October 2020 Issue of International and Comparative Law Quarterly

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The October 2020 issue of International and Comparative Law Quarterly was recently published. It features two articles on private international law:

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

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

 

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

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

Ilaria Viarengo and Francesca C Villata recently published a new book

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

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

Annual research meeting Dutch ILA branch: International Law for a Digitised World

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

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

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

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

Thanks to Marta Pertegás Sender for providing the text

Does a United States’ Court have jurisdiction to make an order affecting immovable property in Lagos, Nigeria?

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

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

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

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

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

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

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

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

New article on ‘Transnational Contracts and their Performance during the COVID-19 Crisis: Reflections from India’

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Published in the BRICS Law Journal by Dr Saloni Khanderia, Associate Professor – OP Jindal Global University, India; and Visiting Associate Professor, Faculty of Law, University of Johannesburg.

 

The outbreak of the COVID-19 or the coronavirus disease 2019 has severely impacted the performance of several contracts across the globe. In some situations, the outbreak may render the performance of contracts impossible as a result of governmental restrictions in the form of national lockdowns to curb its spread. Likewise, the pandemic may adversely impact the execution of the contractual obligations by dramatically affecting the price of the performance and, thus, resulting in hardship or commercial impracticability. At other times, the pandemic will be legally construed to not affect the performance of a contract. In domestic contracts, the consequences of such non-performance would depend on the principles of national law.

In comparison, agreements with a foreign element (international contracts) are likely to increase the complexity of deciding claims arising from the non-performance of contracts due to the COVID-19 outbreak. The rights and liability of the parties would chiefly depend on the law that will govern the agreement – which differs across the globe. Several contracts would include a force majeure clause to exonerate the parties from performance on the occurrence of an event such as a pandemic. The courts’ interpretation of such force majeure clauses similarly differs across the globe. The laws of some countries would excuse the parties from performing their contractual obligations even if the pandemic resulted in hardship. Others would strictly construe the terms of such clauses and would invalidate them if the occurrence of the pandemic did not make the performance impossible. The purpose of this paper is to examine the non-performance of transnational contracts due to the COVID-19 outbreak when they are governed by Indian law. It highlights the situations when an international contract for the sale of goods or services whose performance has been allegedly hindered due to COVID-19 would a) frustrate and b) breach the agreement under Indian law. The paper provides a comparative analysis of Indian law with several jurisdictions such as France, Germany, Austria, China, the United Kingdom [UK], Australia and the United States [US] to demonstrate that the law of the former is not well-equipped to deal with complex lawsuits arising due to the non-performance of contracts as a result of the pandemic.

The article may be accessed here.

Today is the 40th Anniversary of the HCCH Child Abduction Convention – A time for celebration but also a time for reflection

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Today (25 October 2020) is the 40th Anniversary of the HCCH Child Abduction Convention. With more than 100 Contracting Parties, the HCCH Child Abduction Convention is one of the most successful Conventions of the Hague Conference on Private International Law (HCCH). As indicated in the title, this is a time for celebration but also a time for reflection. The Child Abduction Convention faces several challenges, some of which have been highlighted in this blog. The most salient one is that primary carers (usually mothers) are now the main abductors, which many argue was not the primary focus of the deliberations in the late 70s and that the drafters assumed that primarily (non-custodial) fathers were the abductors. See the most recent statistical analysis by Nigel Lowe and Victoria Stephens (year: 2015 applications), where it shows that 73% of the abductors were mothers (most primary or joint-primary carers) and 24% were fathers.

A related issue is that custody laws continue to change and are granting custody rights to non-primary carers (e.g. unmarried fathers, ne exeat clauses, etc.), which expands the scope of the Child Abduction Convention. There is also a growing trend of joint parenting.

Another challenge is the increasing importance of human rights law and its interaction with the Child Abduction Convention (see our previous post Opening Pandora’s Box); in addition, the implementation and application of article 13(1)(b) of the Child Abduction Convention also poses challenges (see our previous posts on the HCCH Guide to Good Practice on the grave-risk exception under article 13(1)(b) of the Child Abduction Convention through the lens of human rights: Part I and Part II).

Moreover, other challenges have arisen in these difficult times of pandemic. In this regard, Nadia Rusinova wrote a post on the “Child Abduction in times of Corona” and another one on “Remote Child-Related Proceedings in Times of Pandemic – Crisis Measures or Justice Reform Trigger?”

Last but not least, there is much uncertainty surrounding Brexit and the new legal framework of the UK. How about all the UK case law regarding Brussels II bis and the related issues regarding the Child Abduction Convention?

Such obstacles are not insurmountable (at least, I hope). Nevertheless, much reflection is needed to continue improving the operation of the Child Abduction Convention in this ever-changing world. Undoubtedly, the Child Abduction Convention is a must-have tool for States to combat internationally removal and retention of children by their parents or someone from the inner family circle in accordance with the UN Convention on the Rights of the Child.

For those of you who are interested in getting more information about this Convention: In addition to the Guides to Good Practice published by the HCCH (open access), some of the leading works in this area are (I will concentrate on books as there are countless articles, see also bibliography of the HCCH here. Some of the books are from Hart, click on the link on the top of the banner for more info):

Monographic works:

Schuz, Rhona. The Hague Child Abduction Convention: A Critical Analysis. Studies in Private International Law; Volume 13. Oxford: Hart Publishing, 2013.  Former Secretary General of the HCCH, Hans van Loon, wrote a very helpful book review. See Van Loon, Hans, “R. Schuz, the Hague Child Abduction Convention: A Critical Analysis.” Netherlands International Law Review, 62, no. 1 (April, 2015): 201–206.

Beaumont, Paul R. and Peter E. McEleavy. The Hague Convention on International Child Abduction. Oxford Monographs in Private International Law. Oxford: Oxford University Press, 1999.

Garbolino, James D. and Federal Judicial Center. The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges, 2015 (open access).

More specific topic:

Written by Conflictoflaws.net’s General Editor: Thalia Kruger.

Kruger, Thalia. International Child Abduction: The Inadequacies of the Law. Studies in Private International Law; Vol. 6. Oxford: Hart Publishing, 2011.

Works in Spanish:

Child abduction and mediation

Chéliz Inglés, María del Carmen. La sustracción internacional de menores y la mediación: Retos y vías prácticas de solución. Monografías. Valencia: Tirant lo Blanch, 2019.

Forcada Miranda, Francisco Javier. Sustracción internacional de menores y mediación familiar. Madrid: Sepín, 2015.

Within the Latin-American region

Tenorio Godínez, Lázaro, Nieve Rubaja, Florencia Castro, ed. Cuestiones complejas en los procesos de restitución internacional de niños en Latinoamérica. México: Porrúa, 2017.

Tenorio Godínez, Lázaro, Graciela Tagle de Ferreyra, ed. La Restitución Internacional de la niñez: Enfoque Iberoamericano doctrinario y jurisprudencial. México: Porrúa, 2011.

This is just a short list; please feel free to add other books that you may be aware of.

The HCCH news item is available here. The HCCH Access to Justice Convention is also celebrating its 40th anniversary. Unfortunately, this Convention is less used in practice.

Waiving the Right to a Foreign Arbitration Clause by submitting to the Jurisdiction of the Nigerian Court

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Introduction

Commercial arbitration is now very popular around the globe. It forms an important part of Nigerian jurisprudence. In Nigeria, it is regulated by the Arbitration and Conciliation Act (“ACA”).[1]

Clauses designating an arbitral tribunal to resolve dispute between parties are now common place in international commercial transactions. Generally, the Nigerian courts respect and strictly enforce the parties’ choice to resolve their dispute before an arbitral tribunal in both domestic and international cases.[2] This right is however not absolute. The right to resolve disputes before an arbitral tribunal could be waived by submitting to the jurisdiction of the Nigerian court. Indeed, Section 5(1) of the ACA provides that: “If any party to an arbitration agreement commences any action in any court with respect to any matter which is the subject of an arbitration agreement any party to the arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay the proceeding.”[3] In essence, if a party to an international arbitration clause delivers any pleadings or takes any steps in the proceedings, such a party is deemed to have waived its right to an arbitration clause by submitting to the jurisdiction of the Nigerian court,

What provokes this comment is that in a recent Nigerian Court of Appeal decision in The Vessel MT. Sea Tiger & Anor v Accord Ship Management (HK) Ltd[4] (“Tiger”), the Court of Appeal held inter alia that where a party is served with a judicial claim, in breach of a foreign arbitration clause, but fails or refuses to appear before the court, such a party is deemed to have waived its right to an arbitration agreement by submitting to the jurisdiction of the Nigerian Court. It also held that payment of an out of court settlement amounts to submission.

This comment opines that the Court of Appeal’s decision was wrongly decided insofar as it held that where proceedings are instituted in breach of a foreign arbitration clause, failure or refusal to appear before judicial proceedings, and payment of an out of court settlement amounts to waiver by submitting to the jurisdiction of the court.

Facts

In Tiger, the 2nd plaintiff-appellant and the 1st defendant-respondent – both foreign companies before the Nigerian Court – entered into a ship management agreement on 18th of February 2012 in Hong Kong for the management of the 1st plaintiff-appellant vessel. The parties agreed in clause 23 and 25 of the ship management agreement that any dispute arising from their agreement shall be referred to international arbitration in London.

When a dispute arose as to the payment of the management fees between the parties, the 1st defendant-respondent instituted proceedings (suit No. FHC/L/CS/1789/2013) at the Federal High Court, Nigeria for the arrest of the 1st plaintiff-appellant vessel. In that proceeding, the 1st defendant-respondent (as plaintiff) sued the plaintiff-appellants (the vessel and owners of the vessel) as the defendants in that case. The plaintiff-appellants settled the claim out of court by making payments to the 1st defendant-respondent. Subsequently, on 27th February 2014, the 1st defendant-respondent as plaintiff in suit No. FHC/L/CS/1789/2013 withdrew its suit and the vessel was ordered to be released.

In consequence of the arrest of the 1st plaintiff-appellant from 31st December 2013 to 27th February 2018, the appellants sued the defendant-respondents in the Federal High Court, Lagos for a significant amount of compensation arising from what it claimed to be the wrongful arrest of the 1st plaintiff-appellant in breach of their agreement to settle their dispute by international arbitration in London.

 

Decision

The Court of Appeal unanimously dismissed the claim of the plaintiff-appellants by holding that they had waived their right to the international arbitration clause by submitting to the jurisdiction of the Nigerian Court. The decision was reached on two principal grounds. The first ground was failure or refusal to appear and challenge the proceedings after being served with court processes. The second ground was the payment of an out of court settlement in order to release the vessel. In order to provide more clarity, the relevant portions of the decisions are quoted.

First, Garba JCA in his leading judgment held that:

The failure or refusal by it (plaintiff-appellants) to appear in reaction to the originating processes to enable the appellant challenge the jurisdiction of the lower court on the ground of the arbitration clauses in the Ship Management Agreement…left no other reasonable presumption in law and option to the lower court than that the appellants had submitted to the jurisdiction of that court to adjudicate over the suit since the only challenge to the suit by the appellants was entirely and completely predicated and founded on the arbitration clauses in the Ship Management Agreement and not on the lack of jurisdiction on the part of the court, in any event, entertain the suit on any cognizable ground of law. The failure or refusal to enter an appearance and be represented in the suit constituted and amounted to a muted but clear submission to the jurisdiction of the lower court in the case.[5]

Second, Garba JCA held that: “…the lower court is right that the appellants submitted to its jurisdiction in the suit no:FHC/L/CS/1789/2013 by the payment and settlement of the 1st respondent’s claim in order to secure the release of the 1st appellant from the arrest and detention it was placed under in the case thereby not only taking a step in the case, but actively and effectively so, in the circumstances of the case.”[6]

 

Comments

The Court of Appeal’s decision in Tiger is very important from the perspective of private international law and international commercial arbitration. The implication of Tiger is that where proceedings are instituted in a Nigerian court in breach of a foreign arbitration clause, the party requesting arbitration would be wise to appear before the court and immediately request the court to stay its proceedings in favour of a foreign arbitration clause. If this is not done, an international arbitration clause is ineffective in Nigerian law on the basis that the party requesting arbitration would be deemed to have waived its right by submitting to the jurisdiction of the court. In addition, the payment of an out of court settlement would amount to waiver by submitting to the jurisdiction of a Nigerian court.

Prior to Tiger, waiver to an arbitration clause by submitting to the jurisdiction of the Nigerian court could only be established where the defendant enters an unconditional appearance or defends the case on its merits without challenging the jurisdiction of the court.[7]

It is submitted that Tiger is a wrong extension of the principle to the extent that it holds that failure or refusal to appear before proceedings which breach an international arbitration clause constitutes waiver by submission to the jurisdiction of a court. A defendant that does not appear before court proceedings cannot be deemed to have waived its right by submitting to the jurisdiction of the Nigerian court. In other words, failure or refusal to appear to proceedings upon being duly notified is the very antithesis of submission to the jurisdiction of a court. Indeed, there is an earlier Nigerian Supreme Court’s decision that clearly held that failure or refusal of a defendant resident in Nigeria to appear in the English court despite being duly notified of judicial proceedings in England, did not qualify as submission to the jurisdiction of the English court.[8] Though this Supreme Court case was concerned with the recognition and enforcement of foreign judgments under the 1922 Ordinance, the logic of this decision can be way of analogy be applied in Tiger’s case to the effect that failure or refusal to appear to court proceedings cannot constitute submission. In this connection, the Court of Appeal’s decision in Tiger is therefore per incuriam.

It is illogical to hold that that a defendant who has failed or refused to appear to court proceedings has “delivered pleadings” or “taken steps in the proceedings” in the eyes of Section 5 of the ACA. A defendant is entitled to ignore court proceedings by sticking to the arbitration clause. This should also be seen as a pro-arbitration stance that is consistent with Nigeria’s approach of upholding the sanctity of arbitration agreements. Indeed, as stated in the introduction, Nigerian courts generally enforce arbitration agreements strictly.

The truth is that Tiger’s case reflects the attitude of some Nigerian judges to absentee defendants. Some Nigerian judges regard it as impolite for a defendant not to appear to court proceedings upon being duly notified. The preferable approach in Nigerian jurisprudence is to enter a conditional appearance and then challenge the jurisdiction of the court. Indeed, in Muhammed v Ajingi,[9] the Court of Appeal (Abiru JCA) unanimously held that a defendant who has been duly notified of proceedings but fails or refuses to appear to promptly challenge the jurisdiction of the court is deemed to have waived its right by submitting to the jurisdiction of the Nigerian court. Though, Muhammed v Ajingi was not an arbitration case, it demonstrates the attitude of some Nigerian judges to absentee defendants.

The Court of Appeal in Tiger was also wrong to have regarded the payment of an out of court settlement sum by the plaintiff-appellants to release the vessel as waiver by submitting to the jurisdiction of the court. Such an approach does not amount to delivering pleadings or taking steps in the proceedings in the eyes of Section 5 of the ACA. Indeed, in the earlier case of Confidence Insurance Ltd,[10] the Court of Appeal (Achike JCA) unanimously held that: “effort made out of court to settle the matter in controversy between the parties”[11] does not amount to submission in the eyes of Section 5 of the ACA. Nigerian courts should be seen to encourage out of court settlement. The Court of Appeal in Tiger did not explicitly have regard to Achike JCA’s judicial opinion in Confidence Insurance Ltd, though it cited the case. There is wisdom in Achike JCA’s judicial opinion. If the law is that efforts made towards out of court settlement amounts to submission, this might discourage a potential defendant from making out of court settlements, where there is the presence of a foreign arbitration clause.

Moreover, the payment of the settlement sum by the plaintiff/appellants was for the purpose of releasing their vessel which had been detained on the order of a Nigerian court. Comparatively, this has never qualified as submission to the jurisdiction of the court in England. Payment of settlement to release the vessel is hardly ever voluntary – the claimant in such maritime claims can use the arrest of the vessel as a way of wrongfully obtaining settlement. Indeed, there are English cases where damages have been awarded for wrongful detention of vessel despite the other party paying a settlement sum to the party that arrested the vessel.[12]

Tiger properly so called was an action in damages for breach of an international arbitration clause. Since it has been argued in this case that the plaintiff-appellants did not submit to the jurisdiction of the Nigerian court, damages should have been awarded for breach of the international arbitration clause.[13] If the Court of Appeal had adopted this approach, it would have honoured the Nigerian judiciary’s approach to generally and strictly enforce the sanctity of arbitration agreements. It was obvious in this case that the plaintiff-appellants suffered loss from the arrest of their ship in breach of an international arbitration clause. It is quite unfortunate that the Court of Appeal did not award compensation in this case.

 

Conclusion

It remains to the seen whether Tiger will go on appeal to the Nigerian Supreme Court. If it does go on appeal, it is proposed that the Supreme Court overturns the Court of Appeal’s decision. If it does not go on appeal to the Supreme Court, it is proposed that the Nigerian Court of Appeal and Supreme Court in future holds that the failure or refusal to appear to proceedings in breach of an international arbitration clause, and the payment of out of court settlement does not constitute waiver by submission to the jurisdiction of the Nigerian court.

 

*Postdoctoral Researcher in Private International Law at TMC Asser Institute, The Hague, and Barrister and Solicitor of the Supreme Court of Nigeria. The author can be reached at chukwuma.okoli@yahoo.com.

[1]Cap. A18, LFN 2004.

[2]The cases in support of this are numerous. It is sufficient to cite the Nigerian Supreme Court authorities: Owners of MV Lupex v Nigerian Overseas Chartering and Shipping Ltd (2003) 15 NWLR 469; Mainstreet Bank Capital Limited & Another v Nigeria Reinsurance Corporation Plc (2018) 14 NWLR (Pt. 1640) 423, 444 (Kekere-Ekun JSC). See also CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart, 2020) 127-138.

[3]It is a matter if Section 5 of the ACA applies to only domestic arbitration, and not international commercial arbitration. In Owners of MV Lupex (supra n 2) the Nigerian Supreme Court applied Section 5 of the ACA to international commercial arbitration. However, in a later case of SPDCN Ltd v CIRN Ltd (2016) 9 NWLR (Pt. 1517) 300, 323 (Obaseki-Adejumo JCA), the Court of Appeal, relying on Section 58 of the ACA, held that the ACA only applies to domestic arbitration. If the Court of Appeal’s decision is correct, then Section 5 of the ACA only applies to domestic arbitration.

It is submitted that the Supreme Court’s position in Owners of MV Lupex is preferred for three reasons. First, Section 58 of the ACA means that the ACA applies in all States of the Federation, and not that the ACA applies only to domestic arbitration. Second, there is no specific provision that states that the ACA does not apply to international arbitration. Third, Part III of the ACA has a title which states that it relates to “ADDITIONAL PROVISIONS RELATING TO INTERNATIONAL ARBITRATION AND CONCILIATION.” This implies that the ACA governs domestic and international commercial arbitration, with Part III of the ACA making additional provisions relating to arbitration.

[4](2020) 14 NWLR (Pt. 1745) 418.

[5]Tiger (n 4) 453-4.

[6] Ibid 457.

[7]Obembe v Wemabod Estates Ltd. (1977) 5 SC 115 (Fatayi-Williams JSC as he then was); K.S.U.D.B. v Fanz Const; Ltd. (1990) 4 NWLR (Pt. 142) 1, 27 (Agbaje JCS), 50 (Obaseki JSC); Mainstreet Bank Capital Limited & Another v Nigeria Reinsurance Corporation Plc (2018) 14 NWLR (Pt. 1640) 423, 445-6, 452 (Kekere-Ekun JSC); Onward Ent. Ltd. v MV Matrix (2010) 2 NWLR (Pt. 1179) 530, 551; Federal  Ministry of Health v Dascon (Nig.) Ltd (2019) 3 NWLR (Pt. 1658) 127, 139-140 (Abiriyi JCA); SCOA (Nig) Plc v Sterling Bank Plc  ( 2016 )  LPELR-40566 (CA) (Oseji JCA as he then was) Sino-Africa Agriculture  &  Ind Company Ltd and Others v Ministry of Finance Incorporation and Another (2013) LPELR-22379 (CA) 1, 33 – 36, (2014) 10 NWLR (Pt. 1416) 515, 537 (Orji-Abadua JCA); Osun State Government v Dalami (Nig.) Ltd (2003) 7 NWLR (Pt. 818) 72, 93, 101 (Onalaja JCA); Confidence Insurance Ltd v Trustees of O.S.C.E. (1999) 2 NWLR (Pt.591) 373, 386 (Achike JCA as he then was).

 

[8]Grosvenor Casinos Ltd v Ghassan Halaoui (2009 ) 10 NWLR 309. In this case the Supreme Court was interpreting Section 3(2)(b) of the Reciprocal Enforcement of Judgments Act 1922, Cap 175 LFN 1958 (“1922 Ordinance”), which provides that the Nigerian court will refuse to register a foreign judgment where a judgment-debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court. This implies that not voluntarily appearing before a Nigerian court does not constitute submission despite being duly notified with court processes. Indeed, Section 3(2)(b) is a codification of Nigerian common law on what qualifies as submission as a basis of jurisdiction in private international law  matters. Under common law, submission in establishing jurisdiction in private international law against a defendant can only be established where there is unconditional appearance, defending the case on its merits without challenging the court’s jurisdiction or counter-claim.

[9] (2013) LPELR-20372 (CA).

[10] (n 7).

[11] Ibid 386.

[12] See Gulf Azov Shipping Co Ltd v Chief Idisi (No.2) [2001] EWCA Civ 505; Kallang Shipping SA v AXA Assurance Senegal [2008] EWHC 2761 (Comm).

[13]See Okoli and Oppong (n 2) 138; JC Betancourt, “Damages for Breach of an International Arbitration Agreement under English Arbitration Law” (2018) 34 Arbitration International 511-532.

Global Perspectives on Responsible Artificial Intelligence

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In June 2020, the Freiburg Institute for Advanced Studies (FRIAS) held an online symposium dealing with “Global Perspectives on Responsible Artificial Intelligence (AI)”. The range of topics included the implications of AI for European private law (Christiane Wendehorst, ELI/University of Vienna), data protection (Boris Paal, Freiburg), corporate law (Jan Lieder, Freiburg), antitrust (Stefan Thomas, Tübingen), and, last but not least, private international law (Jan von Hein, Freiburg). The videos of the presentations are now available here.

Save the date – 5 February 2021 – online event. The Netherlands: a forum conveniens for collective redress?  

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by Marta Pertegás Sender, Maastricht University and University of Antwerp

On 5 February 2021 a group of renowned experts will discuss the attractiveness of Dutch courts in an online interactive seminar. The event will more generally address the settlement of complex private transnational disputes in light of recent Dutch and European legislation.

The starting point for this event is the observation that a number of complex multijurisdictional cases find their way to the Dutch courts. Notorious examples of past and pending collective redress cases include the Shell Nigeria (environmental claims), Libor (market manipulation claims), Petrobras (investor claims) and the “truck cartel” (competition claims) cases.

This “Dutch-bound” trend raises questions about the adequacy of the legal framework for such complex cases, in particular with regard to the international jurisdiction of the Dutch courts, the scope of application of the new law on collective redress, the domestic and international coordination of proceedings, the available (extraterritorial) remedies, etc.

Furthermore, this trend begs a more fundamental question about the position of the Dutch courts in a fragmented legal landscape. The broad application of the Law on Collective Settlements and the more restrictive scope of the new law on collective action, illustrate some of these controversies. Should The Netherlands remain an international dispute settlement hub ( forum conveniens) for such disputes?

Dutch and international academic experts, practitioners and policy-makers will lead the discussion from a legal, political and societal perspective. The attractive programme and line of speakers will soon be available here. For now, please save the date and join us for an in-depth reflection on how to tackle such collective redress cases.

This conference is organised by Maastricht University, Tilburg University and University of Amsterdam (UvA), with the collaboration of the Open University, in the context of the Netherlands Sector Plan on the transformative effects of globalisation in the law.

 

R. Brand on Provisional Measures in Aid of Arbitration

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The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may, in advance, ensure that assets or evidence is secured in advance, or that the other party is required to take steps to secure the status quo. This makes the availability of provisional measures granted by either arbitral tribunals or by courts important to the arbitration process. In this chapter, Ron Brand of the University of Pittsburgh School of Law considers the existing legal framework for such provisional measures in aid of arbitration, giving particular attention to the source of the rules that might govern such relief related to international commercial transactions and the arbitration of disputes they may generate. These include the New York Convention, the applicable lex arbitri, institutional arbitration rules, and the arbitration contract. He considers how these sources do or do not provide a comprehensive and coherent framework for effective dispute resolution – including especially the effective satisfaction of any resulting arbitral award – and some of the ways in which the arbitration clause may be drafted to specifically take into account the often unanticipated, but always possible, need for provisional measures.

TThe article is accessible here