Search

This article provides an overview of the history of international commercial law in Africa with reference to instruments of the three sister organisations of private international law (in a wide sense): UNCITRAL (the United Nations Commission on International Trade Law), UNIDROIT (the International Institute for the Unification of Private Law) and the HCCH (the Hague Conference on Private International Law). The adoption of UNIDROIT's Cape Town Convention on International Interests in Mobile Equipment of 2001 is identified as a possible watershed moment in respect of the future development of international commercial law in Africa. Following the creation of an African Continental Free Trade Area by member countries of the African Union, it is suggested that participating states reconsider joining the United Nations Convention on the International Sale of Goods (1980) (CISG) and incorporating the UNCITRAL Model Law on International Commercial Arbitration (1985/2006), which are in a certain sense the two founding documents of the modern lex mercatoria. Another priority, the author suggests, is that Africa needs a supporting instrument on the private international law of contract. The first draft of the African Principles on the Law Applicable to International Commercial Contracts is then discussed with an emphasis on the role of substantive law instruments, in particular the CISG. [ABSTRACT FROM AUTHOR]

The via media technique of characterisation in private international law, as proposed by the Canadian author Falconbridge, was – over a period of three decades – gradually adopted by the courts in Lesotho, South Africa, Zimbabwe, and, more recently, Eswatini. In a particular dispute, which is used as angle of incidence for the discussion below, the High Court of Swaziland (now Eswatini) applied the rules of the lex fori pertaining to liberative prescription (the limitation of actions) against the background of the via media technique. The decision was overruled by the Supreme Court of Eswatini, which – using the same technique – applied the proper law of the contract in this regard. In this contribution, the Canadian doctrine and its application by the Eswatini and other Southern African courts is critically discussed. The scenario in the Eswatini cases provides an example of what the author calls the phenomenon of dual cumulation. He attempts to provide guidance for the development of Southern African private international law in this regard beyond the via media technique. [ABSTRACT FROM AUTHOR]

This article contains the first draft of the envisaged African Principles on the Law Applicable to International Commercial Contracts. The drafting of various sets of African Principles of Commercial Private International Law is a project of the Research Centre for Private International Law at the University of Johannesburg. The future sets of principles, in the form of model laws, could be used by national legislators on the continent and African economic integration organisations, particularly the African Union, in, respectively, domestic legislation and regional or supranational laws of a soft or binding nature. The existence of a reliable transnational legal infrastructure in respect of international commercial law, including commercial private international law, is a prerequisite for investor confidence, inclusive economic growth, sustainable development, and the ultimate alleviation of poverty on the African continent. The proposed sets of African Principles may contribute to sustainable growth on a long-term basis. The regulation of private international law of contract is essential in the further development of the African Continental Free Trade Area, which was established in 2018. Academics and other interested parties are invited to provide comments on the draft below before the end of June 2021. [ABSTRACT FROM AUTHOR]

The Hague Principles on Choice of Law in International Commercial Contracts are, inter alia, intended to facilitate the continued development and refinement of the concept of party autonomy in countries where this notion has in principle been accepted. The article envisages how the Hague Principles could practically contribute to enhancing the private international law rules in respect of choice of law in international commercial contracts in India and South Africa, the two BRICS countries with a common law-oriented conflicts-of-law system. Four examples are provided, with reference to Article 2(4) (no connection required between the parties or the contract and the chosen law), Article 4 (second sentence) (the relationship between choice of court or localized arbitral tribunal and tacit choice of law), Article 6(1)(b) (choice of law in the battle of forms) and Article 9(1)(d) (chosen law governs prescription and limitation periods). From the examples provided, it is clear that the Hague Principles have real potential to assist in the interpretation, supplementation and development of the rules of private international law in both India and South Africa. [ABSTRACT FROM AUTHOR]