Views
The Moçambique Rule in the New Zealand Court of Appeal
Written by Jack Wass, Stout Street Chambers, New Zealand
On 5 December 2019, the New Zealand Court of Appeal released a significant decision on jurisdiction over land in cross-border cases.
In Christie v Foster [2019] NZCA 623, the Court overturned the High Court’s decision that the Moçambique rule (named after British South Africa Co v Companhia de Moçambique [1893] AC 602) required that a dispute over New Zealand land be heard in New Zealand (for a case note on the High Court’s decision, see here). The plaintiff sought to reverse her late mother’s decision to sever their joint tenancy, the effect of which was to deprive the plaintiff of the right to inherit her mother’s share by survivorship. The Court found that the in personam exception to the Moçambique rule applied, since the crux of the plaintiff’s claim was a complaint of undue influence against her sister (for procuring their mother to sever the tenancy), and because any claim in rem arising out of the severance was precluded by New Zealand’s rules on indefensibility of title. As a consequence the Court declined jurisdiction and referred the whole case to Ireland, which was otherwise the appropriate forum.
In the course of its decision, the Court resolved a number of important points of law, some of which had not been addressed in any Commonwealth decisions:
First, it resolved a dispute that had arisen between High Court authorities about the scope of the in personam exception, resolving it in favour of a broad interpretation. In particular, the Court disagreed with High Court authority (Burt v Yiannakis [2015] NZHC 1174) that suggested an institutional constructive trust claim was in rem and thus outside the exception.
Second, it held (reversing the High Court) that the Moçambique rule does not have reflexive effect. The rule prevents the New Zealand court from taking jurisdiction over claims in rem involving foreign land out of comity to the foreign court, but does not require the New Zealand court to take jurisdiction over cases involving New Zealand land. Although New Zealand will often be the appropriate forum for a case involving New Zealand land, the court is free to send it overseas if the circumstances require, even if the claim asserts legal title in rem.
Third, the Court confirmed that there is a second exception to the Moçambique rule – where the claim arises incidentally in the administration of an estate. Dicey, Morris and Collins had suggested the existence of this exception for many editions, but it had to be inferred from earlier cases without being properly articulated. The Court expressly found such an exception to exist and that it would have applied in this case.
In the course of its analysis, the Court expressed sympathy for the arguments in favour of abolishing the Moçambique rule entirely. Although the Court did not go that far, it reinforced a trend of the courts restricting the application of the rule and suggested that in the right case, the courts might be prepared to abandon it entirely.
Private International Law in Africa: Comparative Lessons
Written by Chukwuma Okoli, TMC Asser Institute, The Hague
About a decade ago, Oppong lamented a “stagnation” in the development of private international law in Africa. That position is no longer as true as it was then – there is progress. Though the African private international law community is small, the scholarship can no longer be described as minimal (see the bibliograhy at the end of this post). There is a growing interest in the study of private international law in Africa. Why is recent interest on the study of private international law [in Africa] important to Africa? What lessons can be learn’t from other non-African jurisdictions on the study of private international law? Read more
The Work of the HCCH and Australia: The HCCH Judgments Convention in Australian Law
Written by Michael Douglas, Mary Keyes, Sarah McKibbin and Reid Mortensen
Michael Douglas, Mary Keyes, Sarah McKibbin and Reid Mortensen published an article on how the implementation of the HCCH Judgments Convention would impact Australian private international law: ‘The HCCH Judgments Convention in Australian Law’ (2019) 47(3) Federal Law Review 420. This post briefly considers Australia’s engagement with the HCCH, and the value of the Judgments Convention for Australia.
Australia’s engagement with the HCCH
Australia has had a longstanding engagement with the work of the Hague Conference since it joined in 1973. In 1975, Dr Peter Nygh, a Dutch-Australian judge and academic, led Australia’s first delegation. His legacy with the HCCH continues through the Nygh Internship, which contributes to the regular flow of Aussie interns at the Permanent Bureau, some of whom have gone on to work in the PB. Since Nygh’s time, many Australian delegations and experts have contributed to the work of the HCCH. For example, in recent years, Professor Richard Garnett contributed to various expert groups which informed the development of the Judgments Project. Today, Andrew Walter is Chair of the Council on General Affairs and Policy. Read more
News
Out Now : A Hague Convention on Jurisdiction and Judgments – Why did the Judgments Project (1992-2001) Fail? (by Eva Jueptner)
Following the publication of two seminal books on the recently adopted HCCH 2019 Judgments Convention (Mattias Weller et al. (eds), The HCCH 2019 Judgments Convention – Cornerstones, Prospects and Outlooks (Hart, 2023) and Ronald A. Brand et al, The 2019 Hague Judgments Convention (OUP, 2023), Eva Jueptner’s newly published work delves into the extensive history of this project, which has now moved on to address issues of international (direct) jurisdiction in civil and commercial matters (for details on the ongoing “Jurisdiction Project”, see here). Entitled “A Hague Convention on Jurisdiction and Judgments – Why did the Judgments Project (1992-2001) Fail?” Jueptner’s book attempts to shed light on the root causes of the original project’s setbacks.
Judicial Cooperation on the African Continent: Two Significant Developments in 2024
In spite of what the focus of academic discourse sometimes seems to suggest, the area of judicial cooperation in civil and commercial matters within regional integration communities is by no means limited to the European Union and perhaps MERCOSUR. To the contrary, initiatives such as the Nigeria Group on Private International Law (NGPIL) and the Uniform Acts developed within the framework of the Organisation pour l’harmonisation en Afrique du droit des affaires (OHADA), as well as the legal assistance instruments long established by the League of Arab States (LAS) along the Mediterranean coast, as well as the Communauté économique et monétaire d’Afrique centrale (CEMAC) and its 2004 Accord on judicial cooperation are striking evidence of a keen interest in Private International Law on the African continent as well (for a comparative perspective see M. Weller, ‘Mutual Trust’: A suitable foundation for private international integration communities and beyond?, RdC 423 (2022), Chapter V, paras. 224-281).
Third seminar on Rights In Rem – Tarragona, 4-5 April 2024
Third International Seminar on Rights In Rem in the European Union “Conflict of Laws on rights in rem in the EU: Status Quo and Proposals for the Future” is the closing dissemination activity within the project PID2020-112609GB-I0 Property Rights System over Tangible Goods in the Field of European Private International Law: Aspects of International Jurisdiction and Applicable Law, funded by the Spanish Government.
The seminar aims to offer discussions on various aspects of the conflict of laws rules concerning rights in rem. The debate is particularly relevant at a time when more and more academic associations (GEDIP and EAPIL) and other actors in private international law advocate for a legislative proposal by the European Union in this field. The rich conference programme will surely be of interest to many, and infromation about the venue and registration is available at the conference webpage.
This seminar is organised by the Rovira i Virgili University (Tarragona), the University of Barcelona and the University of Lleida, as well as the First and the Second seminars.