Views
The Dubai Supreme Court — Again — on the Enforcement of Canadian (Ontario) Enforcement Judgment
I. Introduction
The decision presented in this post was rendered in the context of a case previously reported here. All of the comments I made there, particularly regarding the possibility of enforcing a foreign enforcement judgment and other related issues, remain particularly relevant. However, as I have learned more about the procedural history preceding the decisions of the Dubai Supreme Court (“DSC”), which was not available to me when I posted my previous comment, greater emphasis will be placed on the general factual background of the case. The decision presented here raises a number of fundamental questions related to the proper understanding of foreign legal concepts and procedures and how they should be integrated within the framework of domestic law. Therefore, it deserves special attention.
I would like to thank Ed Morgan (Toronto, ON Canada) who, at the time when my previous comment was posted, brought to my attention the text of the Ontario judgment whose enforcement was sought in Dubai in the present case.
II. Facts:
1. Background (based on the outline provided by the DSC’s decisions)
X (appellant) obtained a judgment in the United States against Y (appellee), which then sought to enforce it in Canada (Ontario) via a motion for summary judgment. After the Ontario court ordered enforcement of the American judgment, X sought enforcement of the Canadian judgment in Dubai by filing an application with the Execution Court of the Dubai Court of First Instance.
2. First Appeal: DSC, Appeal No. 1556 of 16 January 2024
The lower courts in Dubai admitted the enforceability of the Canadian judgment. Unsatisfied, Y appealed to the DSC. The DSC admitted the appeal and overturned the appealed decision, remanding the case for further review.
According to the DSC, the arguments raised by Y to resist the enforcement of the Canadian judgment – i.e. that the Court of Appeal erred in not addressing his argument that the foreign judgment was a “summary judgment [hukm musta’jil][i] declaring enforceable a rehabilitation order (hukm rad i’tibar)[ii] and an obligation to pay a sum of money rendered in the United States of America that cannot be enforced in the country [Dubai]” – was a sound argument that, if true, might change the outcome of the case.
3. Second Appeal: DSC, Appeal No. 392/2024 of 4 June 2024
The case was sent back before the court of remand, which, in light of the decision of the DSC, decided to overturn the order declaring enforceable the Ontario judgment. Subsequently, X appealed to the DSC.
Before the DSC, X challenged the remand court’s decision arguing that (i) the rules governing the enforcement of foreign judgments do not differentiate by types or nature of foreign judgments; (ii) that under Canadian law, “summary judgment” means a “substantive judgment on the merits”; and that (iii) Y actively participated in the proceedings and the lack of a full trial did not violate Y’s rights of defense.
III. The Ruling
The DSC admitted the appeal and confirmed the order declaring enforceable the Canadian judgment.
After stating the general principles governing the enforcement of foreign judgments in the UAE and recalling some general principles of legal interpretation (such as the prohibition of personal interpretation in the presence of an absolutely unambiguous text, and the principle that legal provisions expressed in broad terms should not be interpreted restrictively), the DSC ruled as follows (all quotations inside the text below are added by the author):
“[it appears from the wording of the applicable legal provision[iii] that] exequatur decrees are not limited to “judgments” (ahkam) rendered in foreign countries but extends to foreign “orders” (awamir) provided that they meet the requirements for their enforcement. Furthermore, the [applicable legal provision][iv] has been put in broad terms (‘aman wa mutlaqan), encompassing all “judgments” (ahkam) and “orders” (awamir) rendered in a foreign country without specifying their type (naw’) or nature (wasf) as long as the other requirements for their enforcement are satisfied. Moreover, there is no evidence that any other legal text pertaining to the same subject specifies limitations on the aforementioned [the applicable legal provision]. To the contrary, and unlike the situation [under the previously applicable rules],[v] the Legislator has expanded the concept of enforceable titles (al-sanadat al-tanfidhiyya),[vi] which now includes criminal judgments involving restitution (radd), compensations (ta’widhat), fines (gharamat) and other civil rights (huquq madaniyyah). […]
Given this, and considering that the appealed decision overturned the exequatur decree of the judgment in question on the ground that the [Canadian] judgment, which recognized a judgment from the United States, was a “summary judgment” (hukm musta’jil) enforceable only in the rendering State, despite the broad wording of [the applicable provisions],[vii] which covers all judgments (kul al-ahkam) rendered in a foreign State without specifying their type (naw’) or nature (wasf) provided that the other requirements are met. In the absence of any other specification by any other legal text pertaining to the same subject, the interpretation made by the appealed decision restricts the generality of [the applicable rules] and limits its scope [thereby] introducing a different rule not stipulated therein.
Moreover, the appealed decision did not clarify the basis for its conclusion that the [foreign] judgment was a “summary judgment” (hukm musta’jil) enforceable only in the rendering State. [This is more so], especially since the submitted documents on the Canadian civil procedure law and the Regulation No. 194 on [the Rules of Civil Procedure] show that Canadian law recognizes the system of “Summary judgment”[viii] for issuing judgments through expedited procedures, and that the [foreign] judgment was indeed rendered following expedited procedures after Y’s participation by submitting rebuttal memoranda and hearing of the witnesses.[…]
Considering the foregoing, and upon reviewing the [Canadian] judgment… rendered in favor of the appellant as officially authenticated, it is established that the parties (X and Y) appeared before the [Canadian] court, [where] Y presented his arguments … and the witnesses were heard. Based on these proceedings [before the Canadian court], the court decided to issue the aforementioned “summary judgment” (al-hukm al-musta’jil) whose enforcement is sought in [this] country. [In addition, the appellant presented] an officially authenticated certificate attesting the legal authority (hujjiyat) [and the finality][ix] of the [Canadian] judgment. Therefore, the requirements stipulated [in the applicable provisions][x] for its enforcement have been satisfied. In addition, it has not been established that the courts [of the UAE] have exclusive jurisdiction over the dispute subject of the foreign judgment, nor that the [foreign] judgment is [rendered] in violation of the law of the State of origin or the public policy [in the UAE], or that it is inconsistent with a judgment issued by the UAE courts. Therefore, the [Canadian] judgment is valid as a an “enforceable title” (sanad tanfidhi) based on which execution can be pursued.
IV Comments
The decision presented here has both positive and negative aspects. On the positive side, the DSC provides a welcome clarification regarding the meaning of “foreign judgment” for the purposes of recognition and enforcement. In this respect, the DSC aligns itself with the general principle that “foreign judgments” are entitled to enforcement regardless of their designation, as long as they qualify as a “substantive judgment on the merits”. This principle has numerous explicit endorsements in international conventions dealing with the recognition and enforcement of foreign judgments[xi] and is widely recognized in national laws and practices.[xii]
However, the DSC’s understanding of the Canadian proceedings and the nature of the summary judgment granted by the Canadian court, as well as its attempt to align common law concepts with those of UAE law are rather questionable. In this respect, the DSC’s decision shows a degree of remarkable confusion in the using the appropriate legal terminology and understanding fundamental legal concepts. These include (i) the treatment of foreign summary enforcement judgments as ordinary “enforceable titles” (sanadat tanfidhiyya – titres exécutoires) under domestic law including domestic judgments rendered in criminal matters; (ii) the assimilation between summary judgment in common law jurisdictions and hukm musta’jil (“summary interlocutory proceedings order” – “jugement en référé”); and (iii) the confusion between summary judgment based on substantive legal issues and summary judgment to enforce foreign judgments.
For the sake of brevity, only the third point will be addressed here for its relevant importance. However, before doing so, some light should be shed on the proceedings before the Canadian court.
1. The proceedings before the Canadian Court and the nature of the Canadian Judgment
The unfamiliarity with DSC with the proceedings in Canada and underlying facts is rather surprising for two reasons: i) the proceedings were initiated by the American government in the context of a bilateral cooperation in criminal matters; and ii) the Canadian proceedings was a proceeding to enforce a foreign judgment rendered in criminal matters and was not simply a proceeding dealing with substantive legal issues. Therefore, a detailed review of the proceedings before the Ontario is necessary to better understand the peculiarities of the case commented here.
i) Proceedings in the context of mutual cooperation in criminal matters. The case originated in Ontario-Canada as a motion brought by the United States of America represented by the Department of Justice as plaintiff for summary judgment to recognize and enforce a “Restitution Order”[xiii] made against Y (defendant). The Restitution Order was part of Y’s sentence in the USA for securities fraud and money laundering. It “included terms as to payment and listed the victims and amounts to which they were entitled under the order” [para. 16].
The general procedural context of the Canadian judgment is of utmost relevance. Indeed, the USA sought the enforcement of the Restitution Order on the basis of the Mutual Legal Assistance in Criminal Matters Act. The Act, as it describes itself, aims “to provide for the implementation of treaties for mutual legal assistance in criminal matters”. According to the Ontario Court, The Act is a “Canadian domestic legislation enacted to meet Canada’s treaty obligations for reciprocal enforcement in criminal matters” [para. 6]. These treaty obligations are based on the Canada-USA Treaty on Mutual Legal Assistance in Criminal Matters of 1990 [para. 6].
This is why, before the Canadian Court, one of the main questions [para. 25] was whether the “Restitution Order” could be regarded as “fine” within the meaning of the Act [para. 26]. If this is the case, then the Restitution Order could be enforced as a “pecuniary penalty determined by a court of criminal jurisdiction” in the meaning of article 9 of the Act.
On the basis of a “broad, purposive interpretation of “fine” … aligned with Canada’s” international obligation under the Treaty, the Ontario court considered that “proceeds of crimes, restitution to the victims of crime and the collection of fines imposed as a sentence in a criminal prosecution” can be regarded as “fine” for the purpose of the case [para. 30]. In addition, the court characterized the restitution order as “a pecuniary penalty determined by a court of criminal jurisdiction” [para. 35], and also described it as an “order made to repay the individual members of the public who were encouraged to purchase stock at an inflated price by virtue the criminal activity” [para. 39]. The court ultimately, concluded that “the Restitution Order made against [Y] is a “fine” within the meaning of… the Act” [para. 41].
From a conflicts of laws perspective, the question of whether the “Restitution Order” is of a penal nature is crucial. Indeed, it is generally accepted that penal judgments are not eligible to recognition and enforcement. However, nothing prevents derogating from this principle by concluding international conventions or enforcing the civil law component of foreign judgments rendered by criminal courts in criminal proceedings, which orders the payment of civil compensation.[xiv]
Interestingly, before the Canadian court, Y argued that the “Restitution Order” made against him was not a “fine” because it was a “compensatory-type” order [para. 27]. However, it is clear that it was an attempt to exclude the enforcement of Restitution Order from the scope of application of the Mutual Legal Assistance in Criminal Matters Act. In any event, despite the crucial theoretical and practical importance of the issue, this is not the place to discuss whether the “Restitution Order” was penal or civil in nature. What matters here is the nature of the proceeding brought before the Canadian court which is a summary proceeding to recognize and enforce a foreign judgment. This leads us to the next point.
ii) Nature of the Canadian judgment. It is clear from the very beginning of the case that the USA did not bring an action on the merits but sought “an order for summary judgment recognizing and enforcing a judgment a Restitution Order made against [Y] as part of his sentence in [the USA] for securities fraud and money laundering” [para. 1]. Therefore, the case was about a motion for a summary judgment to enforce a foreign judgment. In this respect, one of the interesting aspects of the case is that Y also relied on the enforcement of foreign judgments framework and raised, inter alia, “a defence of public policy” at common law [para. 79] citing Beals v, Saldanha (2003), a leading Canadian Supreme Court judgment on the recognition and enforcement of foreign judgments in civil and commercial matters.[xv] The court however dismissed the argument considering that there was “no genuine issue for trial on the question of a public policy defence against the enforcement in Canada of the Restitution Order” [para. 82].
Accordingly, if one puts aside the question of enforceability of foreign penal judgments, it is clear that the Canadian judgment was a judgment declaring enforceable a foreign judgment. The very conclusion of the Canadian court makes it even clearer when the court granted USA’s motion for summary judgment by ordering the enforcement in Canada of the Restitution Order [para. 84]. Accordingly, as discussed in my previous comment on this case, and taking into account the nature of the Canadian judgment, it can be safely said that the Canadian enforcement judgment cannot be eligible to recognition and enforcement elsewhere based on the adage “exequatur sur exequatur ne vaut”.
2. No… a summary judgment to enforce a foreign judgment is not a summary judgment based on substantive legal issues!
It is widely known that the procedural aspects of the enforcement of foreign judgments largely differ across the globe. However, it is fair to say that there are, at least, two main models (although other enforcement modalities do also exist). Generally speaking, civil law jurisdictions adopt the so-called “exequatur” proceeding the main purpose of which is to confer executory power to the foreign judgment and transforms it into a local “enforceable title”. On the other hand, in common law jurisdictions, and in the absence of applicable special regimes, the enforcement of foreign judgments is carried out by initiating a new and original action brought before local court on the foreign judgment.[xvi] The purpose of this action is to obtain an enforceable local judgment that, while recognizing and enforcing the foreign judgment, is rendered as if it were a judgment originally issued by the local court.[xvii] Both procedures result in similar outcome:[xviii] what has been decided by the foreign court will be granted effect in the form. However, technically, in civil law jurisdiction it is the foreign judgment itself that is permitted to be enforced in the forum,[xix] while in common law jurisdictions, it is the local judgement alone which is enforceable in the forum.[xx]
Such an enforcement in common law jurisdictions is usually carried out by way of summary judgment procedure.[xxi] However, this procedure should not be confused with the standard summary judgment procedure used to resolve disputes on the merits within an ongoing case. In fact, it is a distinct process aimed specifically at recognizing and enforcing foreign judgments,[xxii] which is the functionally equivalent counterpart in common law jurisdictions to the exequatur procedure.
This is precisely the confusion that the DSC encountered. The Court regarded the Canadian summary judgment as “a civil substantive judgment on the merits”, although it was not. Therefore, – and as already explained – the summary judgment rendered in result of this proceeding cannot be regarded as “foreign judgment” eligible for recognition and enforcement abroad in application of the principle “exequatur sur exequatur ne vaut”.
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[i] In my previous post, I translated the term “hukm musta’jil” as “summary judgment to highlight the nature of the Canadian procedure. However, from the purpose of UAE law, I think it is better that this word be translated as “summary interlocutory judgment – jugement en référé”. This being said, for the purpose of this post the terms “summary judgment” will be used to highlight the terminological confusion committed by the DSC.
[ii] In my previous post, I was misled by the inappropriate terminology used in the DSC’s decision which referred to this American order as “Rehabilitation order” (hukm rad i’tibar). The term “rehabilitation order” is maintained here as this is the term used by the DSC.
[iii] The DSC made reference to article 85 of Cabinet Resolution No. 57/2018 on the Executive Regulations of Law No. 11/1992 on Civil Procedure Act (hereafter “2018 Executive Regulation”), which was subsequently replaced by article 222 of New Federal Act on Civil Procedure (Legislative Decree No. 42/2022 of 3 October 2022) (hereafter “New 2022 FACP”).
[iv] Ibid.
[v] The DSC referred the former Federal Act on Civil Procedure of 1992 (Federal Act No. 11/1992 of 24 February 1992)
[vi] The DSC referred to article 75(2) of the 2018 Executive Regulation as subsequently supplanted by article 212(2) of the New 2022 FACP.
[vii] Supra n (3).
[viii] In the original. Italic added.
[ix] In the words of the DSC, the foreign judgment “was not subject to appeal”.
[x] Supra n (3).
[xi] See Article 3(1)(b) of the HCCH 2019 Judgments Convention; article 4(1) of the HCCH 2005 Choice of Court Convention; article 25(a) of the 1983 Riyadh Convention.
[xii] See eg. the Japanese Supreme Court Judgment of 28 April 1998 defining foreign judgment as “a final judgment rendered by a foreign court on private law relations… regardless of the name, procedure, or form of judgment” “[e]ven if the judgment is called a decision or order”.
[xiii] Supra n (2).
[xiv] On UAE law on this issue, see my previous post here and the authorities cited therein.
[xv] On this case see, Janet Walker, “Beals v. Saldanha: Striking the Comity Balance Anew” 5 Canadian International Lawyer (2002) 28; idem, “The Great Canadian Comity Experiment Continues” 120 LQR (2004) 365; Stephen G.A. Pitel, “Enforcement of Foreign Judgments: Where Morguard Stand After Beals” 40 Canadian Business Law Journal (2004) 189.
[xvi] Trevor C. Hartley, International Commercial Litigation (3rd ed. 2020) 435.
[xvii] Adrian Briggs, “Recognition of Foreign Judgments: A Matter of Obligation” 129 LQR (2013) 89.
[xviii] Briggs, ibid.
[xix] Peter Hay, Advance Introduction to Private International Law and Procedure (2018) 110.
[xx] Briggs, supra n (17).
[xxi] Adeline Chong, Asian Principles for the Recognition and Enforcement of Foreign Judgments (2021)13.
[xxii] Cf. Hartley, supra n (16) 435 pointing out that “Procedurally, therefore, a new action is brought; in substance, however, the foreign judgment in recognized and enforced” (italic in the original).
Conflict of Laws and Diversity of Opinions—A View of The Nigerian Jurisdiction
Cosmas Emeziem, JSD Cornell University, Drinan Fellow and Visiting Assistant Professor of Law, Boston College Law School, Newton, MA. ©Author 2024.
Introduction
At the core of Conflict of Laws or Private International Law (hereinafter PIL) is reconciling rules across jurisdictions for dispute settlement and the broader concerns of justice and public policy. PIL rules are used as a toolbox to assist litigants in resolving these problems that arise from complex litigations. This has immense significance regarding the security of contracts, enforcement of obligations, and overall predictability of solutions on these issues. Recent debates and academic discourse about the Nigerian Judiciary, its decisions, and opinions on PIL have inspired even more contemplation on the institution’s place, expertise, and contribution to the evolution of PIL rules and practices in the region.[1] In this intervention, I situate these discussions in the larger structure of the judicature in Nigeria, the institution and system rather than individual opinions and expertise, and draw some lessons that should mediate academic, judicial, and legislative deliberations on this topic. I conclude that a scholarly engagement with the issues should be more robust than looking for limited answers that conform with precedents elsewhere—especially where these precedents do not help to address the contextual challenges. Equally, one should be mindful of the danger of incoherent transplants of norms and potential poor transplant effects. It is essential to stay focused on institutional capacities, expertise and competence and how to enhance them—instead of individualized expertise, which, though important, are weak foundations for enduring legal evolution and a reliable PIL regime.
I.The Supreme Court of Nigeria and the Judicature
The Nigerian Supreme Court is necessary for the legal system’s stability, coherence, and sustainable evolution.[2] On the other hand, the Court of Appeal and the High Courts (High Courts of States and the Federal Capital Territory, and the Federal High Courts) have a vertical relationship with the Supreme Court. Except where matters can commence directly at the Supreme Court, these lower courts serve as clearing houses for disputes on most commercial subjects within the country. This means that the Court of Appeal intervenes in many respects, and often, these matters do not go beyond the Court of Appeal. These courts also have several divisions across the country, and their jurisdictions and general adjudicatory competencies are recognized in the Constitution or as stipulated in their establishment laws. For instance, the Court of Appeal established by section 237 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) has 20 Judicial Divisions spread across the six geopolitical zones of the country.[3]
Therefore, with 36 states and a Federal Capital Territory, Abuja, Nigeria has a complex judicature with subsystems designed to serve the needs of communities and regions, which are often peculiar to the regions. Indeed, there are many jurisdictions within Nigeria, although the country is also a jurisdiction. The complexity is also illustrated by the embeddedness of Sharia law, and customary law, in private law in different parts of the country. For example, a court may be called upon to interpret contracts and commercial transactions on religious and customary interests. These must be situated in the broader contexts of the legal systems and the specific dispute.[4] In that regard, although the Supreme Court is one institution, cases are heard and determined by different judges and judicial panels that are usually constituted to hear appeals and original disputes before the court.[5] Foreign investors who may not have a sense of the complex system may become excited by the so-called “expertise in conflict of laws,” which has recently formed part of the debate about PIL in Nigeria and the African region.
The case-by-case (ad-hoc) constitution of judicial panels to hear and determine causes before the Supreme Court has significant ramifications for appreciating the different workings of the institution and how to render justice to parties, even in problematic PIL circumstances. The rotation, in terms of panel constitution, increases the individual and collective mastery of all matters that come before the court for adjudication—including commercial transactions, which have broad ramifications for PIL. It also eliminates the possibility of predicting which justices may sit on a matter before each panel is constituted. This can potentially insulate the court as an institution from compromise by targeting specific justices ahead of time. The fundamental nature of this approach—rotation of judges and constituting different panels for different cases—is even more perceptive when situated within the larger problem of corruption within the Nigerian judiciary.[6] The daily debate about corruption in the Nigerian judiciary makes it imperative that the public should not predict which judges would sit on a matter because of their “expertise” as this would serve the institution better and contribute to the ongoing efforts to curb corruption within the judiciary.[7] Individual efforts can then augment this institutional capacity and competence.
The above structure and approaches to judicial deliberations mean that there is a strong institutional capacity and competence regarding subjects upon which the Supreme Court is seized by law, practice, and tradition to adjudicate. This capacity pervades the entire judicature through such capillaries as precedents, rules of courts, practice directions, law reports, and memories accumulated over time that provide valuable guidance for judicial deliberations and determination of questions before the court, albeit PIL questions. Justices are also trained across different (sub)areas of law and often have significant statutorily required practice experience in various contexts within the jurisdiction before assuming judicial offices. In essence, the weight of the expertise lies more on the experience accumulated both as individuals and, more importantly, as custodians of the institutional capacity of the Supreme Court.
Sometimes, for example as in the case of the Court of Appeal, the different judicial divisions may reach different opinions on subjects ranging from marriage to child custody, service of processes, and enforcement of awards and judgments. This aligns with the general notion that courts of equal standing (coordinate jurisdiction) may depart from the opinion of their peers. Equally, state court systems have their respective rules of procedure, which have ramifications for the outcomes of dispute settlements in the states. The differences in the rules of courts further consolidate the necessity for a diverse knowledge base, a broad experience portfolio, and a flexible approach because of the complexity of the Nigerian legal system, the complicated court structure, and the breadth of judicial constitution. These factors also advance the argument that case-by-case issues that may need to be resolved by the courts are best dealt with not only by an independent knowledge base, but also drawing from the collective knowledge reservoir and diversity that the justices of the Supreme Court bring to the court to address issues as may be appropriate.[8] Thus, the differences, approaches, plurality of views, conflicts of opinions, and diversity of questions are not unusual, considering the vastness of the jurisdiction and the interaction of different aspects of law and society.
The horizontal relationship between the courts of a particular subsystem, such as the Appeal Court divisions, does not mean there is chaos in the system or that they must depend on individual expertise to reconcile the PIL questions. Instead, it is an invitation to look to the institutional frameworks fashioned over time to manage disputes and achieve justice in cases. The wisdom of these institutional designs is more enduring because individual judges and their brilliance cannot sustain the long-term needs of any legal system. Thus, bright stars that stud the Nigerian Supreme Court’s history (such as Chukwudifu Oputa, Kayode Eso, Muhammed Bello, Ignatius Pats-Acholonu, Akinola Aguda, Udo Udoma, and many others), while invaluable for the growth and evolution of the system, must be seen as part of the overall institutional structure for sustainable dispute resolution—especially on PIL—in the Nigerian legal system.
Arguably, it is potentially counterproductive to focus solely on individual judicial PIL expertise in trying to resolve PIL questions in Nigeria. This is so because it would be considerably difficult to find evidence of a fundamental miscarriage of justice merely because a preponderance of individual expertise is lacking. Furthermore, the U.S.—a bit similar to Nigeria in terms of federalism—does not do that either. In J. McIntyre Machinery Ltd. v. Nicastro, although there is no evidence of individualized PIL expertise of the judges, the U.S. Supreme Court resolved the issue regarding the rules and standards for determining jurisdiction over an absent party in a fair, just and reasonable manner.[9] The court came to a reasonable and just answer despite arriving at the majority judgment from a plurality of views. It is, therefore, the collective quality of judicial deliberations and opinions that is the distinctive standard for measuring the capacity and competence of a court on matters of PIL. There are other examples of this display of institutional capacity and competence in the U.S. Supreme Court in cases such as The Bremen v. Zapata Off-Shore Co.,[10] where Petitioner Unterweser agreed to tow respondent’s drilling rig from Louisiana to Italy, with a forum-selection clause stipulating that any disputes would be litigated in the High Court of Justice in London. When the rig was damaged, the respondent instructed Unterweser to tow the rig to Tampa. Subsequently, the respondent filed a lawsuit in admiralty against petitioners in Tampa. Unterweser invoked the forum clause and initiated a lawsuit in the English court, which asserted its jurisdiction under the contractual forum provision. It was held that forum selection in the contract was binding unless the respondent could discharge the heavy burden of showing that its enforcement is unreasonable, unfair, or unjust.[11]
In Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC, Raiders, a Pennsylvania company insured a yacht for up to $550,000 with Great Lakes, a UK-based company.[12] In 2019, the yacht ran aground in Florida. Raiders submitted a claim to Great Lakes for the loss of the vessel, but Great Lakes rejected it, citing Raiders’ failure to recertify or inspect the yacht’s fire-extinguishing equipment on time. Great Lakes sought a declaratory judgment to void the policy. The district court dismissed Raiders’ counterclaims, applying New York law per the policy’s choice-of-law provision. Raiders argued that this provision was unenforceable under The Bremen v. Zapata Off-Shore Co.[13] The U.S. Supreme Court disagreed, holding that choice of law provisions are enforceable unless under some narrow exception that is not applicable in the circumstance. There is therefore great wisdom in attributing competence, expertise and capacity to the institution instead of individuals.
Thus, quality judicial deliberations and decisions reflect institutional competence. In the next section, I further the discussion on the issue of diversity, looking at subject matter diversity, diversity of views, and the place of stare decisis and precedents in light of the current debates about PIL and expertise in the Nigerian Supreme Court and its resonance for the legal system.
II. Judex, Expertise, and Diversity of Opinions
Quot homines tot sententiae—as there are peo, so are their opinions. A combination of factors including training, age, experience, temperament, and general background of judges affect their overarching nature and contributions to the making of legal institutions such as courts. These combinations of factors also influence the diversity of voices and views, opinions, individual competencies, and expertise. The ramification of these factors is even more vigorous and visible in PIL issues where there is a confluence of complex questions that could inspire diverse judicial decisions and plurality of opinions on controversies affecting commerce or other transnational/cross-border activities. Sometimes, this diversity can come as dissenting opinions. At other times, they may be reckoned with in the general obiter of superior courts such as the Supreme Court of Nigeria.
Regarding subject matter diversity, courts are usually confronted with different types of cases. These cross-cutting cases often mean that PIL rules must guide the courts in reaching a fair and reasonable dispute settlement. Equally, the rules to be applied may be implicated by background agreements or indemnities in bilateral and multilateral treaties, such as investment agreements, conventions, and soft law policies relevant to the dispute. Besides the subject matter diversity, which necessarily implicates PIL and opinion of courts, there is also procedural diversity, which affects the decisions of a court. In such situations, methods of service of processes, certification, and recognition of awards and judgments create a sort of complicated interaction between legislation and rules of court regarding how best to resolve disputes between litigants and in line with established precedents. In Nigeria’s legal tradition, the rules of court support the rules of justice. Thus, the use of these tools can lead to different outcomes regarding diversity of procedure and diversity of opinion, and these have important implications for dispute settlement in PIL. For instance, a rule of court on limitation of time can influence the speed of hearing pretrial motions one way or another.
Yet, the dispute resolution system in Nigeria is not a rudderless ship. It has anchorage on doctrines such as stare decisis and precedents. The primacy of precedents established by the Supreme Court provides the guardrails for making sense of the respective diversities within the legal system as it concerns PIL. Stare decisis and precedents ensure that the law remains strong, stable, reliable, and predictable without standing still. Overall, the stability, security, and predictability that come from this means that the broader answers to PIL questions lie in institutional and systemic resilience and capacities rather than individual efforts, expertise, or resilience. In light of all these, the doctrine of stare decisis and precedents further reinforce institutional competence and expertise. Individualized expertise can quickly become a weak point in the judicial institutional amour—especially if given undue prominence. For instance, judicial empaneling cannot wait for individualized expertise and competence.[14]
Equally, courts do not generally operate like that. Rather, courts must function with available human resources. Justice does not recline on individual expertise but on the entire institutional outlook of the courts. When citizens seek justice, they look up to the courts and not individual judges who may come and go at different intervals in the history of the court. Thus, even where divisions such as commercial divisions are established, the wisdom of such divisions is functional—to facilitate access to justice and enhance institutional competencies and efficiency for all manner of persons that appear before the court including corporate and other associated interests. Expertise in empaneling a tribunal is often a luxury preserved for arbitration tribunals or other alternative dispute resolution mechanisms. In those instances, parties can appoint their arbitrators or mediators based on their expertise. On the other hand, courts often have a set of judges already appointed by the appropriate authorities in the respective jurisdictions as at the time of commencement of actions.
Even then, expertise or expert views and opinions—whether in law or other spheres—are often subjects of evidence, and courts have procedural and institutional capacities to gain or leverage such expertise for fair and just settlement of disputes. When courts face certain difficulties, they can invite counsel to address the subject of controversy—usually through briefs. They can also invite amicus briefs or expert witnesses, such as professors of PIL, to testify on a matter in controversy with a view to answering critical questions for dispute resolution. These procedural safeguards reinforce the institutional competence and capacity and anticipate the limits of individual expertise. For example, amici curiae (friends of the court) have since become an established tradition available to courts to assist them in understanding and applying rules, principles, doctrines, and laws that may have PIL significance.
The individual expertise of judges will not provide answers to several PIL issues that arise in complex cross-jurisdictional disputes. Moreover, the expertise of individual judges from Nigeria is attested to in several jurisdictions as such judges have, at different times, dispensed justice in Gambian, Ugandan, and Namibian courts.[15] Therefore, the current fad of trying to prop up individual judges as PIL experts is mistaken—that expertise is better attributed to the institution, else scholars unwittingly set the judges up to fail and, in the process, diminish the established tradition of competence and expertise which the Nigerian judicature has managed to curate over time.
Conclusion
The judicature in Nigeria has often been a subject of intense scholarly deliberations. What has never been doubted is the expertise and competence of the courts in all matters within their assigned jurisdiction—both institutionally and in terms of the individuals who occupy the high judicial offices of the country. Individually, Nigerian judges serve with distinction and occupy high judicial offices even in countries such as the Gambia, Namibia, Botswana, Eswatini, and Uganda. These positions often require critical competence in the cross-border application of the law on matters relating to PIL. Therefore, there is no evidence to show that the expertise and capacities attributable to the judicature and its judex have been suspended at any time. Thus, the idea that “an expert in conflict of laws is now at the Supreme Court after a long time”[16] is potentially misleading—especially for persons, businesses, and investors who may not know the inner workings of complex legal systems such as Nigeria.
[1] Some of the interesting debates and discourse on the courts and PIL in Nigeria include, Folabi Kuti, SAN, Critiquing the Critique: X-raying Dr. Okoli’s restatement of the Court of Appeal’s decision in TOF Energy Co. Ltd & Ors. v. Worldpay LLC & Another (2022) LPELR -57462(CA) August 14, 2023, https://lawpavilion.com/blog/critiquing-the-critique-x-raying-dr-okolis-restatement-of-the-court-of-appeals-decision-in-tof-energy-co-ltd-ors-v-worldpay-llc-anor-2022-lpelr-574/>. Chukwuma Samuel Adesina Okoli, A Critique of the Nigerian Court of Appeal’s Recent Restatement of the Principles and Decisions on the Enforcement of Foreign Jurisdiction Clause in Nigeria, November 8, 2022< https://lawpavilion.com/blog/a-critique-of-the-nigerian-court-of-appeals-recent-restatement-of-the-principles-and-decisions-on-the-enforcement-of-foreign-jurisdiction-clause-in-nigeria/> ; The Nigerian Court of Appeal declines to enforce a Commonwealth of Virginia (in USA) Choice of Court Agreement, March 10, 2021https://conflictoflaws.net/2021/the-nigerian-court-of-appeal-declines-to-enforce-a-commonwealth-of-virginia-in-usa-choice-of-court-agreement/. Anthony Kennedy, The Recognition and Enforcement of Foreign Judgements at Common Law in Nigeria, December 15, 2020 (on why the common law action should be revived) https://www.afronomicslaw.org/2020/12/15/the-recognition-and-enforcement-of-foreign-judgments-at-common-law-in-nigeria ;Richard Mike Mlambe, Presence as a basis for International Jurisdiction of a Foreign Court Under Nigerian Private International Law, December 16, 2020 https://conflictoflaws.net/2020/presence-as-a-basis-for-international-jurisdiction-of-a-foreign-court-under-nigerian-private-international-law/.
[2] Section 230 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) establishes the Supreme Court as the apex judicial institution in the country.
[3] Divisions of the Court of Appeal in Nigeria < https://www.courtofappeal.gov.ng/divisions> (last visited May 29, 2024). The Federal High Court of Nigeria has 35 Judicial Divisions < https://www.nextfhc.fhc.gov.ng/court/divisions>. (last visited May 29, 2024).
[4] Pontian Okoli, Former British Colonies: The Constructive Role of African Courts in the Development of Private International Law, 7 University of Bologna Law Review, 2, 126 (2022). https://bolognalawreview.unibo.it/article/view/15830
[5] Original disputes before the Supreme Court are often questions of controversy between the states as among themselves or between the states and the Federal Government of Nigeria. See Section 232 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
[6] Ameh Ejekwonyilo, Corruption in Nigerian Judiciary is extensive—UNODC, Premium Times March 1, 2024.
[7] Joseph Onyekwere, ICPC Corruption Verdict Unsettles Judiciary, The Guardian January 26, 2021; Punch: Editorial, Uprooting Corrosive Corruption in the Judiciary, August 24, 2023.
[8] Computation of time can be used to show some of the differences. For example, Order 48 rule (5) of the Rivers’ State High Court Civil Procedure Rules 2019 provides that time will not run when the courts are under lock and key. This unique provision arises from the difficult Chief Judge succession experience in that state in the 2015/2016 legal year. In comparison, Lagos State High Court and the High Court of the Federal Capital Territory, Abuja, have no similar provision regarding when the court is under lock and key. See Order 49 of the High Court of the Federal Capital Territory Abuja, 2018; Cf Order 48 of the Lagos State High Court Civil Procedure Rules 2019. But to show flexibility of approaches, in responding to such a situation of courts being under “lock and key” as seen in the case of Rivers State, the Chief Judge of the High Court of the Federal Capital Territory, adopted a different approach by issuing a practice direction regarding computation of time to cover the period of industrial action by judicial workers. [S]ee High Court of the Federal Capital Territory, FCT Computation of Time and Exemption from payment of Default fees) Practice Direction No 1, 2021 (for the period April 6th, 2021 – June 14, 2021) < https://www.fcthighcourt.gov.ng/download/PRACTICE-AND-PROCEDURE/COMPUTATION-OF-TIME-AND-EXEMPTION-FROM-PAYMENT-OF-DEFAULT-FEES-PRACTICE-DIRECTION-NO.-1-2021-FOR-THE-PERIOD-APRIL-6TH-14TH-JUNE.pdf>. See also High Court of Delta State (Exemption of Payment of Default fees for filing of processes) Practice Direction (No 2) of 2021 for the Period of JUSUN Strike from April 6, 2021, to June 14, 2021. < https://thenigerialawyer.com/wp-content/uploads/2021/06/Practice-Direction_JUSUN-strike_cover-001-converted-delta.pdf>.
[9] 564 U.S. 873 (2011). Adam N. Steinman, The Lay of the Land: Examining the Three Opinions in J. McIntyre Machinery, Ltd. V. Nicastro, 63 S. C. L. Rev. 481 (2011) https://scholarship.law.ua.edu/fac_articles/291/ ; Elisabeth A. Beal, J. McIntyre Machinery Ltd v. Nicastro: The Stream of Commerce Theory of Personal Jurisdiction in A Globalized Economy, 66 University of Miami Law Rev. 233 (2011). https://repository.law.miami.edu/umlr/vol66/iss1/9/
[10] 407 U.S. 1 (1972). Ronald A. Brand, M/S Bremen v. Zapata Off-Shore Company: US Common Law Affirmation of Party Autonomy, The Common Law Jurisprudence of Conflict of Laws (2023) https://scholarship.law.pitt.edu/fac_book-chapters/50/ ; Harold G. Maier, The Three Faces of Zapata: Maritime Law, Federal Common Law, Federal Courts Law, 6 Vand. J. of Transnational Law 387 (1972-1973). https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=2618&context=vjtl ; K. M. Edwards, Unterweser: Choice Not Chance in Forum Clauses, 3 California Western International Law Journal 397 (1973).
[11] See also Carnival Cruise Lines Incorporated v. Shute, 499 US 585, 593-594 where the Court noted that the enforcement of forum selection clauses has the salutary effect of removing confusions and reducing the time and expense of pre-trial motions.
[12] Great Lakes Insurance SE v. Raiders Retreat Realty Co., 601 U.S. (2024).
[13] Supra note 10.
[14] Sonnar (Nig.) Ltd. & Anor. V. Partenreedri M. S. Nordwind Owners of the Ship M.V. Nordwind & Anor. (1987) LLJR –SC. (courts can elicit expertise through evidence as in this case where the opinion of German lawyers as to the law in Germany was relevant in reaching a fair, just and reasonable decision. The courts also decide on what probative value to give the expert evidence considering the interest of justice).
[15] For instance, Hon. Justice Emmanuel Agim served in the Gambia and Swaziland (Eswatini) at the highest judicial levels in those countries < https://triplenet.com.ng/lawparliament/law_body.php?myId=2699&myView=259> . Justice Akinola Aguda was also the Chief Judge of the Supreme Court of Botswana. < https://www.news24.com/news24/renowned-african-jurist-dies-20010908>.
[16] See Chukwuma Okoli and Abubakri Yekini, The Nigerian Supreme Court now has a Specialist in Conflict of Laws, Conflict of Law.Net. January 7, 2024. https://conflictoflaws.net/2024/the-nigerian-supreme-court-now-has-a-specialist-in-conflict-of-laws/
The Conflict-of-Laws Provision in the French Influencer Legislation
by Ennio Piovesani
Certain EU Member States have enacted special rules governing the activities of content creators and influencers. In this context, the French legislature passed Law No. 2023-451 on June 9, 2023, aimed at regulating influencer marketing and addressing potential misconduct by influencers on social media platforms (1). Article 8, I, of Law No. 2023-451 requires that contracts between influencers and (influencer marketing) agents or advertisers, or their representatives, must be made in writing and include a specified set of clauses; failure to comply results in the contract being null.
One such clause mandates ‘[t]he submission of the contract to French law, notably to the Consumer Code, the Intellectual Property Code, and the present Law, when said contract has as its object or effect the implementation of influencer marketing activities through electronic means targeting notably an audience established on French territory’ (Article 8, I, 5°, Law No. 2023-451). Scholars have highlighted the ‘innovative’ nature of the mechanism set forth in Article 8, I, 5°, Law No. 2023-451 and its resemblance to the (more established) concept of overriding mandatory provisions (2).
(2) See Sandrine Clavel, Fabienne Jault-Seseke, Droit international privé, Recueil Dalloz 2024, 987, accessed online at Dalloz.fr; see also Ermanno Calzolaio, L’attività pubblicitaria dell’influencer nel diritto francese (Loi n. 451 del 9 giugno 2023), Il Diritto dell’Informazione e dell’Informatica, 2023, no. 6, p. 909, accessed online at Dejure.it).
News
Call for Applications: Lindemann Fellowship for Private International Law
Call for Applications
Lindemann Fellowship for Private International Law
The Lindemann Fellowship, generously funded by the Lindemann Foundation, is a newly established initiative aimed at supporting promising academics in the field of private international law. The Fellowship’s primary
goal is to provide early-career researchers with the opportunity to build a network with academics from all over Europe. Fellows will, in principle, be accepted for a three-year period, with new Fellows joining each year, as existing Fellows complete their tenure.
AMEDIP’s upcoming webinar: Private international law aspects in the case Estados Unidos Mexicanos v. Smith & Wesson Brands, et al. (28 November 2024 – in Spanish)
The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 28 November 2024 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is the private international law aspects in the case Estados Unidos Mexicanos (Mexico) v. Smith & Wesson Brands et al. and will be presented by Dr. Manuel Segovia González (in Spanish). We have previously reported on the case here.
RabelsZ: New issue alert
Issue 3 of RabelsZ 2024 has just been released. It contains the following articles:
Chris Thomale and Stephan Schmid, Das Private Enforcement der EU-Lieferkettenrichtlinie – Eine rechtsvergleichende und rechtsökonomische Beurteilung der finalen Fassung mit Anregungen für die mitgliedstaatlichen Umsetzungsgesetze (Private Enforcement in the EU Supply Chain Directive: A Critical Comparative Law and Economics Analysis of the Final Compromise with Suggestions for its Implementation by the Member States), pp. 425–493, https://doi.org/10.1628/rabelsz-2024-0046 Read more