¹ Right from the European Community's inception, a sound private international law regime was identified as having a key role to play in the creation and sustenance of the internal market. Thus Article 220 (now Article 293 EC) of the Treaty of Rome charged Member States to enter into negotiations with each other with a view to securing for the benefit of their nationals, ‘the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and arbitration awards.’ As was subsequently noted, ‘a true internal market between the six States will be achieved only if adequate legal protection can be secured. The economic life of the Community may be subject to disturbance and difficulties unless it is possible.…to ensure the recognition and enforcement of the various rights arising from the existence of a multiplicity of legal relationships.’ See Note sent to Member States on 22 October 1959, quoted in Council Report by Mr Jenard on the Convention of 27 September 1968 on Jurisdiction and Enforcement of Judgment in Civil and Commercial Matters OJ 1968 C59/1. The Convention (now Regulation) on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels I Regulation) was the direct product of this article.

² See eg work in the Organisation of American States (OAS) and the Common Market of the Southern Cone (MERCOSUR) cited in Part II below.

³ cf Forsyth Private International Law (Juta Cape Town 2003) 43.Google Scholar Other African textbooks on the subject include: Christian, SchulzeOn Jurisdiction and the Recognition and Enforcement of Foreign Money Judgments (UNISA Press 2005)Google Scholar; Kiggundu, JPrivate International Law in Botswana, Cases and Materials (Bay Publishing Gabarone 2002)Google Scholar; John, Ademola YakubuHarmonisation of Laws in Africa (Malthouse Press Ltd Lagos 1999)Google Scholar; Agbede, IOThemes on Conflict of Laws (Shaneson Ltd Lagos 1989)Google Scholar; Sedler, RAThe Conflict of Laws in Ethiopia (Faculty of Law Haile Sellaise I University Addis Ababa 1965).Google Scholar

⁴ Bankole, Thompson ‘Legal Problems of Economic Integration in the West African Sub-Region’ (1990) 2 African J of Intl and Comparative L 85, 99–100Google Scholar; Bankole, Thompson and Mukisa, Richard S ‘Legal Integration as a Key Component of African Economic Integration: A Study of Potential Obstacles to the Implementation of the Abuja Treaty’ (1994) 20 Commonwealth Law Bulletin 1446, 1454Google Scholar; Yinka, Omorogbe ‘The Legal Framework for Economic Integration in the ECOWAS: An Analysis of the Trade Liberalisation Scheme’ (1993) 5 African J of Intl and Comparative L 355, 364Google Scholar; Muna, Ndulo ‘The Promotion of Intra-African Trade and the Harmonisation of Laws in the African Economic Community: Prospects and Problems’ in MA, Ajomo and Omobolaji, Adewale (eds) African Economic Community Treaty, Issues Problems and Prospects (Nigerian Institute of Advanced Legal Studies Lagos 1993) 107, 111–12.Google Scholar

⁵ See eg the Convention (and now proposed Regulation) on the Law Applicable to Contractual Obligations (OJ 1998 C 027)Google Scholar(Rome Convention) which is concerned with creating the right conditions for an internal market with the free movement of persons, goods, services and capital within the Community; the Brussels Regulation on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (EC Regulation No 44/2001) (Brussels I Regulation) aims at securing the free circulation of judgments within the Community to ensure that ‘the economic life of the Community is not disturbed and trade is thereby encouraged’; Cheshire, and North, Private International Law (Butterworths London 1999) 481.Google Scholar

⁶ Baxter, IFG ‘International Conflict of Laws and International Business’ (1985) 34 ICLQ 538Google Scholar; Darby, J ‘The Conflict of Laws and International Trade’ (1967) 4 San Diego L Rev 45.Google Scholar

⁷ Treaty Establishing the African Economic Community: reprinted in (1991) 3 African J Intl Comparative L 792Google Scholar, and (1991) 30 Intl Legal Materials 1241Google Scholar; see generally Ajomo, MA and Adewale, Omobolaji (eds) African Economic Community Treaty, Issues Problems and Prospects (Nigerian Institute of Advanced Legal Studies Lagos 1993). The AEC Treaty entered into force in 1994.Google Scholar

⁸ Forward to: Assessing Regional Integration in Africa, ECA Policy Research Report 07 2004.Google Scholar

⁹ ECA Annual Report on Integration in Africa (2002) 2.Google Scholar

¹⁰ In the 65-paged Treaty the word ‘law’ appears thrice; in the preamble, Article 18(2), and 35(1) a. Assigning a minimal role for law has been noted as a characteristic of Africa's integration effort and has been criticized. See Kiplagat, P Kenneth ‘Dispute Recognition and Dispute Resolution in Integration Processes: The COMESA Experience’ (1994–1995) 15 North Western J Int'l L & Business 437Google Scholar; Kiplagat, P Kenneth ‘An Institutional and Structural Model for Successful Economic Integration in Developing Countries’ (1994) 29 Tex Int'l L J 39, 50–1.Google Scholar

¹¹ See <http://www.oas.org/main/main.asp?sLang=E&sLink=http://www.oas.org/documents/ eng/aboutoas.asp > Friedrich, Juenger ‘The Inter American Convention on the Law Applicable to International Contracts: Some Highlights and Comparisons’ (1994) 42 AJCL 381Google Scholar; Alejandro, Garro ‘Unification and Harmonization of Private Law in Latin America’ (1992) 40 AJCL 587Google Scholar; Amado, Jose Daniel ‘Recognition and Enforcement of Judgments in Latin American Countries: An Overview and Update’ (1990–1991) 31 Virginia J Intl L 99Google Scholar; Castro, Leonel Pereznieto ‘Some Aspects Concerning the Movement for Development of Private International Law in the Americas through Multilateral Conventions’ (1992) 39 Netherlands Intl L Rev 243Google Scholar; O'Hop, Paul A Jr ‘Hemispheric Integration and the Elimination of Legal Obstacles under a NAFTA-Bases System’ (1995) 36 Harvard Intl L J 127, 163–6.Google Scholar

¹² See, Inter-American Convention on the Law Applicable to International Contracts (1994)Google Scholar and the Inter American Convention on Jurisdiction in the International Sphere for the Extra Territorial Validity of Foreign Judgments (1984).Google Scholar

¹³ Arroyo, Diego P Fernandez and Jan, Kleinheisterkamp ‘The VIth Inter-American Specialized Conference on Private International Law (CIDIP VI): A New Step Towards Inter-American Legal Integration’ (2002) 4 Yearbook of Private Intl L 237, 254.Google Scholar

¹⁴ See Article 1 of Asuncion Treaty 1991, available at <http://www.sice.oas.org/trade/mrcsr/ mrcsrtoc.asp> also Arroyo, Diego P Fernandez ‘International Contracts Rules in Mercosur: End of an Era or Trojan Horse’ in Borchers, Patrick J and Joachim, Zekoll (eds) International Conflict of Laws for the Third Millennium, Essays in Honour of Friedrich K Juenger (Transnational Publishers New York 2000) 157–63.Google Scholar

¹⁵ Fernandez Arroyo, ibid 172.

¹⁶ Article 126 of the Treaty of the East African Community which enjoins Member States to ‘encourage the standardisation of judgments of courts with the Community’, and ‘harmonise all their national laws appertaining to the Community’, may broadly be interpreted to encompass issues of private international law. The author is however not aware of any initiative taken under this article of significance for private international law.

¹⁷ See, Manteaw, SO ‘Entering the Digital Market Place-Commerce and Jurisdiction in Ghana’ (2003) 16 Transnational Lawyer 345.Google Scholar

¹⁸ Baxter (n 6).

¹⁹ Hay, P ‘The Common Market Preliminary Draft Convention on the Recognition and Enforcement of Judgments— Some Considerations of Policy and Interpretation’ (1968) 16 AJCL 149Google Scholar; Koh, PMC ‘Foreign Judgments in ASEAN-A Proposal’ (1996) 45 ICLQ 844Google Scholar; Casad, Robert C ‘Civil Judgment Recognition and the Integration of Multi-state Associations: A Comparative Study’ (1980–1981) 4 Hasting Intl & Comp L Rev 1Google Scholar where he identifies ‘an effective scheme for the mutual recognition and enforcement of civil judgments’ as one feature of any economic integration initiative ‘likely to achieve significant integration’.

²⁰ Caffrey, BAInternational Jurisdiction and the Recognition and Enforcement of Foreign Judgments in the LAWASIA Region: A Comparative Survey of the Laws of Eleven Asian Countries Inter-se and with the EEC Countries (CCH Australia Ltd North Ryde 1985) 6Google Scholar where he notes ‘predictability, security of transaction and the prompt efficient and certain enforcement of claims’ as factors that future prominently in investment decision-making.

²¹ Thanawalla, S ‘Foreign Inter Partes Judgments: Their Recognition and Enforcement in the Private International Law of East Africa’ (1970) 19 ICLQ 430. Forsyth (n 3) 332 et al.Google Scholar

²² The section is limited to the recognition and enforcement of only money judgments. The common law countries enforce only money judgments, but see section 3(1)(b) of the Foreign Judgments (Reciprocal Enforcement) Act (Cap 43) of Kenya allows for the registration of an order or judgment from a designated court in civil proceedings under which moveable property is ordered to be delivered to any person.

²³ The law on this area is currently under review with a view to reform. See South African Law Reform Commission, Consolidated Legislation Relating to International Cooperation in Civil Matters, Project 121 Discussion Paper 106 <http://www.law.wits.ac.za/salc/issue/ip21.pdf>

²⁴ The Enforcement of Civil Judgments Act 32 of 1988, Protection of Business Act 99 of 1978.

²⁵ Leon, PSG ‘Roma non Locuta est: the Recognition and Enforcement of Foreign Judgments in South Africa’ (1983) 26 Comparative and Intl L J of Southern Africa [CILSA] 325Google Scholar; See the Ugandan case of Transroad Ltd v Bank of Uganda [1998] UGAJ No 12 Civil Appeal No 3 of 1997 on the difficulty of defining submission.Google Scholar

²⁶ ibid 338–9.

²⁷ Under section 1 of this Act certain types of judgment eg those related to mining, can not be enforce in South African except with the consent of the Minister for Economic Affairs. For a discussion and critique of this Act see Forsyth (n 3) 435–7.Google Scholar

²⁸ This part relies heavily on the work of Andre Thomashausen of the Institute of Comparative Law South Africa. See Thomashausen, A ‘The Enforcement and Recognition of Foreign Judgments and other forms of Legal Cooperation in the SADC’ (2002) 35 CILSA 26.Google Scholar

²⁹ Juenger, (n 11) 386–8.Google Scholar

³⁰ I am indebted to Mrs Eleanor Ngalo for providing me with materials relating to the law in Tanzania.

³¹ I concentrate in this part only on the statutory regime since the common law position is similar to that of other common law countries like Ghana discussed below.

³² This rule has been abolished in England by s 34 of Civil Jurisdiction and Judgment Act 1982.

³³ Discussed in Thanawalla (n 21) 430.Google Scholar

³⁴ This presumption is, however, rebuttable by proof of want of jurisdiction, fraud, breach of natural justice, a law in force in Tanzania or international law and the fact that the judgment was not given on the merits. See ss 11 and 12 of the Civil Procedure Code 1966.Google Scholar

³⁵ Ch 8 of the Revised Laws of Tanzania.

³⁶ GN Nos 8 and 9 of 1936.Google Scholar

³⁷ GN No 15 of 1936.Google Scholar

³⁸ The Reciprocal Enforcement of Foreign Judgments Order list named courts in the following countries in its schedule Lesotho, Botswana, Mauritius, New South Wales, Zambia, Seychelles, Somalia, Zimbabwe, Kingdom of Swaziland, and the United Kingdom.

³⁹ The Reciprocal Enforcement of Foreign Judgment Rules, GN No 15 of 1936, s 3(1).Google Scholar

⁴⁰ The Reciprocal Enforcement of Foreign Judgment Act, 1935, s 4(1) (a).

⁴¹ ibid s 4 (1) (b).

⁴² Reciprocal Rules (n 39) s 10(1).

⁴³ Enforcement Act (n 40) s 6(1) (a) (i–vi).

⁴⁴ Yankson v Mensah [1976] 1 GLR 355Google Scholar; Republic v Mallet, Ex Porte Braun [1975] 1 GLR 68.Google Scholar

⁴⁵ Constitutional Instalment 47 of 2004.

⁴⁶ Foreign Judgments Extension Ordinance 1907, No 4.

⁴⁷ Section 81(1) of Act 459.

⁴⁸ Section 87 of Act 459.

⁴⁹ Section 81 of Act 459.

⁵⁰ Section 82 of Act 459.

⁵¹ Section 82(7) of Act 459.

⁵² Manners v Pearson [1898] 1 Ch 581.Google Scholar

⁵³ Miliangos v George Frank (Textiles) Ltd [1976] AC 443.Google Scholar

⁵⁴ Royal Dutch Airlines (KLM) v Farmex Ltd [1989–1990] 1 GLR 46Google Scholar; Bannermah, RE ‘Award of Damages in Foreign Currency: A critical look at the Judgments’ [1993–1995] 19 Rev of Ghana L 231.Google Scholar

⁵⁵ Section 81(l)(a) of Act 459.

⁵⁶ Section 81(l)(b) of Act 459.

⁵⁷ For alternative solutions see Wolff, MPrivate International Law (Clarendon Press Oxford 1962) 263Google Scholar, Showlag v Mansour [1995] 1 AC 431 and s 34(4) of the Brussels I Regulation.Google Scholar

⁵⁸ For a discussion of the regimes in other African Countries see Schulze (n 3); Louis, Garb and Julian, Lew (eds) Enforcement of Foreign Judgments (Looseleaf) (Kluwer Law International 2002)Google Scholar; Weems, Philip R (eds) Enforcement of Foreign Judgments Abroad (Looseleaf) (Mattew Bender New York 1993).Google Scholar

⁵⁹ Patchett, KWRecognition and Enforcement of Commercial Judgments and Awards in the Commonwealth, (Butterworths London 1984)Google Scholar; Read, HERecognition and Enforcement of Foreign Judgments in the Common Law Units of the British Commonwealth (Harvard University Press Cambridge 1938).Google Scholar

⁶⁰ Compare the approach adopted in the Brussels I Regulation, which provide for automatic enforcement with little procedural obstacles and narrowly defined grounds for non-recognition. Cheshire and North (n 5) 481.Google Scholar

⁶¹ An interesting contrast is the approach adopted in Ethiopia, Egypt and Tunisia, which entrusts the reciprocity assessment to the judiciary. See Art 457 of the Ethiopian Civil Procedure Code 1965, Art 296 of the Egyptian Civil and Commercial Procedure 1968 and Art 319 of the Tunisian Code of Civil and Commercial Procedure. Also, Teshale, S ‘Reciprocity with respect to Enforcement of Foreign Judgments in Ethiopia: A critique of the Supreme Court's Decision in the Paulos Papassinous Case’ (2000) 12 African J Intl Comparative L 569.Google Scholar

⁶² U U Chukwumaeze ‘Enforcement of Foreign Judgment in Nigeria: A Clog on the Wheel of Globalisation’ 2004 Nigerian Journal of Legal Studies 1.

⁶³ Compare the rule in Australia and New Zealand, where the judgment creditor is given the option to state in his application whether he wishes the judgment to be registered in the currency of the original judgment: section 6(11)(a) of the Foreign Judgment Act 1991 (Cth) of Australia, s 4(3) of the Reciprocal Enforcement of Judgments Act, 1934 of New Zealand.

⁶⁴ Schulze, C ‘Forum non-Conveniens in Comparative Private International Law’ (2001) 118 S African L J 812, 827–828Google Scholar; Forsyth, (n 3) 173–176.Google Scholar

⁶⁵ Forsyth, (n 3) 298.Google ScholarSee also George, Nnona ‘Choice of Law in International Contracts for the Transfer of Technology: A Critique of the Nigerian Approach’ (2000) 44 J of African L 78.Google Scholar

⁶⁶ Forsyth, (n 3) 325–327.Google Scholar

⁶⁷ Kiggundu, (n 3) 281–283Google Scholar; Agbede, (n 3) 159–74Google Scholar; Signal Oil and Gas Co v Bristow Helicopters [1974] 1 GLR 371Google Scholar; Private International Law (Miscellaneous Provisions) Act 1995 of UK; Tolofson v Jensen [1994] 3 SCR 1022, 120 DLR [4th] 289Google Scholar; Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491.Google Scholar

⁶⁸ AEC Treaty (n 7) Art 4(2)(1).

⁶⁹ Ovrawah, A ‘Harmonisation of Laws with the Economic Community of West African States (ECOWAS)’ (1994) 6 African J Intl Comparative L 76.Google Scholar

⁷⁰ AEC Treaty (n 7) Art 4(2)(h).

⁷¹ Tebbens, HD ‘Private International Law and the Single European Market: Coexistence or Cohabitation’ in Forty Years on: The Evolution of Postwar Private International Law in Europe (Kluwer Deventer 1990) 62.Google Scholar

⁷² AEC Treaty (n 7) Art 77.

⁷³ The wisdom of such a mandate is revealed by the speed with which a European private international law is emerging after the Community was specifically mandated by Article 65 of the Treaty of Amsterdam to legislate in the area of private international law. Article 65 provides that measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 and insofar as necessary for the proper functioning of the internal market shall include: (a) improving and simplifying … the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases, and, (b) promoting the compatibility of the rules applicable in Member States concerning conflict of laws and of jurisdiction. Article 65 must be read together with Article 61(c), 95 and 67. The literature on this article is vast see generally, Andrew, Dickinson ‘European Private International Law: Embracing New Horizons or Mourning the Past’ (2005) 1:2 J Private Intl L 197Google Scholar; Katharina, Boele-Woelki and Van Ooik, Ronald H ‘The Communitarization of Private International Law’ (2002) 4 Yearbook of Private Intl L 1, 11–24Google Scholar; Jürgen, Basedow ‘The Communitarization of the Conflict of Laws under the Treaty of Amsterdam’ (2000) 37 CML Rev 687Google Scholar; Jona, Israel ‘Conflicts of Law and the EC after Amsterdam: A Change for the Worse?’ (2000) 7 Maastricht J of European and Comparative L 81Google Scholar; Ulrich, Drobnig ‘European Private International Law after the Treaty of Amsterdam: Perspectives for the next Decade’ (2000) 11 Kings College L J 190Google Scholar; Jurgen, Basedow ‘European Conflict of Laws under the Treaty of Amsterdam’ in Borchers, Patrick J and Joachim, Zekoll (eds) International Conflict of Laws for the Third Millennium, Essays in Honour of Friedrich K Juenger (Transnational Publishers New York 2000) 175.Google Scholar For examples of legislation adopted or proposed under the mandate of this Article 65 see eg Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matter EC Regulation No 44/2001(Brussels I Regulation); Council Regulation EC Regulation No 1346/2000 of 29 May 2000 on Insolvency Proceedings; Council Regulation (EC) No 2201/2003 of 23 November 2003 Concerning jurisdiction and the Recognition and Enforcement of judgments in Matrimonial matters and the matters of Parental Responsibility, repealing Regulation (EC) 1347/2000; Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Contractual Obligations (Rome I) COM(2005) 650 final; Proposal for Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations (Rome II) COM (2003) 427 final amended proposal COM(2006) 83 final; Green Paper on Wills and Succession. COM (2005) 65 final and generally Marie-Odile, Baur ‘Projects of the European Community in the Field of Private International Law’ (2003) 5 Yearbook of Private Intl L 177.Google Scholar The European experience with to the subject, the adopted Regulations, other regional experiences and international conventions offer a great body of knowledge that the African Economic Community can rely on in trying to develop the subject for the AEC.

⁷⁴ Art 7(3)(b) of the Protocol on the Relationship between the African Economic Community and the Regional Economic Communities: reprinted in (1998) 10 African J Intl Comparative L 157.Google Scholar

⁷⁵ Peter, Hay et al. ‘Conflict of Laws as a Technique for Legal Integration’ in Cappelliti, M et al. (eds) Integration through Law Europe and the American Experience Vol 1(2) (Walter de Gruyter Berlin New York 1989) 168.Google Scholar

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⁷⁷ Section 32 of the Matrimonial Causes Act 1971 and s 17 of the Wills Act 1971 of Ghana.

⁷⁸ Prosser, WL ‘Interstate Publication’ (1952–1953) 51 Michigan L Rev 959, 971Google Scholar, but see Peter, North ‘Private International Law: Change or Decay’ (2001) 50 ICLQ 477Google Scholar and Christopher, Forsyth ‘The Eclipse of the Private International Law Principle? The Judicial Process, Interpretation and the Dominance of Legislation in the Modern Era’ (2005) 1:1 J Private Intl L 93.Google Scholar

⁷⁹ <http://www.ohadalegis.com/anglais/presohadagb.htm>.

⁸⁰ Preamble to the Treaty <http://www.ohadalegis.com/anglais/presohadagb.htm> on the Harmonisation of Business Law in Africa.

⁸¹ Article 1 of the Treaty on the Harmonisation of Business Law in Africa.

⁸² See Martor, B et al. Business Law in Africa, OHADA and the Harmonization Process (Kogan Page UK 2002)Google Scholar; Dickerson, Claire Moore ‘Harmonising Business Laws in Africa: OHADA case Calls the Tune’ (2005) 44 Columbia J Transnational L 17.Google Scholar

⁸³ Hartnell, Helen Elizabeth ‘The New New International Economic Order: Private International Law’ (1993) 87 American Society Intl L Proceedings 462.Google Scholar

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⁸⁵ Derby, (n 6) 67.Google Scholar

⁸⁶ Goode, R ‘Rule, Practice and Pragmatism in Transnational Commercial Law’ (2005) ICLQ 539, 541.Google Scholar

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⁸⁸ ibid 71. With respect to OHADA it is envisaged that the existence of the Common Court of Justice and Arbitration will fulfil this role of ensuring uniformity in interpretation. See Article 14 of the Treaty on the Harmonisation of Business Law in Africa.

⁸⁹ Hay, (n 75) 169.Google Scholar

⁹⁰ AEC Treaty (n 7) Art 18.

⁹¹ <http://general.rau.ac.za/law/English/ipr/ipr.htm>.

⁹² <http://hcch.e-vision.n1/index_en.php?act=states.listing> In 2004 Zambia was admitted to the Conference but is yet to accept the Statute of the Conference. Until then it can attend proceedings of the Conference as an observer. Some African countries appear content with signing on to Hague Conventions they did not help negotiate. Excluding the three Member States, 14 African countries (Niger, Burundi, Botswana, Lesotho, Guinea, Mauritius, Swaziland, Liberia, Malawi, Mali, Namibia, Seychelles, Burkina Faso, and Zimbabwe) have signed on to various Hague Conventions. See Information Concerning the Hague Conventions on Private International Law (2005) 52 Netherlands Intl L Rev 249–82.Google Scholar

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