THE HAGUE CONFERENCE AND THE DEVELOPMENT OF PRIVATE INTERNATIONAL LAW IN AFRICA: A PLEA FOR COOPERATION

Richard Frimpong OPPONG

I. II. III. IV. Private International Law and Africa: An Introduction Africa and the Hague Conference: Membership, Ratifications and Involvement Africa and the Hague Conference: A Future of Cooperation Conclusion

Every doctrine goes to The Hague. And after they go back to their origins they are never 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 international 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; private international law issues are not vote-winning issues! But even a cursory examination of what the subject deals with reveals its importance. Private international law deals 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 another legal system chosen by the parties. The status of the subject in a state is a function of the degree to which that state is connected with the outside world. We live in a constantly moving and interdependent world; people, goods, capital, and services are constantly moving between states. These movements, which private interna-

LLB. BL. (Ghana), LL.M (Cantab), LL.M (Harvard), PhD Candidate at the University of British Columbia. The writer, who is assessing private international law issues in Africa, thanks the Graduate Program at the Faculty of Law, U.B.C. for providing the support and environment that made this work possible. Contact: foppong2000@yahoo.com. Yearbook of Private International Law, Volume 8 (2006), pp. 189-212 Sellier. European Law Publishers & Swiss Institute of Comparative Law

Printed in Germany

Richard Frimpong Oppong tional law plays a key part in regulating,1 propel national development. Thus, any nation that seeks to benefit from these movements would do well to pay attention to its private international law regime. Private international law performs useful functions for states and individuals transacting across national boundaries. Persons transacting across national boundaries will like to be sure that the law chosen to govern their legal transactions will be respected in all jurisdictions; that courts will not assume jurisdiction where they have contracted to exclude it or on grounds which are uncertain; that irrespective of where litigation takes place, they will have access to efficient and effective means of serving documents and gathering evidence unrestrained by the fact of where that needs to be done; and that a judgment obtained in any resulting litigation will be recognised and enforced in other national courts outside the court where the judgment was given. Ensuring stability and certainty in international legal relationships is a key object of private international law. The subject aims at ensuring effective protection for cross-border legal relationships. A properly operative system of private international law also facilitates international commerce, which is a prerequisite for development. As Justice La Forest once noted the rules of private international law are grounded in the need in modern times to facilitate the flow of wealth, skills and people across state lines.2 Substantively, private international law ensures that the appropriate law governs the legal relationship between the parties. The idea is that litigation before a court need not necessarily be governed by the lex fori. In appropriate cases, the interest of justice is best served by applying the law chosen by the parties or that to which the transaction is most closely connected. Also, in some instances, a court may have to decline jurisdiction in favour of another forum if such a decision will better serve the cause of justice. Procedurally, the subject provides rules for ensuring that the mere absence of a defendant or relevant evidence from the forum of the litigation 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 international law provides a barometer for measuring the confidence individuals transacting across national boundaries have in the legal systems of the countries engaged. For example, choice-of-forum and choice-of-law clauses in commercial contracts provide an indication of the perception of individuals as to the adequacy of a national legal system to provide solutions to legal problems anticipated under their contract. The more frequently parties try to contract out of the legal system of a particular state, the greater the need to assess the adequacy of the national legal system to provide efficient and effective rules to regulate the transactions involved.
See generally WAI R., Transnational Liftoff and Juridical Touchdown: The Regulatory 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 Diversity: The Conflict of Laws as a Regulatory Tool, in: The Institutional Framework of European Private Law (CAFAGGI F. ed.), Oxford 2006, p. 107-148. 2 Morguard Investments v. De Savoye, [1990] 3 S.C.R. 1077-1096, S.C.
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Private International Law and Africa This need for assessment becomes even more compelling when agreements among national governments contract out their own legal systems!3 In other words, a neglected private international law regime will be part and indicative of a more profound malaise with a legal system. It is no happenstance that all advanced legal systems, U.K., U.S.A., Canada and the European Union, to mention but a few, have well-developed private international law regimes or at least pay attention to it, and are very active participants in its international development. Within integrated economies, such as those currently contemplated in Africa,4 private international law also has a key role to play in regulating the relationships between the component legal systems. Private international law impacts on the free movement of persons, goods, services and capital often envisaged within integrated economies. Well-integrated economies have definite rules on the enforcement of judgments, jurisdiction and choice-of-law. Professor Casad, for example, has identified 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.5 As early as 1959, it had also been noted in the context of the emerging European Economic Community that, 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.6 Thus, within the European Community, the harmonization of the rules of private international law is seen as having a part to play in creating the internal market. It helps promote equal treatment, certainty in transactions, and protection
3 For example, the recently concluded West African Gas Pipeline International Project Agreement between the sovereign States of Ghana, Nigeria, Togo and Benin and the West African Gas Pipeline Company Limited has the laws of England as the governing law. It is ironic that four sovereign states will agree to a foreign law as the governing law of their contract. Arguably, it reflects a lack of confidence in the suitability of their own laws to meet the demands of modern commerce. See article 51 of West African Gas Pipeline International Project Agreement 22 May 2003. 4 For example, Treaty establishing the African Economic Community [AEC Treaty]: reprinted in: African Journal of International and Comparative Law (A.J.I.C.L.) 1991, p. 792-839, I.L.M. 1991, pp. 1241-1282 envisages, among others, the establishment of a common market of the whole of Africa; the gradual removal among member states of obstacles to the free movement of persons, goods, services, capital; and the right of residence and establishment. I examine the role private international law can play in these initiatives elsewhere: see generally OPPONG R.F., Private International Law and the African Economic Community: A Plea for Greater Attention, in: I.C.L.Q. 2006, p. 911-928. 5 CASAD R. C., Civil Judgment Recognition and the Integration of Multi-state Associations: A Comparative Study, in: Hasting International and Comparative Law Review 1980/1981, p. 1-86. 6 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 C 59/1).

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Richard Frimpong Oppong for citizens of the European Union, as well as other economic actors, transacting or litigating in the internal market by subjecting them to a uniform and certain legal regime. Harmonization boosts certainty in the law, reducing transaction and litigation cost for economic actors. All these should serve to situate the subject at the heart of both national and continental development, especially in cases where, as noted above, some degree of integration at the continental level is envisaged. However, in Africa, private international law has received little attention, both at the national and continental level. African states have not attempted to position the development of the subject as a key component of the national legal infrastructure, and the various initiatives aimed at integrating the economies of Africa have not addressed the role of the subject in those processes. Indeed, none of the over fourteen (14) regional economic 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 any aspect of the subject. This state of affairs has partly been made possible by the academic disinterest in the subject in Africa. Writing on South Africa, perhaps the only country in Africa where the subject receives some systematic attention, Leon observed twenty years ago: Conflict of laws is not a subject which commands great attention amongst South African lawyers. Indeed it occupies a modest part of the average university curriculum and is, as an academic subject, something of an unknown quantity to the older generation of practising lawyers.8 Professor Forsyth has also observed recently that private international law in Africa is the Cinderella subject seldom studied [and] little understood.9 Developing private international law in Africa will demand both national efforts and international engagement. At the national level, there is the need to codify some of the rules of the subject into legislation after careful consultation and an assessment 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 member states to encourage the standardisation of judgments of courts within 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 these articles of significance for private international law. 8 LEON P.S.G., Roma non locuta est.: the Recognition and Enforcement of Foreign Judgments in South Africa, in: Comparative and International Law Journal of Southern Africa (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 Process, Interpretation and the Dominance of Legislation in the Modern Era, in: Journal of Private International Law (J. Priv. Intl. L.) 2005, p. 93-113.

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Private International Law and Africa is embarking on this in some aspects of the subject.11 Existing international conventions on the subject could serve as a useful basis for some of the contemplated legislation.12 National legislative efforts are an important complement to judicial decisions, which although historically at the forefront of the development and reform of the subject13 suffer from the inherent limitation of having to wait until there is a case exposing inappropriateness of a pre-existing rule. The danger with national development of private international law without international engagement is the possibility of prioritising national interest and ignoring the international dimensions of private international law problems.14 This is the reason why international engagement should be an essential complement to national initiatives. This paper discusses how Africas engagement with one international forum, the Hague Conference on Private International Law (the Conference), can assist in the development 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 international body, which aims at the progressive unification of the rules of private international law.15 It also promotes cross-border cooperation among national judicial and administrative bodies especially in the areas of international civil procedure. The Conference began its life in 1893 when the first Conference was organised.16 In 1951, the work of the Conference was put on sound institutional footing with the adoption 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
See e.g. South African Law Reform Commission, Consolidated Legislation Relating to International Cooperation in Civil Matters, Paper 106, Project 121 (2004) <http://www.law.wits.ac.za/salc/issue/ip21.pdf>. 12 See generally SIEHR K., National Private International Law and International Instruments in: Reform and Development of Private International Law: Essays in Honour of Sir Peter North (FAWCETT J. ed.), Oxford 2002, p. 335-347. 13 See BLOM J., Reform of Private International Law by Judges: Canada as a Case Study, in: Essays in Honour of Sir Peter North (note 12), p. 31-49. 14 MCLACHLAN C., Reforming New Zealands Conflicts Process: The Case for Internationalism, in: Victoria University of Wellington Law Review 1984, p. 443-462. 15 The are other international and regional organisations such as the United Nations Commission on International Trade Law (UNCITRAL), the European Union and the Organization of American States that also do some work in the area as part of their principal functions or goals. 16 See generally LIPSTEIN K., One Hundred Years of the Hague Conference on Private International Law, in: I.C.L.Q. 1993, p. 553-653.
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Richard Frimpong Oppong wide range of subjects including family law, succession, tort, contract, civil procedure, trust, and securities. Between 1955 and 2006, the Conference has adopted over 30 conventions. The work of the Conference continues to shape the development of the subject in various jurisdictions.17 In common law jurisdictions, it has influenced the gradual introduction of legislation on various aspects of the subject, and the reception of concepts like habitual residence as a connecting factor.18 In Latin America, the gradual reception of the principle of party autonomy in contracts has been attributed partly to the influence of the work of the Hague Conference.19 The approach adopted by the Conference in its conventions does not require the unification of the substantive laws of states. It allows for diversity in substantive laws while providing uniform rules on choice-of-law, jurisdiction, the recognition and enforcement of judgments and international civil procedure. The Conferences approach of unifying private international law rules whilst leaving the substantive laws diverse has its merits.20 It entails only a minimal disturbance in national legal systems. Rules of private international law address themselves to only matters involving foreign elements. That is not so with substantive law. Thus, the Conferences approach should appeal to the politician with an eye on preserving 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 be covered by a few choice-of-law clauses. There are currently 65 states that are members of the Conference. The membership spans all the regions of the world, and covers all the notable legal traditions: civil law, the common law and socialist legal tradition. Africas engagement with the work of the Conference has been both direct and indirect, albeit minimal. Currently, of the 53 African states only 3 are members of the Conference.21 They are Morocco, Egypt, and South Africa. Compared with membership from other regions, Africa is highly under-represented. Membership
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 Development of Private International Law in Common Law Countries, in: Recueil des Cours 1992, p. 267 at 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 of Private 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 International Commercial Contracts: Party Autonomy, International Jurisdiction and the Emerging Third Way, 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 Legal Integration in: Integration through Law Europe and the American Experience Vol. 1(2) (CAPPELLETTI M./SECCOMBE M./WEILER J.) Berlin, New York 1989, p. 161-169. 21 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.
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Private International Law and Africa of the Conference is not a condition for becoming a party to its conventions. However, the absence of African participation in the negotiation process may lead to situations where the interests of Africa are not fully accounted for during the negotiating process. Currently, there are 18 African countries that are party to various conventions of the Conference.22 The Appendix to this paper provides a list of these countries 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 consultation with parliament were absent during the negotiation, there may be difficulties with implementation. There will be no sense of domestic ownership of the convention. Parliamentary approval or domestic implementing legislation may also be less forthcoming due to the absence of an engagement with the domestic political processes during the negotiation of the convention. This may be especially so in dualist countries where national legislative measures are needed for the convention to have domestic effect. In other words, the absence of engagement in the negotiating process creates obstacles to domestic implementation of conventions. Even more important, the opportunity to influence the content of conventions is best available when one is present at the table during negotiations. Once negotiations are concluded, and excluding the possibility of reservations, a state is faced with a take it or leave it scenario. Aside from directly participating in the work of the Conference, it can be safely assumed that some African countries, especially Commonwealth Africa, are indirectly involved in the work of the Conference through the Commonwealth. Indeed, of the 18 African countries that have signed, ratified or acceded to at least one convention of the Conference, 9 are members of the Commonwealth.23 The Commonwealth has a long tradition of co-operation with the Conference.24 It regularly takes part in the negotiation of conventions, review meetings concerning existing conventions and meetings on the general affairs and policy of the Conference. This has ensured the presence at The Hague of those Commonwealth members that are not yet members of the Conference.25

This covers signatures, accessions and ratifications. Signing means a state expresses, 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 convention once it is in force. Ratification imposes a legal obligation on the ratifying state to apply the 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 International Law, in: Commonwealth Law Bulletin 2004, p. 598-605. 25 VAN LOON H. (note 24), p. 598.
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Richard Frimpong Oppong The Permanent Bureau of the Conference also maintains close links26 with the Asian-African Legal Consultative Organization (formerly Asian-African Legal Consultative Committee).27 Currently there are fifteen African states that are members of the Organization.28 Although the link between the two institutions appears so far not formalised as, for example, into cooperation agreement or memorandum of understanding, its existence even on an informal level is important. It provides an opportunity for the sharing of jurisprudence and for the African membership of the Organization to participate in the work of the Conference. Indeed, the work of the Organization on the service of process and taking of evidence,29 which promoted bilateral initiatives in this regard, was heavily influenced by similar work of the Conference in that area. Aside this Organization, the Conference also cooperates 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 Hague convention in other jurisdictions. The legislative draftsman looks to precedents from other jurisdictions in his work. Thus, the draftsman may occasionally draw on legislation that implements a Hague convention in other states. For example, an examination 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 in wording, they appear to be wholly based on the Wills Act of the U.K.32 which implements the Hague Convention on the Conflict of Laws relating to the Form of Testamentary Dispositions. These provisions significantly expanded the number of systems of law that can govern the validity of the execution of a will. They provide greater detail and coverage than comparable legislation in other countries.33 It will be difficult to determine the extent to which this channel of influence operates in Africa, 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
MCCLEAN J.D. (note 18), p. 285. < 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 <http://www. aalco.org>. 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, with slight verbal modifications the English Act enacted to bring English law in line with the Hague 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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Private International Law and Africa with this approach, which is not very evident with the testamentary convention, but becomes very evident when one examines those conventions that establish definite mechanisms such as a central authority for the national implementation of the rules. Although a state may adopt the rules of such a convention, it will lose the benefit of the implementing mechanism established by the convention, and in use in states that are party to the convention. Aside from the participation of states in the work of the Conference, it is also important to examine the degree of African academic or intellectual involvement in the work of the Conference. None of the African textbooks on private international law devotes any significant attention to the work of the Hague Conference and its significance for Africa.35 I was also unable to find any major article in 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 reciprocated by an equal absence of perspectives from Africa in academic works that routinely report and analyse the works of the Conference. For example, an examination of the Recueil des Cours,37 which regularly contains courses on private international law and the work of the Conference, between 1983-2006 reveals only one course devoted specifically to a private international law issue in Africa.38 Similarly, of the 7 volumes of this Yearbook (1999-2005), which devotes attention to the important work and research carried out by the Conference, only the 2005 volume 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 in Botswana, 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 private international law. See also YAKUBU J. A., Harmonisation of Laws in Africa, Ibadan 1999, 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 International Developments section published a list of Hague Conventions to which African states are party. The Comparative and International Law Journal of Southern Africa, however, contains articles on the Child Abduction Convention. See e.g. LABUSCHAGNE J.M.T., International Parental Abduction: Remarks on the Overriding Status of the Best Interest of the Child 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. 7297; NICHOLSON C.M.A., The Hague Convention on the Civil Aspects of International Child Abduction-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 Anglophone Africa, in: Recueil des Cours 1991, p. 273-438. 39 NEELS J.L., Private International Law of Succession in South Africa, in: this Yearbook 2005, p. 183-203. Significantly, the foreword to vol. VII-2005 of this Yearbook by Professors A. Bonomi and P. Volken notes this article as a first step towards filling this

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Richard Frimpong Oppong have a crucial role to play in any future cooperation between the Conference and the continent. There is need for a more careful study of the work of the Conference, and an exploration of how Africa may potentially benefit from it. Books and journals are important forums for this study and for the articulation of interests. It is hoped that this paper will inspire study and discussion among African academics and within the corridors of government. It is further hoped that as similarly purposed writings elsewhere did,40 this paper will encourage African governments to reconsider their relationship with the Conference.

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

There is need for increased cooperation between the Conference and Africa. The channels for cooperation are many, and can be mutually beneficial. African countries have for long battled with the complex issues involving internal conflict of laws. Their unique and diverse solutions to the domestic problems arising thereunder can shed some light on private international law issues, and may assist in the international development of conflict rules.41 A study of these internal conflict of laws solutions reveals that conflict of laws is not merely a conflict among laws, but also a battle for supremacy among ideals, values, and belief all encapsulated in law.42 As Bennett has noted internal conflict of laws reflects a profound social fact.43 This suggests that the resolution of conflict of laws problems, especially in areas of family law, has both procedural and substantive dimensions. In private international law, this substantive dimension is often left unarticulated. By having regard 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 from this Yearbook. 40 See KUHN A.K., Should Great Britain and the United States be Represented at the Hague Conference on Private International Law?, in: American Journal of International Law 1913, p. 774-780; CASTEL J-G., Canada and the Hague Conference on Private International 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 TIER A.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 Customary Law and the Common Law in Zimbabwe, in: I.C.L.Q 1981, p. 59-103; SANDERS A.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 the changing 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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Private International Law and Africa 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 the 19th century. Its international character, its methods, and the presence of diverse legal traditions can become an important source of knowledge for the development of the subject in Africa. The Hague conventions and methods of the Conference could serve as a model for the development of African conventions on private international law.44 The method of the Conference is not to attempt a codification of all the subjects of private international law, but rather to provide relevant rules for specific problematic 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 the area 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 the European Union and some Latin American countries are members of the Conference, there are still regional efforts in the area of private international law in both regions. The Organization of American States, through its Inter-American Specialized Conferences on Private International Law, has supervised the negotiation and adoption of over twenty (20) conventions on the subject by its members.46 These conventions cover various aspects of the subject including, the recognition and enforcement of judgment and choice-of-law in contract.47 Recent Conference topics have focused on the free trade agenda of the region.48 Indeed, the history of cooperation in the field of private international law in the Americas dates back to the 19th century.49 As early as 1928 the Pan-America Code on Private International
BOGGIANO A. (note 19), p. 118. 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 Yearbook of Private International Law (Japanese Y.P.I.L.) 2005, p. 2-19; VAN LOON H, A Perspective from the Hague Conference in: Foundations and Perspectives of International Trade Law (FLETCHER I./MISTELIS L./CREMONA M. eds.), London 2001, 67-72. 46 See generally JUENGER F., The Inter-American Convention on the Law Applicable 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 Latin America, in: Am. J. Comp. L. 1992, p. 587-616; AMADO J.D., Recognition and Enforcement 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 Concerning the Movement for Development of Private International Law in the Americas through 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 the Extra Territorial Validity of Foreign Judgments (1984). 48 FERNNDEZ ARROYO D.P./KLEINHEISTERKAMP J., The VIth Inter-American Specialized Conference on Private International Law (CIDIP VI): A New Step Towards Inter-American Legal Integration, in: this Yearbook 2002, p. 237-254. 49 GARRO A.M. (note 46), p. 587-589.
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Richard Frimpong Oppong Law better known as the Bustamante Code, often hailed as the first world attempt at 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 is witnessing an impressive and continuous rhythm in the creation of a European system of private international law.52 The fields of judgment enforcement and jurisdiction,53 contract,54 non-contractual obligations,55 insolvency56 family law57 wills and succession58 and more59 have all been touched. These pose significant challenges 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 of conflicting norms or solutions. However, regional initiatives are important especially 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 be protracted. Regional initiatives can, indeed, become an important avenue for the progressive unification of private international law. It is in this regard that I advocate an input from the Conference in the development of regional conventions in

GARRO A.M. (note 46), p. 587-592. 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 comments 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 OOIK R. H. The Communitarization of Private International Law, in: this Yearbook 2002, p. 1-36. 52 Foreword of this Yearbook 2002, 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), European Enforcement Order for Uncontested Claims (EC Regulation No. 805/2004). 54 Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Contractual Obligations (Rome I) COM (2005) 650 final. 55 Proposal for Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations (Rome II) COM (2003) 427 final. 56 Council Regulation EC Regulation No. 1346/2000 of 29 May 2000 on Insolvency Proceedings. 57 See e.g.: 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. 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 Yearbook 2003, p. 177-190. 60 See generally TRAEST M., Development of a European Private International Law and the Hague Conference, in: this Yearbook 2003, p. 223-259. 61 NORTH P.M. (note 18), p. 438.
50 51

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Private International Law and Africa Africa.62 Within the Southern Africa region, Forsyth has suggested the possibility of a regional code on defined aspects of private international law63 and the Institute of Private International Law, which is part of the University of Johannesburg, has the development of such regional codes as one of its principal goals. These goals are worth pursuing. When the time comes, and one hope it is sooner, the experience, and active involvement of the Conference in the process is recommended. Any attempt to systematise and unify the rules of private international law in Africa should be encouraged. There exist diverse approaches to all aspect of the subject in Africa. On the enforcement of judgments, the doctrine of reciprocity, notwithstanding its contested utility, lies at the heart of many statutory schemes for the enforcement of foreign judgments in Africa. The determination of which countries judgments benefit from reciprocal treatment differs among jurisdictions. Some countries make it an executive determination,64 others leave it to the judiciary,65 and some do not demand reciprocity at all.66 Additionally, most countries limit the enforcement of judgments to only foreign money judgments but some do not.67 On jurisdiction, whilst common law countries found jurisdiction on presence and residence and shun domicile and nationality as basis of jurisdiction, that does not appear to be the case with the civil law countries. Additionally, some doctrines of the common law on jurisdiction seem unavailable in some countries. Thus, there is doubt as to the existence of the doctrine of forum non conveniens in the Roman62 Currently, UNIDROIT is helping the Organisation for the Harmonisation of Business Law in Africa (OHADA) to develop a uniform law of contract. This can provide a model 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 International Law in Africa, Paper presented at the Private International Law Seminar of 7 August 2000 Faculty of Law Rand Afrikaans University (South Africa), who proposes a Model Act of 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 Ethiopian Civil Procedure Code of 1965. See generally, TESHALE S., Reciprocity with Respect to Enforcement of Foreign Judgments in Ethiopia: A Critique of the Supreme Courts Decision in 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 Zimbabwe 67 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 designated court 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 Developments in Canada and Beyond, in: University of British Columbia Law Review 2006, p. 257286.

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Richard Frimpong Oppong Dutch law of South Africa.68 In the area of choice-of-law, the extent to which, for example, parties are free to choose the governing law of their contract varies not only among jurisdictions but also with the character of the transaction. While it has been suggested that the position of the concept of party autonomy in the RomanDutch law of South Africa is equivocal,69 that cannot be said of the common law.70 All these lead to uncertainty. This paper advocates a more careful study of all aspects 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 this effort. The experience and expertise of the Conference will be indispensable and invaluable in this regard. The europeanization of English private international law, propelled by the need 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 elsewhere for their jurisprudence on private international law.71 Ordinarily, common law Africa drew on the jurisprudence of the English courts. Increasingly however, such jurisprudence is being europeanised. Fundamental changes are being effected in 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 European inspired English jurisprudence on private international law or seek more neutral jurisprudence. 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 more neutral agenda, accommodating the demands of both civilian and common lawyers. It offers an alternative avenue that African countries can look up to for the developments of their private international law regimes. The work of the Conference can provide rules for the development of areas where the response of the common law has been inadequate or non-existent. Consequently, there is need for a larger number of ratifications of Hague conventions by African countries. This should be done after a comprehensive assessment of the benefits of these conventions for the relevant country. Three broad categories of conventions may be of interest to African countries. What I suggest here is not an outright endorsement of these conventions, but an invitation for their closer study by 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 administration of justice. Domestic litigation is increasingly taking on international dimenSCHULZE 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 Transfer 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.
68

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Private International Law and Africa sions; evidence abroad may be needed, documents may have to be served abroad, and cooperation from other national courts may generally be needed for effective domestic adjudication. All these are important components of the emerging area of transnational civil procedure.72 One can not be sanguine about the adequacy of existing 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 not seen any significant reforms to take account of current demands of international litigation. One area where problems are likely to arise in the future relates to cooperation among national courts, and between national courts and the emerging international courts73 and arbitral institutions74 in areas like the taking of evidence and ensuring the attendance of witnesses. Existing national judicial cooperation legislation provides uncertain responses to these problems and merits attention. Significantly, the Zimbabwe Civil Matters (Mutual Assistance) Act75 allows the Minister to extend the provisions of the Act to any international tribunal. An international tribunal is defined as any court or tribunal which, in pursuance of any international agreement or any resolution of the General Assembly of the United Nations (a) exercises any jurisdiction or performs any function of a judicial nature or by way of arbitration, conciliation or inquiry; or (b) is appointed, whether permanently or temporarily, for the purpose of exercising any jurisdiction or performing any such function.76 There is the need for judicial cooperation to be made an essential part of any initiative at integration in Africa.77
See generally MCCLEAN J.D., International Co-operation in Civil and Criminal Matters, Oxford 2002, p. 11-149; SCHLOSSER P., Jurisdiction and International Judicial and Administrative 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 Quarterly Review 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 at common law or under statute (similar in terms with some African statutes in this regard) to enforce a letter of request from a private arbitrator requesting an examination of a witness resident in Ontario. In Viking Insurance Co. v. Rossdale [2002] 1 Lloyds Rep. 219, it was also held that the English court had no jurisdiction under the Evidence (Proceedings in Other Jurisdictions) Act 1975 to enforce a letter of request issued by a private arbitral tribunal. See generally GOODFELLOW D./COTTON B.E., Enforcement of Letters Rogatory Issued by a Foreign Arbitral Tribunal, in: Advocates Quarterly 2005, p. 316-333; PENNY M., Letters of Request: Will a Canadian Court Enforce a Letter of Request from an International Arbitral Tribunal?, in: American Review of International Arbitration 2001, p. 249-261; CHUKUM ERIJE O., International Judicial Assistance: Revitalising Section 1782, in: George Washington 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 allows the Queen to extend the operation of the Act to international tribunals, including arbitration tribunals appointed pursuant to international agreements or resolution of the General As72

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Richard Frimpong Oppong The Conference has been a pioneer in the area of transnational civil procedure78 and is generally acclaimed as having achieved remarkable success in the area. The Convention on the Service of Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters (1965) and the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (1970) have 55 and 43 states as party to them respectively. Four African countries are party to the Service convention79 and two are party to the Evidence convention.80 These international conventions can be an important complement to existing bilateral agreements in this area in Africa. The text and implementing mechanisms of these conventions can provide guidelines for any initiative aimed at improving judicial cooperation in the area of international civil procedure in Africa. The reliance of these conventions on judicial and administrative channels through the central authority mechanism can provide a useful and cost effective means of overcoming the challenges of using diplomacy and consular offices, as currently contemplated under 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 child abduction.82 The approach in most common law jurisdictions is to apply the statutory 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 there exists regulations to enhance cooperation among the member states such an in the area of taking evidence and serving documents. See Council Regulation (EC) No. 1206/2001 (May 18, 2001) on Cooperation between the Courts of the Member states on the Taking of Evidence 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 Judicial Documents in Civil or Commercial Matters (2000) O.J. L160/37. For similar developments within MERCOSUR see PARRATA-DORIA R.A. Jr., Mercosur: The Common Market of 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 marking the centennial of the Conference and addressing the Conferences efforts in facilitating civil litigation 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 of Fonville v. Kelly III [2002] 1 East Africa Law Reports 71, possibly anticipating the slow pace of service through diplomatic channels, the court ordered that service of notice of summons be served on the defendant 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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Private International Law and Africa Council decision of McKee v. McKee.84 Generally, the statutory formula buttresses the common law principles, and often abduction cases are treated as similar to other issues such as custody. While the statutory formula provided so flexible an approach as to render it an uncertain guide to judicial decision, the latter McKee principles have been given differing interpretations in various jurisdictions. The Hague Convention on Civil Aspects of International Child Abduction distinctly identifies child abduction cases, introduces a summary mechanism for the immediate return of abducted children, and provides a clear framework with defined criterion for decision-making.85 This framework, while not denying the paramountcy of the best interest of the child in applications involving children,86 operates on the presumption that such interest is best served by the prompt return of the child to his/her place of habitual residence. There are currently four African countries that are party to the Abduction Convention.87 As one of the most successful international initiatives on child protection, it is hoped that many more African countries will ratify this convention. Indeed, African governments should see the ratification of the Abduction Convention, together with other Hague conventions on children88 as partially fulfilling their commitment assumed under various international treaties to protect childrens rights.89 Another means by which effect can be given to the Abduction Convention, at least to achieve its ends, is for judicial authorities to rely on decided cases from other jurisdictions, which have applied the principles of the convention in cases where the convention itself, by vir[1951] A.C. 352, H.L. See generally BEAUMONT P.R./MCELEAVY P.E., The Hague Convention on International Child Abduction, Oxford 1999. 86 Sonderup 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 the court 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, the Hague Convention on the Civil Aspects of Child Abduction Act 72 of 1996 as amended by the Judicial Matters Amendment Act, No. 42 of 2001 and the Zimbabwe Child Abduction Act [Chapter 5: 05] Act 12 of 1995 which give domestic effect to the Hague convention. For some 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 and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996 (only Morocco has ratified this Convention); Convention on Protection of Children and Co-operation in respect of Intercountry Adoption 1993 (South Africa, Burkina Faso, Burundi, Guinea, Madagascar, Mali, and Mauritius are party to this convention). At a recent seminar organised by the Conference for judges and experts from the Southern and Eastern African Region, it was recommended that the African Union raise and promote awareness 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 in November 1999).
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Richard Frimpong Oppong tue of non-ratification or non-incorporation into domestic law did not apply.90 Such an approach by the judiciary is, however likely to meet with resistance as an inappropriate exercise of judicial power.91 Another area where the common law has been identified as unsatisfactory is that of the recognition and enforcement of foreign divorce decrees. The common law remains unsettled as to whether domicile or real and substantial connection should have been the basis of the foreign courts jurisdiction. Kiggundu has suggested that the Hague Convention on the Recognition of Divorces and Judicial Separation can provide a useful model in designing a legislative response.92 Professor Forsyth has also advocated South Africas accession to this convention.93 This convention uses habitual residence as the basis of jurisdiction. Currently, only one African country, Egypt, is party to this convention. For common law Africa, it is significant that the United Kingdom, from whom they inherited the existing unsatisfactory common law regime, has moved on to become a party to this convention, and with appropriate legislative intervention, reformed their law on this area.94 Indeed, the recognition rules laid down by the English Family Law Act are exclusive. The implication of this for common law Africa is that they are unlikely to benefit from the pure common law persuasive authorities in this area, at least from the English courts. Finally one can mention those Hague conventions that aim at promoting and facilitating trans-boundary commercial activities. Within this context the conventions of the Hague Conference could provide a useful complement to the harmonisation of substantive commercial law currently going on in Africa especially under the aegis of the Organisation for the Harmonisation of Business Law in Africa. These substantive harmonisation efforts will not be complete without a careful
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 Singapore case in which the judge held that although Singapore was not a signatory to the Abduction Convention, its principle that it was in the best interest of the child for questions of custody to 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 on international conventions, which have not yet been incorporated into domestic law. These instances have however been restricted to cases where the country involved had ratified the relevant convention. See Unity Dow v. Attorney General (1991), 13 Human Rights Quarterly 614-623 (High Court Botswana, Misca. 124/90); Dow v. Attorney General 103 International Law Reports 128, at 159-162, 175-179 (1996) (Court of Appeal Botswana, 3 July 1992); 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: Judicial Conduct 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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Private International Law and Africa look at the private international law regime. As Professor Goode admits, every substantive law harmonised reduces the scope of the conflict of laws []. It is clear however that since there are practical limits to what can be harmonised, private international law will remain of considerable importance in the resolution of cross border disputes for the foreseeable future.95 Substantive unification of private 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 foreign trade.96 One benefit of having international standards to govern international commercial relationships is that they minimise the possibility of domestic consideration having an overbearing place in the resolution of disputes. A number of Hague conventions 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 law rules on international sale of goods. There is currently no African state party to this convention.97 The convention could be a useful complement to national commercial law regimes as well as the UN Convention on Contracts for International Sale of Goods, to which seven African countries are currently party.98 There is also the need for improved and increased participation in the work of the Hague conference through both membership and attendance of Conference proceedings. States in Africa, individually and collectively, through the African Economic Community (an integral part of the African Union) should work towards forging closer relationship with the Conference. This can begin with the sending of official delegations to participate in the proceedings of the Conference. This can serve as an important prelude to ultimate membership. An official delegation will be able to give the interest of Africa a place in the proceedings, serve as a training ground on the workings of the Conference, and provide an opportunity for a more considered assessment of the importance of the Conferences work to the needs of Africa. In an increasingly globalized world, we cannot be oblivious to developments elsewhere.99 It is significant that although all members of the European Un95 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 Review 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 Civil Procedure, in: C.I.L.S.A. 2005, p. 75; KOTUBY C.T., Internal Developments and External Effects: The Federalization of Private International Law in the European Community and its Consequences for Transnational Litigants, in: Journal of Law and Commerce 2001/2002, p. 157-180; FAWCETT J.J., The Europeanisation of Private International Law: The Significance for Singapore, in: Singapore Journal of International and Comparative Law 1997, p. 69-90.

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Richard Frimpong Oppong ion are also members of the Hague Conference, the Union is still seeking membership of the Conference.100 This will give it a stronger voice in shaping the rules emerging from the Conference. It is only through participation that we can learn, be heard and make the emerging international conventions on the subject take account of our special needs and interests. The Conference can encourage participation by officially inviting African non-member states and economic organisations to participate in the proceedings of the Conference especially those leading to the conclusion of conventions. A potential means for expanding African involvement and membership of the Hague Conference will be to use the various regional economic communities in Africa.101 Notable among these are the African Economic Community, Economic Community of West African States (ECOWAS), the Southern African Development Community (SADC), the Common Market for Eastern and Southern Africa (COMESA) and the East African Community (EAC). By impressing on these communities that true integration should not aim only at the removal of socioeconomic and political obstacles to the movement of persons, goods, services, and capital but also the removal of legal barriers, and that an under-developed or neglected private international law regime is one such legal barrier, African states may be more willing to get involved. This could be seen as part of the Conferences mandate of seeking the progressive unification of the rules of private international law. In this regard, it is significant that suggestions for co-operation between the Hague Conference and the Common Market of the Southern Cone (MERCOSUR) have been made, and an agreement concluded between the Conference and the Inter-American Childrens Institute, a specialised organisation of the Organization of American States, has been concluded.102 It is suggested that this cooperation with regional institutions and organisations should be extended to Africa. Apart from co-operation with regional economic communities, there is the need to explore the possibility of allowing regional economic organisations to become party to Hague conventions including the Statute of The Hague Conference. The current amendment to the Statute allows for regional economic integration organisations, such as the European Union,103 to become members of the Conference.104 The inclusion of clause 30 of the Convention on Choice of Court AgreeSee Recommendation to the Twentieth Session of the Hague Conference on Private International Law on the Admission of the European Community to the Hague Conference on Private International Law 31 March-1 April 2005. 101 See Hague Conference on Private International Law: Strategic Plan 2002, available at the Conference website: <http://www.hcch.net>, at [306]-[307], [434]-[435]. 102 Available at the Conference website: <http://www.hcch.net>. 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, a Regional Economic Integration Organisation must be one constituted solely by sovereign States, and to which its Member States have transferred competence over a range of matters within the purview of the Conference, including the authority to make decisions binding on
100

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Private International Law and Africa ments, and clause 18 of the Convention on the Law Applicable to Certain Rights in Respect of Securities held by an Intermediary, which allow for regional economic integration organisation to become party to them are also significant and welcomed moves in the direction of fostering greater participation of regional economic integration organisations in the work of the Conference. This will ensure wider application of conventions of the Conference. The Conference should also strengthen and deepen the already existing indirect channels of co-operation between the Conference and African countries. These channels include, as already identified, the Commonwealth and the Asian-African Consultative Organization. To this can be added the various regional economic communities in Africa. These channels could become an important medium for spreading the work of the Conference pending eventual membership of the individual states. Cooperation with these channels should be matched by the creation of some form of presence of the Conference in Africa. This will increase and facilitate awareness about the work of the Conference. It is heartening in this regard that discussions are currently underway to establish a Conference document centre for the Southern African region. Finally, given the underdeveloped state of the subject in Africa, there is the need for the Conference to interpret its mandate broadly so as to encompass the promotion of the academic development of the subject, especially in Africa.105 This will require the forging of links with the departments of private law at the various faculties of law, and in law institutes, such as the Institute of Private International Law at the University of Johannesburg, in Africa. The internship program of the Conference can also be used to train upcoming African academics and practitioners with an interest in the subject. These trainees will ultimately serve as ambassadors for the Conference in their respective countries creating awareness, and promoting the work of the Conference.

IV. Conclusion
A sound private international law regime is an indispensable part of the legal infrastructure of any legal system that interacts with other legal systems. A neglected and underdeveloped private international law regime will not be able to meet the challenges thrown by such interactions, and indeed, may be evidence of the absence 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 January 2007. 105 See also KONO T., 100 Years of Hague Conference of Private International and Japan-Past and Future, in: Japanese Y. P. I. L. 2005, p. 20-27, advocating the Conference organises educational events to disseminate information on the conflict of laws and make the subject familiar to more people.

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Richard Frimpong Oppong legal system should contemplate, let alone allow itself to be consigned to. Legal isolationism is a dangerous path to tread in these times. This paper has noted the underdeveloped and neglected state of private international law in Africa. This state of affairs should count as a developmental challenge, and elicit the needed attention. International engagement is a key aspect of meeting this challenge. Cooperation with the Hague Conference on Private International Law has been identified as an indispensable element in this engagement. There is the need for African countries to increase their participation, both in attending proceedings of the Conference and in becoming members. There is also the need for a comprehensive study of existing conventions with a view to ratifying those that meet the needs of the respective countries. The Conference should encourage 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 in Africa are important channels to explore. African academics, and all who have the development of the subject at heart have a crucial role to play. It is my sincere hope that on the occasion of the 150th anniversary of the Conference in 2043, a more impressive story of the relationship between Africa and the Conference will be told.

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Appendix Hague Conventions and African States

Egypt Morocco South Africa Botswana Burkina Faso Burundi Guinea Lesotho Liberia Madagascar Malawi Mali Mauritius Namibia Niger Seychelles Swaziland Zimbabwe A A A A A A A A A A A A A A A A A A A A R A A A R A A Number I II III IV V VI VII VIII IX X XI XII XIII XIV XV XVI XVII XVIII XIX XX XXI XXII XXIII XXIV

Convention/States

Statute of Hague Conference Civil Procedure Sale of Goods Transfer of Title* Sale-Choice of Court* National Law/ Law of Domicile* Recognition of Companies* Maintenance Children-Applicable Law Maintenance ChildrenEnforcement Protection of Minors Form of Wills Legalisation (Apostille) Adoption Service Abroad Choice of Court* Enf. of Judgments Protocol on Jurisdiction DivorceRecognition Traffics Accidents Taking of Evidence Admin. of Estates Product Liability Maintenance Enforcement Maintenance Applicable Law

Convention/States

Matrimonial Property Marriage Agency Child Abduction Access of Justice Trust Sales Contract* SuccessionApplicable Law* AdoptionCooperation Protection of Children Protection of Adults* Securities* Choice of Court*

XXV XXVI XXVII XXVIII XXIX XXX XXXI XXXII XXXIII XXXIV XXXV XXXVI XXXVII R R A A R A A S S A A A A

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

Egypt Morocco South Africa Botswana Burkina Faso Burundi Guinea Lesotho Liberia Madagascar Malawi Mali Mauritius Namibia Niger Seychelles Swaziland Zimbabwe

Number