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Can a Foreign Company that is not registered in Nigeria maintain an action in Nigerian Courts (Part 2)?

This is an update on my previous blog post here

Capacity to sue and be sued is an important aspect of conflict of laws. It connects very well with the issue of access to justice. For example if a foreign company that does business with a Nigerian company cannot sue in Nigeria it can result in injustice, and lead to loss of confidence in doing transactions with parties located in the Nigerian legal system.

Why is the above topic important? Having undertaken further research, it can be said that Nigerian court decisions are not consistent on the issue of capacity of a foreign company to sue and be sued in Nigeria. The latest reported authoritative source from the Nigerian Supreme Court is that by virtue of Section 54 and 55 of the Companies and Allied Matters Act 2004 Cap C20 (now Section 78 and 79 of the Companies and Allied Matters Act 2020), a foreign company that carries on business in Nigeria without being registered as a Nigerian company carries out an illegal and void transaction, and thus such a contract cannot be enforced in Nigerian courts.[1] In effect, the provision of Section 60(b) of the Companies and Allied Matters Act 2004 Cap C20 (now Section 84(b) of the Companies and Allied Matters Act 2020) cannot avail the foreign company in granting it the capacity to sue in Nigeria to enforce a contract where it carries on business in Nigeria without registering as a foreign company.[2] It is only where the foreign company that is not registered in Nigeria enters into a contract with a Nigerian company, while not doing business in Nigeria, will such a contract be enforceable in Nigeria.[3] The key word is thus doing business in Nigeria in determining whether a foreign company that is not registered in Nigeria can sue or be sued in Nigeria. This decision has now been confirmed by a very recent Court of Appeal decision, though in the instant case it was held that the foreign company had a Nigerian subsidiary and it was not carrying out business in Nigeria (it was a single transaction), so the contract was enforceable in Nigeria.[4]

Conference Report: The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law

The Private Side of Transforming our World
UN Sustainable Development Goals 2030and the Role of Private International Law

September 9-11, 2021, Hamburg, Germany,
Max Planck Institute for Comparative and Private International Law

By Madeleine Petersen Weiner and Mai-Lan Tran

The Max Planck Institute for Comparative and Private International Law hosted a hybrid conference on the Institute’s premises, and digitally via Zoom, under the above title from September 9-11, 2021, on the occasion of the publication of the nearly 600-page anthology “The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law”.

Study Rome II Regulation published

The long-awaited Rome II Study commissioned by the European Commission, evaluating the first ten years of the application of the Rome II Regulation on the applicable law to non-contractual obligations, has been published. It is available here. The Study was coordinated by BIICL and Civic and relies on legal analysis, data collection, a consultation of academics and practitioners, and national reports by rapporteurs from the Member States. The extensive study which also includes the national reports, discusses the scope of the Regulation and the functioning of the main rules, including the location of damages under Art. 4 Rome II, which is problematic in particular in cases of prospectus liability and financial market torts. As many of our readers will know, one of the issues that triggered debate when the Rome II Regulation was negotiated was the infringement of privacy and personality rights, including defamation, which topic was eventually excluded from the Regulation. While it has been simmering in the background and caught the attention of the Parliament earlier on, this topic is definitely back on the agenda with the majority opinion being that an EU conflict of laws rule is necessary.

Three topics that the European Commission had singled out as areas of special interest are: (1) the application of Rome II in cases involving Artificial Intelligence; (2) business and human rights infringements and the application of Art. 4 and – for environmental cases – Art 7; and (3) Strategic Lawsuits against Public Participation (SLAPPs). For the latter topic, which is currently also studied by an expert group installed by the European Commission, the inclusion of a rule on privacy and personality rights is also pivotal.

News

A Deeper Dive into the Cassirer Case: United States Supreme Court Grants Cert on Case Concerning Foreign Sovereign Immunities Act

This post is by Emilia Beuger (LL.M. Utrecht), JD Candidate at the University of Pittsburgh School of Law.

As noted in an earlier post on this site, the United States Supreme Court granted a petition for a writ of certiorari to the Ninth Circuit’s decision in Cassirer v. Thyssen-Bornemisza Collection Foundation on September 30, 2021. Below is a more detailed discussion of the issues at play in this case.

This case originated in the state of California and was then appealed to the Ninth Circuit before filing a writ of certiorari to the Supreme Court of the United States. The central legal issue concerns the Foreign Sovereign Immunities Act (FSIA), whose application and interpretation has been split across Circuit Courts.

The issue before the Supreme Court is whether a federal court hearing state law claims brought under the FSIA must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law. The state law is California’s choice-of-law test and the federal common law’s choice-of-law test is set forth in the Restatement (Second) Conflict of Laws. The FSIA does not have an express choice of law provision.

Out now: Fabrizio Marrella / Nicola Soldati (eds.), “Arbitration, Contracts and International Trade Law / Arbitrato, contratti e diritto del commercio internazionale. Essays in honor of Giorgio Bernini/ Studi in onore di Giorgio Bernini”, Milan, Giuffré – Francis Lefebvre, 2021.

This book celebrates the work and scholarship of Professor Giorgio Bernini, Honorary President of ICCA, who held the chair of European Union Law, Arbitration and International Commercial Law at the University of Bologna for almost 30 years. A very successful international lawyer, he was the Italian Minister of Foreign Trade and a Member of the Italian Antitrust Authority. Bernini has built a long career in the study and practice of arbitration with a record of 450 cases. The book is divided into an introduction and two parts, to highlight many of Bernini’s contributions to the Law.

In a special introductory section of the book, entitled ‘portraits of a pioneer’, some authors offer specific references to some of his many activities in the field: from the ICC Institute of World Business Law to the International Council for Commercial Arbitration, from the Italian Arbitration Association to his professional life as an international lawyer. Then, in the first part of the book, essays on Contract Law and International Trade Law have been collected. The second part is dedicated to arbitration in its many dimensions: domestic, international, commercial and investment Law.

New issue alert: RabelsZ 4(2021)

The latest issue of RabelsZ has just been published online. It contains the following contributions:

Jaakko Husa: Merging International Law and Comparative Law – Balancing Between Normative and Non-Normative, Volume 85 (2021) / Issue 4, pp. 745-774 (30), https://doi.org/10.1628/rabelsz-2021-0045

The relationship between comparative law and public international law is paradoxical. These fields are in principle close to each other but remote in practice. The emergence of comparative international law has changed the situation as it invites comparative law scholars to enter into discussion on international law. This article provides a critical analysis on the possibilities for comparative law in the field of international law. It discusses and explains why a non-normative understanding of comparative international law works well together with the pluralist conception of comparative law, and why a normative understanding of comparative international law is incompatible with it. This article explains why comparative law scholars do not welcome the use of comparative law for international law purposes with open arms.