Brexit Deal: What Happens To Judicial Cooperation in Civil Matters?

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The Brexit deal (officially the [draft] EU-UK Trade and Cooperation Agreement) was agreed upon, finally, on December 24. Relief in many quarters (except Universities participating in the Erasmus program, which is discontinued in the UK).

But private international lawyers worry what happened to judicial cooperation in civil matters: is there any agreement at all? Peter Bert provides a detailed analysis of all available documents and finds almost no mention, which leads him to think we are facing  a sectoral hard brexit. (Update: he provides a more comprehensive analysis in German here.) Other experts on social media do not know more. The Law Society also seems worried. There seems to be no new information on the UK application to join the Lugano Convention, let alone any of the other areas of judicial cooperation. Given the intense discussion on these matters since the day of the Brexit vote, this can hardly be an oversight, but on the other hand it seems strange that such a core issue remained unaddressed.

Any further information or analysis in the comments is welcome.

Update: more comments from Ted Folkman

 

The Italian Supreme Court on Jurisdiction in Purely Financial Damages

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The case

In a recent decision published October 30th, 2020 (ordinanza 24110/2020) the Italian Supreme Court has applied two provisions of the Brussels Ia Regulation, namely art. 8 n. 1, and art. 7 n. 2, in a context of multiple actions for fraud started by the Italian investors against a number of defendants. The first being a UK based bank for alleged breaches of its duties of control over financial experts who collected money from investors. The others being a UK based financial company and a financial expert who were supposed to invest the collected money by way of establishing trust. As emerges from the order of the Supreme Court, all investments collected in Italy were spent in gambling houses in Italy.

Proceedings were collectively started in Italy against all defendants, who challenged the Italian jurisdiction before the court of first instance, which thus requested the Supreme Court to settle the issue.

 

Last known domicile of one of the defendants

Following a logical order, the Italian Supreme Court seeks to determine in the first place if one of the defendants is domiciled in Italy. In this regard, the solution of the Court is interesting in that it focuses on the last known domicile of the financial expert, whose actual whereabouts have become unknown. According to the Court, the simple fact that current domicile of the party is unknown, and that consequently service of documents has followed domestic rules for unknown residents, is per se not sufficient to argue that that person is no longer domiciled in Italy. To some extent, even though this decision is not clearly mentioned in the order of the Italian Supreme Court, this conclusion seems consistent with the ratio expressed by the Court of Justice of the European Union in Hypotecní banka a.s. v Lindner (case C-327/10), where it was argued that defendants with unknown domicile are domiciled at their last known domicile for the purpose of the Brussels I(a) Regulation (see para. 42 ff).

 

Art. 8 n. 1 Brussels Ia Regulation

Having established that Italian jurisdiction exists under art. 4 Brussels Ia Regulation at least in respect to one of the defendants (i.e. the financial expert cooperating with the British financial company who should have been appointed as trustee for the management of the investments), the Italian Supreme Court turns to the analysis of Italian jurisdiction over the UK investment company and the UK Bank under art. 8 n. 1 Brussels Ia Regulation.

The Supreme Court concedes that the special head of jurisdiction is subject to a restrictive interpretation and should not be applied when the different proceedings have different petitum and causa petendi, or where there is no subordination between the actions with no risk of incompatible judgments – the mere ‘inconsistency’ between decisions being insufficient to trigger art. 8 n. 1 Brussels Ia Regulation and derogate from art. 4.

In the case at hand, however, even though the action against the UK bank was contractual in nature for alleged violation of its control duties, and non-contractual in nature against the other parties, the Italian Supreme Court notes how the non-contractual liability of those who have collected the money to unlawfully spend it in gambling houses in Italy is strictly interconnected and intertwined with the contractual conduct of the bank – as proper ex ante controls by this subject might have avoided the investment in favor of companies who had unclear bank operations incompatible with investment activities. Moreover, damaged parties have started proceedings seeking damages collectively against all parties for solidary liability – in the Court’s eye, this renders it fundamental to unitarily address all conducts even though these are grounded on different titles. Again, a solution that appears to be consistent with the case law of the Court of Justice of the European Union (Freeport plc v Olle Arnoldsson, case C-98/06, para. 41).

For these reasons, the Italian Supreme Court argues that the Italian jurisdiction extends from that of the Italian domiciled also to both the British investment company and the British bank.

 

Art. 7 n. 2 Brussels Ia Regulation

The Italian Supreme Court also addresses the existence of the Italian jurisdiction under art. 7 n. 2 Brussels Ia Regulation. The Court does not however determine at this stage local competence – referring the issue to the court of first instance.

The case deals in concreto with damages following investment frauds – in this sense the only ‘damage’ for the purposes of the provision at hand is financial in nature. The Italian Supreme Court quotes the decision of the European Court of Justice in Volkswagen AG (Verein für Konsumenteninformation v Volkswagen AG, case C-343/19) to support the idea that the place of financial loss might ground the existence of Italian international jurisdiction, as in Italy the investors transferred their sums (thus lost their money).

The Supreme Court additionally argues that the ‘conduct’ can be localized in Italy as well – thus Italian jurisdiction follows. In Italy the sums were allegedly fraudulently collected from investors, and in Italy such sums were allegedly fraudulently used in Italian gambling houses (contrary to contractual indications). With a brief passage, the Court gives a strong value to this specific head of jurisdiction, the place of the ‘harmful conduct’, as it can be used by the plaintiffs to ground their actions superseding uncertainties that could follow the application of art. 8 n. 1 Brussels Ia.

Massimo V. Benedettelli, International Arbitration in Italy

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Arbitration community lacked a comprehensive guide in English to move through the multiple and multifaceted connections between arbitration and the Italian legal system: International Arbitration in Italy fills in this gap, addressing both international commercial and investment arbitration.

The book deeply depicts said connections, raising interpretative problems and providing solutions with the view to building a coherent system against the backdrop of the author’s thought about the phenomenon of the arbitration taken as a whole.

This approach qualifies the entire analysis elaborated on in 12 Chapters, which start with the focus on what international arbitration is and what its grounds are, then moving on how arbitration “dialogues” with the different sources of Italian law, and what the principles for the right interpretation of this law are.

The book proceeds on “traditional” topics pertaining to a handbook of international commercial arbitration (the interplay between arbitration and national courts, the arbitration agreement, the arbitral tribunal, the arbitral proceedings, the provisional measures, the law applicable to the merits, the costs of arbitration, the different awards, related challenges, recognition and enforcement) with a closing attention to investment arbitration.

International Arbitration in Italy also includes three useful appendices which gather the main provisions of Italian law on arbitration (1), the rules of arbitration of the Milan Chamber of Arbitration (2) and the list of the Bilateral Investment Treaties in force for Italy (3).

Given its well-balanced theoretical and practical approach, the book will stimulate the scientific debate while helping practitioners to handle even the trickiest cases featuring interactions between international arbitration and Italian law.

The English High Court delivers an interesting decision on Article 4(3) of Rome II Regulation

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Today, the English High Court in Owen v Galgey [2020] EHWC 3546 (QB) delivered a thorough and interesting decision on Article 4(3) of Rome II Regulation, which is the general escape clause for Rome II. For a complete reading of the decision see here

European Commission seeking (private international law) experts for its European Democracy Action Plan

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The European Commission on 3 December presented the European Democracy Action Plan. The Press Release explains that: “Standing up to challenges to our democratic systems from rising extremism and perceived distance between people and politicians, the Action Plan sets out measures to promote free and fair elections, strengthen media freedom and counter disinformation.”

With regard to the aim of strengthening media freedom, the Commission “will propose in 2021 a recommendation on the safety of journalists, drawing particular attention to threats against women journalists, and an initiative to curb the abusive use of lawsuits against public participation (SLAPPs).”

The Commission is seeking to establish an Expert Group against Strategic Lawsuits Against Public Participation (SLAPP). The Call defines SLAPP as “groundless or exaggerated lawsuits, initiated by state organs, business corporations or powerful individuals against weaker parties who express, on a matter of public interest, criticism or communicate messages which are uncomfortable to the litigants.”

The Call further explains: “Whilst most SLAPP appear to be national lawsuits, they can be made more complex, thus more costly to defend, when they are deliberately brought in another jurisdiction and enforced across borders, or when they exploit other aspects of national procedural and private international law. Most SLAPP suits are based on defamation claims, but there are cases based on other grounds, including data protection, blasphemy, tax laws, copyright, trade secret breaches, and similar concepts.”

Interested persons can find the call in the Register of Commission Expert Groups.

Opinion of AG Campos Sánchez-Bordona in the case C-709/19, Vereniging van Effectenbezitters: jurisdiction in matters of non-contractual liability in connection with investments in securities and collective actions

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In his Opinion delivered last Thursday, AG Campos Sánchez-Bordona presents his take on determination of the place where the damage occurred (‘Erfolgsort’) under Article 7(2) of the Brussels I bis Regulation in the context of a collective action for declaration of liability in connection with investments in securities. The Opinion provides further clarification in relation to the case law established by the Court of Justice in the cases Kolassa, Universal Music International Holding and Löber.

Read more

New York Convention applies to the recognition and enforcement of Basketball Arbitral Tribunal awards

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It has been widely supported in legal scholarship that arbitral awards issued by the Basketball Arbitral Tribunal may be recognized and declared enforceable by virtue of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. A recent judgment rendered by the Thessaloniki Court of first Instance examined a pertinent application, and granted recognition and enforcement of the BAT award in Greece.

 

THE PROCEEDINGS IN GENEVA

The Greek Player V.K. and his Agency, S. Enterprise Ltd., filed a claim against the Greek Club A. B.C. 2003 for outstanding salaries, bonuses, agent fees, declaratory relief and interest. The Claimant submitted that the Respondent breached the contractual relationship by failing to pay several salary instalments as well as the agent fees. The Respondent did not participate in the proceedings. The claim was partially upheld by the Arbitrator. The Tribunal ordered the Club to pay a series of amounts and costs to the applicants.

THE PROCEEDINGS IN THESSALONIKI

Less than a month later, the award creditors filed an application for the recognition and enforcement of the BAT award before the Thessaloniki 1st Instance Court. For this purpose, they submitted a true copy of the award and the arbitration agreement, both duly translated in Greek.

The Club countered with a number of defences:

  • It was not summoned to the BAT proceedings, which resulted in its default of appearance.
  • After the application in Greece, the parties signed a private agreement, following which the player agreed to downsize his claim to the sum of 85.000 Euros, and both applicants agreed to be paid by instalments.
  • The Club had already paid the amount of 51.000 Euros, which should not be declared enforceable.
  • By seeking recognition of the BAT award before the court, the applicants violated the private agreement, where it was agreed that both parties would refrain from any legal action during its implementation.
  • It was also agreed that the player would apply for discontinuance, and in the event of payment default, the applicants were obliged to send the Club a notice in written, which however was omitted.

THE JUDGMENT OF THE THESSALONIKI COURT

  • The court saw no violation of the audience rights of the Club: the latter was duly and timely served with the application and the summons to appear in the proceedings, as evidenced by the documents submitted to the court.
  • By signing the private agreement, the court saw a tacit acceptance of the BAT award by the Club.
  • The court dismissed the Club’s request to deny the enforceability of the amount already paid. It underlined that this would mean a revision on the merits. Apart from the above, the court continued, the Club is not deprived of its right to request partial stay of execution in the enforcement stage.
  • For the same grounds the court refrained from the examination of the particulars of the agreement, considering that the allegations of the Club against the applicants are out of the scope of the exequatur proceedings.
  • With respect to the grounds of refusal, the court dismissed the public policy defence raised by the Club in regards to the costs of the arbitration proceedings: The total amount of 12.500 Euros is not excessive, given the subject matter of the dispute (140.000 Euros).

 

SHORT COMMENT

The judgment of the Greek court is a positive sign for the free circulation of BAT awards in national jurisdictions. The losing party failed to prove any grounds of refusal. The last bastion is now the application for a stay of execution. However, a re-examination on the merits is strictly forbidden in this stage; the Club’s only hope is to trace potential flaws in the enforcement proceedings.

Finally, free circulation is also guaranteed for CAS rulings, as evidenced by a judgment issued by the same court nearly seven years ago.

A call for the wider study of Private International Law in Africa: A Review of Private International Law In Nigeria

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Written by Orji Agwu Uka, Senior Associate at Africa Law Practice (ALP)*

This is the fifth and final online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomicslaw.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, the second symposium was published by Anthony Kennedy, the third symposium was published by Richard Mike Mlambe, and the fourth symposium was published by Dr Abubakri Yekini.

Private International Law in Nigeria

For too long, law students in Nigerian universities have largely considered Private International Law [or Conflict of Laws as it is more commonly known in Nigeria] as an esoteric subject. Most students avoid it because of the adverse effect they think it is sure to have on their cumulative grade points average and the seeming lack of practical benefit of the subject to their future law practices. They do not know any better. Nigerian legal practitioners have had to provide legal advice and represent clients before trial and appellate courts as well as arbitral tribunals on disputes involving private international law questions within the context of Nigerian law. Those pieces of advice and legal representations would have benefitted greatly from a comprehensive private international law treatise. On their part, Nigerian courts have had to meander through the maze of interpreting questions of private international law without the benefit of the direction that high quality academic works [available in some other subject areas] provide. I am gratified to announce that finally, a Daniel is come to judgment.

Since Nigeria’s return to civilian rule in 1999, there have been significant increase in cross border trade, international business transactions and foreign investments in Nigeria. Successive Nigerian governments across all tiers have made the attraction of foreign investments a cardinal part of their economic policies and have accordingly made deliberate efforts and committed abundant resources to attract foreign investments into Nigeria.[1]This accords with the preponderance of opinion to the effect that, with the right economic policies, FDI inflow into developing economies can be a major catalyst for economic development.[2] With these activities however, have come the resultant need for increased attention to the body of laws in Nigeria that regulate transactions with multi-jurisdictional elements.

In a recent article, I called for increased study of private international law in Africa and the establishment of a harmonised private international legal regime especially in the context of the Agreement establishing the African Continental Free Trade Area (AfCFTA) which came into force on 30 May 2019.[3] I argued that the economic integration and the concomitant growth in international relationships that are sure to result from these integration efforts will undoubtedly lead to a rise in cross border disputes, which call for resolution using the instrumentality of private international law. That call, especially in the case of Nigeria, was significantly handicapped by the absence of a treatise length textbook on the subject.

Interestingly, I had, in that article, borrowed heavily from the writings of Professor Richard Frimpong Oppong, a renowned private international law expert in Africa, and Dr Chukwuma Samuel Okoli, a Postdoctoral Researcher at T. M. C. Asser Institute in the Hague and a prolific writer in the field of private international law in Nigeria. Writing on the importance of a private international law system that responds to the interests of Africa, Dr Okoli observed that with growing international trade with Africa comes an inevitable rise in disputes among contracting parties conducting trade on the continent.[4]According to him, when these disputes arise, questions such as what courts have jurisdiction, what law(s) should apply, and whether a foreign judgment will be recognised and enforced by the courts of African States, will need to be resolved for international trade to run smoothly.[5]

On his part, Professor Oppong, argued that a well-developed and harmonised private international law regime is an indispensable element in any economic community and can play a significant role in addressing issues such as the promotion of international trade and investment, immigration, regional economic integration, globalisation and legal pluralism.[6] It is altogether fitting that these two will join forces to produce the first treatise length textbook on private international law in Nigeria and it is against the foregoing backdrop that I wholeheartedly welcome the product of their collaboration – Private International Law in Nigeria.[7]

The book examines Nigerian law rules, principles, and doctrines for the resolution of disputes with cross-border components. The authors begin by tackling the elephant in the room which is to provide a helpful explanation of the conceptual and preliminary issues which constitute the most intricate aspects of private international law. The concepts addressed are Characterisation; Substance and Procedure; and of course, Renvoi which the authors wittingly recall has been described in the past as a subject loved by academics, hated by students and ignored by lawyers and judges. There is also a special treatment of the concept of domicile which is one of the cardinal concepts in the field of English private international law and by necessary implication that of Nigeria, and which is one of the fundamental connecting factors that indicate the law or jurisdiction that governs a dispute particularly in matters related to jurisdiction, family law, property law, and other issues affecting the legal rights and privileges of parties.

The book expertly navigates the topic of jurisdiction, a cardinal concept under Nigerian adjectival law, but which in some cases is weaponised and has now acquired exaggerated notoriety to the extent that it now constitutes a cog in the wheel of the smooth and timely determination of cases in Nigeria. To avoid the monster that jurisdiction as a concept has developed into, the book carefully focuses on a consideration of jurisdiction in actions in personam. The authors consider the rules for determining jurisdiction in actions in personam and the extent to which judges in Nigeria have succeeded or mostly failed in appreciating or applying jurisdictional rule son actions in personam especially by misapplying rules designed for international litigation in the context of interstate disputes in the unique federal system practiced in Nigeria.

The result of the authors’ analyses of Nigerian appellate courts’ cases bordering on the jurisdiction of Nigerian courts in actions in personam arising from causes of action which accrue outside the territorial jurisdiction of the courts is particularly eye-opening. The authors divide the failure of Nigerian courts in this regard into three scenarios to wit: cases where Nigerian courts reach the right decision but wrongly apply choice of venue rules to arrive at that decision; cases where Nigerian courts wrongly apply choice of venue rules and reach the wrong decision; and cases where Nigerian courts simply conflate the choice of venue provisions in the rules of the respective courts in Nigeria with the rules of private international law applicable in actions in personam in Nigeria. The reasoning of the courts in the cases treated leaves a lot to be desired and call for a dispassionate soul searching.

Private International Law in Nigeria lucidly addresses the historical controversies surrounding the requirement for leave to issue and serve a court process out of jurisdiction both in the case of interstate (domestic) disputes and in international disputes strictly so called. The book highlights the delicate balance between the Sheriffs and Civil Process Act and the various rules of court. For good measure, the authors clearly explain what the Nigerian Supreme Court got wrong in the infamous M. V. Arabella case [which the court has now thankfully moved away from].[8] In that case the Supreme Court set aside a writ of summons that was issued in the Federal High Court Lagos and served on a defendant resident in Abuja, Federal Capital Territory without the leave of court. The court relied on Order 10 rule 14 of the Federal High Court (Civil Procedure) Rules 1976[9] and discountenanced the contention of the appellant that the Federal High Court is one court and no leave of court is required to issue and serve a court process in one judicial division of the court (i.e. in one State) for service in another State. The authors however rightly highlight the reluctance of the Supreme Court to explicitly overrule cases that were obviously wrong, a trend that has been on the rise in the last two decades; and which is the subject of another day’s discussion.

What I would consider as an ambitious aspect of the book, however, is the authors’ categorical position regarding the non-binding effect of the obiter dicta of some Supreme Court decisions. For instance, while discussing a recent decision of the Nigerian Supreme Court,[10]the authors stated that the obiter dictum of Aka’ahs JSC is not binding on lower courts in Nigeria and should not be followed.[11]While this undoubtedly represents the correct position of the law in principle, it is however of doubtful practical effect given the peculiarity of the diminishing line between rationes decidendi and obiter dicta under the Nigerian version of the doctrine of stare decisis as well the attitude of Nigerian courts to decisions of higher courts.

Special consideration is also given to such procedural law concepts as ‘forum selection clauses’, ‘forum non conveniens’, ‘lis alibi pendens’ and ‘limitations on jurisdiction’ as well as the substantive law topics of Contract, Torts, Foreign Currency Obligations, Bills of Exchange, Marriage, Matrimonial Causes and Administration of Estates. Very crucially too, the book does not fail to address the critical topics of enforcement of foreign judgments and international arbitral awards, while the last two chapters, grouped under a part entitled, ‘International Civil Procedure’ are dedicated to the consideration of the procedural rules applicable in international civil disputes including domestic remedies affecting foreign proceedings, international judicial assistance in the service of legal processes and taking of evidence. Nigerian lawyers with cross border practices will find these two chapters particularly helpful. One topic that is however given a less than adequate treatment is the topic of adoption. To be fair, adoption law and procedure in Nigeria is largely covered in opacity but a more comprehensive treatment of the subject in this book would have finally afforded practitioners the long-needed reference point.

On the whole, the book draws on over five hundred Nigerian cases including [thankfully] contemporary judicial decisions touching on the subject of private international law, relevant legislations and academic writings while exploring, where necessary, comparative perspectives from other jurisdictions.

This book is without doubt, one of the most impactful legal textbooks in Nigeria in at least twenty five years. It is a refreshing addition to the legal libraries across Nigeria and beyond. Judges at all levels of courts in Nigeria, legal practitioners, arbitrators and lawmakers alike as well as law teachers, researchers and students, will find Private International Law in Nigeria a highly resourceful and practical guide that fills an intellectual void in a long neglected but increasingly critical field of law. It is a long overdue contribution to the field of private international law in particular, and to legal scholarship in Nigeria as a whole.

 

 

*Orji Agwu Uka is a Senior Associate at a top Commercial Law Firm in Lagos, Nigeria. He holds an LLM from King’s College London and an LLB from Abia State University, Uturu Nigeria.

[1]Akinlo Enisan, ‘Determinants of Foreign Direct Investment in Nigeria: A Markov Regime-Switching Approach’ (2018) RIC 21.

[2] Organisation for Economic Cooperation and Development, Foreign Direct Investment for Development: Maximising Benefits, Minimising Costs (OECD 2002) 3.

[3]Orji Uka, ‘Cross Border Dispute Resolution under AfCFTA: A Call for the Establishment of a Pan-African Harmonised Private International Legal Regime to Actualise Agenda 2063’ (2020) ALP available at http://alp.company/resources/business-advisory/cross-border-dispute-resolution-under-afcfta-call-establishment-pan last accessed on 11 November 2020.

[4]Chukwuma Okoli, ‘Private International Law in Africa: Comparative Lessons’ available at https://conflictoflaws.net/2019/private–international–law–in–africa–comparative–lessons/.

[5]Chukwuma Okoli, (n. 4) above.

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

[7]Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, Private International Law in Nigeria Hart Publishing: Oxford, 2020.

[8]Owners of M. V. Arabella v Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182.

[9]For similar reasons, the Court of Appeal in Nestle (Nig) Plc v. Owners of M. V. MSC Agata(2014) 1 NWLR (Pt. 1388) 270 at pp. 288-290 set aside writ while relying on Order 6 rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000.

[10]Social Democratic Party v Bieman unreported decision of the Supreme Court in Appeal No. SC/341/2019 43.

[11]Chukwuma Okoli and Richard Oppong, (n. 7) above at p. 73.

Conflict of Laws of Cultural Property: In Search of the Holy Grail…

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by Tamás Szabados, ELTE Eötvös Loránd Universität Budapest

In disputes related to stolen or illegally exported cultural property, conflict of laws provisions often play a significant role due to the absence of universally accepted substantive private law rules. This has been analysed in a recent post shared on this blog.

In most private international laws, cultural goods are treated in the same way as any other object, and accordingly the law applicable to issues of property law is determined in accordance with the lex rei sitae principle. If cultural goods are stolen or illegally exported from a country and brought to another state, where a good faith buyer acquires ownership over the goods, the application of the lex rei sitae principle often results in the recognition of the title of the bona fide purchaser over that of the original owner. In order to promote the restitution of stolen and illegally exported cultural property, several authors argued that the lex rei sitae principle should be replaced by other connecting factors.

In the legal literature, much effort has been made to find a more suitable connecting factor. The application of the lex originis principle was widely proposed as an alternative. Nevertheless, the lex originis principle also has some flaws. Sometimes it may be difficult or impossible the geographical or cultural origin of the cultural goods. The place from which the cultural goods were stolen is not necessarily demonstrate a closer connection to the case than the lex rei sitae if the goods are only temporarily located on the territory of the state concerned.

It seems that there is a discernible trend in private international law codifications to address specifically stolen and illegally exported cultural property. They are typically based on a combination of the lex rei sitae and the lex originis principles and provide room for the parties’ autonomy. Such legislation has been enacted, among others, in Belgium (Belgian Private International Law Act, articles 90 and 92) and Hungary (Hungarian Private International Law Act, articles 46-47). It is also noteworthy that in a study the European Parliament also examined the possibility of the adoption of distinct conflict of laws rules for cultural goods and proposed a similar solution.

This current legislative trend is analysed in a recent article written by Tamás Szabados that has been published in the International Journal of Cultural Property. The author poses the question whether the recent private international law codifications have found the Holy Grail of the conflict of laws of cultural property.

The article is available through the website of the International Journal of Cultural Property here.

The Practicality of the Enforcement of Jurisdiction Agreements in Nigeria

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Written by Dr Abubakri Yekini, a Lecturer in Law at Lagos State University

This is the fourth and penultimate online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomicslaw.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, the second symposium was published by Anthony Kennedy, and the third symposium was published by Richard Mike Mlambe. A final blog post on this online symposium will be published tomorrow.

Private International Law in Nigeria

 

I. Introduction

Private international law (PIL) is not one of those fanciful subjects that command the attention of students, academics and practitioners at least in Nigeria. As important as this field, it is still largely ignored. Several legal commentators have called our attention to the poor state of PIL in Africa generally (Oppong, 2006; Okoli, 2019). So, we can say Nigeria is not standing alone here. Dr Oppong is one of those who are passionate about the development of PIL in Africa, and I may add Nigeria. In a piece titled ‘Private International Law and the African Economic Community: A Plea for Greater Attention’, he lamented the general state of neglect of PIL in the African economic integration project. What caught my attention in that article was his remark on the treatment of jurisdiction agreements in some African countries such as Angola and Mozambique. He noted that:

“This hostility to jurisdiction agreements is akin to Latin American countries’ historical disdain for similar clauses founded on their rejection of the principle of party autonomy- a principle so important in international commerce. This treatment of jurisdiction agreements can be a disincentive to international commercial relations since they are very much part of the current modes of dealing across national boundaries” (p.917)

Although Dr Oppong did not examine the attitude of Nigerian courts on this issue, his new work which he co-authored with Dr Okoli (Okoli and Oppong, 2020) gives us an insight. The book is an excellent piece. For the first time, students and practitioners can have access to an avalanche of Nigerian PIL cases and they can measure the mood of Nigerian courts on important subject matters such as jurisdiction agreements. This topic was conceived while reviewing the book.

In recent years, Nigeria has been making frantic efforts to turn around its economy. There is a consistent drive at improving the ease of doing business, and various investment promotion laws have also been enacted to that effect. However, we seem not to appreciate the nexus between PIL and the promotion of cross border commercial transactions. We agree with Dr Oppong that PIL has a role to play in making Nigeria attractive for international trade and commerce. International businesspersons are more interested in economies that enforce contracts, protect and secure property rights, and have simple and efficient dispute resolution mechanisms in place. Jurisdiction agreements are part of contractual terms. As observed from the analysis of Okoli and Oppong (2020), it is difficult to give a straight answer on whether jurisdiction agreements are enforced by Nigerian courts. This calls for great concern as a negative attitude to jurisdiction agreements can potentially disincentives the inflow of foreign direct investment or international business transactions to Nigeria generally. Even if such businesses must be done in Nigeria, the least is that the non-enforcement of jurisdiction agreements will lead to an increase in transaction cost since there are uncertainties surrounding the enforcement of contracts. Investors may envisage multiple proceedings and the cost of such proceedings are factored into the contract ab initio. They might also envisage that judgments obtained abroad may not be enforced by Nigeria courts that might have earlier exercised jurisdiction in breach of the agreement. There is also the tendency to have inconsistent judgments.  These uncertainties are drawbacks on whatever reforms the Nigerian government might have been carrying out in the area of trade and investment.

Jurisdiction agreements are otherwise called choice of court agreements. In most cases, they form part of the contract agreement. They come in various forms. They may be symmetric (exclusive or non-exclusive) or asymmetric where one party is free to choose any preferred forum and the other party is restricted to a particular venue. Jurisdiction agreement is party autonomy has been embraced in almost all jurisdictions. Like arbitration agreements, parties are allowed to contract out of certain jurisdictions. While a contract may be formed or executed in jurisdiction A and B, the parties may wish that their disputes be resolved in jurisdiction C. For instance, many international contracts choose English courts as their preferred venue for litigation. Several reasons have been offered for this. They include case management system of the English courts (procedural efficiency), expertise in English law and complex commercial transactions, the quality of the English bar, availability of varieties of interim measures, prioritisation of private justice, independence of the judiciary, pro-enforcement of contracts and judgments amongst others.

 

II. Jurisdiction agreements in Nigerian courts

What is the attitude of Nigerian courts to jurisdiction agreements? Theoretically, we may say that Nigerian courts enforce jurisdiction agreements. There are numerous precedents extolling party autonomy and the need to enforce contracts freely negotiated by parties. Nevertheless, in practice, Nigerian courts assume jurisdiction, in some cases, in breach of jurisdiction agreements. There is hardly any distinction between exclusive and non-exclusive jurisdiction agreements. From Okoli and Oppong (2020), and my assessment of reported cases, jurisdiction agreements have only been upheld in five cases: Nso v Seacor Marine (Bahamas) Inc (2008) LPELR-CA, Beaumont Resources Ltd v DWC Drilling Ltd (2017) LPELR-42814 (CA), Nika Fishing Co Ltd v Lavina Corporation (2008) 16 NWLR (Pt 1114) 509, Megatech Engineering Ltd Sky Vission Global  Networks LLC (2014) LPELR-22539 (CA) and Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699 (CA).

An analysis of the reported cases on jurisdiction agreements reveals that jurisdiction agreements are jettisoned on three main grounds as presented below.

  1. The mischaracterisation of jurisdiction agreement as an ouster clause

Nigerian jurisdictional law generally lacks any coherent theoretical foundation. Okoli and Oppong’s treatment of the topic in chapter 5 attest to this fact. Credit must be given to them for an attempt to synchronise and present in an intelligible form, a body of precedents that is riddled with inconsistencies and contradictions. Unlike elsewhere where courts consider many factors (eg reasonableness, party autonomy, due process, proximity, foreseeability) when treating adjudicatory jurisdiction, Nigerian courts largely see it from the prisms of territorialism and power. It is no surprise that the courts are extremely protective/jealous of their power when a matter is connected to the forum. They generally frown at any attempt to divest the courts of their jurisdiction. Hence, they characterise jurisdiction agreements as ouster clauses.

This mischaracterisation can be traced to Sonnar (Nig.) Ltd. v Nordwind(1987) 4 NWLR (Pt.66) 520 where the Supreme Court imported this idea relying on The Fehmarn[1957] 1 W.L.R. 815. In this case, Oputa JSC had this to say on jurisdiction agreements:

“[A]s a matter of public policy our courts should not he 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 and a foreign law. Courts guard rather jealously their jurisdiction and even where there is an ouster of that jurisdiction by Statute It should be by clear and unequivocal words, If that is so, as indeed It is, how much less can parties by their private acts remove the jurisdiction properly and legally vested In our courts? Our courts should be in charge of their own proceedings. When it Is said that parties make their own contracts and that the courts will only give effect to their intention as expressed in and by the contract, that should generally be understood to mean and imply as contract which does not rob the court of its jurisdiction in favour of another foreign forum (p. 544 paras B-E)

While an earlier case of Ventujol v Compagnie Francaise  DeL’AfrriqueOccidentale  (1949) 19 NLR 32 mentioned an ouster clause, most recent cases rely on the above exceprt from Sonnar. Oputa’s view was recently echoed by Nweze JSC in Conoil v. Vitol S.A. (2018) 9 NWLR (Pt. 1625) 463 at 502, para A-B where his Lordship noted that: “our courts will only interrogate contracts which are designed to rob Nigerian courts of their jurisdiction in favour of foreign fora or where, by their acts, they are minded to remove the jurisdiction, properly and legally, vested in Nigerian courts.”

The Fehmarn was a 1957 English decision and may well reflect the mood of the courts in that era where party autonomy was still emerging. Two problems are identified here. First, laws should always be read in context. The Fehmarn did not treat jurisdiction agreement as an ouster clause. Rather, that case established the fact that a court which is properly seized, nevertheless, has the discretion to decline jurisdiction in deference to the parties’ jurisdiction agreement. The substance of The Fehmarn is that “where there is an express agreement to a foreign tribunal, clearly it requires a strong case to satisfy this court that that agreement should be overridden ” (p. 820). Second, many Nigerian lawyers have equally misunderstood the nature of jurisdiction agreements. In those cases where the courts have shown this combative attitude, some counsel have asked courts for dismissal on the ground that the courts lacked jurisdiction based on jurisdiction agreements.

A wrong characterisation leads to negative treatment. While ouster clauses are special statutory clauses which are meant to prevent courts from entertaining specific cases that engage state interest, jurisdiction agreements only appeal to the courts to decline jurisdiction in deference to parties’ choice. It is interesting to also note that an arbitration agreement is never treated as such and there area plethora of authorities on this point (For instance see Felak Concept Ltd. v. A.-G., Akwa Ibom State (2019) 8 NWLR (Pt. 1675) 433; Mainstreet Bank Capital Ltd. v. Nig. RE (2018) 14 NWLR (Pt. 1640) 423). One wonders whether there is any rational or legal basis to treat a jurisdiction agreement differently from an arbitration agreement.

2. Mandatory statutes

Some Nigeran statutes confer mandatory jurisdiction over some subject matters on Nigerian courts. The reasonability or otherwise of such sweeping and exclusive jurisdiction over matters that are purely civil and commercial will not be addressed here for want of space. Examples of these statutes are the Admiralty Jurisdiction Act and the Civil Aviation Act. One can sympathise with Nigerian courts when they are asked to enforce jurisdictional agreements which fall within the scope of these statutes. No amount of judicial pragmatism would override mandatory national statutes vesting exclusive jurisdiction in Nigerian courts. It was on this basis that the courts refused to enforce jurisdictional agreements in Swiss Air Transport Coy Ltd v African Continental Bank (1971) 1 NCLR 213, for instance.

3. Forum non conveniens

Forum non conveniens(FNC) is a pragmatic procedural mechanism developed by common law judges (even though it has a Scottish origin) to advance efficiency and justice in civil litigation. Many transactions have connections with more than one jurisdiction and parties would want to commence litigation in any of those fora that can deliver maximum results for them. In some cases, it may be simply to harass the opponent. Thus, where a court has jurisdiction over a matter under its national laws, it can decline jurisdiction (by staying an action) to allow parties to litigate in a more convenient forum.

FNC test as stipulated by Brandon J in The Eleftheria[1969] 2 All ER 641 has been adopted and applied by the Nigerian Supreme Court in Sonnar (Nig.) Ltd. v Nordwind. Brandon J was merely laying down general factors that the court should consider when asked to decline jurisdiction. Brandon test supports the enforcement of jurisdiction agreement. The underlying principles are largely based on convenience and justice. The case emphasised “a strong’” cause for assuming jurisdiction in breach of a jurisdiction agreement. The strong cause has further been qualified in subsequent cases such as Donohue v Armco Inc &Ors [2001] UKHL 64 where many FNC grounds were discountenanced (see para 24-39). The US Supreme Court would also require ‘some compelling and countervailing reasons’ to allow an action to proceed in a non-chosen court if the agreement was reached “by experienced and sophisticated businessmen” (See Bremen v. Zapata Offshore Co.92 S. Ct. 1907 (1972)). This is contrary to the Nigerian courts’ approach where any FNC test no matter how weak may displace foreign jurisdiction clause. The Supreme Court recently re-emphasised the approval of any of the FNCs grounds in Nika Fishing Co Ltd. However, an application for stay was granted in that case because the party in breach did not file any counter affidavit.

In Ubani v Jeco Shipping Lines (1989) 3 NSC 500 and Inlaks Ltd v Polish Ocean Lines (1989) 3 NSC 588, jurisdiction agreements were not enforced either because the matter would be statute-barred in the chosen jurisdiction or parties and evidence were located in Nigeria. It is conceded that one of the tests of FNC is the availability of an alternative forum. It can easily be argued that these decisions are justified on the ground of justice because the Claimants would not be able to file a claim in the chosen jurisdiction. However, there is a danger in applying FNC grounds to jurisdiction agreements. As rightly suggested in Donohue where jurisdiction agreement is in issue, FNC grounds should ordinarily not apply. Non-enforcement of jurisdiction agreement should be restricted to very strong reasons such as where third parties who are not bound by the agreement are parties to the suit or where the claim falls within the exclusive jurisdiction of the non-chosen forum (see Akai Pty Ltd v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90; Continental Bank NA v Aeakos Compania Naviera SA and Others [1994] 1 WLR 588). One can also add inability to sue in the chosen forum for reasons beyond parties’ control such as the ongoing global lockdown (RCD Holdings Ltd v LT Game International (Australia) Ltd [2020] QSC 318) or the protection of weaker parties like consumers and employees. This is the approach of the English courts and the same is followed in other commonwealth jurisdictions such as Australia (FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 559) and New Zealand (RCD Holdings Ltd v LT Game International (Australia) Ltd (supra); Kidd v van Heeren [1998] 1 NZLR 324). A party who agreed to litigate in a particular forum had contracted to be bound by the law and procedure of that jurisdiction. Limitation period, location of parties and evidence should not be a valid excuse without more. Put differently, inconvenience and procedural disadvantages should be discountenanced especially when those factors are forseeable when parties are negotiating the contract ()

 

III       Conclusion

Legal certainty and predictability of results are key values of modern PIL especially in the area of cross border commercial transactions. A PIL framework that is driven by these values will promote and enhance commercial activities because it is a risk management mechanism in itself. Businesspersons are interested to do business in jurisdictions where contracts are enforced. They want to make informed decisions about the governing law of the contracts, the jurisdiction in which contractual disputes are resolved, jurisdictions whose judgments can be respected and enforced abroad.

Courts ought to help parties to achieve their contractual goals. They should neither frustrate negotiated terms nor rewrite them for the parties provided it is a contract that is negotiated at arm’s length. Nigerian courts should promote party autonomy as much as practicable. With this approach, foreign businesses would take the Nigerian justice system seriously and would be confident to do business with Nigeria. It can potentially attract more FDIs to Nigeria if we earn the trust of foreign investors.

Non-enforcement of jurisdiction agreements disincentives commercial transactions because of litigation and enforcement risks. Assuming that foreign companies must do business with Nigerians nevertheless, these risks ultimately be factored into contractual negotiations as businessmen would not want to spend their profits on litigation in unfamiliar/non-chosen fora. Cost of doing business with Nigeria will invariably be higher and this will further lead to an increase in the cost of goods and services in Nigeria.

Based on the foregoing, it is only sensible that Nigerian courts should give maximum effect jurisdiction agreements. The first task is to get the legislators to review some of the extant legislation such as the Admiralty Jurisdiction Act and Civil Aviation Act which vest exclusive jurisdiction in Nigerian courts over a wide range of purely private commercial transactions. Also, the courts can learn from the developments in other jurisdictions, particularly, how “strong cause” has been redefined in the light of modern developments to admit of only genuine cases where it is either practically or reasonable impossible to litigate in the chosen forum or where non-parties are genuinely involved in the suit. Lastly, Nigeria needs to join the Hague Conference and the 2005 Choice of Court Convention. It will benefit from the rich jurisprudence and expertise available at the Hague Conference and foreign businesspersons will be assured of the commitment of Nigeria to the enforcement of jurisdiction agreements.