Pontian N. Okoli has provided the following extensive summary of the findings of his book, which is a revised version of his PhD thesis, completed at the University of Dundee.
In 2019, the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial matters came into being. It is a clear reflection of determined efforts to produce a global legal framework that can support the free movement of foreign judgments. One index of success concerning the 2019 Convention would be whether it promotes the free movement of foreign judgments in different parts of the world including Africa. Time will tell. For now, it is necessary to reduce the impediments to the free movement of foreign judgments on at least two levels: first, between African and non-African jurisdictions; and second, between African jurisdictions. The legal frameworks that concern both levels are essentially the same in most African jurisdictions. There is no African legal framework that is equivalent to the Brussels legal regime on the recognition and enforcement of foreign judgments in the European Union. Thus, litigants need to consider relevant legal frameworks in each country. Foreign judgment creditors must be conversant with appropriate laws to ensure recognition and enforcement of foreign judgments. Nigeria and South Africa are two major examples of African jurisdictions where such awareness is required. Read more...
By Nicolás Zambrana-Tévar, LLM, PhD, KIMEP University
A first instance court in
Barbastro (Aragón) has ruled
that a great number of valuable works of art presently on display at the museum
of the Catholic diocese of Lleida (Catalonia) are the property of parishes of
the diocese of Barbastro-Monzón and must be immediately returned. In its
reasoning, the court has given a lot of weight to the fact that, in the decades
long dispute between the two Spanish ecclesiastical entities, the diocese of
Lleida had agreed to comply with a 2007 ruling of the Vatican’s Supreme
Tribunal of the Apostolic Signatura, the highest administrative court in
the Catholic Church, whose decisions may only be overturned by the Pope
himself. This case does not only rise the issue of the recognition of “foreign”
ecclesiastical decisions or, alternatively, their relevance for state courts but
also how indistinguishable is the science of private international law from the
study of legal pluralism, i.e. the interaction of various legal systems over
the same territory, subjects and subject-matters. Read more...
Carlos Santaló Goris,
Researcher at the Max Planck Institute Luxembourg for International, European
and Regulatory Procedural Law and Ph.D. candidate at the University of
Luxembourg, offers a summary and an analysis of the CJEU’s judgment in Joined
cases C-453/18 and C-494/18 – Bondora.
On 19 December 2019, the
Court of Justice of the European Union (“CJEU”) rendered its 10th judgment on Regulation
1896/2006 establishing a European Payment Order (“EPO Regulation”). The EPO
Regulation introduced the most successful of the uniform civil procedures at
European level, allowing creditors the cross-border recovery of pecuniary
claims. In this long awaited judgment (particularly by the Spanish tribunals
and academia), the CJEU resolved the following inquiry: can tribunals request
additional information from the creditor relating to the terms of the agreement
in order to examine ex officio the
fairness of the terms of the contract invoked as a basis for a European Payment
Order (“EPO”)? Read more...
The latest issue of the „Praxis des
Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following
H. Schack: The new Hague Judgment Convention
This contribution presents the new Hague Convention on the recognition
and enforcement of foreign judgments in civil or commercial matters adopted on
2 July 2019 by the Hague Conference on Private International Law. This
Convention simple with a positive list of accepted bases for recognition and
enforcement supplements the 2005 Hague Convention on choice of court
agreements. The benefit of the 2019 Convention, however, is marginal, as its
scope of application is in many ways limited. In addition, it permits
declarations like the “bilatéralisation” in Art. 29 further reducing the
Convention to a mere model for bilateral treaties. If at all, the EU should
ratify the 2019 Convention only after the US have done so. Read more...
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  NZCA 623, the Court overturned the High Court’s decision that the Moçambique rule (named after British South Africa Co v Companhia de Moçambique  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. Read more...
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...
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...
Ssangyong Engineering & Construction Co. Ltd. v. National Highways Authority of India (NHAI) 2019 SCC OnLine SC 677
By Mohak Kapoor
The recent decision of the apex court of Ssangyong Engineering & Construction Co. Ltd. v. NHAI, has led to three notable developments: (1) it clarifies the scope of the “public policy” ground for setting aside an award as amended by the Arbitration and Conciliation (Amendment) Act 2015, (2) affirms the prospective applicability of the act and (3) adopts a peculiar approach towards recognition of minority decisions. Read more...
Written by Mayela Celis
The sixth meeting of the Experts’ Group on Parentage / Surrogacy took place in late October & early November 2019 in The Hague, the Netherlands, and focused on proposing provisions for developing two HCCH instruments:
- a general private international law instrument (i.e. a Convention) on the recognition of foreign judicial decisions on legal parentage; and
- a separate protocol on the recognition of foreign judicial decisions on legal parentage rendered as a result of an international surrogacy arrangement.
As indicated in the HCCH news item, the Experts’ Group also discussed the feasibility of making provisions in relation to applicable law rules and public documents. Read more...
Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, and Ph.D. candidate at the University of Luxembourg, offers a summary and an analysis of the CJEU Case C-555/18, K.H.K. v. B.A.C., E.E.K.
On 7 November 2019, the CJEU released the very first decision on Regulation 655/2014 establishing a European Account Preservation Order (“EAPO Regulation”). From the perspective of European civil procedure, this instrument is threefold innovative. It is the first uniform provisional measure; it is also the very first ex parte piece of European civil procedure (and reverses the Denilauer doctrine); and the first one which, though indirectly, tackles civil enforcement of judicial decisions at European level. This preliminary reference made by a Bulgarian court gave the CJEU the opportunity to clarify certain aspects of the EAPO Regulation. Read more...