Morad Tayeb Juma © 2018

PRIVATE INTERNATIONAL LAW

PREPARED BY

MORAD T. JUMA

1.1 Introduction

Private International Law has developed as a system recently in Africa. Judicial decisions
have contributed largely in shaping this branch of law but it is also influenced by
continental thoughts. There is a debate as to where private international law belongs
between international law and municipal law. It is necessary to focus on its development
in Africa before any serious discussion on Private International Law issues.

1.2 Development of Private International Law in Africa

In 1947, Professor Cheshire published his ―Plea for a Wider Study of Private
International Law.‖1 In 1948, his article was reprinted in the South African Law
Journal.2 It is impossible to estimate the extent to which the paper directly encouraged
the study of the subject in Africa in general, and in South Africa in particular. What is
certain is that private international law is a neglected and highly underdeveloped subject
in Africa. Professor Forsyth has described it as ―the Cinderella subject seldom studied
[and] little understood.‖3 P.S.G. Leon also observed that it is a subject which does not
command great attention amongst South African (substitute: African) lawyers, occupies a
modest part of the average university curriculum, and remains largely unfamiliar to the
older generation of practicing lawyers.4 Indeed, there is a scarce of writing and activity
on the subject; textbooks are few, commentaries, articles, and cases come sporadically,
and engagement with the international community for the subject‘s development is
minimal.

The study and development of private international law in the region has stagnated
because Africa has largely been excluded from, and not actively engaged with, many of
the contexts in which the subject‘s development has been promoted in other jurisdictions.

1
1 INT’L L. Q. 14 (1947).
2
65 S. AFR. L. J. 213 (1948).
3
CHRISTOPHER F. FORSYTH, PRIVATE INTERNATIONAL LAW: THE MODERN ROMAN-DUTCH LAW INCLUDING THE JURISDICTION OF THE
HIGH COURT 43 (2003).
4
P.S.G. Leon, Roma non locuta est: The Recognition and Enforcement of Foreign Judgments in South Africa, 16
COMP. & INT’L L. J. SOUTHERN AFR. 325 (1983).

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This is consistent with Kalensky‘s observation that the material conditions of the life of a
society at any given stage influence the development of private international law.5
Among these factors is the growth in transnational family relationships, international
trade and investment, large-scale immigration, technological advancement, global
transportation, and communication.

The reason that Africa has largely been excluded from, and not actively engaged with, the
subjects development meant it has not been called upon to address the challenging private
international law issues they bring as frequently as many other parts of the world. Since
these developments are associated with economic advancement, the underdeveloped state
of private international law in Africa is indicative of greater and more telling problems
facing the continent. They are the problems of isolation from international legal
developments, and the non-appreciation of the importance of a developed legal
infrastructure as a key prerequisite for all commercial activities.

As a subject with both national and international dimensions, private international law
provides a barometer for measuring the extent to which a country‘s legal system engages
with other legal systems. This engagement is fostered by the personal and commercial
interactions between the natural and legal persons in the respective legal systems.
Globalization is the defining characteristic of our age. The interactions it generates
condition economic and social development. It is no happenstance that all advanced legal
systems, such as those of the United Kingdom, United States, Canada, Australia, and the
European Union, have well-developed private international law regimes.6 They are also
very active participants in its international development. The opening up of China‘s
economy to the outside world has positioned the subject as an indispensable part of that
country‘s legal infrastructure as well, and Chinese academics are consciously exposing
the world to China‘s practice of private international law.7 If Africa is really serious about
engaging with the world, especially in the areas of trade and commerce, it also may have
to devote a little more time to its private international law regime.

5
PAVEL KALENSKY, TRENDS OF PRIVATE INTERNATIONAL LAW 23 (1971).
6
http://webcache.googleusercontent.com/search?q=cache:DVx7vfPbv8AJ:eprints.lancs.ac.uk/20995/1/OPPONG-
AFR-PIL-AJCL-FINAL.doc+&cd=4&hl=en&ct=clnk&gl=tz&client=seamonkey-a- retrieved on 19 April 2018
7
See e.g., Qingjiang Kong & Hu Minfei, The Chinese Practice of Private International Law, 3 MELBOURNE J. INT’L L. 414
(2002) (reporting that this aspect of the Chinese legal system has developed so rapidly that it is a formidable task
for academic lawyers to keep abreast of its changes); Mo Zhang, Choice of Law in Contracts: A Chinese Approach,
26 NW. J. INT’L L. & BUS. 289 (2006); Huang Jin & Du H. Fang, Chinese Judicial Practice in Private International Law
2002, 4 CHINESE J. INT’L L. 647 (2005); Yongping Xiao & Zhengxin Huo, Ordre Public in China’s Private International
Law, 53 AM. J. COMP. L. 653 (2005).

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African states currently have no multilateral convention dealing directly with any issue
of private international law of significance. The existing treaties are bilateral agreements
between countries for the recognition and enforcement of foreign judgments. However,
the impact of private international law can be seen in some regional economic treaties in
Africa.8 These treaties have borrowed from the techniques of private international law by
including provisions that purport to ―transform‖ judgments of their established regional
courts into judgments equivalent to national ones for the purpose of enforcement.
Example of the provision include; art. 25 of the Treaty Establishing the Organisation for
the Harmonisation of Business Laws in Africa; art. 44 of Treaty Establishing the East
African Community; art. 32(1)(2)(3) of Southern African Development Community,
Protocol on Tribunal and Rules of Procedure Thereof; art. 40 of Treaty Establishing the
Common Market of East and Southern Africa. This departs from the classic public
international law means of enforcing judgments of international courts such as reliance
on international non-judicial institutions, diplomacy, self-help, and negotiations. The goal
of these provisions appears to be to provide an effective and expedited judicial means of
enforcing judgments of international courts. This mode of enforcement is particularly
important for individuals who litigate directly before international courts, and are
subsequently disadvantaged by the power-centered traditional international law
enforcement mechanisms.

Africa‘s engagement with international institutions dealing with issues of private

international law has been minimal, and often indirect. There are currently only four
African members of the Hague Conference on Private International Law, namely,
Morocco, Egypt, Zambia and South Africa.9 Compared with membership from other
regions, Africa is highly under-represented. Some African countries participate indirectly
in the work of the Conference through institutions like the Commonwealth and the Asian-
African Legal Consultative Organization (formerly Asian-African Legal Consultative
Committee), both of which cooperate with the Conference. As of June 1, 2007, 19
African countries were parties to a total of 12 Hague Conventions.

Although Africa‘s participation in the international development of the subject has been
minimal, we should not ignore the influence of cases originating from Africa or involving
Africans on the past and present development, especially of the common law rules on
private international law. In the past, and even to this day, these cases continue to be cited

8
This can be seen as partly evidencing the increasing interaction between public and private international law. See
generally Lucy Reed, Mixed Private and Public International Law Solutions to International Crisis, 306 RECUEIL DE
COURS 177 (2003).
9
See https://www.hcch.net/en/states/hcch-members retrieved on 19 April 2018

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and remain influential. The cases include; McCabe v. McCabe, [1994] 1 F.L.R. 410
(involving a Ghanaian woman and Akan customary law of marriage); Re Bethell, Bethell
v. Hildyard, (1998) 38 Ch. 220 (facts emanating from Botswana); Bambgbose v. Daniel,
[1955] A.C. 107 (facts from Nigeria); Coleman v. Shang, [1961] A.C. 481 (facts from
Ghana); Connelly v. RTZ Corp. plc, [1998] A.C. 854 (facts from Namibia); Lubbe v.
Cape plc, [2000] 4 All E.R. 268 (facts from South Africa); British South Africa Co. v.
Companhia de Mocambique, [1893] A.C. 602 (facts from South Africa).

1.3 What is Private International Law?

Private international law is a body of rules used to resolve legal disputes between private
individuals who cross international boundaries. Where a dispute is between two parties
in different countries with different legal systems, private international law helps a court
determine which country's substantive law will be used to decide the matter. Although it
is called 'international law' it is in fact a body of municipal law, and each country has its
own set of private international law. It is distinguished from public international law,
which is the law which mainly governs relations between States (nations).10

Although private international law is a municipal body of law, a lot of work has been
done by various international bodies to try to harmonise private international law around
the world. This harmonisation effort is designed to minimise the impact of international
legal disputes and in so doing to promote international trade and commerce.

1.4 Private International Law is concerned with three main issues

(components).

1. Jurisdiction
 Whether the local court, or ‗forum‘, has the power to hear and determine the case,
or whether the contacts the case has with another state or country limit or
otherwise restrain the forum court‘s power or willingness to decide the case. For
example, a conflict arises concerning a contract between an English company and

10 th
http://libguides.library.qut.edu.au/c.php?g=427886- retrieved on 16 April 2018 at 2030 hrs

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a Tanzania company, should this issue be brought before a court in England or in

Tanzania?
2. Choice of law
 Even if the forum court has, and will, exercise the jurisdiction to decide the case,
whether it will decide the case in accordance with the law of the forum (lex fori),
or in accordance with the law of the other state or country
 Is the forum law or foreign law to be ‗the law of the cause‘ (lex causae) that
disposes of the case, and how does the forum court choose one or the other?
 This question is naturally only important if application of the forum‘s law is likely
to give a different result to the application of the foreign law –that is, where there
is ‗a conflict of laws
 Or, perhaps, the parties to the dispute have chosen the law of a third country, or a
uniform international law may even apply to their dispute.
3. Recognition and enforcement of foreign judgments
 Finally, after the case has been decided, it is necessary to determine if, and under
what circumstances, this decision can be recognized and enforced in another
country.
 In Tanzania the governing Act for foreign Judgments is THE RECIPRICAL
ENFORCEMENT OF FOREIGN JUDGEMENTS ACT CAP 8. In this particular
Act there is a schedule on the list of countries in which its judgement are
reciprocal to Tanzania, for countries not contained in the schedule the proper way
is to reinstitute a fresh case and attach the judgement as an annexture.

These three issues could be considered to be the nucleus of private international law, as it
is generally accepted in most countries that these issues are part of private international
law. Private international law has its historical development in civil law. Lex fori is the
law of the forum and lex causae is law of the cause/law of the matter in dispute.

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1.5 Raison d`etre of Private International Law (The most important reason or
purpose)

Every legal order in the world has its own rules relating to matters of private law. Private
law is concerned with all legal relationships between private entities and thus includes,
for example, family law and the law of contracts and obligations. These laws differ from
country to country. However this does not stop interaction between people in different
countries. People may, for example, marry someone from another country or find a job in
a different country and create legal relations. It is this simple fact that is the raison d’être
of private international law.

Private international law is the area of law that comes into play whenever a court is faced
with a question that contains a foreign element, or a foreign connection. The mere
presence of such a foreign element in a legal matter raises a number of questions and it is
the function of private international law to provide an answer to these questions and to
ensure just solutions.
According to E.T.KADIRI the foreign elements include;
a) One of the parties may be foreign by nationality or domicile.
b) A trader may be adjusticated bankrupt in a country having numerous creditors
abroad.
c) The action may concern property situated abroad or the disposition of
property made abroad.
d) A bill of exchange may be drawn or accepted or endorsed abroad.
e) A plaintiff may seek damages for a tort committed abroad.
f) A contract may have been made in one country to be performed in
another.

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g) Two persons may resort to the courts of a foreign country where the
means of contracting or of dissolving a marriage is more convenient than in
the country of their domicile.
h) Two persons of the same nationality may dispute the validity of a divorce
obtained in a foreign country.
i) A person who had found work in one country may seek relief in another
country in a labour dispute.
j) A citizen of country D may die interstate in country E, leaving movables in
country F and land in country G.

1.6 Difference between Public International Law and Private International

Law

Public International Law is a field of law that regulates relationships mainly between
states (countries) and/or international organisations. For example, treaties and
relationships between two or more countries come under the purview of public
international law.11

Private international law is a field of law that deals with conflict of laws between
multiple national jurisdictions. For example, if a British citizen has a debt in Saudi Arabia
and is later sued for it in a British court, the principles of private international law
determines how the conflict of interests between laws in Britain and Saudi Arabia would
be dealt with.12

However one difference between private international law and public international
law is that foreign municipal law must be proved as a fact. This is not so with
the law of nations or public international law because public international law is
part of the law of the land.
11
https://www.quora.com/What-is-the-difference-between-public-international-law-and-private-international-
th
law- retrieved on 16 April 2018 at 2130 hrs
12
Ibid.

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1.7 Similarities of Public International Law and Private International Law

The case of The Estate of Maldanado [1954]13 shows as follows how the two may be
related;
i. Some principles of law such as AUDI ALTERAM PARTEM apply to
both.
ii. Some rules of private international law, such as the doctrine of proper
law of contract may be adopted by a court in the settlement of a
dispute between sovereign states. The notion of estoppel was applied
in the SERBIAN LOANS case: PCIJ – 1929.
iii. The public international law concept of sovereign immunity can be
applied by a municipal court when seized of a case containing a
foreign element.

1.8 Private International Law as Conflict of Laws

Conflict of laws is a set of rules of procedural law which determine the legal system and
the law of jurisdiction applying to a given legal dispute. In civil law, lawyers and legal
scholars refer to conflict of laws as private international law.14
The term conflict of laws originates from situations where the ultimate outcome of a legal
dispute depends upon which law applies, and the common law courts manner of resolving
the conflict between those laws. However, private international law is a feature of
municipal law which vary from country to country.15
Private international law is also described as conflict of law when used to refer to the
difference between the internal laws of two countries on the same matter. It can
also be said to be the law used to avoid conflict of laws. When a foreign law is
considered, it is not the foreign law which is given effect but local law. This was
decided in the case of DYNAMIT ACTIEN GESSELLSCHAFT v. RIO TINTO

13
http://ectil.org/etl/getdoc/16b000ed-7e56-4d24-95a7-dff5d634698e/Re-Maldonado-email.aspx- retrieved on
th
16 April 2018 at 2130 hrs
14 th
https://conflictoflaws.uslegal.com/- retrieved on 16 April 2018 at 2130 hrs
15
Ibid.

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[1918] A.C 298. In that case it was stated that the forum (i.e the forum court)
adopts and enforces as its own law a rule or decision found in the system of
another country and in so doing the forum enforces not a foreign right, but a
right created by its own law.
Courts are often required to resolve conflict of laws where the law of one
country and the law of another country on the same matter hold diametrically
opposed views. The following are cases on classification of the causes of action
and selection of lex causae.

ANTON v. BARTOLO ( Maltese Marriage case)- Clunet (1891) 1171. Husband and
wife were domiciled in Malta at the time of their marriage. They then acquired
French domicile. The husband bought land in France. After his death the widow
brought an action in England claiming a usufruct in one quarter of the land. The
Court of Appeal in Algiers in 1899 had to decide whether the claim of the
widow was a question of succession to land, according to the French law or of
matrimonial rights, according to the law of Malta. If it was of succession it
would be governed by lex situ and matrimonial rights were dependent upon lex
domicilii at the time of the marriage. As the widow would have failed in
France the Court applied the matrimonial law of Malta.

NICOLS v. CURLIER [1900] A.C 21. In that case an English judge made a
classification of the cause of action in a broad spirit. The facts were that a
husband and wife, French both by nationality and domicile, were married in Paris
without making an express contract as to their proprietary rights and therefore
their property both present and future became subject to the French law of
communaute de biens. The husband died in England and left a will which
disregarded his widow‘s rights under this French doctrine of community share. In
that case the problem of classification was whether the right claimed by the
widow was to be treated as contractual or testamentary. If it was contractual it
would be governed by French law which recognized implied contracts. If it was

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testamentary it would be governed by English law according to which there was

no contract between the spouses . The House of Lords recognized French law by
which a husband and wife are bound by an implied contract to adopt the
system of communaute de biens.

1.9 Sources of Private International Law

Another particularity of private international law is the variety of its sources. Rules of
private international law can be found not only in the national legislation of States, but
also in international treaties. National laws are the primary sources of Private
International Law. Private International Law is also embodied in treaties and
conventions, model laws, legal guides, and other instruments that regulate private
transactions, with a foreign element. Private International Law deals with a variety of
topics, such as (international) contracts, torts (lex delicti), family matters, recognition of
judgments, child adoption and abduction, real property (lex situ), intellectual property.16
1.10 International Treaties on Unification of Private International Law
The Hague Conference of Private International Law, an international organization
established in 1893, is the most prominent organization the field of private international
law and as such is responsible for many conventions concerning issues of private
international law. Over the years the Hague Conference has developed conventions in the
areas of international family law, international legal cooperation and litigation, and
international commercial law.17 In the field of international trade law and arbitration the
United Nations (UN) is an important player. Particularly, the United Nations Commission
on International Trade Law (UNCITRAL) has drafted some important conventions. The
number of conventions concerning private international law concluded by the UN pales
in comparison to the number concluded by Hague Conference. Nevertheless, some of
them are very important. Examples are the Vienna Convention on the Law Applicable to

16
https://www.peacepalacelibrary.nl/research-guides/national-law/private-international-law-in-general/- retrieved
th
on 16 April 2018 at 2130 hrs
17
See for an overview of the conventions the website of the Hague Conference [www.hcch.net].

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the International Sale of Goods and the New York Convention on the Recognition and
Enforcement of Arbitral Awards.
In addition to multilateral treaties, there are also many bilateral treaties between countries
in the area of private international law. Such bilateral treaties only operate between two
countries and the precise content of such agreements varies.

Objectives of Private International Law

One of the main reasons for States to have a system of private international law which
will occasionally lead to the assertion of jurisdiction in a case with international
connections, the application of a foreign law, or the recognition and enforcement of
foreign judgments—is the reasonable and legitimate expectations of the parties.
Completely disregarding foreign laws and decisions, or even the willingness to entertain
international cases, would lead to injustices for the parties involved in such international
proceedings.18
Another important objective of private international law is the international harmony of
decisions. This classic goal of private international law was first introduced by Friedrick
von Savigny in 1880. It entails that countries should strive to reach the same decisions in
problems of private international law. This latter objective, however, is difficult to
achieve, as every country is, in principle, free to decide how to deal with issues of private
international law. This does not take anything away from the importance of this notion.
The international harmony of decisions is not an empty vessel. The taking into account of
foreign laws and decisions by States helps avoid ‗limping‘ legal relationships, i.e., legal
relationships that are recognized in one country but not in another. One should not lose
sight of the fact that rules of private international law are also in the interest of the
(forum) State, as it benefits from stability with regard to cross-border legal
relationships.19

18
See, e.g., Dicey et al. 2012, p. 5.
19
Bogdan 2011, pp. 49–70.

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Also another objective is to enable a court to determine the rights of the

parties in actions in respect of foreign claims. For example, a contractual promise
unsupported by consideration made and to be performed in one country may be
valid and enforceable in one country but not in another country. Once a court
in country X decides that the applicable law is that of country Y then the
court is bound to apply that law of country Y in determining the rights of the
parties.

Jurisdiction in Private International Law Cases

Jurisdiction means power or authority of a court to hear and determine a matter

or dispute. Courts possess jurisdiction over matters only to the extent granted to it
by the Constitution or legislation of the sovereign on behalf of which it
functions.

In the case of TANZANIA - CHINA FRIENDSHIP TEXTILE CO. LTD V OUR

LADY OF USAMBARA SISTERS (Court of Appeal of Tanzania Civil Appeal No. 84
of 2012) ―jurisdiction was defined as the authority of a court to exercise power
vested in it by a constitution or legislation‖. It should be noted that the question of
jurisdiction is fundamental and not one of a mere technicality.

There are different categories of jurisdiction:

 in rem jurisdiction,
 in personam or personal jurisdiction,
 subject matter jurisdiction,
 federal or state jurisdiction and original jurisdiction

In rem jurisdiction

In law, in rem Jurisdiction pertains to the actions of the court that would be taken with
respect to a material or thing. The term 'in rem' refers to a thing and is contrary to 'in

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personam' which means directed to a person. In rem is a Latin term. It demands that the
property or the article must be in the same country as the court which will undertake the
proceedings.20

In rem jurisdiction is based solely on the location of the property, real or personal. For a
particular court to have the authority to determine ownership of a piece of property, that
property must be in the physical location over which the court has authority. For
example, let's say Ted owe's a judgment from a court in Washington state and they seize
his car, boat and bank account located in the state. Ted also has a hunting cottage and
land in Oregon, but since Washington state has no jurisdiction over land in Oregon, the
court order has no authority.21

In rem jurisdiction is one of the most effective powers that the court has to pass judgment
on real estate cases, or cases where there is need for a status to be assigned to a
relationship.

In personam or personal jurisdiction

For a court to have personal jurisdiction over a defendant, the defendant must have been
personally served (or have accepted service of the court papers) and the defendant must
have at least some contacts with the state in which the court is located. No set number
qualifies as the minimum; each situation must be analyzed case by case. If the defendant
lives out of state, the court must look at the defendant's contacts with the state. Going into
a state regularly to conduct business is usually sufficient for the court to obtain
jurisdiction; sending child support payments to a state, without actually visiting the state,
however, is not.22

A court gains personal jurisdiction over a person who is served with process
within the court‘s jurisdiction , regardless of whether the person lives within the

20
https://www.buzzle.com/articles/in-rem-jurisdiction-meaning-and-examples.html- retrieved on 20 April 2018
21
https://study.com/academy/lesson/in-rem-jurisdiction-definition-examples.html- retrieved on 20 April 2018
22
https://www.lectlaw.com/def2/p211.htm- retrieved on 20 April 2018

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jurisdiction or is just visiting. For example, John and Cathy were married in Delaware
and moved to New York a year later. Eleven years after being married, John and
Cathy decided to separate. Cathy moved to Alabama and filed for divorce in
Alabama State Court. A few weeks later, John visited Alabama on business. When he
arrived at his wife‘s house after spending some time with his children, John was
served with an Albama court summons and a copy of the divorce petition. John then
returned home to New York. Despite objections the Alabama court obtained
jurisdiction over John simply because he was served with process while in
Alabama.

Where the defendant has no contacts with the state in which the court is located then the
court has no jurisdiction over him, example: Angel and Walter spent their entire married
life in Colorado. Angel moved to New Mexico, established residency and sued for
divorce. If Walter has virtually no contacts with New Mexico, the New Mexico court has
no personal jurisdiction over him.

Subject matter jurisdiction

Means that the law gives a particular court the authority to hear a certain type of case, For
example, a family court and a felony criminal court hear different types of cases based on
the laws of the state.23 Federal courts have original subject matter jurisdiction over
cases involving a question or issue of federal law.24

23
https://study.com/academy/lesson/in-rem-jurisdiction-definition-examples.html-retrieved on 20 April 2018
24
https://lawshelf.com/courseware/entry/jurisdiction-over-the-subject-matter-of-the-action-subject-matter-
jurisdiction-retrieved on 21 April 2018

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