Agrégateur de flux

Introduction

As one of the most complex and fiercely contested recent investment disputes, the Indian Satellite Saga originated from India’s annulment of an agreement for leasing S-band electromagnetic spectrum on two satellites (Satellite Agreement) to Devas Multimedia Private Ltd. (Devas). The Saga involved multiple international arbitrations and domestic litigations. In 2022, the Supreme Court of India made a judgment (SCI Judgment) to wind up Devas. Devas and its foreign investors allege the SCI Judgment is a retaliatory measure against them for enforcing arbitration awards.

Since 2023, courts worldwide, including those in Australia, Canada, Germany, Mauritius, the Netherlands, Singapore, Switzerland, and the US, rendered decisions regarding whether to recognize the SCI Judgment and to allow it as a defence against the enforcement of arbitration awards.[1] This Insight analyzes these courts’ judgments and reflects on the decentralized judgment/award recognition and enforcement system for addressing alleged state retaliation measures.

 

Investment Disputes and Alleged Retaliatory Measures

Devas was an Indian telecommunications company with investors from Germany and Mauritius. Antrix Corporation Ltd. (Antrix) was under the direct control of the Department of Space of India. In 2005, Antrix concluded the Satellite Agreement with Devas but unilaterally terminated it in 2011 on the ground of force majeure because the Government of India decided not to provide orbital slots in S-band for commercial activities.[2]

Consequently, Devas initiated a commercial arbitration seated in India before an International Chamber of Commerce (ICC) Tribunal against Antrix.[3] The ICC Tribunal rejected Antrix’s force majeure argument and awarded damages to Devas, reasoning that the Chairman of Antrix failed to do everything in his power to ensure that the Satellite Agreement would remain on track.[4] Devas’s investors from Mauritius and Germany also brought UNCITRAL investment arbitrations against India separately in the CC/Devas (1)[5] and DT[6] arbitrations. Both tribunals rejected, at least in part, India’s defense that it had annulled the Satellite Agreement to protect essential security interests.[7]

The three arbitration tribunals rendered billion-dollar awards in favor of Devas and its investors.[8] Devas and its investors have started to enforce these awards against Indian assets abroad. Devas also entrusted its related US company, Devas Multimedia America Inc., with collecting debts arising from the ICC award.

Meanwhile, the Indian Central Bureau of Investigation filed a First Information Report against Devas and the officers of Devas and Antrix for corruption in 2015.[9] Antrix initiated proceedings to wind up Devas in 2021 at India’s National Company Law Tribunal (NCLT). Devas appealed to the National Company Law Appellate Tribunal (NCLAT) and the Supreme Court of India. The Supreme Court upheld the judgments of NCLT and NCLAT to liquidate Devas due to fraudulent activities, including Devas improperly enticing Antrix into the Satellite Agreement.[10] The fraud also involved collusion between Devas, Antrix, and Indian government officials.[11]

The shareholders of Devas were found to be fully aware of the fraud.[12] Notably, Devas and one of its shareholders, namely Devas Employees Mauritius Private Limited, were fully represented in the SCI proceedings. Devas’s other shareholders did not participate in the SCI proceedings.

As a consequence of the SCI Judgment, under its authority at the seat of the ICC arbitration, the High Court of Delhi set aside the ICC award.[13] Devas and its investors initiated the CC/Devas (2) investment arbitration against India alleging the latter’s retaliation for the enforcement of the ICC award.[14] Upon India’s request, the Supreme Court of Mauritius issued an interim anti-arbitration injunction.[15] India also sought to set aside the DT and CC/Devas (1) awards in their respective seats in Switzerland and the Netherlands.

Devas or its investors have sought to enforce the ICC, DT, and CC/Devas (1) awards in approximately 6 different countries.[16]

 

Recognize or not?

In the award-setting-aside proceedings and the award-enforcement proceedings, a critically important defense for India is the finding of fraud in the SCI Judgment.

To determine whether to recognize the SCI Judgment, the focal points are: whether foreign enforcement courts can exercise jurisdiction over India and whether the SCI Judgment should create res judicata effects in these courts. The varying approaches taken show how enforcement jurisdictions can independently decide whether retaliation existed and how to address it based on their laws.

 

Sovereign Immunity of India

When deciding whether to enforce the CC/Devas (1) award, both the Australian Federal Court and the Superior Court of the Province of Quebec in Canada held that India waived its sovereign immunity by ratifying the 1958 New York Convention because of the “clear and unequivocal submission” in Article 3 of the Convention.[17]

When enforcing the DT award, the Higher Regional Court of Berlin held that India did not enjoy sovereign immunity because according to the German Code of Civil Procedure, India’s liability came from Antrix’s commercial activities, and it was thus irrelevant that the Satellite Agreement was revoked partially due to national security concerns.[18] Taking another path, the US District Court for the District of Columbia held that it had jurisdiction over India based on the arbitration exception to sovereign immunity, which requires “the existence of an arbitration agreement, an arbitration award, and a treaty governing the award.”[19] In discussing the last requirement, the court mentioned the membership of the US and Switzerland (the seat of arbitration), rather than India’s membership in the 1958 New York Convention[20] as the Australian Federal Court and the Superior Court of the Province of Quebec had. When rejecting the enforcement of the ICC award, the US Court of Appeals for the Ninth Circuit held that a minimum contacts analysis should be satisfied.[21]

Notably, the Australian Federal Court did not consider the legality of investment under the applicable bilateral investment treaty and the validity of the arbitration agreement because, when determining sovereign immunity, Devas needed only to provide prima facie evidence that a valid arbitration agreement existed.[22] The US District Court for the District of Columbia reached the same conclusion for a different reason: because the legality of investment was an arbitrability issue falling under the merits, not a jurisdictional matter.

 

Res Judicata

This issue can be analyzed from four aspects:

Preclusion effects of other tribunals’ decisions: India was not successful in setting aside the CC/Devas (1) Award on Merits at the Hague Court of Appeal, which found that India did not sufficiently substantiate the accusations of fraud.[23] After the SCI Judgment was rendered, India asked the Hague District Court to set aside the Award on Quantum.[24] An important factor for the District Court in rejecting India’s request was that the Hague Court of Appeal had already rejected India’s assertions of fraud in the setting aside proceedings concerning the Award on Merits, and despite some new evidence, the fraud allegations in the request to set aside the Award on Quantum were virtually identical.[25] Therefore, the Hague District Court found that the SCI Judgment should not be recognized because of the res judicata effect of the earlier judgment of the Hague Court of Appeal.[26] In an action to enforce the DT arbitration, the Court of Appeal in Singapore similarly declined to consider the SCI Judgment’s fraud findings because the Swiss Federal Supreme Court at the seat of the arbitration had dismissed the setting-aside application and affirmed the DT arbitration tribunal’s jurisdiction and the validity of the award.[27] Further, based on the competence-competence doctrine, the US District Court for the District of Columbia considered itself precluded from second-guessing the DT arbitrators’ findings about arbitrability.[28]

Timing: In rejecting the revision proceedings against the DT final award, the Swiss Federal Supreme Court found that India’s fraud allegation based on the SCI Judgment was time-barred.[29] This was because the 90-day limitation period to request the revision of the DT final award started to run when India obtained “sufficiently certain knowledge” of fraud even before the SCI Judgment was issued.[30] Like the Hague District Court, the Swiss Federal Supreme Court held that the SCI Judgment did not provide new evidence of fraud because the Supreme Court of India did not conduct its own fact-finding investigation.

The (un)due process of the Supreme Court of India is also hotly debated. In 2023, the Hague District Court declared the request of Devas Multimedia America Inc. to enforce the ICC award on behalf of Devas inadmissible, after a liquidator appointed under the SCI Judgment instructed the company not to act as an agent of Devas in enforcement efforts.[32] The Hague District Court found no evidence showing that the SCI failed to act independently and impartially.[33] In contrast, when deciding to enforce the DT award, the Singapore International Commercial Court expressed reservations about the proceedings at the SCI, finding that they had been carried out based on summary evidence without oral evidence or the cross-examination of witness;[34] and the same view was shared by the Higher Regional Court of Berlin.[35]

Divergence of parties is a significant barrier to extending the res judicata effects of the SCI Judgment against Devas to its investors. At the Superior Court of the Province of Quebec, India relied on the SCI Judgment arguing that its consent to arbitration was induced by fraud. The Court held that the SCI Judgment could prove only that Devas was liquidated and addressed a different question from that in the enforcement proceeding, because it did not rule on the validity of the CC/Devas (1) arbitration agreement, and the Devas investors were precluded from participating in the liquidation proceeding.[36] Similarly, the Singapore International Commercial Court held that the fraud finding in the SCI Judgment should not be binding on Devas’s investor, Deutsche Telekom, because it was not a party to the proceedings at the Supreme Court of India.[37]

 

Decentralized System to Address States’ Retaliatory Measures

As the Indian Satellite Saga demonstrates, private international law and international investment law use a decentralized judgment/award recognition and enforcement system to address alleged states’ retaliatory measures against foreign investors.

In terms of practical lessons, one is that fraud allegations should be argued as early as possible in the award-rendering proceedings, rather than waiting for the enforcement proceedings. Notably, India raised fraud late without reasonable justifications, so the claim was rejected by the arbitration tribunals.[38] Although some enforcement courts may allow parties to re-argue a fraud claim that has been fully litigated by a judgment/award-rendering tribunals, the Saga shows that saving these claims for the enforcement proceedings is risky because not every court will allow this practice.

More broadly, although the decentralized system produces inconsistent results, it also has an overlooked benefit of resilience when addressing state retaliatory measures, as it has no choke points and can function regardless of political tensions. This system, although sacrificing consensus and consistency, promotes democracy because each state has its voice. In contrast, some international systems to resolve alleged state retaliatory measures are centralized based on consensus. The centralized systems are supposed to bring authority, consistency, and certainty. However, the malfunction of one choke point can effectively dismantle the whole system. For example, although the WTO can authorize its members to retaliate against another member that continuously adopts non-compliance measures,  the “WTO consensus” system enables one member to dismantle the WTO Appellate Body.[39] Another example is the United Nations Security Council, where the “veto privilege” and political tensions among its standing members have impeded international efforts to resolve the Gaza war.[40] The inconsistent outcomes reached over the course of the Indian Satellite Saga should thus be understood in light of the benefits of decentralization and resilience.

* Author: Jie (Jeanne) Huang, Associate Professor, the University of Sydney School of Law, Jeanne.huang@sydney.edu.au. This is a cross-posting from the American Society of International Law Insights.

[1] Devas Multimedia Private Ltd., v. Antrix Corporation Ltd. & Anr., Civil Appeal No. 5906 of 2021 (India) [hereinafter SCI Judgment].

[2] Id., ¶ 3.11.

[3] Devas Multimedia Private Limited v. Antrix Corporation Limited (Final Award) ICC Case No. 18051/CYK (Sept. 14, 2015).

[4] ICC Case No. 18051/CYK, ¶¶ 230-236, 312.

[5] CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited, and Telcom Devas Mauritius Limited v. the Republic of India, Case No. 2013-09, UNCITRAL, Award on Quantum (Perm. Ct. Arb. 2020) (“CC/Devas (1)”).

[6] Deutsche Telekom AG v. India, Case No. 2014-10, UNCITRAL, Final Award (Perm. Ct. Arb. 2020) (“DT Arbitration”).

[7] CC/Devas (1) Award on Jurisdiction and Merits (July 25, 2016), ¶¶ 354-361, 371-73; DT Interim Award (Dec. 13, 2017), ¶¶ 280-286.

[8] Approximately USD 562.5 million (ICC), USD 93.3 million (DT), USD 111 million (CC/Devas (1)), plus interest and costs.

[9] SCI Judgment, ¶ 3.13.

[10] SCI Judgment, ¶ 12.8 (vi).

[11] Id. ¶ 12.8 (xii).

[12] Id. ¶ 12.8 (xv).

[13] Devas Employees Mauritius Pvt. Ltd. v. Antrix, High Court of Delhi at New Delhi, 2023: DHC: 1933-DB.

[14] CC/Devas v. India (2), Case No. 2022-34 (Perm. Ct. Arb. 2022) (“CC/Devas (2)”).

[15] India v. CC/Devas (Mauritius) Ltd., SC/COM/WRT/000010/2023, Sup. Ct. Mauritius.

[16] See CC/Devas v. India (I) on Jus Mundi at https://jusmundi.com/en/document/decision/fr-cc-devas-mauritius-ltd-devas-employees-mauritius-private-limited-and-telcom-devas-mauritius-limited-v-republic-of-india-arret-de-la-cour-dappel-de-paris-22-11819-tuesday-13th-february-2024.

[17] CC/Devas (Mauritius) Ltd. v. India, 2022 QCCS 4786, ¶¶ 161 & 167; CCDM Holdings, LLC v. India (No. 3) [2023] FCA 1266, ¶¶ 35, 38, 45, and 51.

[18] Lisa Bohmer, German Court Grants Application for Partial Enforcement of Deutsche Telekom v India Award, as Neither Fraud Allegations Nor BIT’s Unique Wording on Enforcement Sway the Judges, Investment Arb. Rep. (Feb. 9, 2023), https://www.iareporter.com/articles/german-court-grants-application-for-partial-enforcement-of-deutsche-telekom-v-india-award-as-neither-fraud-allegations-nor-bits-unique-wording-on-enforcement-sway-the-judges/.

[19] Deutsche Telekom AG v. India, Civil Case No. 21-1070 (RJL), Memorandum Opinion (Mar. 27, 2024), at 6.

[20] Id.

[21] Devas Multimedia Private Ltd v Antrix Corp. Ltd., No. 20-36024 (9th Cir. 2023), ¶ 1.

[22] CCDM Holdings, supra note 17, ¶ 44.

[23] India’s set-aside application against the CC/Devas (1) Award on Merits was rejected by the District Court of the Hague on November 14, 2018 (ECLI:NL:RBDHA:2018:15532), the Hague Court of Appeal on February 16, 2021 (ECLI:NL:GHDHA:2021:180), and the Dutch Supreme Court on February 3, 2023 (ECLI:NL:HR:2023:139).

[24] India v. CC/Devas (Mauritius) Ltd. (C/09/615682/HA ZA 21-674), October 25, 2023 issued by the District Court of the Hague.

[25] Id. ¶¶ 4.16, 4.19, and 4.20.

[26] Id. ¶ 4.09.

[27] India v. Deutsche Telekom AG, [2023] SGCA(I) 10, ¶¶ 142-178; 2023 SGHC(I) 7, ¶¶ 136-155.

[28] Deutsche Telekom AG v. India, Civil Case No. 21-1070 (RJL), Memorandum Opinion (Mar. 27, 2024).

[29] Swiss Bundesgericht Tribunal Fédéral (4A_184/2022), Urteil vom 8. März 2023.S.

[30] Lisa Bohmer, Swiss Federal Tribunal Decides that Revision Proceedings Are not Available against Interim Award that Withstood Set-aside Request, while Finding that Request for Revision on Final Award is Time-Barred and Not Based on New Evidence, Investment Arb. Rep. https://www.iareporter.com/articles/analysis-swiss-federal-tribunal-decides-that-revision-proceedings-are-not-available-against-interim-award-that-withstood-set-aside-request-while-finding-that-request-for-revision-of-final-award-is-t/.

[31] Id. India v. CC/Devas (Mauritius) Ltd., supra note 24, ¶ 4.20.

[32] Order issued by Judge H.J. Vetter at the Hague District Court (July 18, 2023), https://www.iareporter.com/articles/dutch-court-declares-request-for-enforcement-of-devas-antrix-icc-award-inadmissible/.

[33] Id.

[34] India v. Deutsche Telekom, [2023] SGHC(I) 7, paras¶¶ 126-134.

[35] Bohmer, supra note 18.

[36] CC/Devas (Mauritius) Ltd. v. India, supra note 17, ¶¶ 210-215.

[37] Deutsche Telekom, “would be the victim, rather than a perpetrator” in the alleged fraud, Deutsche Telekom AG v The Republic of India, [2023] SGHC(I) 7, ¶¶ 87 and 123.

[38] Prabhash Ranjan, Corruption and Investment Treaty Arbitration in India, in Corruption and Illegality in Asian Investment Arbitration 235, 248 (Nobumichi Teramura, et al. eds., 2024).

[39] Chad Bown & Joost Pauwelyn, The Law, Economics and Politics of Retaliation in WTO Dispute Settlement 21-86 (2010).

[40] Press Release, United Nations, Security Council passes resolution demanding “an immediate ceasefire” during Ramadan, https://news.un.org/en/story/2024/03/1147931?_gl=1*1y7ggfh*_ga*MTYxNDY2ODE4Ni4xNzA5NzczMDA4*_ga_TK9BQL5X7Z*MTcxMTQxMzkxNS4xLjAuMTcxMTQxMzkxNS4wLjAuMA.

 

 

 

The authors of this post are Leon Theimer (Humboldt University of Berlin) and Nicolas Dewitte (Humboldt University of Berlin). Introduction From 6 to 8 June, around 100 members of the EAPIL gathered in the captivatingly charming city of Wrocław in Poland for the 2024 EAPIL conference on ‘Private International Law and Global Crises’. Over the […]

Solomon Okorley Ph.D, University of Johannesburg, and affiliated with the Research Centre for Private International Law in Emerging Countries at the University of Johannesburg.

Introduction

South Africa is one of the most developed countries on the African continent and a key country in the Southern African Development Community (SADC) and the BRICS (Brazil, Russia, India, China, and South Africa) economic bloc. Its status in private international law on the African continent is evinced as the country on the African continent where two vital instruments of private international law were adopted: the Convention on International Interests in Mobile Equipment (Cape Town Convention) and the Mining, Agricultural and Construction Protocol (MAC Protocol). It is also a member of the Hague Conference of Private International Law. Thus, development in its private international is likely to significantly impact the neighboring countries in the SADC region and the continent.

 

In the recent case of Lindsey and Others v Conteh (774/2022) 2024 (3) SA 68 (SCA), the South African Supreme Court of Appeal dismissed an appeal for the recognition and enforcement of a Californian judgment. The South African Supreme Court of Appeal held that “The California Court Orders do not constitute a liquid document evidencing an unconditional acknowledgment of indebtedness, in a fixed sum of money. The appeal must accordingly fail” (para 35).

This case is significant because the case addresses the recognition and enforcement of foreign judgment in South Africa and matters concerning provisional sentence. It is, therefore, a case that other SADC countries and common law jurisdictions would find helpful when recognizing and enforcing foreign judgments, especially under the common law regime.

 

Facts

The case outlined below concerns the recognition and enforcement of a Californian foreign judgment in South Africa. The brief facts of the case is as follows: The sixth appellant, African Wireless Incorporated (AWI), is a corporation registered in terms of the laws of the State of Delaware in the United States of America; and the first to fifth appellants are the shareholders of AWI. The respondent is a businessman and citizen of the United States of America and now resides in South Africa. The appellants filed a suit against Mr Conteh, the respondent. The basis of the suit was that the respondent had transferred some shares of AWI to companies belonging to him without the requisite permission of AWI.

Consequently, the appellants obtained a judgment by default. Further, the Californian Superior Court ordered the respondent to turn over the shares to the appellants. The court also placed a value upon the shares ‘for bond purposes only’. The appellants then brought an ex parte application, which inter alia sought to convert the earlier court order to a monetary judgment. However, the application was dismissed.

 

The case before the High Court

The appellants argued that the foreign default judgment and the post-judgment enforcement orders collectively constituted a final and binding money judgment. They further argued that, by operation of law, the judgment was enforceable in the same manner as a “money judgment for the value of the shares”. This is because it had been converted into a liquid and executable money judgment under California law. Therefore, its nonpayment entitled them to seek a provisional sentence. However, the respondent contended that the foreign judgment was not a money judgment; hence, it was not a liquid document. He averred that what was before the courts was merely a judgment for the delivery of shares.

 

The ruling of the High Court

According to the High Court, ‘the judgment does not constitute prima facie proof of a debt enforceable by provisional sentence’, as it did not comprise a liquid document. The court determined that extrinsic evidence on Californian law was necessary to prove that the order to turn over the shares had been converted into a debt in monetary terms, thus constituting a money judgment. The court concluded that the need to resort to such extrinsic evidence was inconsistent with South African courts’ usual strict adherence to the requirements for granting a provisional sentence. Dissatisfied with this ruling, the plaintiffs appealed to the Supreme Court of Appeal.

 

Summary of the Judgment of the Supreme Court of Appeal

The Supreme Court of Appeal extolled the importance of recognizing and enforcing foreign judgment ‘in a world of ever greater international commerce’ (para 26). It reechoed its previous statement in Richman v Ben-Tovim 2007 (2) SA 283 (SCA), where it stated that “it is now well established that the exigencies of international trade and commerce require ‘. . . that final foreign judgments be recognised as far as is reasonably possible in our courts, and that effect be given thereto’” (para 25). The court stated that a court judgment serves as prima facie evidence of a debt owed and constitutes an acknowledgment of the indebtedness for the amount specified in the judgment.

The central issue in this case was whether a series of orders and two writs, granted by the Superior Court of California in the State of California, United States of America, cumulatively constituted a liquid document that can be enforced through provisional sentence in South Africa. Thus, the Supreme Court of Appeal was invited to determine the true nature of the Californian court orders in relation to the granting of a provisional sentence.

The appellants argued that the foreign judgment, when read cumulatively, constitutes a liquid document despite the initial judgment being for the turnover of shares. According to them, because a monetary value was ascribed to the shares and a writ of execution for the monetary value of the shares was issued, it is sufficient to enable them to secure a provisional sentence.

The court referred to the seminal case of Jones v Krok 1995 (1) SA 677 (A) to set out the conditions to be met for the recognition and enforcement of a foreign judgment, namely: ‘(i) that the court which pronounced the judgment had jurisdiction to entertain the case according to the principles recognised by our law with reference to the jurisdiction of foreign courts (sometimes referred to as “international jurisdiction or competence”)? (ii) that the judgment is final and conclusive in its effect and has not become superannuated? (iii) that the recognition and enforcement of the judgment by our courts would not be contrary to public policy? (iv) that the judgment was not obtained by fraudulent means? (v) that the judgment does not involve the enforcement of a penal or revenue law of the foreign state? and (vi) that enforcement of the judgment is not precluded by the provisions of the Protection of Businesses Act 99 of 1978, as amended…’. In this case, the parties did not seek to qualify these requirements (para 27).

According to the court, a provisional sentence is a “summary remedy” that allows a judgment creditor with a liquid document to obtain relief quickly without initiating a trial action (para 19). The liquid document relied upon by the judgment creditor “must be a written instrument signed by the defendant acknowledging indebtedness unconditionally for a fixed amount of money,” and the judgment debt  “must be fixed, definitive, sounding in money,” which is “evident on the face of the document” (para 21). Thus, the judgment creditor must satisfy the court that the foreign judgment satisfies these conditions in order to succeed under the proceedings for a provisional sentence. Under the proceedings for provisional sentence, the need for extrinsic evidence nullifies the liquidity requirement. However, over time, there has been a shift away from the strict application of the principle of “the document must speak for itself” towards the need for “greater flexibility as to what evidence extrinsic to the foreign judgment itself may be permissible” (para 22).

The Supreme Court of Appeal stated that the judgment debt contained in the California Court Orders was for the possession of property. That is, the respondent should turn over the shares to AWI. Although the California court determined the value of those shares, it did not order Mr Conteh to pay an amount; it only required the respondent to deliver up specified shares. On this issue, the Court of Appeal of the State of California had already held that the appellants ‘were not entitled to an actual money judgment in the default judgment proceedings’ (para 11).

The SCA further made two observations on the relevant provisions of California law. First, court orders for the possession of property cannot be immediately enforced as a money judgment upon issuance. Some steps need to be followed: “The levying officer must have failed to take custody of the property; made demand of the judgment debtor, if the debtor can be located; the levying officer must then make a return that the property cannot be obtained” (para 31). It is only when these steps have been followed that the judgment for the possession of property will be enforced ‘in the same manner’ (para 31) as a money judgment. Secondly, the Supreme Court of Appeal emphasized that although the relevant provisions of Californian law allow for the enforcement of the Californian Court Orders ‘in the same manner’ as a money judgment, it does not render the court orders to be a money judgment (para 31).

On why a court order that can be enforced as a money judgment under Californian laws should not be recognised and enforced by a South African court, the Supreme Court of Appeal stated that it “is a matter of sovereignty” (para 33). South African courts are not simply instruments for enforcing California court orders. In addition, the summons by the appellants was for a provisional sentence and did not request a South African court to implement the enforcement procedures of Californian law (para 34).

Most crucially, the court stated that because the cause of action set out in the summons was based on a foreign judgment that is not a money judgment, the provisional sentence cannot be granted (para 35). Also, the California courts did not constitute a liquid document for a fixed sum of money. Thus, the Supreme Court of Appeal dismissed the case, but on a ground different from that of the high court. The Supreme Court of Appeal reasoned that it was not the recourse of the appellants to extrinsic evidence that rendered provisional sentence unavailable to them. Instead, the foreign judgment they relied upon is not a money judgment, hence not a liquid document (para 36). Consequently, the appeal was dismissed.

 

Comment

This is a case where the judgment creditors sought the assistance of the South African courts to recognize and enforce the California court orders. It was a typical case of recognition and enforcement of foreign judgments. However, the foreign judgment fell short of the requirements to be satisfied when recognizing and enforcing judgment sounding in money. One of the recognized procedures for recognizing and enforcing foreign judgment in South Africa is by way of provisional sentence. When making this application for a provisional sentence, the judgment creditor should be armed with a liquid document. As a requirement, the judgment in question needs to be a money judgment. However, in this instant case, according to the Supreme Court of Appeal, the California Court Orders do not constitute a liquid document: the judgment obtained in the Californian courts was not a money judgment. Consequently, according to both the High Court and the Supreme Court of Appeal, because this ‘necessary’ requirement has not been met, the foreign judgment cannot be enforced by way of a provisional sentence.

In most common law legal systems, when recognizing and enforcing a foreign judgment, one of the requirements is that the judgment should be a fixed sum of money. Although it is not stated clearly in SADC countries, it is implicit in the procedure for enforcing foreign judgments through provisional sentence summons, which are summons on liquid documents (para 21). In this case, the South African court upheld this requirement and did not recognize the Californian court orders, which did not constitute a liquid document. Although a monetary value had been placed on the shares the respondent had to transfer, it was not deemed a money judgment. Thus, the fact that a foreign court order can be converted into a monetary value does not change the nature of the judgment into a monetary value. For a judgment to qualify as a fixed sum of money, it needs to be shown clearly in the foreign judgment that the judgment debtor is required to pay a specific sum of money. In the words of the court, the debt must be “fixed, definitive, sounding in money and evident on the face of the document relied upon” (para 21). Without that, it does not qualify as a monetary judgment and cannot be recognized and enforced. The California judgment was not a money judgment. Thus, it was not recognized and enforced by way of provisional sentence. It is submitted that the Supreme Court of Appeal was right to dismiss the appeal on this ground. This decision by the Supreme Court of Appeal will be of great importance to Southern African courts, which are influenced by the jurisprudence of South African courts (Standic BV v Petroholland Holding (Pty) Ltd (A 289-2012) [2020] NAHCMD 197).

 

This judgment also shows the clinging of South Africa’s court to the common law theory of obligation (para 18). Per the theory of obligation, a foreign judgment can be recognized and enforced by initiating a new action for the judgment debt. The rationale is that the foreign judgment imposes an obligation on the individual against whom the judgment was rendered to pay the judgment debt. The claim to pay the judgment debt is separate from the original cause of action that led to the judgment in the foreign jurisdiction. The judgment obtained in this new suit, not the original foreign court judgment, is enforceable as a judgment in the domestic courts. However, one should not be quick to pin this theoretical basis on South Africa’s legal regime. This is because, in other cases of recognition and enforcement of foreign judgment that have come before the South African courts, such as Richman v Ben-Tovim (para 4) and the Government of Zimbabwe v Fick 2013 (5) SA 325 (CC) (para 56-57), other bases such as comity and reciprocity have been mentioned to be the basis for enforcing a foreign judgment. One should thus be guided by the counsel of Booysen J in Laconian Maritime Enterprises Ltd v Agromar Lineas1986 (3) SA 509 (D), where she observed rightly that trying to search for a theoretical basis was “a most interesting and somewhat frustrating exercise to attempt to pin it down” (Laconian Maritime Enterprises Ltd v Agromar Lineas 1986 (3) SA 509 (D) 513). The court thus observed that the concern should be on the applicable legal regime (that is, whether common law regime or the statutory regime) and the stipulated conditions for the recognition and enforcement of foreign judgment (Laconian Maritime Enterprises Ltd v Agromar Lineas 1986 (3) 509 (D) 516).

 

Another aspect of this case concerns recognizing and enforcing non-monetary foreign judgments. It is submitted that the practice where only judgments sounding in money are recognized and enforced is problematic and does not reflect recent developments in the field of recognition and enforcement of foreign judgment. A foreign judgment, beyond the requirement for the payment of a specific sum of money, might also require that the judgment debtor perform an act that includes the transfer of shares (like in this instant case) or delivery of property. There is a need for development in South Africa’s legal regime to enable it to recognize and enforce non-monetary foreign judgments.

Current legislative developments in the arena of recognition and enforcement of foreign judgments allow for the recognition and enforcement of non-monetary judgments. For instance, the 2019 Hague Judgments Convention allows for recognizing and enforcing non-monetary judgments. According to the Garcimartín-Saumier Report, recognition and enforcement of foreign judgment “includes money and non-money judgments, judgments given by default.. and judgments in collective actions” (para 95). Further, the Report adds that “Judgments that order the debtor to perform or refrain from performing a specific act, such as an injunction or an order for specific performance of a contract (final non-monetary or non-money judgments) fall within the scope of the Convention”. Also, the Commonwealth Model Law on Recognition and Enforcement of Foreign Judgment of 2018 allows for the recognition and enforcement of non-monetary judgments (Art 2). Even before these legislative innovations, the Supreme Court of Canada, in the case of Pro Swing Inc v Elta Golf Inc ((2007) 273 DLR (4th) 663), had already held that the traditional common law rule that limits enforcement to fixed sum judgments should be revised to allow for the enforcement on non-monetary judgments. Also, common law countries such as Australia and New Zealand have all, by legislation, done away with the fixed sum of money restriction (Australia: Section 5(6) of Foreign Judgments Act 1991; New Zealand: Section 3B of Reciprocal Enforcement of Judgments Act 1934).

These represent current developments in the law, and thus, the courts in South Africa, as part of their responsibility to develop the common law (section 8(3) of South Africa’s 1996 constitution), should incorporate this innovation in order to develop the common law in this regard the next time they are seised with a case which requires them to recognize and enforce a non-monetary foreign judgment.

Suppose South Africa’s legal regime recognizes and enforces non-monetary foreign judgments; the court might have reached a different conclusion rather than outright dismissing the case and the appeal. In that situation, the California court order, which required the respondent to transfer shares to AWI, would have been capable of being recognized and enforced by the South African court. After the recognition and possible enforcement of the order to transfer the shares, the court would subsequently be invited to determine how to handle the monetary value placed on the shares to be transferred. However, such an opportunity was missed because South African courts do not recognize and enforce non-monetary judgments.

 

Les apatrides d’origine palestinienne doivent bénéficier du statut de réfugié de plein droit dès lors que la protection ou l’assistance de l’Office de secours et de travaux des Nations unies pour les réfugiés de Palestine dans le Proche-Orient dans la bande de Gaza (UNRWA) est considérée comme ayant cessé.

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Décès du Juge Marko Ilešič 

The fist issue of 2024 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. Along with recent case law and materials, it features six contributions. Francesco Salerno, Il contributo degli studiosi italiani ai corsi de L’Aja di diritto internazionale privato [The Contribution of Italian Scholars to the Teaching of Private International Law […]

Les conditions de la litispendance prévue à l’article 12 du règlement applicable en matière d’obligations alimentaires ne sont pas réunies lorsque, à la date de la demande par un enfant, devenu entre-temps majeur, de versement d’une pension alimentaire à la charge de sa mère, présentée devant une juridiction d’un État membre, une demande a déjà été introduite par la mère devant une juridiction d’un autre État membre par laquelle elle réclame au père de l’enfant une indemnité pour l’hébergement et l’entretien de cet enfant.

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Par deux décisions, la Cour de justice de l’Union européenne précise les conséquences de l’octroi du statut de réfugié par un État membre sur une demande d’extradition formulée auprès de l’État de résidence et sur une demande d’asile formulée auprès d’un autre État membre.

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Staatssecretaris van Justitie en Veiligheid (Détachement de travailleurs de pays tiers)
Travailleurs détachés ukrainiens : l’État membre dans lequel les travaux sont réalisés peut imposer l’obligation d’obtenir un permis de séjour

dm-drogerie markt
Rapprochement des législations
Publicité portant sur des produits biocides : le droit de l’Union interdit l’utilisation de l’indication « respectueux de la peau »

The second edition International Commercial Contracts – Contract Terms, Applicable Law and Arbitration, authored by Giuditta Cordero-Moss (University of Oslo), is out. The book is published by Cambridge University Press. Any practising lawyer and student working with international commercial contracts faces standardised contracts and international arbitration as mechanisms for dispute settlement. Transnational rules may be […]

Professor Matthias Lehmann, Chair of Private International and Comparative Law at the University of Vienna, seeks two highly skilled and ambitious research fellows from 1 October 2024 (“prae-docs”). Post-docs can also apply; in this case, the two positions would be merged into one. The first position is available in the area of private international law […]

Pour la Cour de justice de l’Union européenne, peuvent être considérées comme appartenant à « un certain groupe social », en tant que « motif de persécution » susceptible de conduire à la reconnaissance du statut de réfugié, deux ressortissantes mineures d’un pays tiers qui s’identifient à la valeur fondamentale de l’égalité entre les femmes et les hommes en conséquence de leur séjour dans un État membre.

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Professor Matthias Lehmann, Chair of Private International and Comparative Law at the University of Vienna, seeks two highly skilled and ambitious research fellows from 1 October 2024 (“prae-docs”). Post-docs can also apply; in this case, the procedure would be restarted and the two positions would be merged into one.

The first position is available in the area of private international law and international dispute resolution (further details here). The second position is available in the area of international banking and financial law (further details here). The candidate should have some knowledge in the respective area. A post-doc should have knowledge in either area.

Applicants hold a master’s degree in law from any jurisdiction and possess an excellent command of English; a basic knowledge of German is welcome, but not necessary. Knowledge of other languages and advanced IT skills are desirable qualities that may be taken into consideration.

Successful candidates will be given the opportunity to complete a PhD or conduct post-doctoral research in accordance with the Faculty’s regulations. Other responsibilities include supporting Professor Lehmann in his work at the Chair and independent teaching, including coaching moot courts.

The positions involve 30 hours per week, of which 10 hours are set aside for the individual PhD project, and are remunerated according to the salary scale of the University of Vienna (c. 2.680 € gross per month, rising to 3.180 € after 3 years – paid out 14 times (!) per year). Contracts are for an initial term of one year during which there is a termination option for both sides, afterwards it is to be extended to a full four years.

Applications (including a cover letter in German or English, a CV, and relevant diploma) should be submitted via the University of Vienna’s Job Centre portal (https://jobs.univie.ac.at/) no later than 28 June 2024. Please include reference number 2449 for the specialisation in private international law and/or reference number 2499 for the specialisation in international business law. Questions about the positions and the application process can be addressed to Mrs Diana Dejakum at service.rechtsvergleichung@univie.ac.at.

Bundesrepublik Deutschland
Espace de liberté, sécurité et justice
Statut de réfugié : un État membre n’est pas tenu de reconnaître automatiquement le statut de réfugié accordé dans un autre État membre

Generalstaatsanwaltschaft Hamm (Demande d’extradition d’un réfugié vers la Turquie)
Espace de liberté, sécurité et justice
L’octroi du statut de réfugié dans un État membre s’oppose à l’extradition de l’intéressé vers son pays d’origine

The Spanish Yearbook of International Law (SYbIL), edited by the Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales (AEPDIRI), is calling for papers on topics of public and private international law for its forthcoming volume. Aware of the paramount importance of international practice, the Spanish Yearbook of International Law publishes contributions from active academics […]

Lors de l’exécution du mandat d’arrêt européen, la double incrimination n’a pas à être vérifiée si le motif de refus facultatif, en présence de faits qui ne constituent pas une infraction au regard de la loi française, n’est pas soulevé. À l’inverse, si son application est évoquée, le contrôle de la réciprocité d’incrimination demeure nécessaire, sauf si deux conditions cumulatives sont remplies. 

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The author of this post is Manuel Penades Fons, Reader in International Commercial Law at the Dickson Poon School of Law at King’s College London, United Kingdom. Introduction In Oilchart the CJEU needs to decide whether a creditor can commence proceedings in an EU Member State against a party which is already subject to insolvency […]

In this blog post, I respond to a recent critique by Dr. Cosmas Emeziem of a blog post co-authored by Dr. Abubakri Yekini and myself. Our post celebrated the elevation of Justice H.A.O. Abiru to the Nigerian Supreme Court and highlighted its significance for the development of Nigerian conflict of laws.

Dr. Emeziem argues that institutional expertise should be prioritised over individual expertise. He states, “[I]t is essential to stay focused on institutional capacities, expertise and competence and how to enhance them—instead of individualized expertise, which, though important, are weak foundations for enduring legal evolution and a reliable PIL regime.” He concludes that: “Thus, the idea that “an expert in conflict of laws is now at the Supreme Court after a long time”  is potentially misleading—especially for persons, businesses, and investors who may not know the inner workings of complex legal systems such as Nigeria.”

Yekini and I in our blog post , clearly stated: “Nevertheless, this is not to suggest that Justice Abiru’s expertise is limited to conflict of laws, nor that other Nigerian judges do not possess expertise in conflict of laws. The point being made is that his Lordship’s prominence as a judicial expert in conflict of laws in Nigeria is noteworthy.” [emphasis added]. The work of a judge is challenging, and academics should recognize and celebrate their expertise.

Celebrating judicial expertise is beneficial. For instance, Dr. Mayela Celis on 24 November 2021 in one blog post praised the appointment of Justice Loretta Ortiz Ahlf – a private international law expert – to the Mexican Supreme Court. Celis concluded in her blog post that: “This appointment will certainly further the knowledge of Private International Law and Human Rights at the Mexican Supreme Court.”

It is common for judges to specialize in certain legal fields, especially at the appellate level. This specialization enables them to provide leading judgments in relevant cases. This is particularly true in common law jurisdictions, where judges are known for their individual attributes and often provide separate decisions, which can result in a diverse range of opinions even within the same case. For example, in the English case of Boys v Chaplin, the House of Lords was unable to provide a coherent ratio decidendi due to differing opinions regarding the law applicable to torts when applying English law to heads of damages.

In Sonnar (Nig) Ltd v Partenreedri MS Norwind (1987) 4 NWLR 520 at 544 Oputa JSC of the Nigerian Supreme Court, although concurring, expressed a separate view that as a matter of public policy, Nigerian courts “should not be too eager to divest themselves of jurisdiction conferred on them by the Constitution and by other laws simply because parties in their private contracts chose a foreign forum.” Many other Nigerian judges have since followed this individual approach taken by Oputa JSC, despite the majority of the Nigerian Supreme Court in Sonnar unanimously, and repeatedly in Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509, and Conoil Plc v Vitol SA (2018) 9 NWLR 463, expressing preference for the enforcement of a foreign jurisdiction clause, except where strong cause is advanced to the contrary. In this context, the influence of an individual judge in decision-making in conflict of laws cannot be undermined.

In England, former United Kingdom Supreme Court Judges like Lord Collins and Lord Mance are renowned for their expertise in conflict of laws. Indeed, Lord Collins’ academic prowess in conflict of laws is internationally renowned, as he is one of the chief editors of the leading common law text on the subject. Nevertheless, this is not to suggest that judges who are not specialists in conflict of laws cannot make significant contributions to the subject. For instance, Lord Goff, known for his expertise in unjust enrichment, significantly contributed to the principle of forum non conveniens, delivering the leading judgment in the seminal case of Spiliada Maritime Corp v. Cansulex Ltd. The point being made is that judges’ specialization in a subject significantly enhances the quality of judicial decisions, a fact that scholars should celebrate.

The rise of international commercial courts in Asia and the Middle East, which resemble arbitral tribunals, underscores the importance of individual judicial expertise. These courts, including those in Hong Kong, Singapore, Dubai, Qatar, Kazakhstan, and Abu Dhabi attract top foreign judicial experts to preside over and decide cases, thereby instilling confidence in international commercial parties (Bookman 2021; Antonopoulou, 2023). For instance, Lord Collins a former non-permanent Member of the Hong Kong Court of Final Appeal, delivered the leading judgment in the significant cross-border matter of Ryder Industries Ltd v Chan Shui Woo, with the agreement of all other judges on the panel.

Yekini and I stated in our blog post, that Justice Abiru’s “dissenting opinion in Niger Aluminium Manufacturing Co. Ltd v Union Bank (2015) LPELR-26010(CA) 32-36 highlights his commitment to addressing conflict of laws situations even when the majority view falls short.” If the bench in the conflict of laws case where Justice Abiru dissented had been conversant with private international principles in Nigeria, a different outcome might have been reached. This is crucial in the context of the numerous per incuriam decisions by Nigerian appellate courts, which hold that in inter-state matters, a State High Court can only assume jurisdiction over a cause of action that arose within its territory, regardless of whether the defendant is present and/or willing to submit to the court’s jurisdiction (Okoli and Oppong, Yekini, and Bamodu) . The key point is that having more specialists in conflict of laws in Nigerian courts will significantly enhance the quality of justice delivery in cross-border issues.

In conclusion, while Justice H.A.O. Abiru is not the entire Nigerian Supreme Court for conflict of laws, there is nothing wrong with emphasizing and celebrating his specialization in this field. Therefore, I stand by my co-authored blog post and will continue to highlight such expertise.