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Report on the ERA conference of 29-30 October 2020 on ‘Recent Developments in the European Law of Civil Procedure’
This report has been prepared by Carlos Santaló Goris, a researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, and Ph.D. candidate at the University of Luxembourg.
On 29-30 October 2020, ERA – the Academy of European Law – organized a conference on “Recent Developments in the European Law of Civil Procedure”, offering a comprehensive overview of civil procedural matters at the European and global level. The program proved very successful in conveying the status quo of, but also a prospective outlook on, the topics that currently characterise the debates on cross-border civil procedure, including the Brussels I-bis Regulation and 2019 HCCH Judgments Convention, the digitalisation of access to justice, the recent developments on cross-border service of documents and taking of evidence, and judicial cooperation in civil and commercial matters in the aftermath of Brexit.
For those who did not have the opportunity to attend this fruitful conference, this report offers a succinct overview of the topics and ideas exchanged over this two-day event.
Day 1: The Brussels I (Recast) and Beyond
The Brussels regime, its core notions and the recent contributions by the CJEU via its jurisprudence were the focus of the first panel. In this framework, Cristina M. Mariottini (Max Planck Institute Luxembourg) tackled the core notion of civil and commercial matters (Art. 1(1)) under the Brussels I-bis Regulation. Relying, in particular, on recent CJEU judgments, among which C-551/15, Pula Parking; C-308/17, Kuhn; C-186/19, Supreme Site Services, she reconstructed the functional test elaborated by the CJEU in this area of the law, shedding the light on the impact of recent developments in the jurisprudence of the Court, i.a., with respect to immunity claims raised by international organizations.
Marta Pertegás Sender (Maastricht University and University of Antwerp) proceeded then with a comprehensive overview of the choice-of-court agreement regimes under the Brussels I-bis Regulation and the 2005 Hague Convention on choice of court agreements. Relying, inter alia, on the CJEU case law on Article 25 of the Brussels I-bis Regulation (C-352/13, CDC Hydrogen; C-595/17, Apple Sales; C-803/18, Balta; C-500/18, AU v. Reliantco; C-59/19, Wikingerhof (pending)), she highlighted the theoretical and practical benefits of party autonomy in the field of civil and commercial matters.
The interface between the Brussels I-bis Regulation and arbitration, and the boundaries of the arbitration exclusion in the Regulation, were the focus of Patrick Thieffry (International Arbitrator; Member of the Paris and New York Bars) in his presentation. In doing so he analysed several seminal cases in that subject area (C-190/89, Marc Rich; C-391/95, Van Uden; C-185/07, West Tankers; C?536/13, Gazprom), exploring whether possible changes were brought about by the Brussels I-bis Regulation.
The evolution of the CJEU’s jurisprudence vis-à-vis the notions of contractual and non-contractual obligations were at the heart of the presentation delivered by Alexander Layton (Barrister, Twenty Essex; Visiting Professor at King’s College, London). As Mr Layton effectively illustrated, the CJEU’s jurisprudence in this field is characterized by two periods marking different interpretative patterns: while, until 2017, the CJEU tended to interpret the concept of contractual matters restrictively, holding that “all actions which seek to establish the liability of a defendant and which are not related to a contract” fall within the concept of tort (C-189/87, Kalfelis), the Court interpretation subsequently steered towards an increased flexibility in the concept of “matters relating to a contract” (C-249/16, Kareda; C-200/19, INA).
The principle of mutual trust of the European Area of Freedom, Security and Justice vis-à-vis the recent Polish judicial reform (and its consequential backlash on the rule of law) was the object of the presentation delivered by Agnieszka Fr?ckowiak-Adamska (University of Wroc?aw). Shedding the light on the complex status quo, which is characterized by several infringement actions initiated by the European Commission (C?192/18, Commission v Poland; C?619/18, Commission v Poland; C?791/19 R, Commission v Poland (provisional measures)) as well as CJEU case law (e.g. C?216/18 PPU, Minister for Justice and Equality v LM), Ms Fr?ckowiak-Adamska also expounded on the decentralised remedies that may be pursued by national courts in accordance with the EU civil procedural instruments, among which public policy, where available, and refusal by national courts to qualify Polish judgments as “judgments” pursuant to those instruments.
The second half of the first day was dedicated to the 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. In this context, it is of note that the EU, among others, has opened a Public Consultation into a possible accession to the Convention (see, esp., Thomas John’s posting announcing the EU’s public consultation). While Ning Zhao (Senior Legal Officer, HCCH) gave an overview of the travaux preparatoires of the 2019 HCCH Convention and of the main features of this instrument, Matthias Weller (University of Bonn) delved into the system for the global circulation of judgments implemented with the Convention, highlighting its traditional but also innovative features and its potential contributions, in particular to cross-border dealings.
The roundtable that followed offered the opportunity to further expound on the 2019 HCCH Judgments Convention. Namely, Norel Rosner (Legal and Policy Officer, Civil Justice, DG for Justice and Consumers, European Commission) explained that the EU has a positive position towards the Convention, notably because it facilitates the recognition and enforcement of EU judgments in third countries and because it will help create a more coherent system of recognition and enforcement in the EU Member States of judgments rendered in other (of course, non-EU) Contracting States. The roundtable also examined the features and objectives of Article 29, which puts forth an “opt-out” mechanism that allows Contracting States to mutually exclude treaty obligations with those Contracting States with which they are reluctant to entertain the relations that would otherwise arise from the Convention. As Ms Mariottini observed, this provision – which combines established and unique characters compared to the systems put forth under the previous HCCH Conventions – contributes to defining the “territorial geometry” of the Convention: it enshrines a mechanism that counterbalances the unrestricted openness that would otherwise stem from the universality of the Convention, and is a valuable means to increase the likelihood of adherence to the Convention. Matthias Weller proceeded then to explore the consequences of limiting a Contracting State’s objection window to 12 months from adherence to the Convention by the other Contracting State and raised the case of a Contracting State whose circumstances change so dramatically, beyond the 12-month window, that it is no longer possible to assure judicial independence of its judiciary. In his view, solutions as the ones proposed by Ms Fr?ckowiak-Adamska for the EU civil procedural instruments may also apply in such circumstances.
Day 2: European Civil Procedure 4.0.
Georg Haibach (Legal and Policy Officer, Civil Justice, DG for Justice and Consumers, European Commission), opened the second day of the conference with a detailed presentation on the ongoing recast of the Service Regulation (Regulation (EC) No 1393/2007). Emphasizing that the main objective of this reform focuses on digitalization – including the fact that the proposed recast prioritises the electronic transmission of documents – Mr Haibach also shed the light on other notable innovations, such as the possibility of investigating the defendant’s address.
The Evidence Regulation (Council Regulation No. 1206/2001), which is also in the process of being reformed, was at the core of the presentation delivered by Pavel Simon (Judge at the Supreme Court of the Czech Republic, Brno) who focuses not only on the status quo of the Regulation as interpreted by the CJEU (C-283/09, Wery?ski; C-332/11, ProRail; C-170/11, Lippens), but also tackled the current proposals for a reform: while such proposals do not appear to bring major substantive changes to the Regulation, they do suggest technological improvements, for instance favouring the use of videoconference.
In her presentation, Xandra Kramer (University of Rotterdam and Utrecht University) analysed thoroughly two of the CJEU judgments on “satellite” instruments of the Brussels I-bis Regulation: the EAPO Regulation (Regulation No. 655/2014); and the EPO Regulation (Regulation No. 1896/2006). C-555/18, was the very first judgment that the CJEU rendered on the EAPO Regulation. Xandra Kramer remarked the underuse of this instrument. In the second part of her lecture, she identified two trends in the judgments on the EPO Regulation (C?21/17, Caitlin Europe; Joined Cases C?119/13 and C?120/13, ecosmetics; Joined Cases C?453/18 and C?494/18, Bondora), observing that the CJEU tries, on the one hand, to preserve the efficiency of the EPO Regulation, while at the same time seeking to assure an adequate protection of the debtor’s position.
In the last presentation of the second day, Helena Raulus (Head of Brussels Office, UK Law Societies) explored the future judicial cooperation in civil matters between the EU and the United Kingdom in the post-Brexit scenario. Ms Raulus foresaw two potential long-term solutions for the relationship: namely, relying either on the 2019 Hague Convention, or on the Lugano Convention. In her view, the 2019 Hague Convention would not fully answer the future challenges of potential cross-border claims between EU Member States and the UK: it only covers recognition and enforcement, while several critical subject areas are excluded (e.g. IP-rights claims); and above all, from a more practical perspective, it is still an untested instrument. Ms Raulus affirmed that the UK’s possible adherence to the Lugano Convention is the most welcomed solution among English practitioners. Whereas this solution has already received the green light from the non-EU Contracting States to the Lugano Convention (Iceland, Norway, and Switzerland), she remarked that to date the EU has not adopted a position in this regard.
The conference closed with a second roundtable, which resumed the discussions on the future relations between the EU and the UK on judicial cooperation in civil law matters. Christophe Bernasconi (Secretary General, HCCH) offered an exhaustive review on the impact of the UK withdrawal from the EU on all the existing HCCH Conventions. From his side, Alexander Layton wondered if it might be possible to apply the pre-existing bilateral treaties between some EU Member States and the UK: in his view, those treaties still have a vestigial existence in those matters non-covered by the Brussels I-bis Regulation, and thus they were not fully succeeded. In Helena Raulus’s view, such treaties would raise competence issues, since the negotiating of such treaties falls exclusively with the EU (as the CJEU found in its Opinion 1/03). As Ms Raulus observed, eventually attempts to re-establish bilateral treaties between the Member States and the UK might trigger infringement proceedings by the Commission against those Member States. The discussion concluded by addressing the 2005 Hague Convention and it is applicability to the UK after the end of the transition period.
Overall, this two-day event was characterized by a thematic and systematic approach to the major issues that characterize the current debate in the area of judicial cooperation in civil and commercial matters, both at the EU and global level. By providing the opportunity to hear, from renowned experts, on both the theoretical and practical questions that arise in this context, it offered its audience direct access to highly qualified insight and knowledge.
Frontiers in Civil Justice – An Online Debriefing
Conference ‘Frontiers in Civil Justice’ held on 16 and 17 November 2020 (online)
By Jos Hoevenaars & Betül Kas, Erasmus University Rotterdam (postdocs ERC consolidator project Building EU Civil Justice)
As announced earlier on this blog, the Conference Frontiers in Civil Justice organized by the ERC team together with Ilja Tillema of Erasmus School of Law in Rotterdam, took place on 16 and 17 November 2020.
The conference addressed four key issues in civil justice, which require a deeper and renewed reflection in light of their contribution to facilitating access to justice. Those concern the shaping of the interaction between formal and informal justice (panel I), the digitalization of consumer dispute resolution (panel II), the collectivizing and monetizing of civil litigation (panel III) and justice innovation and frontier developments in civil justice (panel IV). Renowned speakers and selected speakers following a call for papers gave their views during the two-day conference that, although set up previously as a blended event with online as well as live attendance at Erasmus University in Rotterdam, was forced to move fully online due to the tightening of Covid-19 measures in the Netherlands.
The Needs and Challenges of Digitizing Justice in Europe (Keynote 1)
The first day of the conference was kicked-off by the keynote speech of Hrvoje Grubisic (DG Justice and Consumers, European Commission). Grubisic underlined the necessity of digitalisation in the justice field in order to guarantee Europe’s citizens access to justice. The EU’s efforts of furthering the employment of digital technologies in the justice area is particularly warranted by the persistent increase in cross-border activities in civil and commercial matters. Grubisic pointed to the importance of the principles contained in the Tallinn ministerial declaration in framing and guiding the Commission’s strategy of the digitalisation of justice in the EU. The current COVID-19 crisis has accelerated the Commission’s activities. On the basis of its roadmap setting out the need to steer and coordinate the digitalisation of justice at EU level, the Commission plans to publish a communication of its policy priorities by the end of 2020. In practical terms, the Commission intends to employ a toolbox approach, starting with the identification of cross-border judicial procedures that can be digitised, ascertaining the appropriate IT tools (e.g. e-CODEX based systems) and ensuring funding sources for the Member States.
Shaping the Interaction between Formal and Informal Justice (Panel I)
Subsequently, Elisabetta Silvestri (University of Pavia) introduced the first panel dealing with the interaction between formal and informal justice. Silvestri stressed the importance of understanding how formal and informal justice can coexist in a balanced relationship that is able to grant individuals access to justice. According to her, the need for a fruitful cooperation between courts and ADR providers in the best interest of stakeholders became even more pronounced in the current pandemic. The presentation of Diana Wallis (Hull University; former ELI president) reflected on the differing nature of formal and informal justice. Wallis traces how the EU has promoted the shift of the delivery of justice away from the nation states’ courts to ADR bodies. While the ELI Statement addressed the practicalities of the relationship between private and public justice, the deeper question about how to address the dangers and drawbacks of privatized justice remains unresolved. Anna Nylund (The Arctic University of Norway) submitted in her presentation that many ADR processes fail to deliver on their promises of improved access to justice. Nylund sees ADR to be based predominantly on individualistic values, expecting citizens to exercise self-determination, and as such therefore geared towards the highly educated middle class. The gap between theory and practice contributes to the reluctance towards ADR processes in Europe. She therefore proposed a step-by-step approach of re-designing ADR according to context-dependent goals. The following two presentations provided insights into the relationship between formal and informal justice by drawing on the concrete experiences of two national legal systems: Masood Ahmed (University of Leicester) presented the experience of the English civil justice system with compulsory ADR. While compulsory ADR has been traditionally dismissed by the English judiciary, a divergent judicial approach has emerged which impliedly obliges the parties to engage with ADR. Ahmed criticises the persistence of the traditional approach and calls upon the courts to fully embrace their case management powers in making ADR orders. Stefaan Voet (KU Leuven) reports how informal justice has been introduced by a number of procedural reforms in Belgium. Voet’s presentation addresses five critical issues regarding informal justice processes, namely (1) their possible mandatory nature; (2) their quality; (3) the procedural guarantees offered by them; (4) the enforcement of their outcomes; and (5) the interaction with the formal justice process.
Digitalization of Consumer Dispute Resolution (Panel II)
The second day of the conference started with a panel, chaired by Burkhard Hess (Max Planck Institute Luxembourg), focusing on online dispute resolution (ODR) for consumer claims, using case-studies as a starting point to discuss how different types of cODR procedures can contribute to consumers’ access to justice. Martin Ebers (University of Tartu) presented on the promise and challenge of AI based techniques in cODR and its impact on due process. Giving an overview of current uses of AI in different phases of disputes, from case management and automated anonymisation to data inference and automated decision-making, Ebers laid out the framework for future regulation of the use of AI in European ODR. Subsequently, Marco Giacalone (Vrije Universiteit Brussels) used examples from the US, Canada, Australia and Slovakia to zoom in on the concept and application of e-negotiation. Reflecting on the potential of this mode of assisted and automated negotiation in resolving disputes, Giacalone considers EU practices of e-negotiation for consumer dispute resolution as significant yet insufficient, with considerable room for improvement in enhancing consumer access to justice in the EU. Eline Verhage (Leiden University) presented on the recent experience of the Dutch Foundation for Consumer Complaints Boards (Geschillencommissies) in responding to the Covid-19 crisis. Presenting very recent data on the move to online hearings she reflected on the impact on the ‘voluntariness gap’ in these out-of-court alternative dispute schemes, concluding that virtual hearings seem a promising cODR tool for enhancing business participation, due to the increased option and lower costs. Finally, Emma van Gelder (Erasmus University Rotterdam) discussed observations from empirical research on Klachtencompas (a free online complaint platform of the Dutch consumer protection organization Consumentenbond) and the in-house dispute resolution platform used by Paypal, to discuss the benefits and drawbacks of these ‘first-line’ complaint resolution mechanisms. The main point of discussion following the various examples presented during the panel was on the applicability of Article 6 ECHR and Article 47 of the EU Charter, and on the question of how to apply the notions of fair trial and due process to both certified and uncertified ADR schemes in the EU.
Current Issues in Access to Justice: An English Perspective (Keynote 2)
In the second keynote of the conference, professor Dame Hazel Genn (University College London) provided a very timely insight into current developments in the English civil justice system in the context of the Covid-19 pandemic. Bringing together the most recent insights from (some unpublished) rapid reviews of the rush to mostly online justice administration and reflecting on the impact of online courts and tribunals on access to justice especially for those that are in most dire need of legal assistance and resolution. Quite in contrast to previous discussions about the great potential of technological innovations in the areas of small claims and consumer dispute resolution, Professor Genn stressed the need to also look at what we potentially lose in procedural and substantive terms when hearings are undertaken remotely or on paper. Contrasting the great benefits of technology in terms of convenience, economy and efficiency with its downsides apparent in both the experiences of litigants as well as the judiciary, Genn ended on the pertinent question: Are we processing cases or are we doing justice?
Collectivizing & Monetizing Civil Litigation (Panel III)
The third panel chaired by John Sorabji (Barrister, 9 St John Street; University College London) turned attention to collective redress via adjudication and, specifically, the funding of civil litigation. Ianika Tzankova (Tilburg University) drew lessons for the funding of collective redress in global disputes from the Dutch experience. In particular, Tzankova explored and compared the financing of collective civil litigation on the basis of the Dexia case which was the first major consumer mass claim in the Netherlands and the investor litigation in the Fortis collective action, which resulted in the first global collective settlement that can be considered ‘EU-originated’. Astrid Stadler (University of Konstanz) explained in her presentation the German situation regarding litigation funding of collective actions. In particular, Stadler presented on how the judiciary dealt with third-party funding arrangements and funding by legal tech companies and SPVs in recent case law. The judiciary’s strong aversion against entrepreneurial litigation endangers the effective enforcement of the law. Stadler concluded that third-party funding must be available for representative claimants and should be regulated by the legislator. Complementing Tzankova’s presentation, Ilja Tillema (Erasmus University Rotterdam) reflected on the rise of entrepreneurial mass litigation in the Netherlands. Particularly in the last decade, spurred by the potential of large earnings, entrepreneurial parties have started to diversify the Dutch mass litigation landscape. Tillema reflected on the pros and cons of their involvement, presented empirical material of the amount and types of cases in which entrepreneurial parties are involved, and evaluated the way that the legislator and courts have dealt with this development. Catherine Piché (Université de Montréal) elucidated Quebec’s experience with public forms of financing class litigation. According to Piché, the Canadian province of Quebec’s Fonds d’aide aux recours collectifs (the assistance fund for class action lawsuits) serves not only as an effective class litigation funding mechanism, but also as a mandatory independent oversight body. Piché evaluates that financing class actions publicly through assistance by such entities is the most appropriate and effective way to finance class action litigation and could therefore serve as a model for other legal systems.
Innovations in Civil Justice (Panel IV)
Chaired by professor Alan Uzelac (University of Zagreb) the final panel brought together speakers following a call for papers. The call invited submissions on topics relating to justice innovation, specifically about the development of initiatives aimed at bringing justice closer to citizens, their relevance for access to justice and the judicial system, and the challenges they may pose for judicial administration, litigants and other stakeholders. The presentation of Iris van Domselaar (UvA) kicked off with legal philosophical reflections on civil justice innovations that aim to ‘bring justice closer to the citizen’, and posed the question to what extent the ‘pragmatic turn’ in civil justice systems is reconcilable with courts being objective justice-affording institutions, as such setting the scene for the specific examples of innovation and developments that were to follow. Pietro Ortolani (Radboud University Nijmegen) & Catalina Goanta (Maastricht University) and next Naomi Appelman & Anna van Duin (UvA) presented to the audience two specific examples that raised divergent questions about the frontier civil justice development playing out in the realm of online social media. The former, by comparatively analyzing reporting systems and underlying procedural rights of users related to content moderation by four social media platforms (Facebook, Twitch, TikTok and Twitter), presented an example where innovation may actually pose a threat to access to justice. While the latter, reporting on the findings of empirical research on the need for procedural innovation in the Netherlands to quickly take down online content that causes personal harm, presented how innovations in civil justice could contribute to the effective protection of rights in the digital realm. The final topic of this panel was presented by Nicolas Kyriakides & Anna Plevri (University of Nicosia) who, taking Zuckerman’s predictions on AI’s role in guaranteeing access to justice as a starting point, presented their own evaluation on this matter, encouraging further debate on AI’s role in adjudication. By elucidating the potential of AI to render the familiar open-court, multi-party process of justice completely unrecognisable, they warned about the potential loss of perceived legitimacy of the justice system as a whole, should AI systematically penetrate the entire justice system.
Although the conference was forced to move fully online, the digital setting did not stifle the interaction with the audience. Through the use of the chat function and live chat moderators the speakers were able to answer questions from the audience in the chat and the chairs were able to open up the floor to members of the audience. This led to lively discussions very much resembling a live setting.
T
his conference was organised by Erasmus School of Law of Rotterdam University and funded by an ERC consolidator grant from the European Research Council for the project ‘Building EU Civil Justice’.
Cross Border Dispute Resolution under AfCFTA: A Call for the Establishment of a Pan-African Harmonised Private International Legal Regime to Actualise Agenda 2063*
Orji Agwu Uka (the author of this piece) is a Senior Associate at Africa Law Practice NG & Company, Lagos. He holds a Masters’ Degree in International Business Law from King’s College London and an LLB from Abia State University, Uturu Nigeria.
Introduction
Over three score and ten years ago, Professor G. C. Cheshire, then Vinerian Professor of Law at the University of Oxford, issued a clarion call for the wider study of private international law in general and the renaissance of English private international law in particular.[1] As explored below, it is pertinent for African States to respond to that call today, especially within the context of the need to actualise the Agenda 2063 of the African Union, which aims for the establishment of a continental market with the free movement of persons, goods and services which are crucial for deepening economic integration and promoting economic development in Africa.
The Agreement establishing African Continental Free Trade Area
In January 2012, the 18th Ordinary Session of the Assembly of Heads of State and Government of the African Union, which held in Addis Ababa – Ethiopia, adopted a decision to establish an Africa wide Continental Free Trade Area. On 30th May 2019, the Agreement establishing the African Continental Free Trade Area (“AfCFTA”), entered into force.[2] With an expected participation of 55 countries, a combined population in excess of 1.3 billion people and a combined Gross Domestic Product (GDP) of over $2.5 trillion, the AfCFTA will be the largest trade area since the formation of the World Trade Organisation (WTO) in 1995.
Despite the benefits that the AfCFTA is widely expected to bring, Nigeria curiously delayed at first in signing the Agreement. Thankfully, reason ultimately prevailed and Nigerian signed the agreement at the 12th Extraordinary Session of the African Union (AU) Heads of State and Government held in Niamey, Niger. Very recently, the Federal Executive Council of Nigeria has also taken the decision to ratify the AfCFTA. What is now left is for the Nigerian National Assembly to domesticate the Agreement as required by the Nigerian Constitution.
It is pertinent to note that although the AfCFTA has justifiably received – and continues to receive – wide publicity, what is seldom talked about is that the Agreement is only a part of a larger long term plan, christened Agenda 2063, to ultimately establish an African Economic Community with a single Custom Union and a single common market to “accelerate the political and socio-economic integration of the continent” in accordance with Article 3 of the AU’s Constitutive Act.[3]
The case for Harmonisation
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. When, not if, these disputes arise, questions such as what courts have jurisdiction, what law(s) should apply, and whether a judgment of the courts of one member State will be recognised and enforced by the courts of the other member States, are just some of the key questions that will arise.[4]In the words of Professor Richard Frimpong Oppong, a well-developed and harmonised private international law regime is an indispensable element in any economic community.[5]Curiously however, the role of private international law in facilitating and sustaining the on-going African economic integration efforts is conspicuously missing.[6]
It is against this backdrop that this writer joins others in calling for the establishment of a pan-African harmonised private international legal regime as an instrument of economic development in general and as part of the modalities for the actualisation of Agenda 2063 in particular. Incidentally, one of the first of such calls predates the adoption of the decision to establish the AfCFTA. As far back as 2006, Professor Oppong had argued that given the significant divergence in the approaches to the subject of private international law in Africa, if the idea of a common market is to materialise, African countries must embark on a comprehensive look at, and reform of, the regime of private international law.[7]He specifically stressed the need for harmonised private international law rules to govern the operation of the divergent national substantive rules.[8]Very recently, Lise Theunissen has stated, and rightly too, that the non-harmonised state of private international law in Africa forms an important obstacle to international trade and to cross-border economic transactions and that for this reason, it is crucial for the African economic integration to strive for a harmonisation of private international law.[9]Beyond these, harmonisation has other benefits.
It has been argued that harmonisation helps promote equal treatment and protection of citizens of an economic community as well as other economic actors transacting or litigating in the internal market by subjecting them to a uniform and certain legal regime.[10]As the learned authors of Dicey, Morris and Collins, The Conflict of Laws observed, part of the rationale behind the EU Judgments Regulation and its predecessor Convention is, “to avoid as far as possible the multiplication of the bases of jurisdiction in relation to the same legal relationship and to reinforce legal protection by allowing the plaintiff easily to identify the court before which he may bring an action and the defendant reasonably to foresee the court before which he may be sued”.[11]Accordingly, it has been said that harmonisation boosts certainty in the law, thus reducing transaction and litigation costs for economic actors within the Community.[12]Africa is in dire need of this certainty.
Potential Challenges to Harmonisation
This writer is not unmindful of the challenges that such a project will pose especially having regard to the diverse legal traditions in Africa; the underdeveloped nature of the subject of private international law in Africa;[13]and the diversity of approach to the question.[14]These challenges are however not insurmountable. Thankfully, there are precedents and successful examples that the relevant actors can point to, for inspiration. And the first that readily comes to mind is the well-established harmonised private international law system applicable within the European Union. There are also other examples like the Organisation of American States with its Inter-American Conference on Private International Law. Similarly, within the Common Market of the Southern Cone (MECOSUR) [comprising Argentina, Brazil, Uruguay, and Paraguay] Article 1 of the Asuncion Treaty 1991 expressly recognises the ‘harmonization of legislation in relevant areas’ as cardinal to the strengthening of their stated integration process.
Recommendation on the Modalities for Harmonisation
In considering the above examples, however, the question must be asked whether it is desirable to import, for instance, the tried and tested European Union private international law model into Africa or whether it is necessary to develop an autochthonous private international law system that responds to the socio-economic, cultural, and political interests of countries in Africa. In my view, the answer is in the question. It is pertinent to state at this juncture that what this writer advocates at this stage is the harmonisation of the private international law rules of the various member states in the African Union as opposed to the unification of the substantive laws which is the subject of other efforts, a case in point being the Organisation for the Harmonization of Commercial Law in Africa (OHADA).
Lise Theunissen[15]has very helpfully recommended a four-pronged approach to tackling the issue of the underdeveloped and non-harmonised state of private international law in the African Union as follows – (i) sensitization of national courts and the enlargement of regional economic community courts to ensure a harmonised and authoritative interpretation to relevant private international law legislation; (ii) a methodical continent wide engagement effort including the establishment of a private international law orientated body under the African Economic Community; (iii) the ratification of international conventions by African Union member states for instance the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards or the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters; and (iv) the exploration of a potential collaboration with non-State actors for instance the Research Centre for Private International Law in Emerging Countries at the University of Johannesburg. At the very least, these suggestions deserve to be accorded close consideration.
Before now, Oppong had equally suggested the establishment of a specialised body with the specific mandate to deal with private international law regime. He also advocated for the establishment of a court empowered to provide authoritative and final interpretation of the unified rules of private international law and the entrenchment of the principle of mutual trust and respect by all African Union member states of each other’s national judicial competence.[16]Above all, urgent steps must be taken to elicit the requisite political will and obtain the institutional support necessary to actualise the harmonised rules of private international law in Africa. As a starting point, however, this paper calls for the immediate convocation of an Inter-African Conference on Private International Law.
Conclusion
Despite the enormous challenges that is sure to militate against the harmonisation of the private international law rules in a divergent community like Africa, the general belief is that the African Union and the people of Africa stand a better chance to actualise the aims of establishing a common market, deepening economic integration and promoting economic development in Africa with a harmonised private international legal regime. Since Professor Cheshire issued his clarion call in 1947, European courts, lawyers and academics have largely heeded the call, but the same cannot be said of their African counterparts. The best time to have heeded the call was in 1947, the next best time is now.
*This Paper was first published in Law Digest Journal Spring 2020
[1]G. C. Cheshire ‘Plea for a Wider Study of Private International Law’ (1947) Intl L Q 14.
[2]African Union, Agreement establishing the African Continental Free Trade Area, available at https://au.int/en/treaties/agreement–establishing–african–continental–free–trade–arealast accessed on 14 February 2020.
[3]African Union, Constitutive Act of the African Union, available at https://au.int/en/treaties/constitutive–act–african–unionlast accessed on 14 February 2020.
[4]Chukwuma Okoli, ‘Private International Law in Africa: Comparative Lessons’ available at https://conflictoflaws.net/2019/private–international–law–in–africa–comparative–lessons/last accessed on 15 February 2020.
[5]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
[6]Richard Frimpong Oppong, (n 5 above).
[7] Richard Frimpong Oppong, (n 5 above).
[8]Richard Frimpong Oppong, (n 5 above).
[9]Lise Theunissen, ‘Harmonisation of Private International Law in the African Union’ available at https://www.afronomicslaw.org/2020/02/08/harmonisation–of–private–international–law–in–theafrican–union/accessed on 15 February 2020.
[10]Richard Frimpong Oppong, (n 5 above). See also A. Dickinson, “Legal Certainty and the Brussels Convention Too Much of a Good Thing?” in Pascal de Vareilles-Sommieres (ed), Forum Shopping in the European Judicial Area (Oxford, Hart Publishing, 2007), ch 6.
[11]L Collins (gen ed), Dicey, Morris and Collins, The Conflict of Laws (London, Sweet and Maxwell, 14thedn, 2006), observed at para 11-062.
[12]Richard Frimpong Oppong, (n 5 above).
[13]Chukwuma Okoli on his part believes that there has been significant progress and that is a growing interest in the study of private international law in Africa. See Chukwuma Okoli, ‘Private International Law in Africa: Comparative Lessons’ available at https://conflictoflaws.net/2019/private–internationallaw–in–africa–comparative–lessons/accessed on 15 February 2020. While this is true, he must however acknowledge that there is still a lot of room for improvement.
[14]In this regard, Lise Theunissen, (n 8 above) has lamented the lack of any efforts to establish a private international law orientated body under the African Economic Community, despite the necessity and urgent need for same.
[15]Lise Theunissen, (n 8 above).
[16]Richard Frimpong Oppong, (n 5 above).
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