Online Symposium on Recent Developments in African PIL (V) – Cross-border employment, competition and delictual liability merge in the South African High Court: Placement International Group Limited v Pretorius and Others

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

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Online Symposium on Recent Developments in African PIL (IV) – Party Autonomy, Genuine Connection, Convenience, Costs, Privity, and Public Policy: The Kenyan High Court on Exclusive Jurisdiction Clauses

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

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Online Symposium on Recent Developments in African PIL (III) – Foreign Judgments in Mozambique through the Lens of the Enforcement of a Chinese Judgment: Liberal Practice in the Shadow of Statutory Rigidity

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

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From Deference to Objectivity: How Courts Are Rewriting the Commercial Reservation

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By Taimoor Raza Sultan, Stockholm University

Introduction

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

Online Symposium on Recent Developments in African PIL (II) – The Recognition and Enforcement of Foreign Judgments within the CEMAC Zone

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

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Article V(1)(e) of the 1958 New York Convention in Light of a Decision of the Turkish Court of Cassation

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

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

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

Online Symposium on Recent Developments in African PIL (I) – Recognition and Enforcement of International Judgments in Nigeria

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As previously announced, we are launching the second online symposium on recent developments in African private international law. As part of this symposium, a series of blog posts addressing various aspects of recent developments in African private international law will be published on this platform over the coming days.

We open the series with a blog post by Abubakri Yekini (Senior Lecturer in Law at the University of Manchester) and Chukwuma Samuel Adesina Okoli (Assistant Professor in Commercial Conflict of Laws at the University of Birmingham and Senior Research Associate at the Centre for Private International Law in Emerging Countries at the University of Johannesburg), focusing on the recognition and enforcement of international judgments in Nigeria.

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Online Symposium on Recent Developments in African Private International Law

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It is not uncommon for African and foreign scholars of private international law (PIL) to lament the current state of the field in Africa. Until the early years of the 21st century, PIL was widely regarded, often with little hesitation, as ‘a neglected and highly underdeveloped subject in Africa’.[i] Professor Forsyth famously described it as a ‘Cinderella subject, seldom studied and little understood’.[ii] This limited scholarly attention is reflected, for instance, in the treatment of African PIL in the Hague Academy courses, which include only 4 courses specifically devoted to PIL in Africa, the most recent of which dates back to 1993.[iii] Since then, a number of pleas for greater attention to PIL in Africa,[iv] as well as calls for enhanced cooperation with African countries to ensure better involvement and inclusiveness,[v] have been voiced.[vi] Read more

Conflict of laws in the South African courts: an(other) recent missed opportunity

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Posted on behalf of Jason Mitchell, barrister at Maitland Chambers in London and at Group 621 in Johannesburg.

An Australian, Hannon, wants to book a Southern African safari with his partner, Murti, as a surprise birthday gift. He sees one he likes on an Australian travel website. Hannon fills in the online form.

It turns out that the website is just the agent for a South African company, Drifters Adventours. Drifters emailed Hannon the price and payment details. Attached to the email is a brochure. The brochure says, “Drifters do not accept responsibility for any loss, injury, damage, accident, fatality, delay or inconvenience experienced while on tour.” The brochure also says, “You will be required to complete and sign a full indemnity prior to your tour departure.” Read more

The Titanium Brace Tightens: Rome II and Director Liability after Wunner

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By Luisa Cassar Pullicino and Krista Refalo, Ganado Advocates

In the preliminary reference Case C-77/24 Wunner (the Titanium Brace case), the CJEU was asked to determine whether a damages claim brought by a consumer directly against company directors for losses suffered from unlicensed online gambling fell within the scope of the Rome II Regulation (Regulation (EC) No 864/2007), or whether it was excluded under Article 1(2)(d) as a “non-contractual obligation arising out of the law of companies”.

The practical stakes were considerable. If Rome II applied, Article 4(1) would designate the law of the place where the damage occurred — which, for online gambling losses, would normally be the habitual residence of the consumer. If excluded, the applicable law would instead be determined by national conflict-of-laws rules, typically, the lex societatis.

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