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This post was written by Silvia Marino, Professor of EU law at the University of Insubria in Como and Director of the EAPIL Winter School. The third edition of the EAPIL Winter School in European Private International Law took place at the Department of Law, Economics and Cultures of the University of Insubria in Como […]

I. INTRODUCTION

This is the second symposium relating to private international law in Africa to be hosted on this blog, following a series that has run consistently since 2 February 2026. The first symposium, which focused on private international law in Nigeria, took place on 14 December 2020 and was jointly hosted on Afronomics and this blog. It was organised by Professor Richard Frimpong Oppong and me.

Professor Beligh Elbalti and I are deeply grateful to the scholars who agreed to participate in this symposium at short notice, including Dr Solomon Okorley, Dr Theophilus Edwin Coleman, Dr Elisa Rinaldi, Miss Anam Abdul-Majid, Mr Kitonga Mulandi,  Dr Boris Awa, and Dr Abubakri Yekini.

The idea for this second symposium originated with my dear colleague, Professor Beligh Elbalti, and I am thankful to him for involving me in the leadership and organisation of this project. The symposium finds its true genesis in a larger edited volume we are currently preparing on the recognition and enforcement of foreign judgments in Africa, which examines developments across no fewer than twenty-six African jurisdictions.

In the course of organising the project, we were struck by the depth and richness of engagement with private international law in African courts. This reality stands in sharp contrast to the popular but mistaken assumption that private international law in Africa is stagnant. On the contrary, the field is very much alive and kicking.

African courts are increasingly being called upon to engage with issues of private international law, and this is an empirical reality that our symposium seeks to demonstrate. At the same time, courts face significant and well-documented challenges, including inadequate legal frameworks, insufficient engagement with comparative law, and research approaches that prioritise the transplantation of foreign perspectives rather than the development of solutions grounded in local realities.

We therefore hope that courts, legislators, and researchers will actively engage with, develop, and refine the principles of private international law from an African perspective, in a manner that is context-sensitive, doctrinally sound, and responsive to the continent’s lived legal experience.

In this post, I briefly reflect on five overarching themes: situating African private international law within its broader context; the use of comparative law to promote independent and critical thinking; strengthening cooperation among African scholars; the importance of sustainable funding; and the need for stronger local institutional infrastructure.

 

II. RE-SITUATING AFRICAN PRIVATE INTERNATIONAL LAW WITHIN ITS PROPER CONTEXT

One of the central challenges confronting African private international law is its continuing reliance on inherited colonial traditions, particularly those of European powers such as England, France, the Netherlands, Spain and Portugal. Across the continent, many legal systems still mirror the frameworks they received during the colonial period. Thus, common law African jurisdictions tend to follow the English approach; Francophone systems largely adopt French doctrine; Roman–Dutch jurisdictions reflect a mixture of Dutch and English influences; Lusophone countries retain Portuguese models; and there are also Spanish law influences on few African countries.

This inherited structure has not always served African private international law well. While many European states have modernised their rules to facilitate economic integration, cross-border commerce, and development, numerous African jurisdictions have yet to undertake comparable reform. The result is often a body of law that is historically derivative rather than functionally responsive to contemporary African realities.

These concerns have long been recognised in the scholarship. More than three decades ago, Professor Uche Uche, delivering lectures at the Hague Academy of International Law, called for “a genuinely African-based and African-influenced work on the conflict of laws.” Professor Christopher Forsyth similarly cautioned against the “unthinking” acceptance of foreign solutions, warning that African private international law should not behave like “the weathervane flipping one way or the other as the winds blow from abroad.” In the same spirit, Professor Richard Frimpong Oppong has argued that, while extra-African sources remain relevant, African scholarship should draw primarily on African case law, legislation, and academic commentary, and should situate its analysis within the continent’s present challenges, including regional economic integration, the promotion of trade and investment, migration, globalisation, and legal pluralism.

Encouragingly, contemporary African scholarship increasingly reflects this intellectual independence. The present symposium offers a clear illustration. Contributors rely principally on local African sources and contexts rather than treating European doctrine as the default template. My joint post with Yekini highlights the growing importance of recognition and enforcement of international court judgments in Anglophone Africa and shows that African jurisdictions are beginning to lead intellectually in an area that remains underdeveloped elsewhere. Awa’s blog demonstrates that Member States of the Central African Economic and Monetary Community (CEMAC) have a significant number of situations in which they attempt recognising and enforcing each other’s judgments. Elbalti’s study of Mozambique illustrates the risks of scholars mechanically interpreting colonial transplanted rules without close attention to local jurisprudence. Abdul-Majid and Mulandi’s discussion of Kenya reveals judicial concern that exclusive jurisdiction clauses may export dispute resolution to foreign courts to the detriment of domestic adjudication. Rinaldi shows that South African courts are attentive to cross-border employment disputes involving restraints of trade, and that any critique of their rulings by practitioners or scholars should be carefully anchored in sound legal principle.  Coleman further demonstrates Ghana’s distinctive approach to proving foreign law in cross-border marriages, including potentially polygamous unions.  Finally, Okorley examines a decision of the South African Supreme Court of Appeal affirming that a child’s habitual residence under the Hague Child Abduction Convention is not determined by the marital status of the parents.

Externally, in another contribution, Coleman draws on the South African concept of ubuntu to interrogate the inequalities that may be embedded in party autonomy. Oppong and I also argue that African government contracts should not be subjected to foreign governing laws on public policy grounds.

None of this suggests that African private international law should become insular or excessively interest based. On the contrary, comparative engagement remains indispensable. The point is not to reject foreign influence, but to adapt it critically and constructively, ensuring that private international law develops in a manner that reflects African realities while participating confidently in global legal discourse.

 

III. UTILIITY OF COMPARATIVE LAW IN ENHANCING INDEPENDENCE AND CRITICAL THINKING

A further area in which private international law in Africa can be strengthened is through deeper and more systematic engagement with comparative law. In a recent study I co-authored with Yekini, we concluded that private international law in Nigeria—and, by extension, in several other African jurisdictions—remains underdeveloped in part because of limited comparative engagement. Indeed, it has been persuasively argued by Professor Diego Arroyo that private international law is scarcely conceivable without comparative law. As Professor Otto Kahn-Freund, famously remarks “comparative law is the mother of private international law.” I share these views as well.

Comparative analysis, however, should not be equated with continued dependence on the approaches of former colonial powers. Far from it. Properly understood, comparative law entails a broad and critical examination of diverse legal systems across the world in order to identify solutions best suited to local needs. Its purpose is intellectual openness, not slavish imitation. Currently, Asian private international law has evolved primarily through imitation before transitioning into a phase of innovation and eventual exportation (see here). This has primarily been done through extensive comparisons with legal systems around the world. I have also remarked that the Asian approach can “significantly benefit the ongoing development and reform of private international law in Africa” (see here).

This underscores the importance of legal education and professional training. Outside South Africa and a small number of other jurisdictions, legal education in many African countries remains heavily shaped by inherited colonial curricula, with limited exposure to comparative or regional perspectives. Moreover, meaningful dialogue across African legal systems is often lacking. Apart from parts of Southern Africa—and, to a lesser extent East Africa—many jurisdictions rarely engage systematically with developments elsewhere on the continent.

The practical consequences of this insularity are tangible. In a recent blog post, I discussed a Nigerian Court of Appeal decision that enforced a South African choice-of-court agreement in a dispute that was otherwise entirely domestic. Counsel for the claimant had undertaken no research into South African law. Had they done so, they would likely have discovered that South African courts themselves would decline jurisdiction on that case for want of a sufficient connection to South Africa, leaving the claimant without a forum to sue! A modest comparative inquiry might therefore have altered both the litigation strategy and the outcome.

South Africa has, in many respects, emerged as a leader in fostering comparative engagement. In this regard, particular credit is due to Professor Jan Neels for his work at the University of Johannesburg as Director of the Research Centre for Private International Law in Emerging Countries, which has trained and mentored a growing cohort of African scholars with strong comparative expertise. Elbalti and I have benefited greatly from collaboration with many of these scholars.

Importantly, the tools for comparative research are increasingly accessible. Open-access databases such as AfricanLII and SAFLII provide rich repositories of African jurisprudence that can and should be utilised more systematically by lawyers, judges, and scholars. Comparative engagement of this kind promotes intellectual independence rather than dependence. By examining a range of possible approaches before making doctrinal choices, African courts and legislatures can craft solutions that are both contextually appropriate and globally informed.

 

IV. COOPERATION AMONG AFRICAN SCHOLARS

A further area in which private international law in Africa can and should be strengthened is scholarly cooperation. The South African concept of Ubuntu aptly captures the spirit required: “I am because we are.” The development of African private international law cannot be the achievement of a single scholar or even a single jurisdiction. It must instead be the product of sustained collaboration across the continent. Collective intellectual effort, rather than isolated national initiatives, is essential to building a coherent and contextually responsive body of doctrine.

Encouragingly, some institutional foundations already exist. In addition to the important work facilitated by Neels at the University of Johannesburg, the Nigeria Group on Private International Law (NGPIL) has sought to promote dialogue and capacity building within Nigeria. The NGPIL, co-founded by Dr Onyoja Momoh, Dr Abubakri Yekini, Dr Chukwudi Ojiegbe, Dr Pontian Okoli and myself, brings together primarily UK-based scholars committed to strengthening Nigerian private international law through regular lectures, mentorship of early-career researchers, prize initiatives for students, and policy engagement aimed at encouraging the Nigerian government to recognise the strategic importance of private international law for economic development.

Nevertheless, more remains to be done. Efforts by Elbalti and me to establish a broader, continent-wide African private international law network have thus far proved difficult to sustain, particularly in terms of consistent participation. This highlights both the logistical challenges and the need for stronger institutional support structures.

Comparative experience demonstrates what is possible. Other regions have successfully institutionalised scholarly cooperation through bodies such as the Asian Private International Law Academy and the European Association of Private International Law, which provide regular forums for dialogue, research collaboration, and the exchange of ideas. A similar, genuinely pan-African platform would significantly advance the field. It is my hope that such an initiative will soon emerge and help consolidate the growing momentum behind African private international law.

 

VI. FUNDING AND LOCAL INFRASTRUCTURE

For private international law in Africa to generate meaningful and lasting value, it requires sustained and significant funding. The blunt reality is that this responsibility must rest primarily with African stakeholders — including governments, businesses, professional bodies, and regional institutions.

By contrast, established dispute-resolution hubs such as England, New York, Singapore, and Switzerland derive substantial economic and reputational benefits from international commercial adjudication. With deliberate investment in modern, efficient, and credible private international law frameworks, African jurisdictions can retain similar revenue within the continent and reduce the persistent dominance of Global North fora in resolving African disputes.

Elbalti in his forthcoming paper on foreign law in Africa, has called for the establishment of a dedicated research centre for comparative law, akin to the Max Planck Institute or the Swiss Institute of Comparative Law. He further suggests that Neel’s centre at the University of Johannesburg could play such a role by serving as a hub for sustained comparative research and doctrinal development.

If Africa is to compete effectively for international litigation and arbitration business, however, funding alone will not suffice. Serious institutional reform is indispensable. Infrastructure must be strengthened, judicial quality and consistency enhanced, delays reduced, training regularised, and corruption decisively addressed. Without these structural improvements, even the most sophisticated legal rules will struggle to attract confidence.

 

VI. CONCLUSION

Taken together, the reflections offered in this symposium challenge the persistent misconception that private international law in Africa is marginal or stagnant. The opposite is true. Across the continent, courts are engaging meaningfully with cross-border disputes, scholars are producing increasingly rich and context sensitive analyses, and new networks of cooperation are beginning to emerge. African private international law is no longer merely derivative of external models; rather, it is slowly but steadily becoming more self-aware, self-confident, and intellectually independent.

The path forward is clear. By grounding doctrine in African realities, embracing comparative learning without slipping into slavish imitation, strengthening scholarly collaboration, and investing seriously in funding and institutional capacity, African jurisdictions can build private international law systems that are both locally responsive and globally competitive. If these foundations continue to develop, Africa will not simply follow global trends but will increasingly help shape them.

Professor Ralf Michaels made a comment in the Asian context which I will quote and adapt to the African context by inserting “Africa” instead of the original use of “Asia”, “Africa is no longer object or subject but method, no longer one but many parts that are in dialogue with each other, no longer recipient or opponent of Western law and instead co-producer of modernity and of modern law. In this, the West has at least as much to learn from Africa as Africa did from the West. “

The energy, creativity, and commitment demonstrated by the contributors to this symposium — and by the wider community of African scholars and judges — give ample reason for optimism. The future of private international law in Africa is not only promising; it is bright.

 

Event type: Hybrid Date & time: 26 Feb 2026, 13:00 – 14:00 Speaker: Prof. Eugenio Hernández-Bretón, Universidad Central de Venezuela and Universidad Monteavila About the event: Over the past 50 years, Venezuela’s legal framework for the oil industry has been on a roller coaster. In 1975, the industry was nationalized, compensating private investors, but an “intentional” loophole allowed for private participation. In the mid-1990s, nationalization shifted to the “oil opening,” despite facing political opposition and legal battles, and allowing for extensive private participation in the oil sector as well as providing for arbitration in certain cases. By the early 2000s, a new business model emerged, denouncing the previous “phony nationalization” and leading to a “renationalization” that reserved primary activities (exploration and extraction) for the Venezuelan state, and terminating agreements with private investors. This resulted in numerous arbitration cases worldwide, with some awards ordering Venezuela to pay substantial sums, though few were enforced and none of the expropriations were compensated. In January 2026, as a result of recent events, a new hydrocarbons law was proposed, currently under parliamentary consideration, easing private participation in primary activities and explicitly allowing international arbitration, which had been demonized in the previous two decades. About the speaker: Eugenio Hernández-Bretón is tenured professor at the Universidad Central de Venezuela and at Universidad Monteavila, both in Caracas. He holds the chairs of private international law and international civil procedure. He has also lectured on Arbitration and Comparative Law, among other courses in Venezuela and abroad, including at The Hague Academy of International Law. As a practicing lawyer he has participated in numerous international arbitration cases. Professor Hernández-Bretón earned a doctorate in laws from the University of Heidelberg, and master’s degrees from Columbia University and the University of Tubingen. He received his law degree from the Universidad Catolica Andres Bello in Caracas. Additionally, Professor Hernández-Bretón served as President of the Academy of Political and Social Sciences of Venezuela. Further information, including details on how to book a free ticket for the event, is available here: https://www.ucl.ac.uk/laws/events/2026/feb/venezuelas-oil-between-rock-and-hard-arbitration-place.

Written by Matteo Mangone, PhD candidate in Private Law at the University of Turin

Protection of Forced Heirs and International Public Policy: A Comparative Analysis of Germany and Italy in Light of the Bundesgerichtshof Judgment of 29 June 2022

1. The German Approach

The Bundesgerichtshof (Federal Court of Justice), in its judgment of 29 June 2022, affirmed the following legal principle: the protection of mandatory heirs pertains to German public policy and, consequently, pursuant to Article 35 of EU Regulation No. 650/2012, it is possible to disregard the lex successionis designated under Article 22 of the same Regulation whenever its application does not concretely guarantee mandatory heirs a level of protection at least equivalent to that ensured by German inheritance law.

In the case at hand, the testator, originally from the United Kingdom, but habitually resident in Germany, by will dated 13 March 2015, designated English law as the law applicable to his succession and, as permitted under that law, disposed of his entire estate in favour of a third party, thereby excluding his adopted son. The latter lodged an application with the Regional Court of Cologne seeking information on the existence and scope of his father’s estate, asserting the rights granted to him under paragraphs 2303, 2314, 1754 and 1755 BGB. The court seized dismissed the application, but, on the claimant’s appeal, the Higher Regional Court of Cologne, by judgment of 22 April 2021, setting aside the contested decision, ordered the appointed heir to draw up an inventory of the estate assets. The testamentary heir then appealed to the Federal Court of Justice, seeking the full dismissal of the claim.

The Federal Court of Justice, having preliminarily confirmed, on the basis of Articles 22 and 83 of Regulation (EU) No. 650/2012, the validity of the professio iuris contained in the will, even though the will predated 17 August 2015, the date on which the Regulation became applicable, examined the compatibility of English succession law with German public policy. On the one hand, the 1975 Inheritance Act does not provide a forced share for descendants as such, regardless of their economic circumstances, but it merely allows the judge, at his discretion, to grant financially needy descendants a monetary provision against the testator’s will, provided that the latter was resident in England or Wales at the time of death. On the other hand, paragraph 2303 BGB guarantees to the descendant a forced share amounting to half the value of the share to which he would be entitled in intestate succession, regardless of any assessment of the heir’s financial situation; paragraph 2314 BGB grants an excluded mandatory heir the right to obtain information from the testamentary heir regarding the estate and to request the preparation of an inventory, the costs of which are borne by the estate. The Federal Court of Justice held that the provisions of the Inheritance Act contradict German inheritance law, which enjoys constitutional protection under Articles 6 and 14 of the Grundgesetz. These provisions reflect the principle that children’s participation in the estate of their parents is a necessary consequence of their familial bond and an expression of family solidarity, therefore, descendants must always be guaranteed a share of the deceased’s estate, regardless of their financial circumstances.

The Federal Court of Justice further referred to the reasoning of the Federal Constitutional Court in its judgment of 19 April 2005, which characterized the right of mandatory heirs to their forced share as an inalienable fundamental right, intended to ensure the continuation of the ideal and economic bond between the family’s assets and its members. Participation of the descendant in the ascendant’s estate is thus viewed as an expression of the reciprocal moral and material assistance obligations that underpin family life and which, pursuant to Articles 6 and 14 GG, constitute a constitutionally relevant limit to testamentary freedom. Having established that mandatory succession enjoys constitutional protection, the Court examined whether a violation of the rights granted to mandatory heirs under German law constitutes a breach of German public order and, to this end, it identified three different doctrinal approaches.

A first view holds that, even where the lex successionis does not provide forced shares, German law cannot apply, because the protection of mandatory heirs does not fall within the German notion of ordre public, and therefore Article 35 of Regulation (EU) No. 650/2012 cannot be invoked to set aside the lex causae. An intermediate position states that, although the protection of mandatory heirs may in principle be linked to the fundamental principles forming part of the German ordre public, no concrete public order issue arises when, as in the present case, only economically self-sufficient mandatory heirs are left without protection. The prevailing view, followed by the judgment under comment, instead, holds that German public order is violated whenever the law applicable to the succession does not provide mandatory heirs with a level of protection at least equivalent to that offered by German law and, consequently, leads – on a case-by-case assessment – to an outcome incompatible with Articles 6 and 14 GG.

On the basis of these arguments, the Federal Court of Justice concluded that, in the present case, English succession law conflicts with German public policy, to the extent that the possibility of obtaining a monetary provision only where the mandatory heir is in situations of financial need – which, moreover, was inapplicable in the case at hand, given that the de cuius was resident and domiciled in Germany – is considered incompatible with the forced share guaranteed to descendants under German law. The Federal Court of Justice, therefore, applied Article 35 EuErbVO (Regulation EU No. 650/2012), which provides that “the application of a provision of the law of any State specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum.” The violation of public policy entails the non-application of the foreign rule. However, to ensure minimal interference between lex causae and lex fori, any resulting gap must, where possible, be filled by reference to the lex causae itself and, only where this is not possible, should be applied the lex fori instead. In this case, since English law does not guarantee the mandatory heir a forced share meeting the requirements of Articles 6 and 14 GG, the Federal Court of Justice deemed it necessary to apply German succession law.

Finally, the Federal Court of Justice supports its conclusion by stating that is precisely from Regulation (EU) No. 650/2012 that it can be inferred that provisions on forced heirship pertain to public policy. Indeed, according to the German judges, given that Article 22 allows parties to choose the law of the State of their nationality as the law governing their succession, one of the functions of Article 35 is precisely to protect mandatory heirs who may be disadvantaged by the chosen law, thereby preventing the professio iuris from being used to frustrate the expectations of those entitled to a forced share.

2. The Italian Approach

The decision under examination makes it possible to compare the approach followed by the German Federal Court of Justice with the approach followed by the Italian Supreme Court and to highlight the relative nature of the notion of international public policy.

The possibility of tracing the protection of forced heirs back to the notion of international public policy has assumed particular relevance with the adoption of EU Regulation No. 650/2012 (I. Riva, Certificato successorio europeo. Tutele e vicende acquisitive, Napoli, 2017, 51 ss). Indeed, unlike Article 46 (2) of Law No. 218/1995, which excluded that a professio iuris made by an Italian testator in favour of the State of residence could prejudice the rights of forced heirs residing in Italy, Regulation No. 650/2012 does not provide that the rules on forced heirship constitute a limit to the applicability in Italy of a foreign law that does not provide for any protection of forced heirs or provides for a less favourable protection than the one offered under Italian law.

Consequently, only if Articles 536 et seq. of the Italian Civil Code are regarded as a fundamental and non-waivable principle of the Italian legal order (G. Perlingieri, G. Zarra, Ordine pubblico interno e internazionale tra caso concreto e sistema ordinamentale, Napoli, 2019; V. Barba, L’ordine pubblico internazionale, in Rass. dir. civ., 2018, 403 ss) and, therefore, are brought within the notion of international public policy, will it be possible to exclude, pursuant to Article 35 of Regulation (EU) No. 650/2012, the application in Italy of a foreign law that violates the rights that Italian law reserves to forced heirs. Since in Italy forced heirship does not enjoy constitutional protection, the resolution of the issue at hand requires, preliminarily, clarification as to whether the principles referable to international public policy may also be derived from provisions of ordinary legislation.

The notion of international public policy, in the Italian legal order, has undergone significant evolution: originally it was held that this limit was respected and, consequently, that the foreign law was applicable in Italy, only where, in relation to the same institution, it was compatible with Italian ordinary legislation (Cass., 5 dicembre 1969, n. 3881; Cass., 14 aprile 1980, n. 2414; Cass., 13 marzo 1984, n. 1680). Subsequently, as a result of the influence of supranational law, it began to be affirmed that international public policy corresponded to the fundamental values expressed by the Constitution and by international and supranational sources (Cass., 15 giugno 2017, n. 14878.). The most recent approach of the Court of Cassation is placed in an intermediate position between the two theses just mentioned, affirming that the notion of international public policy is derived from the Constitution, from international and supranational sources, but also from provisions of ordinary legislation, provided that they express fundamental values of the legal order (Cass., sez. un., 8 maggio 2019, n. 12193).

Having clarified, therefore, that ordinary legislation may also contribute to shaping the notion of international public policy, the point is to understand, as already anticipated, whether the codified rules concerning forced heirship implement a non-waivable principle expressing a value that identifies the Italian legal order.

Italian case-law, in numerous decisions (Cass., 30 giugno 2014, n. 14811; Cass., 24 giugno 1996, n. 5832; App. Milano, 4 dicembre 1992; Trib. Termini Imerese, 15 luglio 1965), contrary to what was maintained by the Bundesgerichtshof in the previously examined judgment, has affirmed that the protection of forced heirs does not pertain to international public policy since, although the protection of forced heirs is safeguarded by mandatory internal rules, its limitation does not entail a restriction of an inviolable human right. This is also argued in light of the fact that forced heirship, as stated, does not enjoy constitutional protection, neither with reference to Article 42 (4) nor with reference to Article 29 of the Constitution, with the consequence that the ordinary legislator could even abolish it. Consequently, in the Italian legal order, foreign rules providing a level of protection of forced heirs lower than the one guaranteed by Italian law may be applied (M.C. Gruppuso, Ordine pubblico e diritto delle successioni. Spunti in tema di divieto di discriminazione basata sul sesso, in Fenomeni migratori, famiglie cross border e questioni di diritto successorio. Una prospettiva di genere., I. Riva (ed.), Napoli, 2024, 256).

This solution, unlike the German one, is consistent with the approach of the Strasbourg Court which, with reference to forced heirship, has affirmed that it does not find protection under Article 8 ECHR, given the absence of any general and unconditional right of children to inherit a share of their parents’ assets (ECtHR, 15 February 2024, Colombier v. France), nor under Article 1 of the First Additional Protocol, since where the law applicable to the succession does not provide any protection of the rights of forced heirs, they are neither holders of an “existing” property right nor of a “legitimate expectation” (ECtHR, 15 February 2024, Jarre v. France), and consequently do not fall within the scope of protection guaranteed by that provision.

Even if the inclusion of forced heirship within the concept of international public policy has been excluded, a conflict between the latter and the law applicable to the succession may nonetheless arise where the foreign succession law violates other fundamental principles of the Italian legal order. Thus, for example, pursuant to Article 35 of Regulation (EU) No. 650/2012, a foreign law that infringes the principle of non-discrimination – which, also in light of recital No. 58 of Regulation (EU) No. 650/2012, is almost unanimously regarded as falling within the notion of international public policy – may in no case be applied in Italy (M.M. Francisetti Brolin, Divieto di discriminazione, autonomia testamentaria e vicende mortis causa. Riflessioni preliminari, in Fenomeni migratori, famiglie cross border e questioni di diritto successorio. Una prospettiva di genere., I. Riva (ed.), Napoli, 2024, 325 observes a potential paradox in this context).

On 15 January 2026, the Paris Court of Appeal ruled on an application to set aside an arbitral award on the ground of the alleged partiality of two of the members of the arbitral tribunal. Background The case was concerned with the alleged expropriation by the Federation of Russia of real properties belonging to a […]

 

As part of the second online symposium on recent developments in African private international law, we are pleased to present the seventh an final contribution, kindly prepared by Solomon Okorley (University of Johannesburg, South Africa), which examines a decision of the South African Supreme Court of Appeal ordering the return of a child under the Hague Child Abduction Convention.

 

South Africa’s Supreme Court of Appeal Orders the Return of a Child under the Hague Child Abduction Convention: Marital Status of Parents not Important in Determining the Child’s Habitual Residence

 

1            Introduction

International child abduction[1] refers to the unilateral removal or retention of a child by a parent or guardian in a State other than that of the child’s habitual residence, without the consent of the other parent or in breach of existing custodial rights.[2] This phenomenon has increasingly been characterised as both global in reach and growing in prevalence,[3] reflecting the intensification of cross-border mobility, transnational families, and jurisdictional fragmentation in family law. In cases of international child abduction, the left-behind parent seeks judicial relief in the form of a return order, the purpose of which is to restore the status quo ante by returning the child to the State of habitual residence.

South Africa occupies a pivotal position in the adjudication of international child abduction matters,[4] with its judicial decisions exerting significant influence on the development of jurisprudence within the Southern African Development Community (SADC) region.[5] This paper will briefly analyse the recent case of The Central Authority for the Republic of South Africa v MV and Another,[6] where the South African Supreme Court of Appeal upheld an appeal for the return of a child who was wrongly removed from Switzerland. The court held that “the minor child (L) be returned forthwith, subject to the terms of this order, to the jurisdiction of the Central Authority of Switzerland”.[7]

This case is significant because the case addresses an important factor in international child abduction cases: ascertaining the habitual residence of the child. Consequently, it is a case that other contracting states of the 1980 Hague Child Abduction Convention would find useful when ascertaining the habitual residence of a child in an international child abduction dispute.

 

2            Facts of the case

The case concerns a minor child (L), born in Italy in May 2021 to unmarried parents. The mother (MV) is a dual South African–Italian citizen, while the father (VL) is an Italian national who later acquired Swiss citizenship. The parents were engaged and had lived together prior to and after the child’s birth. Before the child’s birth, the parties resided together in Switzerland, where the father was employed. Following the child’s birth in Italy, the parents returned with the child to Switzerland and continued to live together as a family. The father purchased an apartment in Geneva, financially supported the mother and child, and took steps consistent with establishing family life there, including enrolling the child in a crèche and applying for Swiss identification documentation for the child.

In May 2022, the parents and the child travelled together to South Africa to attend the wedding of the mother’s brother. Return flights to Switzerland were booked shortly after the wedding. On the scheduled return date, the mother tested positive for COVID-19. As a result, the father returned to Switzerland alone, with the understanding that the mother and child would return once she had recovered. After recovering, the mother did not return to Switzerland with the child. She delayed her return and ultimately decided to remain permanently in South Africa with the child, citing the breakdown of the relationship and the presence of her family support network in South Africa.

The father objected to the child remaining in South Africa without his consent and initiated steps through Italian and Swiss authorities, which culminated in an application by the South African Central Authority for the child’s return to Switzerland. While in South Africa, the mother obtained an ex parte order from the High Court granting her primary care and parental responsibilities over the child and directing that the child be registered as a South African citizen. The father opposed the order and continued to pursue the child’s return through the South African Central Authority by filing a return application at the High Court. As at the time court was adjudicating the case in 2025, the boy was four-year-old.

 

2.1         High Court Ruling  

According to the High court, it seemed that neither the minor child nor MV had settled in the Swiss community and that MV did not intend to remain in Switzerland permanently unless VL married her. The court further found that it is not certain that Mr VL regarded Geneva as the minor child’s habitual residence. The court did not believe that the parties had the settled purpose of residing in Switzerland. Consequently, it found that the minor child was not a habitually resident in Switzerland at the time of his removal to South Africa.[8] The court further held that removing the minor child from Ms MV’s care would cause the minor child, serious emotional harm.[9] In the exercise of its discretion, the High Court dismissed the return application. Dissatisfied with the ruling, the Central Authority and MV appealed to the SCA with the leave of the High Court.

 

2.2         Summary of the Judgment of the Supreme Court of Appeal (SCA)

According to the SCA, the core issue was the minor child’s habitual residence prior to his alleged unlawful retention in South Africa.[10] The resolution of the core issue will, of necessity entail determining  (i) whether the removal of the child was wrongful; (ii) whether the relevant rights of custody were actually being exercised at the time of the minor child L’s removal.

In its bid to resolve the issue, the SCA indicated that the applicable Legislative Framework included: the 1980 Hague Child Abduction Convention;[11] the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children;[12] Swiss Federal Act on Private International Law (PILA);[13] the Swiss Civil Code;[14] the Constitution of the Republic of South Africa of 1996;[15] and South Africa’s Children’s Act.[16]

As an important preliminary issue, the court set out to address the applicability of the Hague Convention.[17] The court noted that Switzerland is a signatory to the 1996 Hague Convention whereas South Africa is a signatory to the 1980 Hague Convention. According to the SCA, “It is the 1996 Hague Convention that enables the determination of the issues that are extra-territorial such as these. Absent the 1996 and the 1980 Hague Conventions, our courts and so is our State would not be able to lean on the international agreements between states on matters involving, amongst others, the international abduction and retention of children.”[18] The SCA then made reference to the Constitutional Court case of Sonderup[19] where the apex court outlined the purpose of the 1980 Hague Convention, which inter alia ensures the prompt return of children to the state of their habitual residence. The SCA thus concluded that the 1980 Hague Convention applies to this case.

According to the court, since the child is Italian and had been registered as such at birth, his initial habitual residence was Italy. And per the combined effect of Articles 316 and 337 of the Italian Code, both parents had parental responsibility which included joint custody.[20] The court opined that the parental responsibility was not extinguished when they moved to Switzerland by virtue of the 1996 Hague Convention, which is applicable between Italy and Switzerland: “Parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another state.”[21]

According to the SCA, the continuity of parental rights where there is a change of habitual residence accords with the best interests of the child principle that the Hague Convention seeks to protect. The court held that the father has custodial rights over the child. Since both parents had custodial rights towards the child in Switzerland, Mr VL’s consent to the retention of the child in South Africa was peremptory. The court therefore held that the failure to seek and obtain Mr VL’s consent before retaining the child in South Africa was wrongful.

The court had to address the core issue which was the habitual residence of the child. According to the SCA, the high court misdirected itself when it focused on the issue of marriage as an important issue when determining the issue of habitual residence.[22] According to the court, Italy was the child’s habitual residence and his birth residence until his parents moved to Switzerland. At that point, the minor child’s habitual residence and his parents became Switzerland.[23]

The mother contended that the child’s habitual residence was Italy and that she had no intention of residing in Switzerland permanently – a place she had lived for almost two years. The SCA rejected this arguments by relying on the Swiss law definition of habitual residence where it is stipulated that a natural person ‘has their habitual residence in the state where they live for a certain period of time, even if this period is of limited duration from the outset’.[24] The court in rejecting the argument by the mother also relied on the dependency model which espouses that the child acquires the habitual residence of his or her custodians. Thus, since the custodians were habitually resident in Switzerland, he acquires the habitual residence of Switzerland and not that of Italy.

An attempt by the mother to invoke an article 13(b) [of the 1980 Hague Convention] defence on the ground that  the mental and psychological state of Mr VL poses a grave risk of harm to the minor child also failed. According to the court, the body of evidence showed that both Ms MV and Mr VL do have some mental challenges and that those challenges will be better addressed by the Swiss Court.[25]

 

3            Analysis

3.1         Preliminary issue: The territorial scope of the 1980 Hague Convention

Although the SCA was correct in its conclusion that the 1980 Hage Convention was applicable, it is submitted that the approach adopted in the judgment was marked by an unnecessarily circuitous analysis, which generated avoidable doctrinal and interpretive difficulties. Although not mentioned by the SCA, Switzerland is a contracting state to the 1980 Hague Convention, likewise South Africa.[26] The convention is applicable if the abduction took place from one convention state (where the child had his or her habitual residence) to another convention state.[27] Thus, per the territorial scope of the 1980 Hague Convention, this makes the convention applicable to the case simpliciter.

                                                                             

3.2         Habitual residence of the child

A central concept underpinning the Hague Convention is that of the “habitual residence” of the child. However, the term is neither expressly defined in the Convention itself nor in South Africa’s Children’s Act. The question of whether a person is or is not habitually resident in a specified country is a fact-specific inquiry, where the essence of a ‘stable territorial link’ is established through length of stay or through evidence of a particularly close tie between the person and the place.[28]

Judicial efforts to give content to the notion of habitual residence have crystallised into three dominant models of analysis: the dependency model, the parental rights model, and the child-centred model.[29] In terms of the dependency model, a child acquires the habitual residence of his or her custodians. Applying the facts of this case to this model, the parents are habitually resident in Switzerland. Ipso facto, the child is also habitually resident in Switzerland.

The parental rights model proposes that habitual residence should be determined by the parent who has the right to determine where the child lives, irrespective of where the child actually lives; and where both parents have the right to determine where the child should live, neither may change the child’s habitual residence without the consent of the other. Per the facts of this case, both parents have the right to determine where the child lives, thus, only the mother cannot determine the habitual residence of the child.

In terms of the child-centred model, the habitual residence of a child depends on the child’s connections or intentions and the child’s habitual residence is defined as the place where the child has been physically present for an amount of time sufficient to form social, cultural, linguistic and other connections. From the facts of the case, the child has been present for a considerable amount of time in Switzerland before the mother wrongly removed him. The parents had agreed for him to be enrolled at a crèche in Switzerland and Mr VL had also applied for the minor child to be issued with an official Swiss identity document. All these also point to the fact that the child’s habitual resident in Switzerland.

The South African Courts have adopted a hybrid of the models in determining habitual residence of children which is based upon the life experiences of the child and the intentions of the parents of the dependent child.[30] The courts have further held that with very young children the habitual residence of the child is usually that of the custodian parent.[31] Also, following this hybrid approach of the South African courts, it leads to the same result that the child is habitually resident in Switzerland: the intention of the parents is for the child to be habitually resident in Switzerland. This is evinced in the enrolment of the child in crèche; the application for a Swiss identity document; and the return air ticket to Switzerland that was purchased.

From a comparative perspective, in Monasky v. Taglieri,[32] the US Supreme Court enunciated a stricter threshold in determining the habitual residence of the child. The court, in uniformity with the decisions of the courts of other contracting states of the 1980 Hague Convention held that “a child’s habitual residence depends on the totality of the circumstances specific to the case.” This threshold is higher than the one espoused by the South African court in the Houtman case where it stated that the habitual residence “must be determined by reference to the circumstances of each case”.[33] It is submitted that the South African court in determining the habitual residence of the child should apply the “totality of circumstances standard”. In this case, it is clear that the SCA took into consideration the entire circumstances of the case in arriving at its decision,

 

4            Marital status of parents and the habitual residence of the child

In all of the crystallised models analysed in the immediate preceding paragraph, it is clear that marital status is not a determinant of the habitual residence of the child. In a more recent case, Ad Hoc Central Authority for the Republic of South Africa and Another v DM,[34] which also involved unmarried parents, in determining the habitual residence of the child, the court did not take into account the marital status of the parents.

Marital status (e.g., married, divorced, separated, or never married) does not appear in the text of the 1980 Hague Convention as a criterion for return decisions, exceptions (like grave risk under Article 13(b), child objection, consent, or non-exercise of rights), or any other core determination. The Convention is deliberately status-neutral to promote uniformity across signatory countries. However, marital status can have indirect relevance in limited ways, depending on the law of the child’s habitual residence. In some jurisdictions, married parents automatically share joint custody rights from birth, making it easier for either to establish a breach of those rights. For unmarried parents, the rights of custody are not always automatic. In some countries, an unmarried father may need to establish paternity legally, obtain a court order for custody/access, or meet other requirements to have enforceable “rights of custody”. If no such rights exist under the law of the habitual residence of the child, the removal might not qualify as “wrongful” under the Hague Convention. This is a question of domestic law in the country of the habitual residence of the child, not the Convention itself imposing a marital status test. In this instance case, although the parents were unmarried, based on Italian Family Law, the father had custody rights.

In any event, determining the child’s habitual residence is a necessary antecedent to any analysis of whether the applicable law confers custody rights on an unmarried father. It is submitted that reliance on the marital status of the parents in determining a child’s habitual residence is conceptually misplaced. The Hague Convention adopts a distinctly child-centred approach; accordingly, an examination of the parents’ marital status introduces adult-centred considerations that are extraneous to the Convention’s underlying objectives.

It is therefore submitted that marital status should not be a factor to consider in determining a child’s habitual residence in international child abduction cases. At most, it may serve as a contextual evidential factor in assessing shared parental intention and family stability, but the decisive inquiry must remain anchored in the child’s lived reality, social integration, and factual circumstances.

 

5            Conclusion

This decision reflects the South African Supreme Court of Appeal’s firm commitment to the prompt return of children to their State of habitual residence, in line with the objectives of the 1980 Hague Convention. The High Court’s attempt to introduce marital status as a “novel” determinant of habitual residence was correctly rejected on appeal. The SCA’s refusal to endorse this approach is commendable, as elevating parental marital status to a determinative factor risks transforming child abduction proceedings into an adult-centred inquiry, thereby undermining the child-focused framework and core objectives of the Convention.

 

Previous contributions:

1. Online Symposium on Recent Developments in African Private International Law, by Béligh Elbalti & Chukwuma S.A. Okoli (Introductory post)
2. Recognition and Enforcement of International Judgments in Nigeria, by Abubakri Yekini & Chukwuma Samuel Adesina Okoli
3. The Recognition and Enforcement of Foreign Judgments within the CEMAC Zone, by Boris Awa
4. Foreign Judgments in Mozambique through the Lens of the Enforcement of a Chinese Judgment: Liberal Practice in the Shadow of Statutory Rigidity, by Béligh Elbalti
5. Party Autonomy, Genuine Connection, Convenience, Costs, Privity, and Public Policy: The Kenyan High Court on Exclusive Jurisdiction Clauses, by Anam Abdul – Majid and Kitonga Mulandi
6. Cross-border employment, competition and delictual liability merge in the South African High Court: Placement International Group Limited v Pretorius and Others, by Elisa Rinaldi
7. From Daddy to Zaddy or Both? Proof of Foreign Law and the Fragility of Foreign Marriages in Ghanaian Courts – Reflections on Akosua Serwaah Fosuh v. Abusua-Panin Kofi Owusu & 2 Others, Suit No. GJ12/20/2026, by Theophilus Edwin Coleman

 

————————————————————————

[1] Formerly known as ‘legal kidnapping’ or ‘childnapping’. See Dyer “The Hague Convention on the Civil Aspects of International Child Abduction – Towards Global Cooperation: Its Successes and Failures” 1993 The International Journal of Children’s Rights 273 275.

[2] Baruffi and Holliday “Child Abduction” in Beaumont and Holliday (eds) A Guide to Global Private International Law (2022) 481.

[3] Freeman and Taylor “Domestic violence and child participation: Contemporary challenges for the 1980 Hague child abduction convention” 2020 Journal of Social Welfare and Family Law 154.

[4] See INCADAT which currently contains 21 reported South African child abduction decisions in its database.

[5] https://www.sadc.int/member-states

[6] [2025] ZASCA 197.

[7] The Central Authority for the Republic of South Africa v MV and Another (n 6) par 87.

[8] The Central Authority for the Republic of South Africa v MV and Another (n 6) par 13.4

[9] The Central Authority for the Republic of South Africa v MV and Another (n 6) par 13.5.

[10] The Central Authority for the Republic of South Africa v MV and Another (n 6) par 29.

[11] Articles 3, 5, 12, 13, 16, 18, and 19 of the 1980 Hague Convention.

[12]  Articles 3 and 17 of the 1996 Hague Convention.

[13] Articles 14, 20 and 82 of PILA.

[14] Article 296 of the Swiss Civil Code

[15] Section 28 of the 1996 Constitution of South Africa.

[16] Chapter 17 of the Children’s Act 38 of 2005.

[17] The Central Authority for the Republic of South Africa v MV and Another (n 6) par 41.

[18] The Central Authority for the Republic of South Africa v MV and Another (n 6) par 43.

[19] Sonderup v Tondelli and Another 2001 1 SA 1171 (CC).

[20] The Central Authority for the Republic of South Africa v MV and Another (n 6) pars 48 and 51.

[21] Article 16(3) of the 1996 Hague Convention.

[22] The Central Authority for the Republic of South Africa v MV and Another (n 6) par 67.

[23] The Central Authority for the Republic of South Africa v MV and Another (n 6) par 62.

[24] Article 20(b) of the PILA.

[25] The Central Authority for the Republic of South Africa v MV and Another (n 6) par 77.

[26] See the status table of the 1980 Hague Convention.

[27] Kruger International Child Abduction: The Inadequacies of the Law (2011) 112.

[28] Senior Family Advocate, Cape Town, and Another v Houtman 2004 (6) SA 274 (CPD) par 9.

[29] Central Authority for the Republic of South Africa and Another v C 2021 (2) SA 471 (GJ) par 63.

[30] Central Authority for the Central Republic of South Africa and Another v C 2021 (2) SA 471 (GJ) par 63.

[31] Central Authority for the Central Republic of South Africa and Another v C 2021 (2) SA 471 (GJ) par 63.

[32] 140 S. Ct. 719 (2020).

[33] Senior Family Advocate, Cape Town, and Another v Houtman 2004 (6) SA 274 (CPD) par 11.

[34] [2024] ZAWCHC 170.

 

As part of the second online symposium on recent developments in African private international law, we are pleased to present the sixth contribution, kindly prepared by Theophilus Edwin Coleman (University at Buffalo School of Law, New York (USA) & Senior Research Associate, RCPILEC, University of Johannesburg, South Africa).

 

From Daddy to Zaddy or Both? Proof of Foreign Law and the Fragility of Foreign Marriages in Ghanaian Courts – Reflections on Akosua Serwaah Fosuh v. Abusua-Panin Kofi Owusu & 2 Others, Suit No. GJ12/20/2026

 

1. Introduction

Few aspects of conflict of laws generate more confusion in practice than proving foreign law. For a layperson, the idea that law must sometimes be proven as a fact using evidence might seem counterintuitive. However, this doctrinal stance is central to how many legal systems, including Ghana, treat foreign law. The recent decision of the High Court of Ghana in Akosua Serwaah Fosuh v. Abusua-Panin Kofi Owusu & 2 others[1] (hereinafter Akosua Serwaah Fosuh) highlights the complex issues that arise from the lack of proof or otherwise of foreign law governing marriages conducted outside Ghana. Indeed, this decision has highlighted the apparent fragility of foreign marriages. At the same time, it serves as a valuable reminder to litigants, lawyers, and the Ghanaian public, given the case’s extensive publicity, that foreign law must be pleaded in Ghanaian courts in accordance with strict benchmarks and standards.

At stake in the Akosua Serwaah Fosuh case was not merely marital status and competing spousal rights, but also the social stability of the institution of monogamous civil marriage under Ghanaian law, spousal rights, particularly inheritance expectations, and issues concerning customary widowhood rites. The plaintiff primarily based her claim on an alleged civil marriage under German law to assert her spousal rights. Despite the emotionally charged nature of the case, especially among some Ghanaians, the court, as expected, focused on evidentiary principles and the requirements of substantiating foreign law. Considering the sentimental and public nature of the case, this contribution aims to clearly outline the legal consequences of the decision in Akosua Serwaah Fosuh, the risks of failing to meet the evidentiary standard for foreign law on spousal rights, and how this can create uncertainty for foreign marriages in Ghanaian courts.

This contribution is organised into six main sections. The first section outlines the factual background in Akosua Serwaa Fosuh, focusing on the issue of proving the validity of a civil marriage contracted in Germany. It then briefly reviews the types of marriages recognised under Ghanaian law and their relevance to the facts of the case. The third section examines Ghana’s legal framework governing proof of foreign law. The fourth section analyses the court’s position in Akosua Serwaa Fosuh, considering statutory and judicial standards for establishing foreign law. The fifth part examines the broader implications of the case for litigants and for those entering foreign marriages. The sixth section briefly addresses the need to reconsider the strict standards governing the proof of foreign law in Ghana. The final part emphasises that litigants and attorneys should not treat foreign law as an afterthought, as their failure to meet technical requirements may have dire consequences for the outcome of their case.

 

2. Akosua Serwaa Fosuh: The facts

Akosua Serwaa Fosuh, the plaintiff, requested the High Court to declare her as the sole surviving spouse of the late Charles Kwadwo Fosuh, also known as Daddy Lumba, a renowned musician and public figure. As the only surviving spouse, she was entitled to conduct the widowhood rites for the deceased.[2] The plaintiff further sought an order from the court to prohibit the Head of Family of the deceased from dealing with the second defendant, Priscilla Ofori, as a spouse of the deceased. Additionally, the plaintiff asked the court to prevent Priscilla Ofori from presenting herself as a surviving spouse of Daddy Lumba. The plaintiff’s main claim was that she and the deceased were married at the Civil Marriage Registry in Germany in 2004, and that this monogamous marriage lasted until Daddy Lumba’s death. Prior to the civil marriage in Germany, the plaintiff and the deceased had also married under Ghanaian customary law in 1991.[3]

Conversely, the defendants opposed the plaintiff’s claim and the validity of the German marriage.[4] The second defendant also challenged the validity and authenticity of the documents tendered by the plaintiff in support of the civil marriage under German Law. Additionally, the second defendant stated that the deceased publicly presented her as his wife for over fifteen years and considered her his surviving widow.[5] In addition to presenting the second defendant as the surviving spouse in the public showcase, she argued that the deceased married her under Ghanaian customary law in 2010.[6]  In essence, the civil marriage between Akosua Serwaa and the deceased preceded the alleged customary marriage between the deceased and Priscilla Ofori, a fact that is important to consider.

The case primarily focused on whether the plaintiff was the deceased’s sole surviving spouse and therefore the only person authorised to perform the widowhood rites. This issue was crucial because establishing that the plaintiff was the sole surviving spouse following a civil union or marriage concluded in Germany would render any subsequent marriage and the deceased’s public display of Priscilla Ofori as a spouse null and legally invalid under Ghanaian law. To fully understand the case, it is helpful to briefly outline the types of marriages recognised under Ghanaian law.

 

3. A brief outlook of the forms of marriage in Ghana

Ghanaian law recognises three main types of marriage: customary, Ordinance, and Islamic (Mohammedan) marriages. Each type of marriage is distinct, with its own characteristics and rights.[7] Customary marriage follows the traditions of the couple’s tribe or ethnic group and is based on the mutual consent of the families of the couple. Customary marriage typically involves the exchange of a dowry or head drink between the two families, symbolising their consent, acceptance, and support for the union between the man and the woman.[8] The Customary Marriage and Divorce (Registration) Law (PNDCL 112) of 1985 allows customary marriages to be officially registered. A key characteristic of customary marriage is its inherently polygamous nature, permitting the man to marry multiple wives (unlimited in number), so long as he remains exclusively married under customary law.[9]

Ordinance marriage, on the other hand, is statutory, monogamous and a civil union that must be registered, executed by the couple (man and woman), who are then issued a marriage certificate.[10] The formal process for concluding an ordinance marriage requires following the registration procedures at a district or municipal assembly or a court registry. An Ordinance marriage is strictly monogamous, meaning it involves only one man and one woman. Once married, the spouses are legally forbidden from entering into any other marriage until the current marriage is dissolved by a court of law. Notwithstanding this, it is increasingly common for many Ghanaians to celebrate Ghanaian custom by marrying under customary law and then converting their marriage to ordinance by registering it with a court registry or a district or municipal assembly. Converting a customary marriage to an Ordinance extinguishes all rights acquired under customary law, including the man’s right to have multiple spouses.[11]

The third type of marriage, which does not apply in this case, is Islamic marriage. It is performed in accordance with Islamic practices and officiated by an Islamic religious leader. Islamic marriages are typically polygamous. Both partners must be Muslims, and Ghanaian law mandates that the marriage be registered under the Marriage of Mohammedans Ordinance. The registrar for Mohammedan marriages and divorces must be informed within one week of the marriage. Such ceremonies may be officiated only by an Imam or a Kadhi. A man may marry up to four wives, and marriages between close family members or cousins are not permitted.[12] It is noteworthy that the validity of marriages under Ghanaian law is determined following the Marriage Act Ordinance, 1951 (Cap 127).[13] To synthesise the various types of marriage under Ghanaian law and for the purposes of this case, it is worth noting the following:

 

(1) A couple has the right to marry under customary law. So long as a man is exclusively married under customary law, he is permitted to have multiple wives.

(2) A couple has the option to marry under ordinance. Such a marriage is strictly monogamous, and once established, neither party is legally permitted to marry another person until the marriage is officially dissolved by a court of law.

(3) The relationship between customary and ordinance marriage is that a couple married under customary law can convert to ordinance marriage. However, once this conversion occurs, the man’s rights, including the right to marry more than one wife under customary law is extinguished. The marriage then becomes fully monogamous.[14]

 

Hence, in Akosua Serwaah Fosuh, the assertion that the plaintiff and the deceased concluded a civil monogamous union under German law, if proven under Ghanaian law, would convert their marriage into a civil or ordinance marriage, thereby extinguishing the deceased’s rights to marry more than one wife or to marry under any other marriage type. Proving the validity of the German marriage implies that any later marriage between the deceased and the second defendant would be considered invalid, legally void and of no effect.

This, in turn, raises the question of the longstanding conflict of laws issue concerning the stringent evidentiary burden required for a plaintiff to prove foreign law, as illustrated by the plaintiff’s attempt to demonstrate that the marriage was monogamous under German law. If the plaintiff cannot demonstrate the validity of the German marriage as per German law, any later marriage under customary law, such as the deceased’s marriage to the second defendant, Priscilla Ofori, would be considered valid.

 

4. Proof of foreign law in Ghana: An overview

Generally, under common law, courts are presumed to know only their domestic law. Foreign law, including statutes, case law, and other procedural rules from a different legal system, must be properly pleaded and substantiated with the required evidence. In conflict of laws, this approach is doctrinally justified on the ground that a judge, such as one in Ghana, is typically not expected to possess or be aware of the content of foreign laws, such as South African, German, or Canadian law. Based on this understanding, under the common law, foreign law is treated as evidence that must be substantiated, rather than as a legal question. Consequently, a court is not required to investigate the content of foreign law on its own initiative.

Indeed, according to section 1(2) of Ghana’s Evidence Act 1975 (NRCD 323), the “determination of the law of an organization of states to the extent that such law is not part of the law of Ghana, or of the law of a foreign state or sub-division of a foreign, state, is a question of fact, but it shall be determined by a court”.[15] Statutory requirements consider foreign law as a matter of fact, a position consistently upheld by Ghanaian courts. For example, in Davis v. Randall,[16]  it was held that Sierra Leonean law is foreign law and must be proven as a fact.[17] A party seeking to rely on foreign law in a Ghanaian court, per the decision in In Re Canfor (Deceased); Canfor v. Kpodo,[18] will be required to plead that law and prove it.[19] To plead the foreign law is one thing, but the most crucial aspect is proving its content. Where a party seeking to rely on foreign law fails to prove it, section 40 of the Evidence Act provides that “the law of the foreign state is presumed to be the same as the law of Ghana”.[20]

The standard of proof for establishing foreign law is the preponderance of probabilities, as in other civil case matters.[21] However, meeting this evidentiary standard would require the court to assess the consistency of the evidence, the credibility of the witnesses, and the veracity and reliability of the documents submitted. Foreign law is, therefore, a matter of fact and must be proven on a case-by-case basis. As the Supreme Court of Ghana stated in Ama Serwaa v. Gariba Hashimu & another,[22] “foreign law is a question of fact and ought to be pleaded and proven at the trial stage. This method of proving foreign law, is by offering expert witnesses, merely presenting a lawyer with the text of a foreign will not be sufficient”.[23] Also, in Godka Group of Companies v. PS International Ltd,[24] it was held that merely presenting or providing the text of a foreign law to a judge to draw the judge’s conclusion does not satisfy the requirement of proof of the foreign law.[25] Godka established that an expert witness is preferred. The Godka Court stated: “the general principle has been that no person is a competent witness unless he is a practising lawyer in the particular legal system in question, or unless he occupies a position or follows a calling in which he must necessarily acquire a practical working knowledge of the foreign law.”[26]

The question of an expert’s competency is a legal issue decided by the judge. Therefore, the court must be convinced that the individual is an “expert trained on the subject to which his testimony relates by reason of his special skill, experience or training.” Also, per the decision in Val Cap Marketing v. The Owners of M V Vinta,[27] Ghanaian courts do not permit the use of affidavits to prove foreign law.[28] Additionally, the opinions of an expert witness serve as a persuasive influence on Ghanaian courts.[29]  Accordingly, the court is not bound to accept the opinion of the expert witness.[30] Based on the foregoing, the treatment of foreign law is a highly technical and complex process. Even if a plaintiff follows the procedural technicalities established by various case law, including pleading and proving the law with an expert witness, the evidence remains just persuasive, with the court ultimately deciding how much weight to give it.

 

5. Akosua Serwaah Fosuh, the treatment of foreign documents and law

The plaintiff submitted a marriage certificate issued under German law, but the defendants questioned its authenticity. The court rejected the certificate and advised the plaintiff’s counsel to meet the Evidence Act requirements.[31] According to the Court, the plaintiff’s counsel failed to meet the specified requirement. Most notably, the defendant’s counsel indicated that the marriage certificate and its translated copy submitted to the court lacked probative value.[32] Since the marriage certificate was a foreign document, the plaintiff needed to fulfil the requirements of section 161 of the Evidence Act. Section 161 of the Evidence Act presumes signatures are genuine if they are affixed by officials of recognised public entities, accompanied by certification of authenticity and official position.[33] The law also mandates that this certification be signed and sealed by a diplomatic agent from Ghana or a Commonwealth country who is assigned or accredited to that nation.[34] Be that as it may, if all parties are given a reasonable opportunity to verify a foreign official’s signature, the court may, for good cause, treat it as presumptively authentic without certification.[35]

The court observed that the plaintiff did not comply with the provisions. The plaintiff acknowledged the real difficulty in fulfilling the statutory requirements of section 161(2) of the Evidence Act.[36] The authenticity of the marriage certificate was therefore challenged. Additionally, beyond the authentication concerns, the plaintiff failed to submit the original certificate for the court to compare, despite being informed that an original certificate existed. The plaintiff submitted a family book extract that does not establish a civil marriage, particularly because the certificate lacked signatures from both spouses.[37] In addition to the plaintiff’s failure to prove the authenticity of the marriage certificate and to comply with the Evidence Act, they also failed to meet the Godka requirement to prove foreign law through an expert witness.[38] The Court also highlighted the significance of the expert witness in verifying the authenticity of the marriage certificate by outlining the key features of a valid marriage certificate from Germany.[39]

Since the plaintiff did not prove the foreign law and the documents did not meet the applicable statutory requirements under the Evidence Act, the court inferred that the failure to establish the foreign law creates a presumption that German and Ghanaian law are the same, unless the contrary is shown. Thus, under Ghanaian law, an ordinance marriage certificate is valid only if it bears the signatures of the parties to the marriage. In the words of the Court, “without the marriage certificate and or video, the court cannot prove the civil marriage on a photograph alone. In the era of photo shoots and Artificial Intelligence, the court is cautious in accepting photographs alone without further credible corroborating documentary evidence, where proof of a fact demands strict documentary proof”.[40]

The court found that the plaintiff failed to prove her marriage under German law, as proving foreign law is a factual matter. The plaintiff did not meet the presumption that she entered into the marriage by providing an authentic, identified, and certified copy of the marriage certificate. Considering the lack of authentication and identification, coupled with the plaintiff’s failure to rely on an expert witness from Germany, the court rejected the documents presented as having no probative value and would not be considered for purposes of proving any civil marriage between the plaintiff and the deceased.[41] Because the plaintiff did not demonstrate the existence of a valid monogamous marriage under German law, the court determined that a customary marriage between the plaintiff and the deceased existed. As previously explained, such a customary marriage allows a man to have more than one wife. The implication was that the plaintiff was not the sole surviving spouse. The court therefore determined that both the plaintiff and the second defendant were both customarily married to the deceased, Daddy Lumba, and declared that they were the surviving spouses of the deceased.[42]

 

6. Broader implications of Akosua Serwaah Fosuh

In Ghana, litigation practices have not fully adapted to the transnational context and the complexities associated with cross-border marriages. Akosua Serwaah Fosuh highlights the increasing prevalence of cross-border marriages and how fragile such marriages become when strongly tested against the legal microscope and the evidentiary standards required by Ghanaian law. It also indicates the extent to which the failure or otherwise to prove foreign law and present the relevant documents in accordance with the statutorily prescribed format can impact several aspects of spousal rights. Hence, couples contracting marriages outside of Ghana must now be informed of the legal implications of such marriages. The significance of foreign law, such as establishing the validity of the marriage and authenticating relevant documents, should not be an afterthought for either the couple or their lawyers when legal issues arise. The court bases its decisions on law and evidence, not emotions, and failing to substantiate a legal position can lead to an unfavourable outcome.

 

7. Rethinking the strict requirements of proof of foreign law in Ghana in contemporary times

Ghanaian law explicitly requires rigorous proof of foreign law and adherence to statutory and case law principles. This strict approach has faced significant criticism from scholars. In Ghana, proving foreign law can be challenging due to potential manipulation by disputing parties, especially considering the assumption under Section 40 of the Evidence Act that Ghanaian law is the same as foreign law if the plaintiff fails to prove the content of the foreign law. Indeed, Oppong and Agyebeng note that assuming that Ghanaian and foreign law are the same because a plaintiff cannot prove the content of foreign law oversimplifies the matter and can occasionally cause injustice.[43] The learned authors further aver that section 40 of the Evidence Act:

“…wrongly assumes that there is a corresponding Ghanaian law for every specific issue on which foreign law would be relevant. This may not always be the case. Ghana’s legal system is relatively underdeveloped, and it is unlikely there will be any substantive Ghanaian law on some subjects. Also, the laws of individual states vary. Accordingly, there is a high probability that there may be no corresponding cause of action or remedy in Ghana for any cause of action or remedy that exists in a foreign country on several matters. If a court deems it appropriate in such a situation, it should invite counsel to address the court on the issue, including how the issue is dealt with in the foreign state to ensure that the interest of justice is served.”[44]

 

A plaintiff’s choice to invoke foreign law, coupled with difficulties or inability to provide supporting evidence and the operationalisation of section 40 of the Evidence Act, can influence the outcome of the case. If Ghanaian law is assumed to align with the foreign law when the plaintiff cannot substantiate their claim, this may allow the plaintiff to escape the applicability and dictates of the foreign law (or a defendant to strongly oppose an unfavourable outcome of applying foreign law).[45] This highlights the difficulties of dealing with foreign law in Ghanaian courts and the extent to which such herculean tasks may be manipulated by a plaintiff to their gain or a defendant against a plaintiff. Notwithstanding these criticisms, the law clearly states that a plaintiff relying on foreign law must first plead it and then prove it; if they fail to do so, the foreign law is assumed to be the same as Ghanaian law.

Flowing from the challenges associated with the legal framework on the proof of foreign law, Oppong and Agyebeng have suggested that Ghanaian courts take judicial notice of English law, thereby eliminating the need to call expert witnesses.[46]  This call is based on Ghana’s status as a Commonwealth country that follows the common law tradition, with many legal professionals trained, directly or indirectly, in English law.[47] Unfortunately, the suggestion by the learned authors does not apply in the current context, as Akosua Serwaa Fosuh concerns the validity of a foreign marriage under German civil law, and many Ghanaian lawyers and the Ghanaian legal system are not trained in such a civil law orientation. Therefore, adherence to the Godka principles and the requirements of the Evidence Act, underscoring the probative value of a foreign document, is essential. Indeed, regardless of the sentiments surrounding the case, it is important to emphasise that the court’s decision was firmly grounded in relevant precedents and procedural rules that must be followed in such cases.

 

8. Conclusion

The case of Akosua Serwaah Fosuh highlights that in Ghanaian courts, foreign law is not self-executing. It requires careful pleading and rigorous proof, in accordance with specific statutory requirements and the standards set out in case law. A foreign marriage certificate does not automatically substantiate the validity or otherwise of a marriage. Without expert testimony that convincingly clarifies the legal meaning, formalities, requirements, and consequences, such evidence has limited probative value in Ghanaian courts. In fact, transnational disputes require and depend on transnational evidence to verify the parties’ rights and entitlements. The decision in Akosua Serwaah Fosuh does not merely concern the rights and entitlements of competing spouses; it embodies the timeless principle in private international law: foreign law enters Ghanaian courts only through the pathway of proof. So long as this timeless rule exists, any marriage contracted outside Ghana and potentially subject to legal dispute may be fragile the moment it enters the annals of the Ghanaian court.

 

Previous contributions:

1. Online Symposium on Recent Developments in African Private International Law, by Béligh Elbalti & Chukwuma S.A. Okoli (Introductory post)
2. Recognition and Enforcement of International Judgments in Nigeria, by Abubakri Yekini & Chukwuma Samuel Adesina Okoli
3. The Recognition and Enforcement of Foreign Judgments within the CEMAC Zone, by Boris Awa
4. Foreign Judgments in Mozambique through the Lens of the Enforcement of a Chinese Judgment: Liberal Practice in the Shadow of Statutory Rigidity, by Béligh Elbalti
5. Party Autonomy, Genuine Connection, Convenience, Costs, Privity, and Public Policy: The Kenyan High Court on Exclusive Jurisdiction Clauses, by Anam Abdul – Majid and Kitonga Mulandi
6. Cross-border employment, competition and delictual liability merge in the South African High Court: Placement International Group Limited v Pretorius and Others, by Elisa Rinaldi

 

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[1] Akosua Serwaah Fosuh v. Abusua-Panin Kofi Owusu & 2 others, Suit No. GJ12/20/2026 (28 November 2025) (Unreported).

[2] Ibid at par 1.

[3] Ibid.

[4] Ibid at par 10.

[5] Ibid at par 2.

[6] Ibid at par 51.

[7] See, Marriages Act, 1984 (Cap 127). See also, Obed Hoyah v. Naa Kwarley Quartey [2020] GHACA 13 (30 July 2020); Adzraku v Adzraku & Anor [2023] GHAHC 530 (15 December 2023); Moro and Another v. Ayebio & others [2024] GHAHC 31 (12 April 2024); Raphael Quist v. Matilda Larbi [2023] GHACC 73 (6 June 2023); Apomasu v. Bremawuo [1980] GLR 278.

[8] Graham v. Graham [1965] GLR 407; Yaotey v. Quaye [1961] GLR 573.

[9] Ibid.

[10] Coleman v. Shang (1959) GLR 390; Adzraku v Adzraku & Anor [2023] GHAHC 530 (15 December 2023).

[11] Coleman v. Shang (1959) GLR 390.

[12] Marriage of Mohammedan Ordinance, 1951 (Rev.) (Cap 129). See also, Apomasu v. Bremawuo [1980] GLR 278.

[13] See, Marriage Act Ordinance, 1951 (Cap 127); Boateng v. Serwa and others [2021] GHASC 195 (14 April 2021).

[14] See, Ernestina Boateng v. Phyllis Serwaa and 2 others, Civil Appeal No. J4/08/2020 (14 April 2021).

[15] Section 1(2) of the Evidence Act, 1975 (NRCD 323).

[16] Davis v. Randall [1962] 1 GLR 1.

[17] Ibid. See also, Clipper Leasing Corporation v. S and Ghana Airways Limited [2025] GHASC 27 (29 April 2025); Josiah Ofori-Boateng, The Ghana Law of Evidence (Waterville Publishing House 1993) pp. 7.

[18] In Re Canfor (Deceased); Canfor v. Kpodo, [1968] GLR 177.

[19] Ibid.

[20] Section 40 of the Evidence Act, 1975 (NRCD 323). See also, Ama Serwah v. Yaw Adu Gyamfi & Vera Adu Gyamfi, where the High Court of Ghana, in accordance with section 40 of the Evidence Act, assumed that the Italian law on the subject matter and that of Ghana were the same after the plaintiff failed to prove the foreign law.

[21] Akosua Serwaah Fosuh at par 85. See also, Richard Frimpong Oppong & Kissi Agyebeng, Conflict of Laws in Ghana (Sedco Publishing 2021) 40.

[22]  Ama Serwaa v. Gariba Hashimu & another, Civil Appeal No. J4/31/2020 (14 April 2021).

[23] Ibid.

[24] Godka Group of Companies v. PS International Ltd (1999-2000) 1 GLR 409.

[25] Ibid.

[26] Ibid.

[27] Val Cap Marketing v. The Owners of M V Vinta, Civil Appeal No. 27/98 (Court of Appeal, Accra, 1999).

[28] Ibid.

[29] See, section 1(2) of the Evidence Act; Fenuku v. John Teye [2001-2002] SCGLR 985; Tetteh & another v. Hayford 9Substituted by) Larbi & Decker [2012] 1 SCGLR 417. In effect, the court the court determines the degree of weight to be accorded to the evidence by an expert witness.

[30] Ibid.

[31] Akosua Serwaah Fosuh par 88.

[32] Akosua Serwaah Fosuh par 90 and 106-107.

[33] Section 161(1) of the Evidence Act, 1975 (NRCD 323).

[34] Section 161(2) of the Evidence Act, 1975 (NRCD 323).

[35] Section 161(3) of the Evidence Act, 1975 (NRCD 323).

[36] Akosua Serwaah Fosuh par 91.

[37] Akosua Serwaah Fosuh par 94.

[38] Akosua Serwaah Fosuh par 87.

[39] Akosua Serwaah Fosuh par 101.

[40] Akosua Serwaah Fosuh par 104.

[41] Akosua Serwaah Fosuh paras 107-108.

[42] Akosua Serwaah Fosuh par 164.

[43] Richard Frimpong Oppong & Kissi Agyebeng, Conflict of Laws in Ghana (Sedco Publishing 2021) p. 39.

[44] Ibid at 39.

[45] Ibid.

[46] Ibid at 40-41.

[47] Ibid at 40-41.

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

The Opinion of Advocate General Rantos in C-232/25 [Idziski] (at the time of writing not available in English) focuses on eDate and Bolagsupplysningen’s ‘centre of interests’ test in the context of Article 7(2) Brussels Ia jurisdiction for infringement of personality rights. (The case formally concerns A5(3) Brussels I however there is no material difference).

Applicants Z.R. (an indivdual) and Ś. (an organisation representing former soldiers’ interests) claims an infringement of personality rights by a series coproduced by the defendants, who are domiciled in Germany. The contested series traces the fates of a number of characters (a friendship group of young Germans) during World War II. Part of the story involving one of the main characters takes place in the Polish territories under German occupation. A crucial aspect of this plot strand is a meeting between this character and the underground military unit mentioned in the questions referred for a preliminary ruling; the soldiers belonging to the relevant military unit make clear their attitudes towards Jews during this meeting.

Names etc are anonymised in the proceedings however it does not take long to figure out the series concerned is Unsere Mütter, unsere Väter – aired on Polish TV but also available for streaming. Lower courts’ findings and orders including for public apologies are all being appealed and current reference by the Supreme Court enquires about the jurisdictional issue.

Claimants argue centre of interests per CJEU eDate, and argue there is identifiability, required per CJEU Mittelbayerisher Verlag. They distinguish that case by referring to the fact that the content infringing personality rights pertained to an entire nationality, and the applicant invoked membership of this nationality; in the present case, however, the plot of the film describes the behaviour of a narrower and closed group of individuals, namely the soldiers of the relevant military unit, and unambiguously and undeniably identifies this unit.

The alleged infringement of personality rights follows not from a posting on the internet (prima facie required per CJEU eDate and confirmed in CJEU Wintersteiger) rather from a cinema and film broadcast on terrestrial TV in a number of Member States, including Poland, whereby the applicants had their centre of interests in Poland. The Polish SC essentially wonders whether the ‘internet’ element is still relevant seeing as technological advances have led to a blurring of the boundaries between traditional forms of long-distance broadcasting and the distribution of the content via the internet.

The AG (53) firstly suggests the relevant technological context is the 2015 one, when the claim was formulated: not the 2026 one.  I for one would suggest his opinion should hold even in 2026 circumstances.

(56) He justifiably reminds us again of the need to interpret all exceptions to Article 4 Brussels Ia domicile jurisdiction restrictively, and in the specific context at issue, that not all territorially broadcasted content necessarily ends up online; reviewing it ad hoc would not serve predictability. (59) This leads to bifurcation: for the terrestrial part of the broadcast, CJEU Shevill is the relevant authority, and for the internet part, eDate. As for the identifiability, the AG essentially reminds the judge of the Mittelbayerischer Verlag criteria and (67) suggests a presumption against such identifiability.

The second preliminary question is relevant only if (as indeed the AG suggests) the answer to the first question likely leads to non-applicability of the eDate route hence only limited (A7(2) locus damni) jurisdiction for the   Polish courts. Might it then encompass at least some of the nonpecuniary claims lodged by the applicants: that specific information be displayed whenever the film is broadcast and that a corresponding statement be published. The AG sees no issue with that, provided the territorial consequences are limited.

(80) the AG ends with the remark that the mozaik approach is not ideal for claimants at issue and in similar cases, however he suggests, rightly in my view, that such is the consequence of long-standing authority and not something the CJEU rebus sic stantibus (statutory intervention being an issue for the legislator) should alter.

A sensible Opinion.

Geert.

 

 

 

 

 

Laura Carpaneto (University of Genoa), Francesca Maoli (San Raffaele Telematic University of Rome) and Ilaria Queirolo (University of Genoa) edited Towards Universal Parenthood in Europe with Editoriale Scientifica. The book presents the outcome of UniPAR – Towards Universal Parenthood in Europe, a project co-funded by the EU and addresses a broad range of issues relating […]

 

As part of the second online symposium on recent developments in African private international law, we are pleased to present the fifth contribution, kindly prepared by Elisa Rinaldi (University of Pretoria, South Africa) on Cross-border employment, competition and delictual liability merge in the South African High Court: Placement International Group Limited v Pretorius and Others.

 

The High Court of South Africa recently heard a dispute that concerned an application for interim relief to interdict South African competitors from competing in the field of international recruitment.[i] The case of Placement International Group Limited v Pretorius and Others [2025] ZAGPPHC 1252 centred on the work undertaken by international hiring companies who, with the rise of transnational employment, facilitate the recruitment and placement of potential employees from anywhere in the world. The applicant in this dispute, Placement International Group Limited, a company incorporated in Hong Kong, is a hiring company who worked to source candidates in South Africa for employment opportunities overseas. The dispute was brought by Placement International against a previous employee who, upon leaving the applicant’s employment, went on to establish her own hiring company. The respondents, a South African national, and her company, Integricore Global (Pty) Ltd, incorporated in South Africa, aimed to facilitate the hiring of South African candidates, resulting in direct competition with the applicant. Aggrieved, the applicant turned to the South African High Court to request that they interdict Integricore from sourcing candidates in South Africa as they considered this to amount to unlawful competition. The relief sought by the applicant was based on South African common law.

The alleged unlawful competition arose out of an employment relationship between the applicant and respondent. The central contention by the applicant was that the respondent had breached her fiduciary duties by establishing Integricore and working in direct competition with Placement International.[ii] The applicant argued that the information regarding potential candidates and companies was proprietary confidential information which the respondent required and used in order to establish Integricore.[iii]  The right to claim relief for breach of an employee’s fiduciary duties exists in South African common law, granting the aggrieved party a right to claim under either delict or contract.[iv] Such an election is permitted in South African law and in this case, the applicant decided to claim under delictual breach of fiduciary duty rather than under the terms of the contract.

The decision to claim under delict prompted an interesting investigation into the integrity of such claim. The reason being is that the employment contract, between the applicant and responded, contained a restraint of trade clause which, as according to the choice of law clause within the contract, should have been governed by Hong Kong law.[v] The applicant, however, decided not to enforce the contractual provision for reasons that turned out to be rather interesting. While employers are said to be in a generally stronger bargaining position when it comes to choice of law, in this instance the choice of Honk Kong law applied against the employer. As it came to be revealed, the position of restraint of trade clauses in Hong Kong law is that they are generally void for being against public policy.[vi] This is the case unless the employer is able to show that the restrictions are necessary to protect their legitimate business interests. In South Africa the position is reversed. Restraint of trade clauses are generally valid and enforceable unless they are deemed unreasonable.[vii] In determining whether a restraint of trade clause is unreasonable, a court will consider whether the business interest is deserving of protection and weigh this against the interests, of the former employee, to earn a living. Irrespective of this distinction, the applicant chose to rely on South African common law instead of the contract, likely because of the fact that the application of Hong Kong law would not result in their favour.

The decision to rely on the common law led the High Court to consider whether this amounted to an abuse of process. Reason being is that, the common law right to claim relief for breach of fiduciary duty is a right that comes to existence through the employment contract, a point which the court rightfully made:

“It is a far cry to approach the court for common law relief based on a fiduciary duty arising from the contract of employment when the same contract does not have the same consequence under Hong Kong law as a South African contract of employment. That creates doubt on the applicant’s entitlement to common law interdictory relief by merely jettisoning a troublesome consequence of the choice of law in the contract of employment.”[viii]

Nevertheless, the court reasoned that the decision to rely on the South African common law could not amount to an abuse of process in light of there being doubt as to whether the applicant would have been able to establish a contractual right under Hong Kong law for the enforcement of the restraint of trade clause.[ix] The protection of lawful competition also seemed to necessitate a decision on the merits.[x] Having concluded that there was no abuse of process, the court went on to make its judgment against the applicant. A number of reasons were made, most of which were due to the circumstances surrounding the termination of the employment relationship between the applicant and respondent.[xi] In essence, the competition arising from the activities of Integricore was found to be lawful, meaning there was no right from which to claim interdictory relief. The respondent’s knowledge of the South African market was found to be part of the respondent’s general skill set and not part of the applicant’s proprietary confidential information. In other words, the applicant had not proven that there was a reasonable apprehension of irreparable harm, which is an element that must be proven in order for the interdict application to succeed. Lastly, the court held that it would be unlikely to grant relief by exercise of their judicial discretion due to the contractual relationship being governed by Hong Kong law.

Certain concerns have been raised in respect to the lack of a private international law approach by the High Court in this judgment. These concerns can be read here. Essentially, the court failed to conduct a proper investigation into the choice of law governing the unlawful competition claim. A private international law approach would have necessitated characterising the dispute and determining which law would apply, either by application of a conflict rule or through the determination of which legal system is manifestly closer or significantly connected to the dispute. The South African choice of law rule for delictual disputes is the lex loci delicti.[xii] The court, however, did not follow through with a determination on the choice of law. Nonetheless, I do not believe that the court erred in their approach for a few reasons. The main issue concerned the question of whether the applicant had met the requirements for an interdict, as according to South African law. The applicant had approached the High Court for interdictory relief on the basis of South African common law. The court scrutinized this decision in light of the employment contract and its express choice of Hong Kong law. Far from ignoring the relevance of foreign law, the court went on to ascertain the content of Hong Kong law in respect to restrain of trade. The determination of whether the applicant had established a prima facie right to claim interdictory relief, as well as whether the court should grant discretionary relief in lieu of a prima facie right hinged on the employment contract, its choice of Hong Kong law as well as its subsequent repudiation. A determination of the applicable law over the alleged unlawful competition was not necessary in order for the court to make its conclusion. The question of whether the competition was unlawful was answered by looking at the surrounding circumstances of the employment contract and, more specifically, the conduct of the applicant in respect to the contract. The employment contract and its choice of law clause was central to the court’s adjudication of the matter.

While a clear and express private international law approach is always valuable, particularly in South Africa where private international law disputes are not often heard, a dogmatic choice of law approach is not always necessary. The court may in fact be commended for how it handled the aspects of foreign law which arose in this dispute. The court went through the process of actually ascertaining the position in Hong Kong law, highlighting the importance of express choice of law clauses within contractual agreements. What may be considered a cosmopolitan approach, akin to private international law concerns, ensured the court considered factors beyond the elements necessary for interdictory relief under South African law. The court raised concerns surrounding potential abuse of process, which factored heavily in the courts choice to not grant discretionary relief. The attention brought to these concerns are welcomed, particularly in the face of the relative ease that transnational employers have over the litigation process.[xiii]

 

Previous contributions:

1. Online Symposium on Recent Developments in African Private International Law, by Béligh Elbalti & Chukwuma S.A. Okoli (Introductory post)
2. Recognition and Enforcement of International Judgments in Nigeria, by Abubakri Yekini & Chukwuma Samuel Adesina Okoli
3. The Recognition and Enforcement of Foreign Judgments within the CEMAC Zone, by Boris Awa
4. Foreign Judgments in Mozambique through the Lens of the Enforcement of a Chinese Judgment: Liberal Practice in the Shadow of Statutory Rigidity, by Béligh Elbalti
5. Party Autonomy, Genuine Connection, Convenience, Costs, Privity, and Public Policy: The Kenyan High Court on Exclusive Jurisdiction Clauses, by Anam Abdul – Majid and Kitonga Mulandi

 

———————————————–

[i] Placement International Group Limited v Pretorius and Others [2025] ZAGPPHC 1252 (Placement International).

[ii] Ibid para 1-9.

[iii] Ibid para 6

[iv] See generally, Lillicrap Wassenaar and Partners v Pilkington Brothers [1985] 1 All SA 347 (A).

[v] Placement International (n1) para 33.

[vi] Ibid para 30.

[vii] For a very recent judgment on restraint of trade clauses in South Africa see, TWK Agri (Pty) Ltd v Holtzhausen and Another [2025] ZALCJHB 252.

[viii] Placement International (n1) para 33.

[ix] Ibid para 40.

[x] Ibid.

[xi] Ibid para 42 – 50.

[xii] See Burchell v Anglin 2010 3 SA 48 (ECG) and Apleni v African Process Solutions (Pty) Ltd and Another (15211/17) [2018] ZAWCHC 160.

[xiii] See generally, Rinaldi E ‘A comparative analysis of the mandatory rule doctrine and its application in the South African Labour Court’ (2021) 15 Pretoria Student Law Review.

 

 

As part of the second online symposium on recent developments in African private international law, we are pleased to present the fourth contribution, kindly prepared by Anam Abdul-Majid (Advocate and Head of Corporate and Commercial Department, KSM Advocates, Nairobi, Kenya) and Kitonga Mulandi (Lawyer, KSM Advocates, Nairobi, Kenya), on Party Autonomy, Genuine Connection, Convenience, Costs, Privity, and Public Policy: The Kenyan High Court on Exclusive Jurisdiction Clauses

 

I. Introduction

Kenya has emerged as a regional and global hub for the development of private international law, positioning it as one of Africa’s leading jurisdictions through progressive judicial reasoning and landmark decisions. Kenyan jurisprudence has not only shaped domestic private international law but is also frequently relied upon by courts in other African jurisdictions, particularly East Africa, as persuasive authority. Given the consistent and dynamic evolution of this field by Kenyan courts, it is essential to take account of recent decisions that have engaged with and developed key private international law concepts.

One such relatively recent decision is Maersk Kenya Limited v Multiplan Packaging Limited (Civil Appeal E181 of 2022) [2024] KEHC 8462 (KLR) (Civ) (8 July 2024) (Judgment), which engages with several core doctrines of private international law and therefore warrants closer analysis.

This case is significant for four interrelated reasons. First, it examines the limits of exclusive jurisdiction clauses in maritime contracts where both parties are Kenyan entities and the alleged breach occurred within Kenyan territory. Second, it clarifies the operation of the doctrine of privity of contract in the context of agency relationships under bills of lading, particularly by recognising that consignees who were not original contracting parties may nonetheless have standing to sue carriers on the basis of rights conferred by the carriage documents. Third, it articulates important public-policy considerations capable of overriding contractual forum-selection agreements, especially where such clauses would impose insurmountable barriers to access to justice, contrary to Article 48 of the Constitution of Kenya. Finally, the decision reinforces procedural discipline in jurisdictional challenges by holding that parties who enter an unconditional appearance and substantively participate in proceedings waive any subsequent right to contest the court’s jurisdiction or to rely on an exclusive forum-selection clause.

 

II. Facts

The facts of the case centred on whether Kenyan courts had jurisdiction to hear and determine the dispute, notwithstanding that the contract forming the subject matter of the proceedings contained an exclusive jurisdiction clause conferring jurisdiction on the English High Court in London. The dispute arose out of a maritime contract of carriage relating to the Respondent’s shipment of cargo from Mombasa, Kenya, to Juba, South Sudan.

The contractual arrangement involved a composite mode of performance: sea carriage to Mombasa (the transit port), inland storage at Mombasa, and subsequent road transportation to the final destination in South Sudan. This contractual structure generated performance obligations across multiple jurisdictions. Under Kenyan customs regulations, goods in transit are subject to the provision of security bonds to ensure compliance with fiscal obligations. The Respondent’s failure to meet this requirement triggered the dispute, ultimately leading to the Appellant’s decision to trans-ship the goods to Dubai, acting on instructions from Maersk Egypt A/S.

The application was further complicated by a layered agency relationship. The shipper was alleged to be acting as an agent of the Respondent (the consignee), while the Appellant, Maersk Kenya Limited, acted as an agent of Maersk Egypt A/S, which itself acted as agent for another entity within the Maersk corporate structure. The Court characterised this arrangement as an “agents-of-agents” scenario, raising difficult questions of privity of contract and whether the Respondent, as consignee under the bill of lading, could maintain an action against Maersk Kenya Limited in the absence of direct contractual privity.

Although the Court acknowledged that no direct contractual agreement existed between the parties, it placed decisive weight on the fact that both parties were Kenyan companies and that the alleged breach occurred in Kenya. These connecting factors proved determinative in the Court’s forum analysis. While recognising that Clause 26 of the Terms of Carriage constituted a standard-form English exclusive jurisdiction clause in maritime contracts also governed by English law, the Court nevertheless held that such a boilerplate provision could not operate to oust the jurisdiction of Kenyan courts. In the Court’s view, the practical realities of the dispute disclosed no genuine connection to the English forum beyond the bare contractual designation.

 

III. Summary of the Judgment Delivered by the High Court of Kenya

This case is particularly relevant because it does not engage with a single isolated issue, but rather addresses a constellation of interrelated doctrines, each of which contributes to greater doctrinal clarity in private international law.

Although the contract contained an exclusive jurisdiction clause, the Court found that the contractual arrangement comprised distinct segments, one of which concerned the transportation of the Respondent’s cargo from Mombasa to Juba, South Sudan, with Mombasa functioning as a transit port for offloading and interim storage prior to onward road transportation. Owing to the Respondent’s failure to pay the requisite bond-in-transit charges, the goods were subsequently trans-shipped to Dubai on the instructions of the first applicant.

The application was further grounded in complex agency relationships: the shipper was alleged to be acting as an agent of the Respondent, while the Appellant acted as an agent of Maersk Egypt A/S, which itself acted as agent for another entity within the corporate structure. The Court observed that there was no direct contractual agreement between the parties. Nevertheless, it placed decisive weight on the fact that both parties were Kenyan companies and that the alleged breach occurred within Kenya.

Against this background, the Court articulated several important principles:

• (a) where parties operate as “agents of agents”, they are properly characterised as third parties, with the consequence that no privity of contract exists between them;
• (b) there is no principled basis for two Kenyan companies to litigate their dispute in London in the absence of a genuine connecting factor to that forum;
• (c) disputes between Kenyan companies arising from breaches occurring in Kenya should, as a matter of public policy, be adjudicated by Kenyan courts;
• (d) Kenyan courts may override exclusive jurisdiction clauses where the circumstances of the dispute demonstrate that the matter ought properly to be heard in Kenya;
• (e) a party seeking to challenge territorial jurisdiction must do so at the earliest opportunity and must refrain from taking substantive steps in the proceedings. By entering an unconditional appearance, filing multiple affidavits, and applying for the release of the goods, the Appellant was held to have submitted to the Court’s jurisdiction and thereby waived any subsequent right to contest it; and
• (f) contractual clauses purporting to oust the jurisdiction of Kenyan courts may be contrary to public policy unless there is a clear and substantive connection between the dispute and the chosen foreign forum. In the absence of such a connection, referral of a dispute of this nature to London was held to be unjustified.

 

IV. Comments

The judgment represents a sophisticated attempt to reconcile competing values in private international law, namely party autonomy and access to justice. Notably, the Court did not override the jurisdiction clause on the basis of abstract or generalised appeals to injustice; rather, it arrived at that conclusion through the following considerations:

 

(a) Presuming Validity of Clause 26:

The Court began from a presumption in favour of the validity and enforceability of exclusive forum-selection clauses. Its reasoning was that this presumption is at its strongest where: (1) the clause is negotiated by sophisticated commercial parties; (2) the designated forum has a genuine connection to the transaction; (3) the costs of litigating in that forum are proportionate to the value and nature of the dispute; and (4) the parties are subject to reciprocal obligations to litigate exclusively in the chosen forum. In such circumstances, the clause ought, in principle, to be enforced.

 

(b) Rebuttable Presumption:

The Court held that the presumption of validity attaching to exclusive forum-selection clauses may be rebutted where their enforcement would create insurmountable barriers to access to justice, particularly in the context of standard-form contracts concluded between parties of unequal bargaining power—a consideration that goes to the very root of genuine consent.

Applying this reasoning, the Court concluded that Clause 26 did not bind the Respondent because it was not a party to the contract. Relying on the doctrine of privity of contract, the Court emphasised that the Respondent, as consignee, played no role in negotiating the shipping agreement between Maersk Line A/S and the shipper and could therefore not be bound by its forum-selection clause.

Crucially, the Court was careful to avoid conflating layered agency relationships—described as an “agents-of-agents” structure—with contractual privity. It rightly held that the Respondent, as consignee, could not be taken to have consented to the Terms of Carriage, which constituted a contract exclusively between the shipper and the carrier.

 

(c) Waiver of the Right to Enforce:

The Court’s finding of submission to jurisdiction through conduct is well grounded and consistent with established jurisprudence, which recognises that a party may waive its right to rely on a forum-selection clause, or otherwise submit to the court’s jurisdiction, by its conduct. In such circumstances, the forum-selection clause is rendered inoperative.

The Court’s conclusion that the Appellant’s entry of an unconditional appearance, coupled with the obtaining of interim relief for the release of the cargo, amounted to submission to jurisdiction is sound. This approach not only accords with the underlying rationale of the doctrine—namely, the protection of rights that have accrued to the opposing party—but also reinforces the principle that a party cannot be permitted to litigate on the basis of approbation and reprobation, a well-established cornerstone of equitable jurisprudence.

 

(d) Public Policy:

The enforcement of a forum-selection clause in a dispute valued at twenty million Kenyan shillings, where both parties are Kenyan companies, is untenable, unsound, and inconsistent with the underlying principles of private international law. Such an approach disregards a foundational premise of contract law: that parties enter into contractual arrangements with knowledge of, and consent to, their negotiated terms. In the context of exclusive jurisdiction clauses, this logic is even more compelling, as the very purpose of such clauses is to secure a just, convenient, and—most critically—predictable framework for the resolution of disputes should they arise.

The Court’s characterisation of the clause as contrary to “public policy” is not only difficult to reconcile with these long-standing principles but is also problematic in its reasoning. The Court’s attempt to define the relevant public policy relies heavily on the Canadian decision in Uber Technologies Inc v Heller, using it to support the proposition that where the costs of litigating in the designated forum are disproportionate to the value of the claim, enforcement of the forum-selection clause would offend public policy.

This reasoning sits uneasily with settled authority in private international law, which makes clear that mere inconvenience—including administrative burden and litigation costs—does not, without more, amount to “strong cause” sufficient to displace an exclusive jurisdiction agreement freely entered into by the parties.

 

V. Conclusion

The Kenyan High Court’s decision in Maersk v Kenya Limited v Multiplan Packaging Limited affirms several settled principles: the doctrine of privity of contract, the presumptive validity of exclusive jurisdiction clauses, and the consequence that a party may waive its right to rely on such a clause through submission to the court’s jurisdiction. Yet the decision exposes a critical tension in the Court’s reasoning. The dispute involved two Kenyan companies, a contract performed in Kenya, and the alleged breach occurring in Kenya, these connecting factors would ordinarily support the exercise of jurisdiction. The difficulty lies in the Court’s use of public policy to displace the jurisdiction clause on the bases of cost and inconvenience.

This approach sits at odds with established authority. As articulated in The Eleftheria (1969) 1 Lloyd’s L. R. 237 and subsequent authorities, inconvenience or increased litigation costs do not, without more, amount to ‘strong cause’, sufficient to displace an exclusive jurisdiction agreement freely entered into by parties. Further the Court’s reliance on the Canadian decision in Uber Technologies Inc v Heller, upon which the Court premised its analysis, concerned very particular circumstances, of a consumer contract concluded between parties of profound unequal bargaining power, with the central question being the validity of an arbitration agreement, a related but distinct legal concept for determination. The reliance on public policy in this context is problematic for three reasons: (1) the concept construed widely risks development into an indeterminate tool for judicial discretion; (2) the court has not articulated a coherent test for determining when or how cost and convenience may rise to the threshold to override clear contractual choices; and (3) the broad conception of public policy threatens the essential rationale behind exclusive jurisdiction clauses, being the predictability such offers parties to international commercial contracts and have become accustomed to expect. If jurisdiction clauses may be displaced on grounds of general convenience, parties can no longer rely on their contractual allocations of risk, and the very purpose of such clauses is defeated.

Ultimately, Maersk demonstrates that there ought to be greater comparative engagement and doctrinal grounding while balancing party autonomy and safeguarding access to justice.

 

Previous contributions:

1. Online Symposium on Recent Developments in African Private International Law, by Béligh Elbalti & Chukwuma S.A. Okoli (Introductory post)
2. Recognition and Enforcement of International Judgments in Nigeria, by Abubakri Yekini & Chukwuma Samuel Adesina Okoli
3. The Recognition and Enforcement of Foreign Judgments within the CEMAC Zone, by Boris Awa
4. Foreign Judgments in Mozambique through the Lens of the Enforcement of a Chinese Judgment: Liberal Practice in the Shadow of Statutory Rigidity, by Béligh Elbalti

 

As announced earlier on this blog. the next EAPIL Conference will take place in Geneva from 18 to 20 June 2026. In the run-up to the Conference, elections will be held for both the Board of Administration and the Scientific Council of the Association in accordance with the EAPIL Statutes. EAPIL’s governing bodies play a […]

      

 

As part of the second online symposium on recent developments in African private international law, we are pleased to present the third contribution, prepared by Béligh Elbalti (The University of Osaka, Japan), on Foreign Judgments in Mozambique through the Lens of the Enforcement of a Chinese Judgment: Liberal Practice in the Shadow of Statutory Rigidity.

I. Introduction

The purpose of this note is to briefly introduce the recognition and enforcement regime in Mozambique based on a recent decided by the Mozambican Supreme Court (Tribunal Supremo).

It aims modestly to help fill a gap in legal literature. Indeed, scholarly work on Mozambican private international law in general, and on the recognition and enforcement of foreign judgments in particular, remains extremely limited (For an overview on Mozambican private international law system, see D Moura Vicente, ‘Mozambique’ in J Basedow et al. (eds.), Encyclopedia of Private International Law – Vol. III (Elgar, 2017) 2354).

The note also seeks to shed light on recognition and enforcement practice in a country that has largely remained outside the radar of comparative law scholars and researchers.

It is hoped that this contribution will encourage more detailed and in-depth studies that do justice to a legal system which appears, despite some anachronistic aspects of its legal regime, to have one of the most liberal enforcement practices in Africa.

 

II. The Case

The case presented here concerns the enforcement in Mozambique of a Chinese judgment in a dispute involving two Chinese citizens resident in Mozambique. The underlying factual background may be summarized as follows.

The dispute appears to have arisen from a breach of contractual obligation. The applicant, X, initially tried to recover the debt in Mozambique by initiating execution proceedings against Y (the respondent) for payment of a sum of money (ação executiva para pagamento de quantia certa). However, the Mozambican court upheld the objections to execution (embargos à execução) filed by Y and dismissed the execution for lack of evidence prove the existence of an enforceable title or establishing the alleged debt.

X subsequently initiated civil condemnation proceedings (processo de Condenação Civil) in China, claiming damages for breach of contract, and obtained in his favor a judgment ordering Y to pay damages. Armed with a final Chinese judgment, X sought its enforcement in Mozambique by bringing an action for review and confirmation (revisão e confirmação).

Y challenged the review and confirmation of the foreign judgment on the grounds that there is an identity between the prior execution proceedings in Mozambique and the confirmation proceedings. X replied that the two actions differed in terms of the legal effects sought (the execution proceedings concerned the compulsory payment of a debt and not concerned with the review and confirmation of a foreign judgment) and cause of action (the execution proceedings were based on the alleged existence of an enforceable title, whereas the confirmation proceedings were based on the existence of a foreign judgment requiring recognition and enforcement).

 

III. The Ruling

In deciding this issue, the Mozambican Supreme Court rules as follows (Case No. 75/2024-C of 25 April 2025).

The Court first cited the relevant provision of the CCP setting out the conditions for the recognition and enforcement of foreign judgments in Mozambique (Article 1096). Under that provision, a foreign judgment may be declared enforceable (confirmed) only if seven conditions are satisfied:

• a) the authenticity and intelligibility of the decision;
  b) the final and binding character of the judgment in the State of origin;
  c) the jurisdiction of the foreign court under Mozambican rules on conflicts of jurisdiction;
  d) the absence of lis pendens or res judicata arising from proceedings before Mozambican courts, unless the foreign court was first seized;
  e) proper service of the defendant;
  f) compliance with Mozambican public policy; and
  g) where the judgment is rendered against a Mozambican national, respect for Mozambican substantive law where applicable under Mozambican conflict-of-laws rules.

Then the Court moved to examine each of the above conditions, with a special focus on the legal issue raised by the parties, ruling as follows (detailed summary):

Mozambique applies a delibation (delibação) system for the recognition of foreign judgments. Under this system, focus is placed on compliance with formal requirements laid down by Article 1096. There is therefore no review of the merits, except with regard to a possible violation of public policy or domestic private law where the judgment was rendered against a Mozambican national (the so-called nationality privilege).

Regarding the requirement of authenticity and intelligibility, the judgment was duly legalized and raises no doubts as to its intelligibility.

Accordingly, the requirement of Article 1096(a) is satisfied

Regarding finality, this requirement is presumed to be satisfied in the absence of evidence to the contrary. Since the presumption was not rebutted, the requirement under Article 1096(b) is satisfied.

Regarding the jurisdiction of the foreign court, Mozambican law predominantly follows the bilateral (mirror-image) theory, according to which a foreign court is internationally competent if a Mozambican court would have had jurisdiction in comparable circumstances. The case concerned a contractual claim for damages. Under Mozambican rules of international jurisdiction, such claims fall within the jurisdiction of the courts of the place of performance of the obligation. As the obligation was to be performed in the State of origin, the foreign court was internationally competent for the purposes of Article 1096(c).

Accordingly, the requirement of Article 1096(c) is also satisfied.

Regarding the issue of res judicata disputed by the parties, this requirement aims to prevent contradictory effects within the Mozambican legal order by barring enforcement where a Mozambican court has already rendered a final decision on the same dispute, involving the same parties, claim, and cause of action, as that decided by the foreign court. For this purpose, the comparison for determining whether the res judicata exception exists is not between the action for the enforcement of the foreign judgment (action for review and confirmation) and another action brought before Mozambican courts. Rather, res judicata, for the purposes of recognition and enforcement of foreign judgments, results from a comparison between the action decided by the foreign court (which resulted in the judgment sought to be declared enforceable) and the action decided by Mozambican courts concerning the same dispute. In the present case, although Y alleged the existence of res judicata based on earlier Mozambican proceedings, he failed to establish the required identity of parties, claim, and cause of action.

Accordingly, the requirement under Article 1096(d) is satisfied.

Regarding proper service, both the applicant and the respondent had the opportunity to participate in the foreign proceedings.

Accordingly, the requirement under Article 1096(e) is also satisfied.

Regarding public policy, the foreign judgment in question does not contravene Mozambican public policy principles, as civil liability for damage resulting from breach of legal transactions is an institution widely accepted in Mozambique.

Finally, with regard to the requirement under Article 1096(g), since both parties are Chinese nationals, the judgment was not rendered against a Mozambican national, the nationality privilege does not arise, rendering this provision inapplicable.

 

IV. Comments

The decision of the Mozambican Supreme Court is both interesting and significant in several respects, two of which are particularly noteworthy. First, it is interesting because it reproduces various elements discussed in literature, notably in an article published in 2022 by M. Muchanga,[i] who also serves as the President of the Mozambican Supreme Court (A M Muchanga, ‘Reconhecimento de Sentenças Estrangeiras em Matéria de Direito Privado na Ordem Jurídica Moçambicana’ 1 O Embondeiro: Revista Dos Tribunais (2022) 15).

The decision is also significant because it does not only clarify some general principles underlying the recognition and enforcement of foreign judgments in Mozambique (1), but also it sheds further light on the specific conditions applicable to their recognition and enforcement (2).

 

1. General Principles underlying the Recognition and Enforcement of Foreign Judgments in Mozambique

 

a) Applicable legal framework

Mozambican law in the field of the recognition and enforcement of foreign judgments, and private international law more generally, is not merely inspired by Portuguese law; it is, in fact, Portuguese law, extended to Mozambique when it was one of Portugal’s overseas (ultramar) territories. Regarding the recognition and enforcement of foreign judgments, the relevant rules are contained in the Portuguese CCP of 1961 (Código de Processo Civil), whose application was extended to Mozambique in 1962 (Articles 1094–1101). This legal framework, inherited at independence in 1975, continues to govern the recognition and enforcement of foreign judgments in Mozambique. These rules are particularly significant given the extremely limited number of conventions concluded by Mozambique (e.g., the 1990 Mozambican–Portuguese Convention on Legal and Judicial Assistance), which, in practice, are generally not invoked by the courts, even in situations where international conventions would, in principle, apply.

 

b) Reciprocity not required

Recognition and enforcement in Mozambique do not depend on the existence of reciprocity. Judgments rendered in states where recognition and enforcement are themselves subject to a reciprocity requirement, such as China (Article 299 of the Chinese CCP), do not appear to encounter particular difficulties when enforcement is sought in Mozambique, as the present case clearly illustrates. Other cases show a similar practice, with judgments from countries requiring reciprocity (such as Germany and the UAE (Dubai)) being smoothly recognized and enforced in Mozambique.

It is also worth mentioning that the Supreme Court of Mozambique concluded in 2018 a Memorandum of Understanding (MoU) with the Supreme People’s Court of the People’s Republic of China, which, inter alia, aims to facilitate the recognition and enforcement of judgments in both countries (Article 4). However, this MoU does not appear to have played any decisive role, either directly or indirectly, in the outcome of the present case.

 

c) Necessity for review and confirmation procedure

Giving effect to foreign judgments in Mozambique is based on the so-called delibation (delibação) system, i.e. a process of individualized review through which foreign judgments would be admitted or not to produce their legal effects in the forum, including res judicata effects (Muchanga, op.cit., 21). This confirms, along with other relevant provisions in the CCP (Article 497(4), 1094(1)), that foreign judgment do not enjoy de plano effect (automatic recognition) in Mozambique.

 

d) No review of the merits

As a matter of principle, review of the merits is not permitted, and the case law of the Supreme Court is fairly consistent on this point. This principle, however, admits two notable exceptions, as indicated in the decision: public policy and the so-called nationality privilege (Muchanga, op. cit., at 21). As the present case clearly illustrates, review of the merits is only exceptionally engaged on public-policy grounds. By contrast, review of the merits becomes more relevant in connection with the nationality privilege, notably in the application of Article 1096(g). Here again, as will be shown below, the case law of the Supreme Court is far from turning this requirement into an insurmountable hurdle, even where the foreign decision (including arbitral awards) is rendered against a Mozambican national.

 

2. Requirements for the Recognition and Enforcement in Mozambique

According to Article 1101 of the CCP, the court dealing with recognition and enforcement requests should not only examine ex officio certain requirements (notably those relating to authenticity, public policy, and the nationality privilege) but should also, on its own motion, refuse recognition and enforcement if, upon examination of the case file, it appears that any of the other statutory requirements are not satisfied. For this reason, although the parties’ submissions focused primarily on the fulfilment of one specific requirement, the Supreme Court nonetheless examined whether all the remaining conditions were met. This approach is consistent with the Court’s established practice, which systematically undertakes a comprehensive review of all statutory requirements for recognition and enforcement.

Below is a brief overview of the recognition and enforcement requirements as set out in Article 1096 of the CCP, considered in light of the Supreme Court’s practice.

 

a) Authenticity and intelligibility

The authenticity requirement relates essentially to the origin of the foreign judgment (Muchanga, op. cit., at 25). Typically, authenticity is verified through the process of legalization in accordance with the applicable legal provisions (notably Article 540 of the CCP). Supreme Court case law shows that the Court often requests the party seeking enforcement to provide the necessary legalization when it is not included in the initial application. As for intelligibility, this concerns the clarity and comprehensibility of the foreign decision (Muchanga, op. cit., at 26). Several Supreme Court decisions indicate that this requirement applies particularly to the operative part of the judgment.

 

b) Finality

In Mozambique, courts generally recognise and enforce only foreign judgments that are final under the law of the State of origin as repeatedly confirmed by the Supreme Court. Proof of the finality of the foreign judgment takes the form of a certificate attesting that the judgment has become final and binding under the law of the country of origin. However, as the present case shows, the Supreme Court considered that finality is presumed even in the absence of documentary evidence establishing it. Put differently, finality is presumed, and that presumption may be rebutted by the respondent through appropriate evidence.

 

c) Indirect jurisdiction.

One of the most important clarifications concerns the standard by which the jurisdictional requirement is to be assessed. Contrary to what has been suggested in some scholarly writings,[ii] the jurisdiction of the foreign court must be assessed by reference to Mozambican rules of direct jurisdiction, in the sense that a foreign court is regarded as competent if, in comparable circumstances, Mozambican courts would have assumed jurisdiction. This approach is commonly described as the bilateralisation of rules of direct jurisdiction, or – more widely known – the mirror-image principle (Muchanga, op. cit., at 28).

 

d) Res judicata and Lis pendens, or Conflicting Judgments and Proceedings

In the context of the recognition and enforcement of foreign judgments, the lis pendens and res judicata defence apply when a foreign judgment was rendered while a local proceeding is still pending before Mozambican courts, or when a Mozambican court has already rendered a final and binding judgment. In such cases, the foreign judgment may be denied recognition and enforcement, as its admission would either undermine Mozambican proceedings or judgments, or eventually result in two contradictory final judgments producing effects within the Mozambican legal order (Muchanga, op. cit., at 30).

The application of both the lis pendens and res judicata defences requires identity between the foreign and domestic actions with respect to the parties, the claim, and the cause of action (Article 498(1) of the CCP). Accordingly, the res judicata defence was not admitted when the party resisting enforcement of a foreign divorce judgment awarding parental authority and alimony invoked the existence of a Mozambican judgment that had only declared the dissolution of the marriage.

The significance of the present case lies in the Supreme Court’s clarification that the res judicata defence should be assessed based on a comparison between the action adjudicated by the foreign court and the action previously decided by Mozambican courts, rather than between the review-and-confirmation proceedings and the local action.

 

e) Service and right to defence

While Article 1096(e) primarily refers to proper service, this provision is generally understood broadly to encompass not only the defendant’s right to be duly informed of the proceedings but also the right to a genuine opportunity to be heard (Muchanga, op. cit., at 31). This interpretation is confirmed by the present decision, in which the Supreme Court focused on the parties’ opportunity to participate in the foreign proceedings. Case law shows that, in line with the wording of Article 1096(e), where Mozambican law dispenses with initial service, there is no need to verify whether the defendant was formally served. It also shows that defects or irregularities in service can be cured if the losing party actively participated in the proceedings before the foreign courts.

 

f) Public policy

In the present case, the Supreme Court found no violations of Mozambican public policy, understood in the literature as “international public policy” (ordem pública internacional), which concerns “the fundamental principles structuring the Mozambican legal order” (Muchanga, op. cit., at 31–32). It is worth noting that, while the Supreme Court has recognized public policy as an exception to the principle prohibiting review of the merits, in other cases it has addressed public policy from the perspective of the effects (efeitos) of foreign judgments, which should not be intolerable for the Mozambican legal order.

 

g) Choice-of-law test or the privilege of nationality

This is one of the most emblematic requirements in the Mozambican enforcement regime inherited from Portuguese law. Under this provision, foreign judgments rendered against Mozambican nationals must not contravene Mozambican private law where, under Mozambican conflict-of-laws rules, Mozambican law would have applied. This is commonly known as the “privilege of nationality.” (Muchanga, op. cit., at 21, 31).

What is remarkable in Mozambican practice is that, despite the anachronistic nature of this requirement,[iii] it has played a relatively limited role. Case law shows that the privilege operates only if two conditions are met: (1) Mozambican law governs the dispute according to Mozambican conflict-of-laws rules; and (2) the judgment was rendered against a Mozambican national, i.e., the unsuccessful party in the foreign proceedings.

Accordingly, as the present decision shows, when the foreign judgment is rendered against a foreigner, this provision does not apply. This approach is also extended to cases in which a foreign judgment cannot technically be regarded as rendered against a Mozambican national, such as non-contentious proceedings. In such situations, the Supreme Court has found the requirements of Article 1096(g) to be satisfied.

Second, and most importantly, the privilege applies only when Mozambican law should have been applied under Mozambican choice-of-law rules. Accordingly, if the foreign law applied by the court of origin corresponds to the law that would be applicable under Mozambican rules, the privilege of nationality does not apply, even if the judgment is rendered against a Mozambican national. In these situations, the Supreme Court has frequently concluded that there is no inconsistency with Mozambican private law and that the requirement in Article 1096(g) is satisfied. The scope of this exception is considerable, notably in international commercial contracts, where party autonomy is generally recognized and fully upheld by Mozambican courts.[iv]

 

V. Concluding Remarks – Peculiarities of the Recognition and Enforcement Practice in Mozambique

As mentioned above, Mozambican law in the field of the recognition and enforcement of foreign judgments is of Portuguese origin. It therefore appears quite natural that Mozambican scholars, and even judges of the Mozambican Supreme Court, rely heavily on Portuguese case law and scholarly writings when interpreting and applying Mozambican law and the inherited Portuguese legal framework. This is more so given the scarcity of legal literature and scholarly writings in the field.

This state of affairs seems to justify the strong temptation to view the legal framework in force in Mozambique – as well as in other Lusophone countries, particularly in Africa[v]  – through Portuguese lenses, which may lead one to assume that Mozambican private international law is identical to that applicable (or formerly applicable) in Portugal (except of course where Portugal has since moved beyond the rules left in its former colonies).

This approach nevertheless suffers from some serious shortcomings. First, due to the over-reliance on Portuguese literature and case law, the solutions developed by the Mozambican Supreme Court remain largely unknown. Second, such reliance also risks superimposing an external legal perspective on Mozambican judicial and practical realities. By way of illustration, the Portuguese legal framework governing the recognition and enforcement of foreign judgments is often portrayed in literature as allowing, under certain circumstances, a review of the merits and control over the law applied by the foreign court.[vi] These features have frequently been criticized as constituting a “serious obstacle to the recognition of foreign judgments” in Portugal.[vii] It has indeed been observed that, in Portuguese practice, choice-of-law control operates so as to bar a significant number of enforcement cases.[viii] If one were to assume that a similar approach prevails in Mozambique, one would expect comparable obstacles to the recognition and enforcement of foreign judgments before Mozambican courts.[ix]

Available case law, however, presents a completely different picture. An examination of approximately 28 decisions of the Mozambican Supreme Court concerning the recognition and enforcement of foreign judgments between 2013 and 2025 shows that, excluding the few cases rejected on purely procedural grounds or subsequently withdrawn, the success rate of enforcement applications is remarkable: 100%.

Those cases also show that foreign judgments from various counties, including Germany, France, Italy, Spain, Portugal, England, South Africa, Australia, UAE (Dubai) and China, all were recognized and enforced, often without any particular difficulty, with the court sometimes simply enumerating the recognition and enforcement requirements and concluding that they were all satisfied. Moreover, although the nationality privilege is often examined in the Supreme Court’s decisions, the available cases indicate that it has not constituted a serious obstacle to the recognition and enforcement of foreign judgments.

These observations highlight the importance of consulting local case law rather than relying solely on assumptions drawn from other jurisdictions. Careful study of domestic practice provides valuable insights for both legal scholars and practitioners,[x] and contributes to a more accurate understanding of how foreign judgments are recognized and enforced in practice, within their local legal context and environment.

 

Previous contributions:

1. Online Symposium on Recent Developments in African Private International Law, by Béligh Elbalti & Chukwuma S.A. Okoli (Introductory post)
2. Recognition and Enforcement of International Judgments in Nigeria, by Abubakri Yekini & Chukwuma Samuel Adesina Okoli
3. The Recognition and Enforcement of Foreign Judgments within the CEMAC Zone, by Boris Awa

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[i] M. Muchanga, who also a university lecturer, has been involved in many of reported foreign judgments enforcement cases, including the one commented on here.

[ii] See eg, R F Oppong, ‘Private International Law and the African Economic Community: A Plea for Greater Attention’ 55 International & Comparative Law Quarterly (2006) 917, explaining that the ‘international jurisdiction of the foreign court will…be recognized only when the court of the forum did not claim jurisdiction of its own over the subject-matter’. The formulation suggests that the indirect jurisdiction of the foreign court would be denied whenever the jurisdiction of the Mozambican courts is justified according to its own rules of direct jurisdiction.

[iii] See F K. Juenger, ‘The Recognition of Money Judgments in Civil and Commercial Matters’ 36 AJCL (1988) 34.

[iv] On the issue of the law applicable to commercial contracts in Mozambique, see R Dias and C F Nordmeier, ‘Angola and Mozambique’, in D Girsberger et al. (eds.), Choice of Law in International Commercial Contracts: Global Perspectives on the Hague Principles (OUP, 2021) 265.

[v] Lusophone countries are countries or territories where Portuguese is an official language. African Lusophone countries include Mozambique, Angola, Cape Verde, Guinea-Bissau, São Tomé and Príncipe. Outside Africa they include, in addition to Portugal, Brazil, East Timor and Macau (China).

[vi] See eg S P. Baumgartner, ‘How Well Do U.S. Judgments Fare in Europe?’ 40 The Geo. Wash. Int’l L. Rev. (2008) 187, 228.

[vii] S P. Baumgartner, ‘Understanding the Obstacles to the Recognition and Enforcement of U.S. Judgments Abroad’ 45 International Law and Politics (2013) 978.

[viii] See C M D Da Silva, ‘De la reconnaissance et de l’exécution des jugements étrangers au Portugal (hors du cqdre de l’application des conventions de Bruxelles et de Lugano)’, in G Walter and S P. Baumgartner (eds.), Recognition and Enforcement of Judgments Outside the Scope of the Brussels and Lugano Conventions (Kluwer Law International, 2000) 481.

[ix] See eg R Dias and C F Nordmeier, ‘Private International Law of Contracts in Angola and Mozambique’ 37 Obiter (2016) 138.

[x] In this sense also, A Boris, ‘The Recognition and Enforcement of Foreign Judgments within the CEMAC Zone’, on this blog.

 

The author of this post is Caterina Benini, post-doctoral researcher and adjunct professor at the Catholic University of the Sacred Heart in Milan. Climate change litigation is relatively rare in Italy. Only a few months ago, the Italian Supreme Court issued its first ruling in a climate change-related lawsuit brought against a corporation. By a […]

The Centre for Private International Law & Transnational Governance of the University of Aberdeen is continuing its Crossroads in Private International Law webinar series with a talk by Tobias Lutzi (University of Augsburg) titled ‘Between Ambition and Realism – What to Expect from the Upcoming Reforms to the Rome II and Brussels Ia Regulation?’:

The Centre for Private International Law & Transnational Governance invites you to attend the next seminar in our Crossroads in Private International Law seminar series. You can find the link to register at the bottom of this page.

Prof Tobias Lutzi (Junior Professor for Private Law at Augsburg University) will give a seminar on the reforms to the Rome II and Brussels Ia Regulation. Prof Lutzi has kindly provided the following abstract:

Last year, the EU Commission formally kicked off the process of reforming two key instruments of EU Private International Law, identifying potential areas for reform and setting out some overarching policy goals. In 2026, the Commission will face the more difficult decision of which of those areas to actually focus on. This talk will discuss the respective merits of those areas of reform, highlighting the tension between ambition and realism that will shape the Commission’s work.

We are looking forward to welcoming you online or on campus!

Additional information and the link to register can be found here.

By Taimoor Raza Sultan, Stockholm University

Introduction

The 1958 New York Convention (‘NYC’) is widely regarded as international arbitration’s most significant achievement. Having been ratified by over 160 states, , establishing a credible system of enforcement for arbitral awards. Yet the commercial reservation under Article 1(3), which allows the reserving state to limit the application of the ‘Convention only to differences …. considered as commercial’ under its own national law, risks jeopardizing the uniformity of the convention. By domesticating the definition of commerciality, the reservation invites forum shopping and inconsistent enforcement.

The CC/Devas (Mauritius) Ltd. v. Republic of India brings this latent tension to the surface. Devas Multimedia secured awards totaling approximately $111 million against India after Antrix Corporation (the commercial arm of the Indian Space Research Organization) terminated a 2005 satellite spectrum lease agreement. Antrix cited ‘essential security interests’ requiring the S-band spectrum for India’s defense forces and strategic public services. Relying on its settled domestic jurisprudence, India maintained that the Convention was inapplicable to BIT arbitrations, on the basis that investor–State disputes differ in nature from commercial arbitrations and implicate issues of public international law.

Enforcement attempts across Australia, the United Kingdom, and Canada achieved significantly different results, particularly in their respective approaches to defining commerciality under the convention. Australia strictly deferred to India’s view, while Canada applied an objective commercial lens. The UK court refused to decide the commercial reservation issue, instead ruling primarily that India’s NYC ratification does not waive sovereign immunity under s.2(2) SIA 1978 (para 98). This article compares the Australian and Canadian approaches, then proposes a ‘enforceability-focused objective standard’ to limit abuse while preserving the reservation’s purpose.

Australia’s Deferential Approach

In Republic of India v. CCDM Holdings, LLC [2025] FCAFC 2, the Federal Court of Australia unanimously reversed the enforcement order issued by the primary judge, holding that India is immune under section 9 of the Foreign States Immunities Act 1985 as the enforcement of the award is limited by India’s reservation under Article 1(3) of the Convention.

Furthermore, Article 1(3) creates a reciprocal obligation that even the non-reserving States like Australia must honor reservations declared by the reserving States in their mutual relationship (para 65). The court characterized the BIT dispute as arising from ‘public international law’ rights between the investor and the sovereign, and certainly not constituting private commercial relationship (para 81). The Indian Cabinet’s annulment decision was also motivated by the country’s ‘strategic requirements’, which reinforces the non-commercial nature of the transaction. It, therefore, concludes that India has not submitted to the jurisdiction of Australian courts under section 10(2) (para 75).

Crucially, the respondent did not adduce evidence to contest the non-commercial nature of the transaction (para 76). In the absence of proof of Indian law to the contrary, the court applied the presumption that foreign law is the same as Australian law (Neilson v. Overseas Project [2005] HCA 54). On that basis, the dispute was characterized as non-commercial under Australian law. The court made clear, however, that reliance on any different characterization under Indian law would have required specific proof of the content and application of Indian law to rebut the presumption (para 77). While this reflects a recognition of state sovereignty, the states could strategically reclassify market activities as policy-driven, which could frustrate investor expectations, undermining the pro-enforcement ethos of the New York Convention, and potentially deterring investment in reserving states like India.

Canada’s Objective Approach

The Quebec Court of Appeal (COA) adopted a contrasting approach in CC/Devas (Mauritius) Ltd v Republic of India (2024 Quebec CA) by denying immunity to India under both the waiver and commercial activity exception of the State Immunity Act 1985 (sections 4 & 5), and permitted enforcement and asset seizure.

The court primarily based its decision and analysis on the commercial activity under section 5. Contextually, the BIT essentially involved the commercial leasing of India’s spectrum capacity which aimed at ‘encouraging foreign investment’ and can be termed as a ‘trade agreement’ (para 42). The court did not consider the annulment grounds of India’s National Security Council materially relevant in the waiver determination. Instead, it focused more on economic substance, investment structure, and financial return of the deal. Such an approach also aligns more closely with the historically expansive interpretation of the commercial reservation under the New York Convention adopted by Indian courts. For instance, in R.M. Investment and Trading Co. v. Boeing Co. (1994), the court dealt with a state-level consultancy agreement for the sale of Boeing aircraft in India, and specifically remarked, ‘the expression ‘commercial’ must be construed broadly having regard to the manifold activities which are part of international trade today’ (para 12). The Canadian court has interpreted the deal similarly, appreciating its commercial nature under current modalities of international trade.

The Canadian approach upholds the pro-enforcement approach of NYC, but it risks under-appreciating the plain language of Article 1(3), which mandates reference to the domestic law of the reserving State.

Towards an Enforceability-Focused Objective Standard

The Devas saga reveals that the central fault line is not whether Article 1(3) mandates reference to the law of the reserving State, it plainly does, but rather how enforcing courts ought to apply that mandate. Australia’s highly deferential approach allows the reserving state’s self-characterization, casting a BIT dispute as a subject of public law or invoking annulment as a matter of public policy, to determine the scope of the Convention’s applicability. Canada’s objective approach, by contrast, considers the substance of the transaction by analyzing what the parties actually accomplished, including the investment of capital through commercial structures in order to receive financial gain.

The courts could, instead, adopt a pro-enforcement objective standard test without entailing a departure from the application of reserving state’s law. This approach requires the objective assessment of facts in answering the question of whether the dispute arise from the State’s market participation or exercise of core public authority? Courts may assess (i) the nature of act giving rise to the dispute, and (ii) nature of parties’ relationship at the time the investment was made.

In Devas, Antrix had entered the satellite capacity market as a commercial counterparty. The subsequent BIT claim merely internationalized the consequences of that commercial decision. Indian courts have themselves consistently treated contracts involving state-owned enterprises as commercial in nature under the Arbitration and Conciliation Act 1996. Therefore, an objective standard gives effect to Article 1(3)’s reference to Indian law, while resisting post-dispute recharacterization of commercial conduct.

Conclusion

Such an objective approach is consistent with the pro-enforcement mandate of the Convention, supporting a narrow construction of the reservation, and aligns with a liberal understanding of commercial activity in contemporary business. Excessive deference risks abuse, whereas an objective approach promotes predictability allowing investors to structure transactions around identifiable commercial elements while preserving space for genuine exercises of sovereignty, such as taxation and non-market regulation.

 

As part of the second online symposium on recent developments in African private international law, we are pleased to present the second contribution, kindly prepared by Boris Awa (Kigali Independent University, Rwanda), on The Recognition and Enforcement of Foreign Judgments within the CEMAC Zone.

I. Introduction

The Central African Economic and Monetary Community (CEMAC) is a regional intergovernmental organization comprising Cameroon, the Central African Republic, Chad, the Republic of Congo, Equatorial Guinea and Gabon. It was created by the Treaty establishing CEMAC on 16 March 1994 and revised in 2008 (Hereinafter referred to as the CEMAC Treaty). All CEMAC Member States also belong to the Organisation for the Harmonisation of Business Law in Africa (OHADA),[i] which aims to harmonise business law among its Member States. OHADA is composed of 17 Member States, all with legal systems rooted in the civil law tradition.

As regional integration and the harmonization of laws in CEMAC deepened, issues related to the recognition and enforcement of judgments became more prominent than ever before. This came in handy through the entry into force of the Judicial Cooperation Agreement of 28 January, 2004 (hereafter the “CEMAC Agreement”).[ii] Closely linked to the CEMAC Agreement are other multilateral initiatives, such as the General Convention on Judicial Cooperation in matters of Justice, 12 September 1961 in Tananarive (hereafter the “Tananarive Convention”)[iii], as well as bilateral treaties and domestic legislations of Member States, all of which are relevant in this context.

Against this background, we shall in turn discuss the conditions for the recognition of judgments under the laws of member States (II), under the relevant multilateral instruments, namely the Tananarive Convention and the CEMAC Agreement (III), and the hurdles that impede the recognition of foreign judgments under the CEMAC Agreement (IV).

 

II. Recognition and Enforcement under Domestic Legal Regimes

Most Member States in CEMAC have black letter laws on the recognition and enforcement of judgments. The table below outlines the relevant laws and provisions governing this area in each CEMAC Member State.

 

Jurisdiction Code/Act Provision Cameroon Law No 2007/001 of 19 April 2007 to Institute a Judge in Charge of Litigation Related to the Execution of Judgements and lay down Conditions for the Enforcement in Cameroon of Foreign Court Decisions, Public Acts and Arbitral Awards Articles 5-9 Gabon Civil Code (1972) Articles 71-77 Civil Procedure Code (1977) Articles 967-971 Tchad N/A N/A Central African Republic Code of Civil Procedure (1991) Articles 469-471 Equatorial Guinea Spanish Civil Procedure Code (1881) Articles 951-958 The Republic of Congo Code of Civil, Commercial, Administrative and Financial Procedure (1983) (CCCAFP). Articles 298-310

 

It emerges that five of the six CEMAC Member States have codified provisions on the recognition and enforcement of judgments. Moreover, the conditions for the recognition and enforcement of judgments in three Member States (namely, Cameroon, Gabon and Central African Republic) are similar. These include indirect jurisdiction, the right of defence, inconsistent judgments, public policy and finality. On the other hand, Congolese law provides no formal conditions for the recognition and enforcement of foreign judgments. In the Republic of Congo, the judgment debtor must seize the court that would have had subject matter jurisdiction to hear the claim, to render the foreign judgment executory in the Republic of Congo (art. 298 of the CCCAFP).

Apart from the aforementioned requirements for recognition and enforcement common to CEMAC member states, only Gabonese law (article 75 of the Civil Code) recognizes reciprocity as a condition for the enforcement of foreign judgments.

 

III. Recognition and Enforcement under the Applicable International Instruments

Two principal legal instruments govern the recognition and enforcement of judgments in the CEMAC zone: the 1961 Tananarive Convention and the 2004 CEMAC Agreement.

 

1. The Tananarive Convention

The Tananarive Convention presents the first efforts towards the harmonisation of judgment enforcement in francophone Africa. This convention mirrors the zeal to set up a common legal regime among Francophone African countries on judgement enforcement immediately after obtaining their independence.

The Tananarive Convention provides five (5) conditions for the enforcement of judgments in contentious and non-contentious decisions in civil and commercial matters under the treaty. These conditions are set out in article 30 and include:

(1) competent court according to the rules set out in the Convention (art. 38),

(2) the decision was rendered following the laws on conflict of law applicable in the state of where enforcement in sought,

(3) the judgment has, under the law of the state of origin, acquired the force of res judicata and is capable of enforcement

(4) the right of defence must have been respected and

(5) the judgment is not contrary to public order in the state where enforcement is sought, and does not conflict with a final judicial decision rendered in that State.

 

2. The CEMAC Agreement

The CEMAC Agreement is the first legal instrument establishing a unified legal framework for the enforcement of judgments within the CEMAC zone. Based on the principle of supremacy of community legislation over national laws, it follows that the CEMAC Agreement sits above local legislations in the hierarchy of legal norms. Thus, the legislation to be applied by the courts for the recognition and enforcement of judgments within the zone should be derived from CEMAC law – namely, the CEMAC Agreement – rather from local legislations.

There are five (5) conditions for the recognition and enforcement of judgments under the CEMAC Agreement. These requirements are set out in article 14 of the Agreement which states that the judgement must satisfy the following conditions:

(1) the decision emanates from a competent court of the country where it was rendered

(2) the decision is not contrary to case law in the member state where enforcement is sought,

(3) the decision has acquired the force of res judicata

(4) the judgment was rendered in a fair trial that guarantees the equitable presentation of parties, and

(5) the judgement is in conformity with public policy in the member state where enforcement is sought.

 

3. Brief Comparative Overview of the Two Instruments

While the conditions for allowing enforcement under the CEMAC Agreement may appear similar to those provided under the Tananarive Convention, several differences exist. Substantively, the Tananarive Convention allows the control of the law applied in the state where enforcement is sought, but this is not the case with the CEMAC Agreement. Also, while the CEMAC Agreement provides for the determination of the competent court based on the law of the rendering state, the Tananarive Convention provides controlling criteria for the determination of competent court in article 38 based on the type of civil or commercial dispute. Procedurally, under the CEMAC Agreement, the judgment creditor, by a petition (requête), seizes the president of the court in the place where enforcement is sought, provided that the court would have had subject matter jurisdiction to hear the dispute (art. 16). Under the Tananarive Convention, the request for enforcement is brought, by petition (requête), before the president of the court of first instance or a corresponding jurisdiction at the place where enforcement is sought (art. 32).

It is worth noting that article 37 of the CEMAC Agreement abrogates treaties, bilateral agreements, and conventions among CEMAC members states insofar as they are contrary to the CEMAC Agreement. Thus, the Tananarive Convention ceases to be a source of law for purposes of the recognition and enforcement of judgments within the CEMAC zone to the extent that its provisions conflict with the CEMAC Agreement.

 

IV. Hurdles Besetting the Recognition of Foreign Judgments within the CEMAC Zone

 

1. Fragmentation of laws

The CEMAC region is characterized by the coexistence of multiple applicable legal frameworks governing the recognition and enforcement of foreign judgments, including domestic laws, bilateral conventions, multilateral conventions (notably the CEMAC Agreement and the Tananarive Convention). This raises questions as to the rationale for the continued conclusion of bilateral treaties on the recognition and enforcement of judgments, given that the enforcement regimes found under various instruments in the region are sometimes similar, with few differences.

 

2. Judicial neglect of the CEMAC Agreement

 Given the superiority of CEMAC law over local legislation, the enforcement of judgments within the CEMAC zone should be governed by the CEMAC Agreement rather than by the domestic laws of the Member States. In practice, however, courts in several CEMAC Member States have not consistently adhered to this principle. Instead, judges often resort to domestic legislation with which they are more familiar when dealing with the recognition and enforcement of judgments from member states within the CEMAC zone.

This approach has received judicial endorsement. in a number of cases decided by Cameroonian courts. One such example is La succession Levy représentée par ses administrateurs, sieurs Levy Jesus Cyril et Levy Ishaï, commerçants demeurant à Bangui en République Centrafricaine, which concerned the recognition and enforcement in Cameroon of a jugdment from the High Court in Bangui (Central African Republic) attributing letters of administration (administrateurs) to the plaintiffs. In that case, the court applied Cameroonian domestic law rather than the CEMAC Agreement (Court of First Instance Douala-Bonanjo, Ordonnance of 31 January 2019 (Unreported)).

A similar approach was followed in Dame Tchagang Edo Ovono N’do Eyebe, Sieur Sandjong Mezui Verdier C/ Monsieur le Greffier en Chef du TPI Douala Bonanjo, where a Gabonese judgment appointing the plaintiff as the heir and successor of the deceased Gabonese national was recognised and enforced in Cameroon on the basis of domestic law, in disregard of the CEMAC Agreement (Court of First Instance Douala-Bonanjo, Ordonnance N°42 of 19 February 2019 (Unreported)). Needless to say that the judgments referred to above are, in principle, legally flawed, as they disregard the hierarchy of norms established by the CEMAC Treaty.

Also, despite the fact that article 37 of the CEMAC Agreement abrogates treaties, conventions among others among member states which are contrary to the CEMAC Agreement, some courts in Chad continue to use the Tananarive Convention against the CEMAC Agreement. The Chadian case of Etat du Cameroun, Représenté par Monsieur le Ministre des Finances C/ Fotso Yves Michel mirrors this example where the Chadian High Court of Ndjamena enforced a judgment from the Supreme Court of Cameroon in Chad using the Tananarive Convention thereby disregarding the CEMAC Agreement (High Court of Ndjamena, Repertoire No 78/2024 of 23 July 2024 (Unreported)).

Several factors may explain this state of affairs. One particularly relevant in our view relates to is the scarcity of sufficient legal literature, with a regional or community-law focus on the recognition and enforcement of foreign judgments within the CEMAC zone. Conflict of law scholarship in the region continues to place predominant emphasis on domestic private international law, often overlooking the relevant community-law framework. As a result, judges are deprived of adequate doctrinal guidance, and developments in CEMAC law in this field often go unnoticed.

 

V. Conclusion

 The reception and application of the rules governing the mutual recognition and enforcement of judgments within the CEMAC zone is not uniform. While some judges in Cameroon disregard the CEMAC Agreement and apply domestic legislation in enforcing judgments rendered from CEMAC member states, others in Chad continue to rely on the Tananarive Convention. As a result, despite of its twenty-one years (21) of existence, the CEMAC Agreement has – to the author’s best knowledge – yet to be effectively tested in judicial practice. This situation stems from the complexity of the applicable legal frameworks – domestic, bilateral, multilateral and regional integration frameworks – which operate concurrently.

Against this backdrop, it is recommended that academics within the CEMAC zone engage more actively with regional case law, increase scholarly output, and help raise the visibility of legal developments in the region. Such efforts would provide judges with doctrinal guidance and foster the development of private international law in the region in line with international standards and best practices.

 

Previous contributions:

1. Online Symposium on Recent Developments in African Private International Law, by Béligh Elbalti & Chukwuma S.A. Okoli (Introductory post)

2. Recognition and Enforcement of International Judgments in Nigeria, by Abubakri Yekini & Chukwuma Samuel Adesina Okoli

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[i] For an overview from the perspective of models of trust management in private international, see Matthias Weller, ‘“Mutual Trust”: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?’ 423 Collected Courses (2022) 203

[ii] On CEMAC and the 2004 CEMAC Agreement, see Weller, op. cit., 184 ; E-A T. Gatsi, ‘L’espace judiciaire commun CEMAC en matière civile et commerciale’ 21 Uniform Law Review (2016) 101.

[iii] Ratified by 12 African States including, Cote d’Ivoire, Benin, Burkina-Faso, Madagascar, Mauritania, Niger, Senegal and all the CEMAC Member States, except for Equatorial Guinea. This is likely because Equatorial Guinea had its independence seven years after the adoption of the Convention. On this Convention, see Weller, op. cit., 199.

The third bi-annual conference of the European Association of Private International Law (EAPIL) will take place in Geneva, Switzerland, on 18-20 June 2026, under the title Shaping the Future of Private International Law in Europe – Putting Together the Pieces and Filling Gaps. The conference will present current developments in private international law. Presentations will […]

Posted on behalf of Erdem Küçüker, an attorney-at-law registered at the Istanbul Bar Association and a private law LL.M student at Koç University. Mr. Küçüker specializes in commercial arbitration, arbitration-related litigation and commercial litigation, and acts as secretary to arbitral tribunals.

Article V of the 1958 New York Convention (“NYC”) lists the grounds of non-enforcement of a foreign arbitral award. Accordingly, Article V(1)(e) provides that when “[t]he award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made” the award’s enforcement may be refused.

In 2024, the Turkish Court of Cassation quashed the lower courts’ decision that declared an International Centre for Dispute Resolution of the American Arbitration Association (“ICDR”) award as enforceable, stating that the courts should have further investigated whether the award is final, enforceable and binding (Court of Cassation, 11th Civil Chamber, Docket No: E. 2022/5986, Decision No: K. 2024/2257, Date: 20.03.2024). This article explains the decision of the Turkish Court of Cassation and comments on the final, enforceable and binding character of an arbitral award in relation to Article V(1)(e) of the NYC.

Decisions of the Lower Courts and the Court of Cassation

The underlying dispute relates to the enforcement of an ICDR award with the seat located in the United States. In the arbitral award, the three respondents were ordered to pay a certain amount to the claimant. The claimant sought the enforcement of this arbitral award in Türkiye.

In the First Instance Court proceedings, the respondents did not submit an answer to the statement of claim. The court noted, amongst others, that (i) all documents in the arbitration, including the award, were validly notified to respondents, (ii) the award is final as per Article 30 of the ICDR Arbitration Rules (“Rules”), (iii) there is no means of appeal against the award, (iv) the respondents did not argue for the denial of the enforcement request. Thus, the court granted the enforcement of the award.

The respondents appealed this decision by claiming that they did not duly receive notification on the arbitration proceedings. However, the Regional Court of Appeal, as the second instance court, agreed with the first instance court that the respondents were duly notified on the proceedings and the award. The Regional Court of Appeal also held that it is the respondent who bears the burden of proof to establish that the award is not final or non-binding. It further incorporated the findings of the first instance court and stated that the award is final and binding according to the Article 30 of the Rules. The Regional Court of Appeal thereby dismissed the appeal on the first instance court decision.

Following the final appeal by the respondents, the was is brought before the Turkish Court of Cassation (“Court”). The Court initially referred to Articles 60-61 of the Turkish Private International Law Act numbered 5718 (“TPILA”) and noted that to enforce a foreign arbitral award, the latter should be final and this requirement shall be considered by the court ex officio. The Court concluded that the finality of the award was not clearly established, based on the information available in the case file. Thus, the Court revoked the lower courts’ decision, holding that the lower court shall render a decision following a further investigation as to whether the award is final, enforceable and binding.

Comments

Article V(1)(e) of the NYC provides that:

“Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that […] [t]he award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made”.

Accordingly, this provision lists three grounds for the refusal of the enforcement of a foreign arbitral award, which are (i) the non-binding character of the award, (ii) the setting aside of the award and (iii) the suspension of the enforcement of the award. NYC provides that these should be established by the party against whom the enforcement is sought.

In relation to the first of the said grounds, an award shall be deemed to be binding if there is no possibility of appeal on merits. Parties can freely characterize an arbitral award as binding between them. This can be made through an explicit agreement in the arbitration clause. The parties can also refer to arbitration rules or laws, which govern that the arbitral award shall be binding. If the parties have such an agreement, the award shall gain binding character in the sense of Article V(1)(e) of the NYC.

In relation to the “enforceable character” of the award, an arbitral award shall be deemed as enforceable, once it is rendered unless the arbitration agreement/rules/laws provide otherwise,. Some jurisdictions provide remedies against the award, in which case the competent authority may decide to suspend an award’s enforcement.

In terms of the final character, an award shall be deemed as final if, (i) there are no possible remedies foreseen against the award or parties waived to resort to such remedies, or (ii) parties initiated these remedies and these are rejected. Notably, for this ground, the NYC considers whether the award is set aside or not.

In the underlying dispute, the principle question discussed is whether the award was final, enforceable and binding on the parties. Before, analysing the binding, enforceable and final character of an award it should be noted that in the present case the Court’s application of TPILA to revoke the lower courts’ decision was systematically wrongful. Türkiye and the USA (i.e., the seat of arbitration) are parties to the NYC. As per Article 90(5) of the Constitution of the Republic of Türkiye and Article 1(2) of the TPILA, the provisions of the NYC prevail over the TPILA. Thus, the author considers that the Court should have applied the provisions of the NYC, instead of the TPILA.

Regarding the determination of the binding, enforceable and final character of an award, the lower courts relied on Article 30 of the Rules (2014 version), which provides under its paragraph 1 that:

“Awards shall be made in writing by the arbitral tribunal and shall be final and binding on the parties. […] The parties shall carry out any such award without delay and, absent agreement otherwise, waive irrevocably their right to any form of appeal, review, or recourse to any court or other judicial authority, insofar as such waiver can validly be made. […]”.

Starting with the binding character, in the present case, the parties had agreed in the arbitration agreement that the Rules shall be applicable in the arbitration proceedings. As stated above, Article 30 of the Rules provide that the award shall be binding on the parties. Consequently, in the author’s view, unlike the Court’s findings, this gives the award the binding character and the respondents did not establish the contrary.

In terms of the enforceable character, the respondents did not seem to argue that the award’s enforcement is suspended. Thus, the author considers that the award is enforceable as well.

For the final character, Article 30 of the Rules, as agreed between the parties, provide that the award shall be final and the parties waive any form of appeal against the award. The validity of such waiver can be further discussed in light of the applicable law. Notwithstanding this, as explained above, the NYC places emphasis on whether the award is set aside, and it is the respondent who carries such burden of proof. In the case at hand, respondents neither argued that they brought a setting aside action against the award nor that the latter was set aside. Thus, the author is of the view that the final character of the award was also established in the case at hand, unlike the ruling of the Court.

To summarize, the author initially finds that the Court’s application of the TPILA, instead of the NYC, was systematically wrongful in light of the Turkish Constitution Article 90. Additionally, the lower courts’ decision on the award’s binding and enforceable character was rightful, which, in the author’s view, did not require any further investigation. In terms of the finality of the award, the lower courts’ reliance to the arbitration rules may be debated; however, since the respondents did not prove that the award was set aside, the author argues that the award should have been regarded as final and binding on this final ground as well.

For further discussions on the topic, see also: Erdem Küçüker, ‘Binding and Final Character of Arbitral Awards in the Enforcement of Foreign Arbitral Awards in Türkiye – Recurring Need for Clarity’, Daily Jus Blog, 4 November 2025 (available at: https://dailyjus.com/world/2025/11/binding-and-final-character-of-arbitral-awards-in-the-enforcement-of-foreign-arbitral-awards-in-turkiye-recurring-need-for-clarity).

The third edition of the EAPIL Winter School has started today in Como. The general topic is Values in Private International Law. The full programme can be found here. Introduced by Silvia Marino, the course kicked off with an opening address by the President of the European Association of Private International Law, Gilles Cuniberti. The […]