Blog: ‘We need a private international law system that responds to the interests of Africa’

Published 11 December 2019

Private international law in Africa deserves to be systematically studied, in order to improve the current framework. Lagos, Nigeria ©Wikimedia.

Currently, private international law - a specialised branch of law which resolves cases between private persons or companies which have an element of conflicting foreign law - has no real place in Africa yet. But with the increasing international trade with Africa, there is a growing need for more scholarly attention and efforts to generate a private international law system that responds to the socio-economic, cultural, and political interests of countries of the continent, writes Asser researcher Dr Chukwuma Okoli.

By Dr Chukwuma Okoli

Africa is home to the five fastest growing economies globally this year, according to forecasts by the IMF. This year’s African Economic Outlook from the African Development Bank shows that the continent’s general economic performance continues to improve. In 2018, gross domestic product reached an estimated 3.5 percent, and is projected to accelerate to 4.0 percent in 2019 and 4.1 percent in 2020.

With the growing international trade with Africa comes an increase in disputes between international businesspeople conducting business on the continent. Issues such as; what court should have jurisdiction, what law should apply, and questions whether a foreign judgment can be recognised and enforced, need to be resolved for international trade to run smoothly. Currently, however, there is no such thing as an ‘African private international law’ or an ‘African Union private international law’ that is akin to, for example, ‘EU private international law’.

Diverse legal traditions
There has always been private international law in Africa, from time immemorial. Africans, like other peoples, have always migrated from one territory to another, especially within the continent itself. Clashes of socio-cultural, political, and economic interests among various people gave rise to private international law problems as we know them today. Some of these disputes between private parties of different nation states will have been resolved through war or diplomacy, but few through an African private international law system.

The current private international law system in Africa is rather complicated, as many countries in Africa still hang on to what they inherited during the period of colonialism. Through the continent’s history of foreign rule, it has ended up with a wide variety in legal traditions, such as common law, Roman-Dutch law, civil law, customary law and religious law. And as colonialism often leads to dependence, there has, unfortunately, not been sufficient conscious intellectual effort yet to generate a private international law system that responds to the socio-economic, cultural, and political interests of African countries.

Global super-power of private international law
The systematic study of private international law as we know it today, has largely been developed by academics from the European Union (EU) and the United States of America (USA).The industrialisation of the 19th century and the rise of capitalism, gave birth to a variety of legal solutions that could respond to globalisation. The firm entrenchment of the ‘principle of party autonomy’ in international dispute settlement in the 20th century, for instance, was a way of securing the interests of the international merchant who does his or her business in many jurisdictions. The privatisation of international law dispute settlement, is what gave birth to the name private international law.

Today, academics from the EU and the US are still dominating the study of private international law. The EU - which can be described as a global super-power of private international law - has the biggest influence, operating an integrated private international law system with its judicial capital in Luxembourg, and its intellectual capital The Hague.

Many of the ideas in the ‘Hague conventions’, important international instruments on private international law, were originally inspired by the thinking of European continental scholars. And as a result of colonisation, many countries around the world still apply the private international law methodology of EU member states. Hence, many commonwealth countries that were formerly colonised by the United Kingdom, still use the common law methodology, whereas the civil law methodology is used in the French-speaking parts of Africa, countries that were formerly colonised by France. The Roman-Dutch law methodology is applied by countries that were formerly colonised by the Netherlands.

‘The Asian principles’
Asia appears to have learnt from the EU and USA experience, and has focused on developing an Asian private international law system. Since 2015, private international academics from East and Southeast Asian countries, have held many conferences and meetings with one purpose in mind: to draw up the principles of private international law on civil and commercial matters known as the “Asian Principles of Private International Law”. The purpose of these principles, which were finalised in 2017, is to serve as a non-binding model that legislators, judges and decision makers in the Asian region can use in harmonising, supplementing or reforming their private international law rules. I find it important to stress that it is the scholarly systematic study of private international law that has created the necessary political will and institutional support to give private international law it’s proper place in Asian countries.

Significant role
In Africa, such a systematic study is becoming equally important, within in the current environment of rapidly growing personal and commercial international transactions. Professor Richard Frimpong Oppong - a leading expert on the subject of private international law in Africa - has argued that private international law can play a significant role in Africa in addressing issues such as the promotion of international trade and investment, immigration, regional economic integration, globalisation and legal pluralism.

Like in Asia, the systematic study of private international law in Africa could help to address these challenges, with a focus on solutions that are significant to Africa. A solid private international law system for African states could also create competition among countries on how to attract litigation and arbitration, which in turn could lead to economic development and the strengthening of the legal systems in these African countries.

A future African Union in private international law?
So, what should private international law in Africa look like in the future? Will it be  possible to have a future “African Union private international law”, comparable to that of the European Union? Or should it operate in an intra-African way, and exclude international goals such as resolving conflicts between non-African countries, and the joint membership or ratification of international instruments such as The Hague Conventions? Should it take into account internal conflicts within individual African states, where different applicable customary or religious laws may clash with an enabling statute or the constitution, or where different religious or customary laws may clash in cross-border transactions? Or, alternatively, should it focus primarily on promoting international commercial goals, and pay less attention to African integration?

These questions are not easy to answer - yet. But private international law in Africa deserves to be systematically studied, in order to improve the current framework. This, in turn, might create the required political will and institutional support to give private international law its true place in Africa.

Further reading 
Sowing the seeds of a future African Union Private International Law: A review of Private International Law in Commonwealth Africa

Asser researcher Dr Chukwuma Okoli is part of the Asser research strand on Dispute Settlement and Adjudication in International and European Law. This research strand is organised around inquiry into attributes of trustworthy dispute settlement in international adjudication.