respond to that call today, especially within the context of the need to actualise the Agenda 2063 of the African Union, which aims for the establishment of a continental market with the free movement of persons, goods and services which are crucial for deepening economic integration and promoting economic development in Africa.

 

The Agreement establishing African Continental Free Trade Area

In January 2012, the 18th Ordinary Session of the Assembly of Heads of State and Government of the African Union, which held in Addis Ababa – Ethiopia, adopted a decision to establish an Africa wide Continental Free Trade Area. On 30th May 2019, the Agreement establishing the African Continental Free Trade Area (“AfCFTA”), entered into force.[2] With an expected participation of 55 countries, a combined population in excess of 1.3 billion people and a combined Gross Domestic Product (GDP) of over $2.5 trillion, the AfCFTA will be the largest trade area since the formation of the World Trade Organisation (WTO) in 1995.

Despite the benefits that the AfCFTA is widely expected to bring, Nigeria curiously delayed at first in signing the Agreement. Thankfully, reason ultimately prevailed and Nigerian signed the agreement at the 12th Extraordinary Session of the African Union (AU) Heads of State and Government held in Niamey, Niger. Very recently, the Federal Executive Council of Nigeria has also taken the decision to ratify the AfCFTA. What is now left is for the Nigerian National Assembly to domesticate the Agreement as required by the Nigerian Constitution.

It is pertinent to note that although the AfCFTA has justifiably received – and continues to receive – wide publicity, what is seldom talked about is that the Agreement is only a part of a larger long term plan, christened Agenda 2063, to ultimately establish an African Economic Community with a single Custom Union and a single common market to “accelerate the political and socio-economic integration of the continent” in accordance with Article 3 of the AU’s Constitutive Act.[3]

 

The case for Harmonisation

The economic integration and the concomitant growth in international relationships that are sure to result from these integration efforts will undoubtedly lead to a rise in cross border disputes, which call for resolution using the instrumentality of private international law. When, not if, these disputes arise, questions such as what courts have jurisdiction, what law(s) should apply, and whether a judgment of the courts of one member State will be recognised and enforced by the courts of the other member States, are just some of the key questions that will arise.[4]In the words of Professor Richard Frimpong Oppong, a well-developed and harmonised private international law regime is an indispensable element in any economic community.[5]Curiously however, the role of private international law in facilitating and sustaining the on-going African economic integration efforts is conspicuously missing.[6]

It is against this backdrop that this writer joins others in calling for the establishment of a pan-African harmonised private international legal regime as an instrument of economic development in general and as part of the modalities for the actualisation of Agenda 2063 in particular. Incidentally, one of the first of such calls predates the adoption of the decision to establish the AfCFTA. As far back as 2006, Professor Oppong had argued that given the significant divergence in the approaches to the subject of private international law in Africa, if the idea of a common market is to materialise, African countries must embark on a comprehensive look at, and reform of, the regime of private international law.[7]He specifically stressed the need for harmonised private international law rules to govern the operation of the divergent national substantive rules.[8]Very recently, Lise Theunissen has stated, and rightly too, that the non-harmonised state of private international law in Africa forms an important obstacle to international trade and to cross-border economic transactions and that for this reason, it is crucial for the African economic integration to strive for a harmonisation of private international law.[9]Beyond these, harmonisation has other benefits.

It has been argued that harmonisation helps promote equal treatment and protection of citizens of an economic community as well as other economic actors transacting or litigating in the internal market by subjecting them to a uniform and certain legal regime.[10]As the learned authors of Dicey, Morris and Collins, The Conflict of Laws observed, part of the rationale behind the EU Judgments Regulation and its predecessor Convention is, “to avoid as far as possible the multiplication of the bases of jurisdiction in relation to the same legal relationship and to reinforce legal protection by allowing the plaintiff easily to identify the court before which he may bring an action and the defendant reasonably to foresee the court before which he may be sued”.[11]Accordingly, it has been said that harmonisation boosts certainty in the law, thus reducing transaction and litigation costs for economic actors within the Community.[12]Africa is in dire need of this certainty.

 

Potential Challenges to Harmonisation

This writer is not unmindful of the challenges that such a project will pose especially having regard to the diverse legal traditions in Africa; the underdeveloped nature of the subject of private international law in Africa;[13]and the diversity of approach to the question.[14]These challenges are however not insurmountable. Thankfully, there are precedents and successful examples that the relevant actors can point to, for inspiration. And the first that readily comes to mind is the well-established harmonised private international law system applicable within the European Union. There are also other examples like the Organisation of American States with its Inter-American Conference on Private International Law. Similarly, within the Common Market of the Southern Cone (MECOSUR) [comprising  Argentina, Brazil, Uruguay, and Paraguay] Article 1 of the Asuncion Treaty 1991 expressly recognises the ‘harmonization of legislation in relevant areas’ as cardinal to the strengthening of their stated integration process.

 

Recommendation on the Modalities for Harmonisation

In considering the above examples, however, the question must be asked whether it is desirable to import, for instance, the tried and tested European Union private international law model into Africa or whether it is necessary to develop an autochthonous private international law system that responds to the socio-economic, cultural, and political interests of countries in Africa. In my view, the answer is in the question. It is pertinent to state at this juncture that what this writer advocates at this stage is the harmonisation of the private international law rules of the various member states in the African Union as opposed to the unification of the substantive laws which is the subject of other efforts, a case in point being the Organisation for the Harmonization of Commercial Law in Africa (OHADA).

Lise Theunissen[15]has very helpfully recommended a four-pronged approach to tackling the issue of the underdeveloped and non-harmonised state of private international law in the African Union as follows – (i) sensitization of national courts and the enlargement of regional economic community courts to ensure a harmonised and authoritative interpretation to relevant private international law legislation; (ii) a methodical continent wide engagement effort including the establishment of a private international law orientated body under the African Economic Community; (iii) the ratification of international conventions by African Union member states for instance the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards or the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters; and (iv) the exploration of a potential collaboration with non-State actors for instance the Research Centre for Private International Law in Emerging Countries at the University of Johannesburg. At the very least, these suggestions deserve to be accorded close consideration.

 

Before now, Oppong had equally suggested the establishment of a specialised body with the specific mandate to deal with private international law regime. He also advocated for the establishment of a court empowered to provide authoritative and final interpretation of the unified rules of private international law and the entrenchment of the principle of mutual trust and respect by all African Union member states of each other’s national judicial competence.[16]Above all, urgent steps must be taken to elicit the requisite political will and obtain the institutional support necessary to actualise the harmonised rules of private international law in Africa. As a starting point, however, this paper calls for the immediate convocation of an Inter-African Conference on Private International Law.

 

Conclusion

 

Despite the enormous challenges that is sure to militate against the harmonisation of the private international law rules in a divergent community like Africa, the general belief is that the African Union and the people of Africa stand a better chance to actualise the aims of establishing a common market, deepening economic integration and promoting economic development in Africa with a harmonised private international legal regime. Since Professor Cheshire issued his clarion call in 1947, European courts, lawyers and academics have largely heeded the call, but the same cannot be said of their African counterparts. The best time to have heeded the call was in 1947, the next best time is now.

 

*This Paper was first published in Law Digest Journal Spring 2020

[1]G. C. Cheshire ‘Plea for a Wider Study of Private International Law’ (1947) Intl L Q 14.

[2]African Union, Agreement establishing the African Continental Free Trade Area, available at https://au.int/en/treaties/agreement–establishing–african–continental–free–trade–arealast accessed on 14 February 2020.

[3]African Union, Constitutive Act of the African Union, available at https://au.int/en/treaties/constitutive–act–african–unionlast accessed on 14 February 2020.

[4]Chukwuma Okoli, ‘Private International Law in Africa: Comparative Lessons’ available at http://conflictoflaws.net/2019/private–international–law–in–africa–comparative–lessons/last accessed on 15 February 2020.

[5]Richard Frimpong Oppong, ‘Private International Law and the African Economic Community: A Plea for Greater Attention’ The International and Comparative Law Quarterly, Vol. 55, No. 4 (Oct., 2006), Cambridge University Press pp.911-928 available at https://www.jstor.org/stable/4092623

[6]Richard Frimpong Oppong, (n 5 above).

[7] Richard Frimpong Oppong, (n 5 above).

[8]Richard Frimpong Oppong, (n 5 above).

[9]Lise Theunissen, ‘Harmonisation of Private International Law in the African Union’ available at https://www.afronomicslaw.org/2020/02/08/harmonisation–of–private–international–law–in–theafrican–union/accessed on 15 February 2020.

[10]Richard Frimpong Oppong, (n 5 above). See also A. Dickinson, “Legal Certainty and the Brussels Convention Too Much of a Good Thing?” in Pascal de Vareilles-Sommieres (ed), Forum Shopping in the European Judicial Area (Oxford, Hart Publishing, 2007), ch 6.

[11]L Collins (gen ed), Dicey, Morris and Collins, The Conflict of Laws (London, Sweet and Maxwell, 14thedn, 2006), observed at para 11-062.

[12]Richard Frimpong Oppong, (n 5 above).

[13]Chukwuma Okoli on his part believes that there has been significant progress and that is a growing interest in the study of private international law in Africa. See Chukwuma Okoli, ‘Private International Law in Africa: Comparative Lessons’ available at http://conflictoflaws.net/2019/private–internationallaw–in–africa–comparative–lessons/accessed on 15 February 2020. While this is true, he must however acknowledge that there is still a lot of room for improvement.

[14]In this regard, Lise Theunissen, (n 8 above) has lamented the lack of any efforts to establish a private international law orientated body under the African Economic Community, despite the necessity and urgent need for same.

[15]Lise Theunissen, (n 8 above).

[16]Richard Frimpong Oppong, (n 5 above).