The harmonisation of rules on the recognition and enforcement of foreign judgments in the Southern African Customs Union

Mandi Rossouw

Description

While the harmonisation of the rules on the recognition and enforcement of foreign judgments has been given priority in other regional economic communities, in particular the European Union, any similar effort to harmonise the rules on recognition and enforcement of member states has been conspicuously absent in the SACU, and in fact the most of the African continent – a situation which needs to receive immediate attention.This book considers the approaches followed by a number of international and regional organisations, including the EU, the USA, Australia and New Zealand and Latin American States, with a view to identifying the most suitable approach to be adopted for the SACU.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2016
• Nombre de lectures: 1
• EAN13: 9781920538439
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

The harmonisation of rules on the recognition and enforcement of foreign judgments in the Southern African Customs Union

Mandi Rossouw

2016

The harmonisation of rules on the recognition and enforcement of foreign judgments in the Southern African Customs Union

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: BusinessPrint, Pretoria

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-1-920538-43-9

© 2016

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TABLE OF CONTENTS

Foreword

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Introduction and background 1 Introduction 1 2 Key concepts 3 2.1 Regional economic integration 3 2.2 The Southern African Customs Union 5 2.3 Private international law 9 2.4 Recognition and enforcement of foreign judgments 10 2.5 Harmonisation 12 3 Origin and background of study 16 3.1 The lack of global recognition and enforcement regime 16 3.2 The lack of a regional recognition and enforcement regime 20 3.3 International developments in the field 23 3.4 Regional integration on the African continent 25 4 Rationale for the study 27 4.1 Trade facilitation 28 4.2 Facilitation of regional economic integration 31 5 Framework of analysis 33 5.1 Territorial sovereignty, obligation theory, comity and reciprocity 34 5.2 States’ interest in recognising and enforcing foreign judgments 39 6 Research questions 40 7 Scope and exclusions from scope 40 8 Chapter outline 41

Recognition and enforcement of foreign judgments – overview of international and regional harmonisation efforts 1 Introduction 43 1.1 Bilateral treaties as means of harmonising enforcement rules 44 1.2 Multilateral conventions as means of harmonising recognition and enforcement rules 46 2 Harmonisation of recognition and enforcement of foreign judgments at the international level 47 2.1 The Hague Conference on Private International Law 47 2.2 Some other intergovernmental and private organisations 52 2.3 Evaluation of international harmonisation efforts 57 3 Harmonisation of recognition and enforcement of foreign judgments at the regional level 58 3.1 European community Brussels/Lugano Regime 58 3.2 United States full faith and credit approach 67 3.3 The Trans-Tasman judicial area 70 3.4 Latin American states 74 4 Feasibility of the different approaches for the SACU 77

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4.1 Brussels/Lugano regime 77 4.2 United States of America full faith and credit approach 80 4.3 Trans-Tasman Judicial System 81 4.4 Latin America 83 Proposed approach for the SACU 86 Some factors likely to influence harmonisation in SACU 88 Concluding remarks 91

Comparison of multilateral conventions on the recognition and enforcement of foreign judgments 1 Introduction and overview of types of multilateral recognition and enforcement conventions 95 1.1 Single convention 103 1.2 Double convention 108 1.3 Analysis 114 1.4 Variations on traditional convention types 116 2 The Hague Convention on Recognition and Enforcement 117 2.1 Material scope of application of Convention 118 2.2 Procedural requirements for enforcement 119 2.3 Grounds for non-recognition 119 3 The Hague Choice of Court Convention 121 3.1 Material scope of application of Convention 122 3.2 Procedural requirements for recognition and enforcement 124 3.3 Grounds for non-recognition 125 4 The EU Brussels Convention/Regulation 128 4.1 Material scope of application of Convention/ Regulation 129 4.2 Procedural requirements for recognition and enforcement 131 4.3 Grounds for non-recognition 134 5 The Montevideo Convention 135 5.1 Material scope of application of Convention 136 5.2 Procedural requirements 136 5.3 Grounds for non-recognition 138 6 Overview of the Conventions discussed 139 6.1 Hague Convention on Recognition and Enforcement of Foreign Judgments 139 6.2 Hague Choice of Court Convention 141 6.3 EU Brussels Regulation/Convention 142 6.4 Montevideo Convention 144 7 Concluding remarks 144

Comparison of Existing Laws on Recognition and Enforcement of Foreign Judgments in the SACU and Proposals for Draft Convention 1 Introduction 149 2 Recognition and enforcement under the common law tradition 151 2.1 Administration of Justice Act, 1920 153 2.2 Foreign Judgment (Reciprocal Enforcement) Act, 1933 155 3 Overview of relevant statutes 162 3.1 Swaziland 163

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3.2 Lesotho 166 3.3 Botswana 169 3.4 South Africa 172 3.5 Namibia 180 Comparative analysis 183 4.1 Scope of application 183 4.2 Requirements for enforcement 190 4.3 Procedural requirements 192 4.4 Setting aside of registered judgments 194 4.5 International competence 203 4.6 Other matters the Convention may include 205 Proposed text for a convention on the recognition and enforcement of foreign judgments 211 Conclusion 219

The recognition and enforcement of foreign judgments – conclusions 1 Introduction – The need for a harmonised recognition and enforcement regime 223 2 International and regional harmonisation efforts 224 3 Overview of some of the major multilateral recognition and enforcement instruments 226 4 Statutory instruments currently in force in the SACU 228 5 Final comments 231

Bibliography

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FOREWORD

The member states of the Southern African Customs Union (SACU) have set as their objectives, amongst others, the facilitation of cross-border movement of goods between the territories of the member states and the promotion of the integration of member states into the global economy through enhanced trade and investment.

Different approaches to the recognition and enforcement of foreign judgments by member states and the risk of non-enforcement may lead to legal uncertainty and increased transaction cost for prospective traders, which ultimately act as non-tariff barriers to trade in the region. Trade is critical to Southern Africa, and the ideal is that barriers to trade, of which uncertainty concerning the recognition and enforcement of foreign judgments amongst member states is one, should be removed. Certainty, predictability, security of transactions, effective remedies and cost are important considerations in investment decision-making; and clear rules for allocating international jurisdiction and providing definite and expedited means of enforcing foreign judgments will facilitate intraregional as well as interregional trade. In addition to trade facilitation, a harmonised recognition and enforcement regime will consolidate economic and political integration in the SACU. An effective scheme for the mutual recognition and enforcement of civil judgments has been regarded as a feature of any economic integration initiative likely to achieve significant integration.

While the harmonisation of the rules on the recognition and enforcement of foreign judgments has been given priority in other regional economic communities, in particular the European Union, any similar effort to harmonise the rules on recognition and enforcement of member states has been conspicuously absent in the SACU – a situation which needs to receive immediate attention.

This work considers the approaches followed by the European Union with the Brussels Regime, the federal system of the United States of America under the ‘full faith and credit clause’; the inter-state recognition scheme under the Australia and New Zealand Trans-Tasman judicial system; as well as the convention-approach of the Latin American states. It finds that the most suitable approach for the SACU is the negotiation and adoption by all SACU member states of a multilateral convention on the recognition and enforcement of foreign judgments, comparable to the 1971 Convention of the Hague Conference on Private International Law; the EU Brussels I Regulation and the Latin-American Montevideo Convention, as complemented by the La Paz Convention.

It is imperative that a proposed convention should not merely duplicate previous efforts, but should be drafted in the light of the legal, political and socio-economic characteristics of the SACU member states. The current legislative provisions in force in SACU member states are compared and analysed, and the comparison and analysis form the basis of a proposal for a future instrument on recognition and enforcement of foreign judgments for the region. A recommended draft text for a proposed Convention on

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the Recognition and Enforcement of Foreign Judgments for the SACU is included. This draft text could form the basis for future negotiations by SACU member states.

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Opgedra aan my Hemelse Vader, met dank.

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1 HAPTER C

Introduction

I NTRODUCTIONAND BACKGROUND

1 Since the inauguration of the European Economic and Monetary Union, questions about whether countries in Africa should work towards a single currency and whether the European Union can be a model for Africa have 2 been coming to the forefront.

The history of regional, and even continent-wide, integration and cooperation initiatives in Africa is fairly long, albeit with very little 3 success. With the launch of the European Economic Monetary Union in 1999, there has been a rising regional and continent-wide cooperation, and as a mark of this renewed enthusiasm, the African Union (AU) and its implementation plan, the New Partnership for African Development (NEPAD) was launched in 2002, with a view to, amongst others things, 4 increase African integration.

5 A long standing example of regional monetary integration in Southern Africa is the Common Monetary Area (CMA), dating back to 1921, of which Lesotho, Namibia, South Africa and Swaziland are 6 members. In terms of membership, the monetary arrangements in

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On 1 January 1999 the Euro, the new currency for the eleven member states was introduced, and at the same time a new single monetary policy was introduced under the authority of the European Central Bank, thus heralding a fully fledged European Economic and Monetary Union. MJ Aziakpono ‘Financial and monetary autonomy and interdependence between South Africa and the other SACU countries’ (2008) 76South African Journal of Economics189. TA Oyejide ‘Policies for regional integration in Africa’ (2000)Economic research papers No 62, Abidjan: African Development Bank7. Aziakpono (n 2 above) 189. Monetary integration can take different forms, ranging from an informal exchange rate union, formal exchange rate union to a full monetary union. Other forms include adoption of another country’s currency, see P Masson & C PatilloThe monetary geography of Africa(2004) 7. Aziakpono (n 2 above) 190.

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