africa hague ypil final

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Yearbook of Private International Law, Volume 8 (2006), pp. 189-212 Sellier. European Law Publishers & Swiss Institute of Comparative Law

Printed in Germany

THE HAGUE CONFERENCE ANDTHE DEVELOPMENT OF

PRIVATE INTERNATIONAL LAW IN AFRICA:

A PLEA FOR COOPERATION

Richard FrimpongOPPONG

I. Private International Law and Africa: An Introduction

II. Africa and the Hague Conference: Membership, Ratifications and Involvement

III. Africa and the Hague Conference: A Future of Cooperation

IV. Conclusion

Every doctrine goes to The Hague. And after they go back to their origins they arenever the same. They come back fertilized by the dialogue that took place at the

Conference. (A. Boggiano)

I. Private International Law and Africa:

An Introduction

Perhaps, there is no task more difficult and challenging than that of convincing

African governments that the development of the arcane subject of private interna-tional law should be an essential part of national and continental development.Labouring under the scourge of civil wars, famine, AIDS and excruciating poverty,private international law is, sadly, very low on the politicians priority list; privateinternational law issues are not vote-winning issues! But even a cursory examina-tion of what the subject deals with reveals its importance. Private international lawdeals with matters within the national legal system involving a foreign element.This foreign element can be an act done in another country or the law of anotherlegal system chosen by the parties. The status of the subject in a state is a functionof the degree to which that state is connected with the outside world. We live in aconstantly moving and interdependent world; people, goods, capital, and servicesare constantly moving between states. These movements, which private interna-

LLB. BL. (Ghana), LL.M (Cantab), LL.M (Harvard), PhD Candidate at the Uni-

versity of British Columbia. The writer, who is assessing private international law issues inAfrica, thanks the Graduate Program at the Faculty of Law, U.B.C. for providing the sup-

port and environment that made this work possible. Contact: [email protected].


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Richard Frimpong Oppong

Yearbook of Private International Law, Volume 8 (2006)190

tional law plays a key part in regulating,1 propel national development. Thus, anynation that seeks to benefit from these movements would do well to pay attentionto its private international law regime.

Private international law performs useful functions for states and individu-als transacting across national boundaries. Persons transacting across nationalboundaries will like to be sure that the law chosen to govern their legal transactionswill be respected in all jurisdictions; that courts will not assume jurisdiction wherethey have contracted to exclude it or on grounds which are uncertain; that irrespec-tive of where litigation takes place, they will have access to efficient and effectivemeans of serving documents and gathering evidence unrestrained by the fact ofwhere that needs to be done; and that a judgment obtained in any resulting litiga-tion will be recognised and enforced in other national courts outside the court

where the judgment was given. Ensuring stability and certainty in internationallegal relationships is a key object of private international law.

The subject aims at ensuring effective protection for cross-border legal re-lationships. A properly operative system of private international law also facilitatesinternational commerce, which is a prerequisite for development. As Justice LaForest once noted the rules of private international law are grounded in the need inmodern times to facilitate the flow of wealth, skills and people across state lines. 2Substantively, private international law ensures that the appropriate law governsthe legal relationship between the parties. The idea is that litigation before a courtneed not necessarily be governed by the lex fori. In appropriate cases, the interestof justice is best served by applying the law chosen by the parties or that to whichthe transaction is most closely connected. Also, in some instances, a court mayhave to decline jurisdiction in favour of another forum if such a decision will betterserve the cause of justice. Procedurally, the subject provides rules for ensuring thatthe mere absence of a defendant or relevant evidence from the forum of the litiga-tion does not defeat the cause of justice. The rules for the service of documents,and the taking of evidence abroad, are meant to facilitate this.

As a discipline with both national and international dimensions, private in-ternational law provides a barometer for measuring the confidence individualstransacting across national boundaries have in the legal systems of the countriesengaged. For example, choice-of-forum and choice-of-law clauses in commercialcontracts provide an indication of the perception of individuals as to the adequacyof a national legal system to provide solutions to legal problems anticipated undertheir contract. The more frequently parties try to contract out of the legal system ofa particular state, the greater the need to assess the adequacy of the national legalsystem to provide efficient and effective rules to regulate the transactions involved.

1 See generally WAI R., Transnational Liftoff and Juridical Touchdown: TheRegulatory Function of Private International Law in an Era of Globalisation, in: Columbia Journal Transnational Law 2001-2002, p. 209-274; MUIR-WATT H., Integration and Di-versity: The Conflict of Laws as a Regulatory Tool, in: The Institutional Framework ofEuropean Private Law (CAFAGGI F. ed.), Oxford 2006, p. 107-148.

2Morguard Investments v. De Savoye, [1990] 3 S.C.R. 1077-1096, S.C.


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for citizens of the European Union, as well as other economic actors, transacting orlitigating in the internal market by subjecting them to a uniform and certain legalregime. Harmonization boosts certainty in the law, reducing transaction and litiga-tion cost for economic actors.

All these should serve to situate the subject at the heart of both national andcontinental development, especially in cases where, as noted above, some degreeof integration at the continental level is envisaged. However, in Africa, privateinternational law has received little attention, both at the national and continentallevel. African states have not attempted to position the development of the subjectas a key component of the national legal infrastructure, and the various initiativesaimed at integrating the economies of Africa have not addressed the role of thesubject in those processes. Indeed, none of the over fourteen (14) regional eco-

nomic communities in Africa has private international law on its agenda. 7 Also,ignoring bilateral agreements for the recognition and enforcement of judgments,there does not exist an African states negotiated international convention on anyaspect of the subject. This state of affairs has partly been made possible by theacademic disinterest in the subject in Africa. Writing on South Africa, perhaps theonly country in Africa where the subject receives some systematic attention, Leonobserved twenty years ago: Conflict of laws is not a subject which commandsgreat attention amongst South African lawyers. Indeed it occupies a modest part ofthe average university curriculum and is, as an academic subject, something of anunknown quantity to the older generation of practising lawyers.8 Professor Forsythhas also observed recently that private international law in Africa is the Cinderellasubject seldom studied [and] little understood.9

Developing private international law in Africa will demand both national ef-forts and international engagement. At the national level, there is the need to codifysome of the rules of the subject into legislation after careful consultation and anassessment of the adequacy of the rules to meet present challenges.10 South Africa

7 Article 126 of the Treaty of the East African Community which enjoins memberstates to encourage the standardisation of judgments of courts within the Community, andharmonise all their national laws appertaining to the Community, may broadly be inter-

preted to encompass issues of private international law. The author is however not aware ofany initiative taken under these articles of significance for private international law.

8 LEON P.S.G., Roma non locuta est.: the Recognition and Enforcement of ForeignJudgments in South Africa, in: Comparative and International Law Journal of SouthernAfrica (C.I.L.S.A.) 1983, p. 325-349.

9 FORSYTH C.F., Private International Law, Cape Town 2003, p. 43.10 On the increasing role of legislation in private international law, see generally

NORTH P., Private International Law: Change or Decay, in: I.C.L.Q. 2001, p. 477-508;FORSYTH C.F., The Eclipse of the Private International Law Principle? The Judicial Proc-ess, Interpretation and the Dominance of Legislation in the Modern Era, in: Journal ofPrivate International Law (J. Priv. Intl. L.) 2005, p. 93-113.


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Private International Law and Africa

Yearbook of Private International Law, Volume 8 (2006) 193

is embarking on this in some aspects of the subject.11 Existing international conven-tions on the subject could serve as a useful basis for some of the contemplatedlegislation.12 National legislative efforts are an important complement to judicialdecisions, which although historically at the forefront of the development and re-form of the subject13 suffer from the inherent limitation of having to wait until thereis a case exposing inappropriateness of a pre-existing rule. The danger with na-tional development of private international law without international engagement isthe possibility of prioritising national interest and ignoring the international dimen-sions of private international law problems.14 This is the reason why internationalengagement should be an essential complement to national initiatives. This paperdiscusses how Africas engagement with one international forum, the Hague Con-ference on Private International Law (the Conference), can assist in the develop-

ment of the subject at both the national and the continental levels.

II. Africa and the Hague Conference: Membership,

Ratifications and Involvement

The Hague Conference on Private International Law is the principal internationalbody, which aims at the progressive unification of the rules of private internationallaw.15 It also promotes cross-border cooperation among national judicial and ad-ministrative bodies especially in the areas of international civil procedure. TheConference began its life in 1893 when the first Conference was organised.16 In1951, the work of the Conference was put on sound institutional footing with theadoption of the Statute of The Hague Conference on Private International Law.The Statute entered into force on 15 July 1955. The Conference has dealt with a

11 See e.g. South African Law Reform Commission, Consolidated Legislation Relat-ing to International Cooperation in Civil Matters, Paper 106, Project 121 (2004).

12 See generally SIEHR K., National Private International Law and International In-struments in:Reform and Development of Private International Law: Essays in Honour ofSir Peter North (FAWCETT J. ed.), Oxford 2002, p. 335-347.

13 See BLOM J., Reform of Private International Law by Judges: Canada as a CaseStudy, in:Essays in Honour of Sir Peter North (note 12), p. 31-49.

14 MCLACHLAN C., Reforming New Zealands Conflicts Process: The Case forInternationalism, in: Victoria University of Wellington Law Review 1984, p. 443-462.

15 The are other international and regional organisations such as the United NationsCommission on International Trade Law (UNCITRAL), the European Union and the Or-ganization of American States that also do some work in the area as part of their principalfunctions or goals.

16 See generally LIPSTEIN K., One Hundred Years of the Hague Conference on Pri-vate International Law, in:I.C.L.Q. 1993, p. 553-653.


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wide range of subjects including family law, succession, tort, contract, civil proce-dure, trust, and securities. Between 1955 and 2006, the Conference has adoptedover 30 conventions. The work of the Conference continues to shape the develop-ment of the subject in various jurisdictions.17 In common law jurisdictions, it hasinfluenced the gradual introduction of legislation on various aspects of the subject,and the reception of concepts like habitual residence as a connecting factor.18 InLatin America, the gradual reception of the principle of party autonomy in con-tracts has been attributed partly to the influence of the work of the Hague Con-ference.19

The approach adopted by the Conference in its conventions does not requirethe unification of the substantive laws of states. It allows for diversity in substan-tive laws while providing uniform rules on choice-of-law, jurisdiction, the recog-

nition and enforcement of judgments and international civil procedure. The Con-ferences approach of unifying private international law rules whilst leaving thesubstantive laws diverse has its merits.20 It entails only a minimal disturbance innational legal systems. Rules of private international law address themselves toonly matters involving foreign elements. That is not so with substantive law. Thus,the Conferences approach should appeal to the politician with an eye on preserv-ing his/her countrys unique or perceived superior legal system or legal tradition.Also the process could be much simpler; a whole branch of substantive law may becovered by a few choice-of-law clauses.

There are currently 65 states that are members of the Conference. Themembership spans all the regions of the world, and covers all the notable legaltraditions: civil law, the common law and socialist legal tradition.

Africas engagement with the work of the Conference has been both directand indirect, albeit minimal. Currently, of the 53 African states only 3 are membersof the Conference.21 They are Morocco, Egypt, and South Africa. Compared withmembership from other regions, Africa is highly under-represented. Membership

17 See generally The Hague Conference on Private International Law 1893-1993,in:Netherlands International Law Review (N.I.L.R.) 1993, p. 1-142.

18 MCCLEAN J.D., The Contribution of the Hague Conference to the Developmentof Private International Law in Common Law Countries, in:Recueil des Cours 1992, p. 267at 281-283; NORTH P.M., Hague Conventions and Reform of English Conflict of Laws, in:Dalhousie Law Journal 1981, p. 417-448.

19 BOGGIANO A., The Contribution of the Hague Conference to the Development ofPrivate International Law in Latin America, in: Recueil des Cours 1992, p. 99 at 132-136.But see STRINGER D., Choice of Law and Choice of Forum in Brazilian InternationalCommercial Contracts: Party Autonomy, International Jurisdiction and the Emerging ThirdWay, in: Columbia Journal of Transnational Law 2006, p. 959-991.

20 HAY P./LANDO O./ROTUNDA R.D., Conflict of Laws as a Technique for LegalIntegration in: Integration through Law Europe and the American Experience Vol. 1(2)(CAPPELLETTI M./SECCOMBE M./WEILERJ.) Berlin, New York 1989, p. 161-169.

21 In 2004, Zambia was admitted to the Conference but is yet to accept the statute ofthe Conference. Until then it can attend proceedings of the Conference as an observer.


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of the Conference is not a condition for becoming a party to its conventions. How-ever, the absence of African participation in the negotiation process may lead tosituations where the interests of Africa are not fully accounted for during the nego-tiating process. Currently, there are 18 African countries that are party to variousconventions of the Conference.22 The Appendix to this paper provides a list of thesecountries and the relevant conventions.

There are inherent problems with a state becoming party to a convention it played no part in negotiating. Because domestic political processes such as con-sultation with parliament were absent during the negotiation, there may be diffi-culties with implementation. There will be no sense of domestic ownership of theconvention. Parliamentary approval or domestic implementing legislation may alsobe less forthcoming due to the absence of an engagement with the domestic politi-

cal processes during the negotiation of the convention. This may be especially so indualist countries where national legislative measures are needed for the conventionto have domestic effect. In other words, the absence of engagement in the negoti-ating process creates obstacles to domestic implementation of conventions. Evenmore important, the opportunity to influence the content of conventions is bestavailable when one is present at the table during negotiations. Once negotiationsare concluded, and excluding the possibility of reservations, a state is faced with atake it or leave it scenario.

Aside from directly participating in the work of the Conference, it can besafely assumed that some African countries, especially Commonwealth Africa, areindirectly involved in the work of the Conference through the Commonwealth.Indeed, of the 18 African countries that have signed, ratified or acceded to at leastone convention of the Conference, 9 are members of the Commonwealth.23 TheCommonwealth has a long tradition of co-operation with the Conference.24 It regu-larly takes part in the negotiation of conventions, review meetings concerningexisting conventions and meetings on the general affairs and policy of the Confer-ence. This has ensured the presence at The Hague of those Commonwealth mem-bers that are not yet members of the Conference.25

22 This covers signatures, accessions and ratifications. Signing means a state ex-presses, in principle, its intention to become party to the Convention. The signature does not,in any way, oblige the state to take further action such as for example to ratify the conven-tion once it is in force. Ratification imposes a legal obligation on the ratifying state to applythe Convention. The term is ordinarily reserved for member states. Accession is usually

reserved for non-members, and occurs only after the relevant convention enters into force.23 South Africa, Botswana, Lesotho, Malawi, Mauritius, Namibia, Seychelles,Swaziland, Zimbabwe (former member).

24 VAN LOON H., Legal Developments The Hague Conference on Private Interna-tional Law, in: Commonwealth Law Bulletin 2004, p. 598-605.

25 VAN LOON H. (note 24), p. 598.


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The Permanent Bureau of the Conference also maintains close links26 withthe Asian-African Legal Consultative Organization (formerly Asian-African LegalConsultative Committee).27 Currently there are fifteen African states that are mem-bers of the Organization.28 Although the link between the two institutions appearsso far not formalised as, for example, into cooperation agreement or memorandumof understanding, its existence even on an informal level is important. It providesan opportunity for the sharing of jurisprudence and for the African membership ofthe Organization to participate in the work of the Conference. Indeed, the work ofthe Organization on the service of process and taking of evidence,29 which pro-moted bilateral initiatives in this regard, was heavily influenced by similar work ofthe Conference in that area. Aside this Organization, the Conference also co-operates with the United Nations Commission on International Trade Law, which

has a large African membership.The work of the Conference also indirectly influences African countries

through national legislation based on similar legislation implementing a Hagueconvention in other jurisdictions. The legislative draftsman looks to precedentsfrom other jurisdictions in his work. Thus, the draftsman may occasionally draw onlegislation that implements a Hague convention in other states. For example, anexamination of section 15, 16 and 17 of the Wills Act of Ghana30 and section 22(4)of the Wills Act of Zimbabwe31 reveals that apart from insignificant changes inwording, they appear to be wholly based on the Wills Act of the U.K. 32 whichimplements the Hague Convention on the Conflict of Laws relating to the Form ofTestamentary Dispositions. These provisions significantly expanded the number ofsystems of law that can govern the validity of the execution of a will. They providegreater detail and coverage than comparable legislation in other countries. 33 It willbe difficult to determine the extent to which this channel of influence operates inAfrica, partly because the draftsman seldom refers to the true source of his draft!However, the presence of this influence cannot be denied.34 There is a disadvantage

26 MCCLEAN J.D. (note 18), p. 285.27 < http://www.aalco.org/>.28 Arab Republic of Egypt, Botswana, Gambia, Ghana, Kenya, Libya, Mauritius,

Nigeria, Senegal, Sierra Leone, Somalia, South Africa, Sudan, Tanzania, Uganda.29 See Model for Bilateral Arrangements on Mutual Assistance for the Service of

Process and the Taking of Evidence Abroad in Civil and Commercial Matters, at.

30 Wills Act, 1971 (Act 360).

31 Wills Act [Chapter 6: 06] Act 13 of 1987.32 Wills Act 1963 (UK) C. 44. See TSIKATA F. S., The Wills Act 1971 (Act 360) in:

Review of Ghana Law 1972 p. 5-16 where he notes that the Ghanaian Act reproduces, withslight verbal modifications the English Act enacted to bring English law in line with theHague Convention of the Form of Testamentary Dispositions.

33 See e.g. section 16 of Law of Succession Act Chapter 160 of Kenya.34 A more careful study in this regard is recommended as a research agenda.


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with this approach, which is not very evident with the testamentary convention, butbecomes very evident when one examines those conventions that establish definitemechanisms such as a central authority for the national implementation of therules. Although a state may adopt the rules of such a convention, it will lose thebenefit of the implementing mechanism established by the convention, and in usein states that are party to the convention.

Aside from the participation of states in the work of the Conference, it isalso important to examine the degree of African academic or intellectual involve-ment in the work of the Conference. None of the African textbooks on privateinternational law devotes any significant attention to the work of the Hague Con-ference and its significance for Africa.35 I was also unable to find any major articlein any of the leading African law journals36 on the work of the Conference and

Africa. This neglect of the work of the Conference in African writings is recipro-cated by an equal absence of perspectives from Africa in academic works thatroutinely report and analyse the works of the Conference. For example, an exami-nation of the Recueil des Cours,37 which regularly contains courses on privateinternational law and the work of the Conference, between 1983-2006 reveals onlyone course devoted specifically to a private international law issue in Africa.38Similarly, of the 7 volumes of this Yearbook(1999-2005), which devotes attentionto the important work and research carried out by the Conference, only the 2005volume contains material on Africa, in this case South Africa.39 African academics

35 See e.g. FORSYTH C.F. (note 9); KIGGUNDU J., Private International Law inBotswana, Cases and Materials, Gaborone 2002; AGBEDE I.O., Themes on Conflict of Laws,Lagos 1989. As part of his chapter on the history and theory on private international law,Professor Forsyth discusses at p. 49-51 the role of the Conference in the unification of pri-vate international law. See also YAKUBU J. A., Harmonisation of Laws in Africa, Ibadan1999, p. 45-50 where he provides a descriptive account of the workings of the Conference

but in no way relates it to Africa.36 See e.g. Journal of African Law, and African Journal of International and

Comparative Law.In 1997 the Journal of African Law (Vol 41, p. 150) in its InternationalDevelopments section published a list of Hague Conventions to which African states are

party. The Comparative and International Law Journal of Southern Africa, however, con-tains articles on the Child Abduction Convention. See e.g. LABUSCHAGNE J.M.T., Interna-tional Parental Abduction: Remarks on the Overriding Status of the Best Interest of theChild in International Law, in: C.I.L.S.A. 2000, p. 333-347; BATES F., Child Abduction,the Hague Convention and Australian Law-A Specific Overview, in: C.I.L.S.A. 1999, p. 72-97; NICHOLSON C.M.A., The Hague Convention on the Civil Aspects of International ChildAbduction-Pill or Placebo?, in: C.I.L.S.A. 1999, p. 228-246.

37 They are published by The Hague Academy of International Law.38 UCHE U.U., Conflicts of Laws in a Multi-ethnic Setting: Lessons from Anglo-

phone Africa, in:Recueil des Cours 1991, p. 273-438.39 NEELS J.L., Private International Law of Succession in South Africa, in: this

Yearbook2005, p. 183-203. Significantly, the foreword to vol. VII-2005 of this YearbookbyProfessors A. Bonomi and P. Volken notes this article as a first step towards filling this


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have a crucial role to play in any future cooperation between the Conference andthe continent. There is need for a more careful study of the work of the Confer-ence, and an exploration of how Africa may potentially benefit from it. Books andjournals are important forums for this study and for the articulation of interests. Itis hoped that this paper will inspire study and discussion among African academicsand within the corridors of government. It is further hoped that as similarly pur-posed writings elsewhere did,40 this paper will encourage African governments toreconsider their relationship with the Conference.

III. Africa and the Hague Conference: A Future ofCooperation

There is need for increased cooperation between the Conference and Africa. Thechannels for cooperation are many, and can be mutually beneficial. African coun-tries have for long battled with the complex issues involving internal conflict oflaws. Their unique and diverse solutions to the domestic problems arising there-under can shed some light on private international law issues, and may assist in theinternational development of conflict rules.41 A study of these internal conflict oflaws solutions reveals that conflict of laws is not merely a conflict among laws, butalso a battle for supremacy among ideals, values, and belief all encapsulated inlaw.42 As Bennett has noted internal conflict of laws reflects a profound socialfact.43 This suggests that the resolution of conflict of laws problems, especially inareas of family law, has both procedural and substantive dimensions. In privateinternational law, this substantive dimension is often left unarticulated. By havingregard to these African approaches to internal conflict of laws, the substantive

lacuna which saw an entire most promising continent, Africa absent up to that time fromthis Yearbook.

40 See KUHN A.K., Should Great Britain and the United States be Represented at theHague Conference on Private International Law?, in: American Journal of InternationalLaw 1913, p. 774-780; CASTEL J-G., Canada and the Hague Conference on Private Interna-tional Law: 1893-1967, in: Canadian Bar Review 1967, p.1-34; MCLACHLAN C., (note 14).United Kingdom (1955), United States of America (1964), Canada (1968) and New Zealand(2002) subsequently became members of the Conference.

41 See generally TIERA.M., Conflict of Laws and Legal Pluralism in the Sudan, in:I.C.L.Q. 1990, p. 611-640; BENNETT T.W., Conflict of Laws The Application of Custom-ary Law and the Common Law in Zimbabwe, in: I.C.L.Q 1981, p. 59-103; SANDERSA.J.G.M. (ed.), The Internal Conflict of Law in South Africa, Durban 1990.

42 In the private international law realm reference can be made in this context to thechanging attitude of the common law towards polygamous marriages and the role of public

policy in resolving private international law issues.43 BENNETT T.W. (note 41), p. 61.


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aspects of private international law may be brought to the fore. On the other hand,the experience of the Conference with private international law dates back to the19th century. Its international character, its methods, and the presence of diverselegal traditions can become an important source of knowledge for the developmentof the subject in Africa.

The Hague conventions and methods of the Conference could serve as amodel for the development of African conventions on private international law.44The method of the Conference is not to attempt a codification of all the subjects ofprivate international law, but rather to provide relevant rules for specific problem-atic areas. Currently, there is no African convention on any aspect of the subject.There is an urgent need for such conventions in Africa. Regional initiatives in thearea of private international law need not necessarily be seen as a challenge to the

international unification efforts of the Conference.45 Although all members of theEuropean Union and some Latin American countries are members of the Confer-ence, there are still regional efforts in the area of private international law in bothregions. The Organization of American States, through its Inter-American Spe-cialized Conferences on Private International Law, has supervised the negotiationand adoption of over twenty (20) conventions on the subject by its members. 46These conventions cover various aspects of the subject including, the recognitionand enforcement of judgment and choice-of-law in contract.47 Recent Conferencetopics have focused on the free trade agenda of the region. 48 Indeed, the history ofcooperation in the field of private international law in the Americas dates back tothe 19th century.49 As early as 1928 the Pan-America Code on Private International

44

BOGGIANO A. (note 19), p. 118.45 See generally VAN LOON H., Global and Regional Co-operation in the Field of

Private International Law: A Challenge for the Hague Conference, in:Japanese Yearbookof Private International Law (Japanese Y.P.I.L.) 2005, p. 2-19; VAN LOON H, A Perspec-tive from the Hague Conference in: Foundations and Perspectives of International TradeLaw (FLETCHERI./MISTELIS L./CREMONA M. eds.), London 2001, 67-72.

46 See generally JUENGER F., The Inter-American Convention on the Law Applica- ble to International Contracts: Some Highlights and Comparisons, in: Am. J. Comp. L.1994, p. 381-393; GARRO A., Unification and Harmonization of Private Law in LatinAmerica, in: Am. J. Comp. L. 1992, p. 587-616; AMADO J.D., Recognition and Enfor-cement of Judgment in Latin American Countries: An Overview and Update, in: Virginia Journal of International Law, 1990/1991, p. 99-124; CASTRO L.P., Some Aspects Con-cerning the Movement for Development of Private International Law in the Americasthrough Multilateral Conventions, in:N.I.L.R. 1992, p. 243-266.

47 See Inter-American Convention on the Law Applicable to International Contracts(1994) and the Inter-American Convention on Jurisdiction in the International Sphere for theExtra Territorial Validity of Foreign Judgments (1984).

48 FERNNDEZ ARROYO D.P./KLEINHEISTERKAMP J., The VIth Inter-AmericanSpecialized Conference on Private International Law (CIDIP VI): A New Step TowardsInter-American Legal Integration, in: this Yearbook2002, p. 237-254.

49 GARRO A.M. (note 46), p. 587-589.


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Law better known as the Bustamante Code, often hailed as the first world attemptat the unification of private international law rules,50 had been adopted. Similarly,the European Union, after the coming into force of the Treaty of Amsterdam,51 iswitnessing an impressive and continuous rhythm in the creation of a Europeansystem of private international law.52 The fields of judgment enforcement and juris-diction,53 contract,54 non-contractual obligations,55 insolvency56 family law57 willsand succession58 and more59 have all been touched. These pose significant chal-lenges but offer great opportunities too to the Conference.60

With regional initiative operating side by side with international efforts,there is the danger of having too many cooks61 at the table, and the possibility ofconflicting norms or solutions. However, regional initiatives are important espe-cially as not all matters may be of interest or get treated with the same degree of

urgency at the international level. Negotiations at the international level can also beprotracted. Regional initiatives can, indeed, become an important avenue for theprogressive unification of private international law. It is in this regard that I ad-vocate an input from the Conference in the development of regional conventions in

50 GARRO A.M. (note 46), p. 587-592.51 Article 65 of the Treaty grants the Community competence in the field of private

international law. Article 65 must be read together with Article 61(c), 95 and 67. For com-ments on this article, see generally, DICKINSON A., European Private International Law:Embracing New Horizons or Mourning the Past, in: J. Priv. Intl. L. 2005, p. 197-236;BOELE-WOELKI K./VAN OOIKR. H. The Communitarization of Private International Law,in: this Yearbook2002, p. 1-36.

52 Foreword of this Yearbook2002, by P. arevi and P. Volken.53 Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in

Civil and Commercial Matter EC Regulation No. 44/2001(Brussels I Regulation), EuropeanEnforcement Order for Uncontested Claims (EC Regulation No. 805/2004).

54 Proposal for a Regulation of the European Parliament and the Council on the LawApplicable to Contractual Obligations (Rome I) COM (2005) 650 final.

55 Proposal for Regulation of the European Parliament and the Council on the LawApplicable to Non-Contractual Obligations (Rome II) COM (2003) 427 final.

56 Council Regulation EC Regulation No. 1346/2000 of 29 May 2000 on InsolvencyProceedings.

57 See e.g.: Council Regulation (EC) No. 2201/2003 of 23 November 2003 Concern-ing jurisdiction and the Recognition and Enforcement of judgments in Matrimonial matters

and the matters of Parental Responsibility, repealing Regulation (EC) 1347/2000.58 Green Paper on Wills and Succession COM (2005) 65 Final.59 See BAUR M. O. Projects of the European Community in the Field of Private

International Law in: this Yearbook2003, p. 177-190.60 See generally TRAEST M., Development of a European Private International Law

and the Hague Conference, in: this Yearbook2003, p. 223-259.61 NORTH P.M. (note 18), p. 438.


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Africa.62 Within the Southern Africa region, Forsyth has suggested the possibilityof a regional code on defined aspects of private international law63 and the Instituteof Private International Law, which is part of the University of Johannesburg, hasthe development of such regional codes as one of its principal goals. These goalsare worth pursuing. When the time comes, and one hope it is sooner, the experi-ence, and active involvement of the Conference in the process is recommended.

Any attempt to systematise and unify the rules of private international lawin Africa should be encouraged. There exist diverse approaches to all aspect of thesubject in Africa. On the enforcement of judgments, the doctrine of reciprocity,notwithstanding its contested utility, lies at the heart of many statutory schemes forthe enforcement of foreign judgments in Africa. The determination of which coun-tries judgments benefit from reciprocal treatment differs among jurisdictions.

Some countries make it an executive determination,64 others leave it to the judi-ciary,65 and some do not demand reciprocity at all. 66 Additionally, most countrieslimit the enforcement of judgments to only foreign money judgments but some donot.67 On jurisdiction, whilst common law countries found jurisdiction on presenceand residence and shun domicile and nationality as basis of jurisdiction, that doesnot appear to be the case with the civil law countries. Additionally, some doctrinesof the common law on jurisdiction seem unavailable in some countries. Thus, thereis doubt as to the existence of the doctrine offorum non conveniens in the Roman-

62 Currently, UNIDROIT is helping the Organisation for the Harmonisation of Busi-

ness Law in Africa (OHADA) to develop a uniform law of contract. This can provide amodel of cooperation between the Conference and Africa in the area of private international

law.63 FORSYTH C., The Provenance and Future of Private International Law in Southern

Africa, in: TSAR 2002, p. 60. See also THOMASHAUSEN A.E.A.M., Private InternationalLaw in Africa, Paper presented at the Private International Law Seminar of 7 August2000 Faculty of Law Rand Afrikaans University (South Africa), who proposes a Model Actof Private International Law for the continent.

64 Courts Act 1993 of Ghana section 81(1).65 See art. 296 of the Egyptian Civil and Commercial Procedure Law of 1968;

art. 319 of the Tunisian Code of Civil and Commercial Procedure; art. 458(a) of EthiopianCivil Procedure Code of 1965. See generally, TESHALE S., Reciprocity with Respect toEnforcement of Foreign Judgments in Ethiopia: A Critique of the Supreme Courts Decisionin the Paulos Papassinous Case, in:A.J.I.C.L. 2000, p. 569-578.

66 See e.g. Enforcement of Foreign Civil Judgments Act 32 of 1988 of South Africa;

Civil Matters (Mutual Assistance Act 14 of 1995 of Zimbabwe67 For example, 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 designatedcourt in civil proceedings under which movable property is ordered to be delivered to any

person. On the enforcement of non-money foreign judgments see generally OPPONG R.F.,Enforcing of Foreign Non-Money Judgments: An Examination of some Recent Develop-ments in Canada and Beyond, in: University of British Columbia Law Review 2006, p. 257-286.


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Dutch law of South Africa.68 In the area of choice-of-law, the extent to which, forexample, parties are free to choose the governing law of their contract varies notonly among jurisdictions but also with the character of the transaction. While it hasbeen suggested that the position of the concept of party autonomy in the Roman-Dutch law of South Africa is equivocal,69 that cannot be said of the commonlaw.70 All these lead to uncertainty. This paper advocates a more careful study of allaspects of the subject in Africa with a view to harmonising and unifying the rules.An African convention on the aspect so studied will be a necessary product of thiseffort. The experience and expertise of the Conference will be indispensable andinvaluable in this regard.

The europeanization of English private international law, propelled by theneed to have private international law rules that are responsive to the needs of the

European common market, also suggests that common law countries in Africa,who do not necessarily share in the internal market ideal, may have to look else-where for their jurisprudence on private international law.71 Ordinarily, commonlaw Africa drew on the jurisprudence of the English courts. Increasingly however,such jurisprudence is being europeanised. Fundamental changes are being effectedin the common law in response to the specific demands of European integration.African countries may have to decide whether to continue to draw on the Europeaninspired English jurisprudence on private international law or seek more neutraljurisprudence. It is suggested that the Conference can be one such forum to look to.Originally tilted towards the civil law, the Conference is now pursuing a moreneutral agenda, accommodating the demands of both civilian and common lawyers.It offers an alternative avenue that African countries can look up to for the devel-opments of their private international law regimes.

The work of the Conference can provide rules for the development of areaswhere the response of the common law has been inadequate or non-existent. Con-sequently, there is need for a larger number of ratifications of Hague conventionsby African countries. This should be done after a comprehensive assessment of thebenefits of these conventions for the relevant country. Three broad categories ofconventions may be of interest to African countries. What I suggest here is not anoutright endorsement of these conventions, but an invitation for their closer studyby governments in Africa with a view to assessing how they meet present needs,national and continental, and the potential benefits of becoming party.

First are the conventions that aim at improving the international administra-tion of justice. Domestic litigation is increasingly taking on international dimen-

68 SCHULZE C., Forum non conveniens in Comparative Private International Law,

in: South African Law Journal 2001, p. 812 at 827-828; FORSYTH C.F. (note 9), p. 173-176.69 FORSYTH C.F. (note 9), p. 298.70 See generally NNONA G., Choice of Law in International Contracts for the Trans-

fer of Technology: A Critique of the Nigerian Approach, in: Journal of African Law 2000,p. 78-85.

71 See DICKINSON A. (note 51), p. 197.


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sions; evidence abroad may be needed, documents may have to be served abroad,and cooperation from other national courts may generally be needed for effectivedomestic adjudication. All these are important components of the emerging area oftransnational civil procedure.72 One can not be sanguine about the adequacy ofexisting national civil procedure rules to meet the challenges of this emerging area;some countries have civil procedure rules that date back to the 1960s and have notseen any significant reforms to take account of current demands of internationallitigation. One area where problems are likely to arise in the future relates to co-operation among national courts, and between national courts and the emerginginternational courts73 and arbitral institutions74 in areas like the taking of evidenceand ensuring the attendance of witnesses. Existing national judicial cooperationlegislation provides uncertain responses to these problems and merits attention.

Significantly, the Zimbabwe Civil Matters (Mutual Assistance) Act75 allows theMinister to extend the provisions of the Act to any international tribunal. Aninternational tribunal is defined as any court or tribunal which, in pursuance ofany international agreement or any resolution of the General Assembly of theUnited Nations (a) exercises any jurisdiction or performs any function of a judi-cial nature or by way of arbitration, conciliation or inquiry; or (b) is appointed,whether permanently or temporarily, for the purpose of exercising any jurisdictionor performing any such function.76 There is the need for judicial cooperation to bemade an essential part of any initiative at integration in Africa.77

72 See generally MCCLEAN J.D., International Co-operation in Civil and CriminalMatters, Oxford 2002, p. 11-149; SCHLOSSER P., Jurisdiction and International Judicial andAdministrative Co-operation, in:Recueil des Cours 2000, t. 284, p. 9-418; MCLACHLAN C.,International Litigation and the Reworking of the Conflict of Law, in: Law QuarterlyReview 2004, p. 580-616.

73 E.g. The Court of Justice of the African Union.74 In the Canadian case of B.F. Jones Logistics Inc. v. Rolko (2004) 72 O.R. (3d)

p. 355, the Ontario Superior Court of Judicature held that it had no jurisdiction either atcommon law or under statute (similar in terms with some African statutes in this regard) toenforce a letter of request from a private arbitrator requesting an examination of a witnessresident in Ontario. In Viking Insurance Co. v. Rossdale [2002] 1Lloyds Rep. 219, it wasalso held that the English court had no jurisdiction under the Evidence (Proceedings in OtherJurisdictions) Act 1975 to enforce a letter of request issued by a private arbitral tribunal. Seegenerally GOODFELLOW D./COTTON B.E., Enforcement of Letters Rogatory Issued by aForeign Arbitral Tribunal, in: Advocates Quarterly 2005, p. 316-333; PENNY M., Lettersof Request: Will a Canadian Court Enforce a Letter of Request from an International Arbi-

tral Tribunal?, in:American Review of International Arbitration 2001, p. 249-261; CHUKUMERIJE O., International Judicial Assistance: Revitalising Section 1782, in: GeorgeWashington International Law Review 2005, p. 649-685.

75 Chapter 8:02.76 Section 3 (2). This section is consistent with legislation in other countries see e.g.

section 6(1) of the UK Evidence (Proceedings in Other Jurisdictions) Act 1975 which allowsthe Queen to extend the operation of the Act to international tribunals, including arbitrationtribunals appointed pursuant to international agreements or resolution of the General As-


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The Conference has been a pioneer in the area of transnational civil proce-dure78 and is generally acclaimed as having achieved remarkable success in thearea. The Convention on the Service of Abroad of Judicial and Extra JudicialDocuments in Civil or Commercial Matters (1965) and the Convention on theTaking of Evidence Abroad in Civil or Commercial Matters (1970) have 55 and43 states as party to them respectively. Four African countries are party to theService convention79 and two are party to the Evidence convention.80 These interna-tional conventions can be an important complement to existing bilateral agree-ments in this area in Africa. The text and implementing mechanisms of these con-ventions can provide guidelines for any initiative aimed at improving judicial co-operation in the area of international civil procedure in Africa. The reliance ofthese conventions on judicial and administrative channels through the central

authority mechanism can provide a useful and cost effective means of overcomingthe challenges of using diplomacy and consular offices, as currently contemplatedunder most Africa statutes, which are often notoriously slow.81

Second are those that provide solutions to areas where the common law has proved inadequate or unsatisfactory. One such notable area is the law on childabduction.82 The approach in most common law jurisdictions is to apply the statu-tory formula of the welfare of the child83 or the principles developed in the Privy

sembly of the United Nations. In the USA Section 1782(a) of the United States Code,Chapter 28 applies to international tribunals.

77 See generally GLENN H. P., Prospect for Transnational Civil Procedure in the

Americas, in: 8 Uniform Law Review 2003, p. 485-491. Within the European Union thereexists regulations to enhance cooperation among the member states such an in the area oftaking evidence and serving documents. See Council Regulation (EC) No. 1206/2001 (May18, 2001) on Cooperation between the Courts of the Member states on the Taking of Evi-dence in Civil or Commercial Matters 2001 O.J. L 174/1 and Council Regulation (EC) No.1348/2000 (May 29, 2000) on the Service in the Member States of Judicial and Extra Judi-cial Documents in Civil or Commercial Matters (2000) O.J. L160/37. For similar develop-ments within MERCOSUR see PARRATA-DORIA R.A. Jr.,Mercosur: The Common Marketof The Southern Cone, Durham 2005, p. 79-94.

78 See generally Symposium: The Hague Conference on Private International Law,in:Law and Contemporary Problems 1994, p. 1-331. This is a collection of essays markingthe centennial of the Conference and addressing the Conferences efforts in facilitating civillitigation across national boundaries.

79 Egypt, Botswana, Malawi and Seychelles.

80 South Africa, Seychelles.81 MCCLEAN J.D. (note 72), p. 16. In the Kenya case ofFonville v. Kelly III[2002] 1

East Africa Law Reports 71, possibly anticipating the slow pace of service through diplo-matic channels, the court ordered that service of notice of summons be served on the defen-dant through DHL, a private international courier company. This service was held a nullity.

82 MCCLEAN J.D. (note 72), p. 299-302.83 Ghana Childrens Act.


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Council decision ofMcKee v. McKee.84 Generally, the statutory formula buttressesthe common law principles, and often abduction cases are treated as similar toother issues such as custody. While the statutory formula provided so flexible anapproach as to render it an uncertain guide to judicial decision, the latterMcKee principles have been given differing interpretations in various jurisdictions. TheHague Convention on Civil Aspects of International Child Abduction distinctlyidentifies child abduction cases, introduces a summary mechanism for the imme-diate return of abducted children, and provides a clear framework with definedcriterion for decision-making.85 This framework, while not denying the para-mountcy of the best interest of the child in applications involving children, 86 oper-ates on the presumption that such interest is best served by the prompt return of thechild to his/her place of habitual residence. There are currently four African coun-

tries that are party to the Abduction Convention.87 As one of the most successfulinternational initiatives on child protection, it is hoped that many more Africancountries will ratify this convention. Indeed, African governments should see theratification of the Abduction Convention, together with other Hague conventionson children88 as partially fulfilling their commitment assumed under variousinternational treaties to protect childrens rights.89 Another means by which effectcan be given to the Abduction Convention, at least to achieve its ends, is for judi-cial authorities to rely on decided cases from other jurisdictions, which have ap-plied the principles of the convention in cases where the convention itself, by vir-

84 [1951] A.C. 352, H.L.85 See generally BEAUMONT P.R./MCELEAVY P.E., The Hague Convention on

International Child Abduction, Oxford 1999.86Sonderup v. Tondelli [2001] 1 S.A. 1171 (CC) where a constitutional challenge to

a South African legislation given effect to the convention on the ground that it obliged thecourt to act in a manner inconsistent with the best interest of the child was rejected.

87 South Africa, Burkina Faso, Mauritius, and Zimbabwe. See South Africa, theHague Convention on the Civil Aspects of Child Abduction Act 72 of 1996 as amended bythe Judicial Matters Amendment Act, No. 42 of 2001 and the Zimbabwe Child AbductionAct [Chapter 5: 05] Act 12 of 1995 which give domestic effect to the Hague convention. Forsome cases decided using the convention framework in South Africa see e.g. Pennello v.Pennello [2004] 3 S.A. 117; Senior Family Advocate, Cape Town v. Houtman [2004] 6 S.A.274; Chief Family Advocate v. G [2003] 2 S.A. 599

88 E.g. Convention on Jurisdiction, Applicable Law, Recognition, Enforcement andCo-operation in respect of Parental Responsibility and Measures for the Protection of Chil-

dren 1996 (only Morocco has ratified this Convention); Convention on Protection of Chil-dren and Co-operation in respect of Intercountry Adoption 1993 (South Africa, BurkinaFaso, Burundi, Guinea, Madagascar, Mali, and Mauritius are party to this convention). At arecent seminar organised by the Conference for judges and experts from the Southern andEastern African Region, it was recommended that the African Union raise and promoteawareness among Member States of the Hague Child Protection Conventions.

89 E.g. African Charter on the Rights and Welfare of the Child (entered into force inNovember 1999).


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tue of non-ratification or non-incorporation into domestic law did not apply.90 Suchan approach by the judiciary is, however likely to meet with resistance as an inap-propriate exercise of judicial power.91

Another area where the common law has been identified as unsatisfactory isthat of the recognition and enforcement of foreign divorce decrees. The commonlaw remains unsettled as to whether domicile or real and substantial connectionshould have been the basis of the foreign courts jurisdiction. Kiggundu has sug-gested that the Hague Convention on the Recognition of Divorces and JudicialSeparation can provide a useful model in designing a legislative response.92 Profes-sor Forsyth has also advocated South Africas accession to this convention.93 Thisconvention uses habitual residence as the basis of jurisdiction. Currently, only oneAfrican country, Egypt, is party to this convention. For common law Africa, it is

significant that the United Kingdom, from whom they inherited the existing unsat-isfactory common law regime, has moved on to become a party to this convention,and with appropriate legislative intervention, reformed their law on this area. 94Indeed, the recognition rules laid down by the English Family Law Act are exclu-sive. The implication of this for common law Africa is that they are unlikely tobenefit from the pure common law persuasive authorities in this area, at least fromthe English courts.

Finally one can mention those Hague conventions that aim at promoting andfacilitating trans-boundary commercial activities. Within this context the conven-tions of the Hague Conference could provide a useful complement to the harmoni-sation of substantive commercial law currently going on in Africa especially underthe aegis of the Organisation for the Harmonisation of Business Law in Africa.These substantive harmonisation efforts will not be complete without a careful

90 See CHEONG C. W., The Law in Singapore on Child Abduction, in: Singapore Journal of Legal Studies 2004, p. 444 at 458-461 where the writer discusses a Singaporecase in which the judge held that although Singapore was not a signatory to the AbductionConvention, its principle that it was in the best interest of the child for questions of custodyto be decided by the court of habitual residence unless there were exceptional circumstances,should be followed. There have been rare instance where some African courts have relied oninternational conventions, which have not yet been incorporated into domestic law. Theseinstances have however been restricted to cases where the country involved had ratified therelevant convention. See Unity Dow v. Attorney General (1991), 13 Human Rights Quar-terly 614-623 (High Court Botswana, Misca. 124/90); Dow v. Attorney General 103 Inter-national Law Reports 128, at 159-162, 175-179 (1996) (Court of Appeal Botswana, 3 July1992);New Patriotic Party v. Inspector General of Police [1993-94], 2 Ghana Law Reports

459-466, S.C.91 See generally YOUNG J., The Constitutional Limits of Judicial Activism: JudicialConduct of International Relations and Child Abduction, in: Modern Law Review 2003,

p. 823-836.92 KIGGUNDU J. (note 35), p. 350.93 FORSYTH C.F. (note 9), p. 419.94 Family Law Act 1986 (UK) Part II.


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look at the private international law regime. As Professor Goode admits, everysubstantive law harmonised reduces the scope of the conflict of laws []. It isclear however that since there are practical limits to what can be harmonised, pri-vate international law will remain of considerable importance in the resolution ofcross border disputes for the foreseeable future.95 Substantive unification of pri-vate law does not eliminate the potential for private international law problems:the law of conflict of laws is not so easily banished from the realm of foreigntrade.96 One benefit of having international standards to govern international com-mercial relationships is that they minimise the possibility of domestic considerationhaving an overbearing place in the resolution of disputes. A number of Hagueconventions may be a useful complement to existing national commercial laws.One example is the Hague Convention on the Law Applicable to Contracts for

International Sale of Goods (1986), which unifies the private international lawrules on international sale of goods. There is currently no African state party to thisconvention.97 The convention could be a useful complement to national commerciallaw regimes as well as the UN Convention on Contracts for International Sale ofGoods, to which seven African countries are currently party.98

There is also the need for improved and increased participation in the workof the Hague conference through both membership and attendance of Conference proceedings. States in Africa, individually and collectively, through the AfricanEconomic Community (an integral part of the African Union) should work towardsforging closer relationship with the Conference. This can begin with the sending ofofficial delegations to participate in the proceedings of the Conference. This canserve as an important prelude to ultimate membership. An official delegation willbe able to give the interest of Africa a place in the proceedings, serve as a trainingground on the workings of the Conference, and provide an opportunity for a moreconsidered assessment of the importance of the Conferences work to the needs ofAfrica. In an increasingly globalized world, we cannot be oblivious to develop-ments elsewhere.99 It is significant that although all members of the European Un-

95 GOODE R., Rule, Practice and Pragmatism in Transnational Commercial Law, in:

I.C.L.Q. 2005, p. 539-541.96 DARBY J., The Conflict of Laws and International Trade, in: San Diego Law Re-

view 1967, p. 45-70.97 Niger is party to the 1955 Hague Convention on the Law Applicable to Contracts

for International Sale of Goods.98 Gabon, Ghana, Guinea, Lesotho, Liberia, Mauritania and Uganda. Although

Ghana signed the convention in 1980 it has not ratified it.99 KRUGER T., The South African Litigant and European Union Rules of CivilProcedure, in: C.I.L.S.A. 2005, p. 75; KOTUBY C.T., Internal Developments and ExternalEffects: The Federalization of Private International Law in the European Community and itsConsequences for Transnational Litigants, in: Journal of Law and Commerce 2001/2002,

p. 157-180; FAWCETT J.J., The Europeanisation of Private International Law: The Signifi-cance for Singapore, in: Singapore Journal of International and Comparative Law 1997,

p. 69-90.


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ion are also members of the Hague Conference, the Union is still seeking member-ship of the Conference.100 This will give it a stronger voice in shaping the rulesemerging from the Conference. It is only through participation that we can learn, be heard and make the emerging international conventions on the subject takeaccount of our special needs and interests. The Conference can encourage participation by officially inviting African non-member states and economic organisa-tions to participate in the proceedings of the Conference especially those leading tothe conclusion of conventions.

A potential means for expanding African involvement and membership ofthe Hague Conference will be to use the various regional economic communities inAfrica.101 Notable among these are the African Economic Community, EconomicCommunity of West African States (ECOWAS), the Southern African Develop-

ment Community (SADC), the Common Market for Eastern and Southern Africa(COMESA) and the East African Community (EAC). By impressing on thesecommunities that true integration should not aim only at the removal of socio-economic and political obstacles to the movement of persons, goods, services, andcapital but also the removal of legal barriers, and that an under-developed or ne-glected private international law regime is one such legal barrier, African statesmay be more willing to get involved. This could be seen as part of the Confer-ences mandate of seeking the progressive unification of the rules of private inter-national law. In this regard, it is significant that suggestions for co-operation be-tween the Hague Conference and the Common Market of the Southern Cone(MERCOSUR) have been made, and an agreement concluded between the Confer-ence and the Inter-American Childrens Institute, a specialised organisation of theOrganization of American States, has been concluded.102 It is suggested that this co-operation with regional institutions and organisations should be extended to Africa.

Apart from co-operation with regional economic communities, there is theneed to explore the possibility of allowing regional economic organisations tobecome party to Hague conventions including the Statute of The Hague Confer-ence. The current amendment to the Statute allows for regional economic integra-tion organisations, such as the European Union,103 to become members of the Con-ference.104 The inclusion of clause 30 of the Convention on Choice of Court Agree-

100 See Recommendation to the Twentieth Session of the Hague Conference on Pri-vate International Law on the Admission of the European Community to the Hague Confer-ence on Private International Law 31 March-1 April 2005.

101 See Hague Conference on Private International Law: Strategic Plan 2002, avail-able at the Conference website: , at [306]-[307], [434]-[435].

102 Available at the Conference website: .103 See Recommendation (note 100).104 See article 3 of the Statute of the Hague Conference on Private International Law.

It provides among others that to be eligible to apply for membership of the Conference, aRegional Economic Integration Organisation must be one constituted solely by sovereignStates, and to which its Member States have transferred competence over a range of matterswithin the purview of the Conference, including the authority to make decisions binding on


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ments, and clause 18 of the Convention on the Law Applicable to Certain Rights inRespect of Securities held by an Intermediary, which allow for regional economicintegration organisation to become party to them are also significant and welcomedmoves in the direction of fostering greater participation of regional economic inte-gration organisations in the work of the Conference. This will ensure wider appli-cation of conventions of the Conference.

The Conference should also strengthen and deepen the already existing indi-rect channels of co-operation between the Conference and African countries. Thesechannels include, as already identified, the Commonwealth and the Asian-AfricanConsultative Organization. To this can be added the various regional economiccommunities in Africa. These channels could become an important medium forspreading the work of the Conference pending eventual membership of the indi-

vidual states. Cooperation with these channels should be matched by the creationof some form of presence of the Conference in Africa. This will increase and fa-cilitate awareness about the work of the Conference. It is heartening in this regardthat discussions are currently underway to establish a Conference document centrefor the Southern African region.

Finally, given the underdeveloped state of the subject in Africa, there is theneed for the Conference to interpret its mandate broadly so as to encompass thepromotion of the academic development of the subject, especially in Africa.105 Thiswill require the forging of links with the departments of private law at the variousfaculties of law, and in law institutes, such as the Institute of Private InternationalLaw at the University of Johannesburg, in Africa. The internship program of theConference can also be used to train upcoming African academics and practitionerswith an interest in the subject. These trainees will ultimately serve as ambassadorsfor the Conference in their respective countries creating awareness, and promotingthe work of the Conference.

IV. Conclusion

A sound private international law regime is an indispensable part of the legal infra-structure of any legal system that interacts with other legal systems. A neglectedand underdeveloped private international law regime will not be able to meet thechallenges thrown by such interactions, and indeed, may be evidence of the ab-sence of interaction. In an increasingly globalising world, this is not a fate any

its Member States in respect of those matters. This amendment came into force on 1 Janu-ary 2007.

105 See also KONO T., 100 Years of Hague Conference of Private International andJapan-Past and Future, in: Japanese Y. P. I. L. 2005, p. 20-27, advocating the Conferenceorganises educational events to disseminate information on the conflict of laws and makethe subject familiar to more people.


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legal system should contemplate, let alone allow itself to be consigned to. Legalisolationism is a dangerous path to tread in these times.

This paper has noted the underdeveloped and neglected state of private in-ternational law in Africa. This state of affairs should count as a developmentalchallenge, and elicit the needed attention. International engagement is a key aspectof meeting this challenge. Cooperation with the Hague Conference on Private In-ternational Law has been identified as an indispensable element in this engage-ment. There is the need for African countries to increase their participation, both inattending proceedings of the Conference and in becoming members. There is alsothe need for a comprehensive study of existing conventions with a view to ratifyingthose that meet the needs of the respective countries. The Conference should en-courage the active participation of African countries in its work; formal invitation

to attend proceedings, cooperation with existing regional economic communities,faculties of law, and institutions dedicated to private international law and law inAfrica are important channels to explore. African academics, and all who have thedevelopment of the subject at heart have a crucial role to play. It is my sincerehope that on the occasion of the 150 th anniversary of the Conference in 2043, amore impressive story of the relationship between Africa and the Conference willbe told.


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Appendix

Hague Conventions and African States

Convention/States

Number

Egypt

Morocco

SouthAfrica

Botswana

BurkinaFaso

Burundi

Guinea

Lesotho

Liberia

Madagascar

Malawi

Mali

Mauritius

Namibia

Niger

Seychelles

Swaziland

Zimbabwe

Statute of HagueConference

I A A A

Civil Procedure II A ASale of Goods III A

Transfer of Title* IV

Sale-Choice ofCourt*

V

National Law/ Lawof Domicile*

VI

Recognition ofCompanies*

VII

MaintenanceChildren-ApplicableLaw

VIII

MaintenanceChildren-Enforcement

IX

Protection of

Minors

X

Form of Wills XI A A A A A

Legalisation(Apostille)

XII A A A A A A A A A

Adoption XIII

Service Abroad XIV R A A A

Choice of Court* XV

Enf. of Judgments XVIProtocol onJurisdiction

XVII

Divorce-Recognition

XVIII R

Traffics Accidents XIXTaking of Evidence XX A AAdmin. of Estates XXI

Product Liability XXIIMaintenanceEnforcement

XXIII

MaintenanceApplicable Law

XXIV


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Convention/States

Number

Egypt

Morocco

SouthAfrica

Botswana

BurkinaFaso

Burundi

Guinea

Lesotho

Liberia

Madagascar

Malawi

Mali

Mauritius

Namibia

Niger

Seychelles

Swaziland

Zimbabwe

MatrimonialProperty

XXV

Marriage XXVI SAgency XXVIIChild Abduction XXVIII A A A A

Access of Justice XXIX STrust XXX

Sales Contract* XXXISuccession-Applicable Law*

XXXII

Adoption-Cooperation XXXIII R A A R A A

Protection ofChildren XXXIV

R

Protection ofAdults*

XXXV

Securities* XXXVI

Choice of Court* XXXVII

Prepared by author from information available at the website of the Hague Conference onPrivate International Law. Current as at 1 January 2007 June 2006. A= Accession; R= Ra-tification; S= Signature; *= Convention not yet entered into force.