Abduction See Children Actions in Personam Bases of Jurisdiction, 47 Administration of Estates Country Reports, 296–306 Genera

Cambridge University Press 978-0-521-19969-8 - Private International Law in Commonwealth Africa Richard Frimpong Oppong Index More information

INDEX

abduction see children see also jurisdiction agreements actions in personam arrest bases of jurisdiction, 47 peregrinus defendants, 71–2, 84 administration of estates attachment of property country reports, 296–306 actions between peregrines, 70 generally, 296 amenability to, 86 international conventions, 306 application for, 69–71, 73, 82, 85 jurisdiction, 306–7 avoidance of, 87–8 letters of administration as basis of jurisdiction, 78–9 effect, 310 categories of attachable property, exclusion of foreign law, 23–4 76 jurisdiction, 306–7 consent to jurisdiction as alternative, personal representatives 70–3, 79–82, 84 consular ofﬁcers as, 309 constitutionality, 86–7 selection, 309 court’s discretion as to, 83–4 probate doctrine of effectiveness, 69, 78, 81 effect, 310 effect on third parties, 86 jurisdiction, 306–7 excluded forms of property, 76–7 re-sealing of grants, 307–9 human rights, 86–7 proof of foreign law, 14 immunity from, 84–5 see also succession jurisdiction see jurisdiction adoption see children lex causae and, 7–8 Africa money claims, 70, 74–5 as study ﬁeld, lix–lx proof of attachable interest, African regional economic community 75–6 courts see international proof of prima facie cause of action, judicial assistance 77–8 applicable law proof of right to claim, 75 ascertainment of, 12–23 purpose of, 84 question of meaning, 3 for satisfaction of judgment, 82 arbitration see foreign arbitration submission to jurisdiction as awards; New York alternative, 70–3, 79–81, 84 Convention value of property, 77 arbitration agreements generally, 91 separability from main agreement, bankruptcy 110–11 country reports, 264–73 478

© in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-19969-8 - Private International Law in Commonwealth Africa Richard Frimpong Oppong Index More information

index 479

jurisdiction, 274–5 New York Convention, 405 recognition of foreign proceedings proof of foreign law, 12–13 and representatives, 275–6 property, jurisdiction, 257 statutory regimes, 273 remedies, 425 trustee, 274 stay of proceedings, 91–2 bills of exchange succession country reports, 168–77 revocation of wills, 286–7 issues generally, 168 validity of wills, 278–9 statutory regimes, 177–8 taking of evidence for foreign courts, bond holders 445–7 relief, and lex fori,8 Botswana administration of estates, 296 capacity arbitration agreements, 92 contractual capacity, 142–6 bankruptcy, 264–5 invocation of jurisdiction, bills of exchange, 168–9 126–7 capacity to invoke jurisdiction, carriage by sea and carriage by air 126–7 contracts for, 134–5 children limitation of contracting party custody, 235 autonomy, 141–2 legitimacy and legitimation, cause of action 245 statute extinguishing, distinction choice of law, conceptual issues, 4 between substance and decline of jurisdiction, 91–2 procedure, 10–11 diplomatic immunity, 112–13 characterisation domicile of dependency, 39 approaches to, 6 domicile of origin and of choice, country reports, 4–6 27–8 decisions as to, 4–5 enforcement of foreign judgments domain of, 3 ﬁnal judgments, 331 judgments as ‘governmental’ or jurisdiction, 318–19 ‘commercial’ acts, 349–51 res judicata, 335 problems as to, 6–7 against states, 332–48 children statutory regime, 358–60 abduction, Hague Convention cases, foreign arbitration awards, 405 240–4 grounds of jurisdiction, 68–71 adoption insolvency, 264–5 choice of law, 230–1 international judicial assistance, country reports, 221–9 445–7 international conventions, lis alibi pendens,92 229–30 marriage interventions to secure best property rights, 186–7 interests of child, 231 recognition of foreign decrees, jurisdiction, 230 200–1 lex adoptionis, 232 matrimonial causes recognition, 231 enforcement of foreign recognition of foreign orders, maintenance orders, 206–7 231–2 jurisdiction, 190–1 statutory regimes, 229

480 index

children (cont.) private international law contrasted, custody 12 application types, 239–40 competent jurisdiction of foreign court best interests of child (welfare res judicata, 338–40 principle), 240 conflict of laws see private international country reports, 235–9 law domicile, 39–42 connecting factors issues generally, 221 role of, 27 legitimacy and legitimation constitutional law basis of jurisdiction, 249 attachment of property, 86–7 continuing legitimacy after parents’ defences against enforcement and marriage voided, 250–1 recognition of foreign country reports, 245–8 judgments, 347 domicile, 249–50 consular officers equal treatment, 248–9 diplomatic immunity see diplomatic surrogacy agreements immunity as contract, 232, 234 as personal representatives, 309 legal basis, 232 consumer contracts lex fori, 234 limitation of party autonomy, 139 recognition, 233 contracts status of child born under, 234 application of proper law, 138–41 statutory regimes, 232–3 ascertainment of applicable law unilateral conflicts rule, 233–4 country reports, 131–4 choice of law generally, 134 characterisation see characterisation capacity conceptual issues generally, 3 country reports, 142–3 incidental question see incidental lex domicilii, 144–5 question lex loci contractus, 144–6 lex situs see lex situs lex loci solutionis, 144 renvoi see renvoi carriage by sea and carriage by air, see also applicable law; domicile; 134–5 foreign law; see also under change of governing law, 136–7 specific topics choice of law Civil Procedure Rules implied, 135–6 service out of jurisdiction, 49, 54–6 issues generally, 131 claims upholding of, 137 ranking, 9 executed or performed abroad, recognition, 9 jurisdiction, 49, 54, 63–4, recovery, 9 66 classification see characterisation factual connections as to proper law, companies 137–8 capacity to invoke jurisdiction, formal validity 126–7 country reports, 142–3 foreign company jurisdiction, 73 generally, 145–6 residence, 56, 59–60, 65–6 interpretation, 148 winding up of foreign company, lex domicilii, 144–5 275 lex loci solutionis, 144 comparative law made through agent, jurisdiction, 53

index 481

more than one proper law, 136–7 domicile party autonomy acquisition of limitations on, 138–42 illegality of residence as bar to, upholding of, 135 37–8 performance proof of, 37 country reports, 146–8 time of, 38–9 scope of applicable law, 142 as connecting factor, 27, 36–7 substantive considerations as to country reports, 39–42 proper law, 138 of dependency, 39–44 surrogacy agreements, 232–4 independent, 43–4 conventions see Hague Conventions; lex fori and, 37 ICSID Convention; New more than one, 38 York Convention; Vienna nationality distinguished, 28–9 Convention on Diplomatic of origin and of choice, 27–39 Relations as question of fact, 35–6 costs residence distinguished, 28–9, 31–2 estimation, and lex fori,8 test of intent, 37–8 security see security for costs see also under speciﬁc topics custody see children

edictal citation debtors service out of jurisdiction, 73, 81, 83, residence, 56 89–90 see also bankruptcy; insolvency effectiveness, doctrine of default judgments jurisdiction, 81 defences against enforcement and employment contracts recognition of foreign limitation of party autonomy, judgments, 345–6 139–41 ﬁnality, 335 enforcement of foreign adoption orders defendants see children, adoption arrest, 71–2, 84 enforcement of foreign arbitration peregrinus defendants, 69–71, awards see foreign arbitration 84–5 awards diplomatic immunity enforcement of foreign judgments and country reports, 112–21 orders see foreign judgments extension to international estates organisations, 123–4 administration see administration of generally, 112 estates restrictive or absolute doctrine, 123 sequestration see bankruptcy sovereign immunity distinguished, succession see succession 122 estimation of costs Vienna Convention on Diplomatic lex fori and, 8 Relations, 121–2 evidence waiver, 124 sufﬁciency of, and lex fori,9 divorce taking for foreign courts independent domicile, wife’s, 39–40, application by authorised persons, 42–3 454 proof of foreign law, 19–20 country reports, 445–53

482 index

evidence (cont.) international conventions international arbitral tribunals, generally, 397 453 New York Convention see New international conventions, 453 York Convention procedure for, 454 status of, 397–8 reciprocity, 453–4 limitation of actions, 420–2 statutory regimes, 453 foreign companies see companies transmission of dispositions, 454 foreign currency, foreign judgments in, exchange control 351–2 enforcement, exclusion of foreign foreign currency obligations law, 25 conversion date, 166 exchange rates country reports, 154–62 foreign currency obligations, 165–6 decline of jurisdiction, 164 execution of judgments exchange rate, 165–6 foreign currency obligations, 165 execution of judgments, 165 expert evidence exercise of jurisdiction, 165 proof of foreign law, 22 financial implications of decisions, experts 162–3 qualification as, 22 interest rate, 167 issues generally, 154, 163 nominalism principle, 163–4 family law see children; marriage; payment date rule, 166–7 matrimonial causes scope of jurisdiction, 164–5 federal laws foreign judgments judicial notice of, 16–17 common law definition, 313–15 final judgments see foreign judgments, defences against recognition enforcement constitutional norms, 347 foreign adoption orders country reports, 340–4 recognition, 231–2 default judgments, 345–6 foreign arbitration awards international law grounds, 345 enforcement natural justice defence, 345–7 co-existence with other regimes, public policy defence, 344–7 401 statutory defences, 344 at common law, 400–1 enforcement country reports, 398–9 bases of, 316, 320 with leave of court, 400 conditions for, 322–35 non-parties to New York defences against Convention, 401 constitutional norms, 347 statutory schemes country reports, 340–4 awards enforceable as ‘foreign default judgments, 345–6 judgments’, 402–5 international law grounds, 345 ICSID Convention awards, natural justice defence, 345–7 417–19 public policy defence, 344–7 as to New York Convention statutory defences, 344 see New York Convention exclusion of foreign law, 24 submission to arbitration, final judgments 400–1 conclusiveness and res judicata in foreign currency, 419–20 see res judicata below

index 483

country reports, 331–4 statutory regimes see statutory default judgments, 335 regimes for enforcing foreign process by which judgment judgments reached, 334 in foreign currency, 351–2 status of, 334 recognition see defences against ﬁxed sums of money recognition above cases, 329–30 registration reforms as to, 330–1 automatic or discretionary, as requirement for enforcement, 391–2 329 ‘nationalistic’ provisions as to, statutory regimes, 330 394–6 in foreign currency, 351–2 periods, 392–3 international competence for set aside, 394–6 bases of, 326–7 foreign jurisdiction clauses burden of proof, 328–9 see jurisdiction agreements country reports, 322–9 foreign law generally, 322 application issues generally, 12, 20–1 jurisdictional equivalence test, country reports, 12–20 328 exclusion of, 23–6 physical presence as basis, 327 expert evidence, 22 public policy considerations, 328 judicial notice of, 12–13, 22–3 real and substantial connection judicial pronouncements, test of as basis, 327–8 soundness, 23 issues generally, 313 lex fori presumed to be equivalent, 22 jurisdiction for pleading of, 21–2 country reports, 318–20 proof of, 12–23 issues generally, 318 as question of fact, 21 peregrinus plaintiffs, 320–1 see also applicable law; lex causae limitation of actions, 352 foreign maintenance orders new action on original cause, 321 afﬁliation orders, exclusion, 218 property cases, 260–1 automatic registration, 219–20 res judicata enforcement issues generally, 206 competent jurisdiction of international conventions, 217 foreign court, 338–40 limitation of available defences, country reports, 335–8 218–19 generally, 335 mandatory registration, 219–20 service out of jurisdiction, 321 ‘privileged’ status, 220 against states provisional orders, 218 challenges to, 349 reciprocity between regimes, 217–18 country reports, 347–9 statutory regimes, 217 immunity from jurisdiction and foreign states immunity from execution capacity to invoke jurisdiction, 127 distinguished, 350 forum agreements see jurisdiction issues generally, 347 agreements judgment as ‘governmental’ or forum non conveniens ‘commercial’ act, 349–51 application of, 106–7 restrictive immunity doctrine, country reports, 91–106 349–50 generally, 91

484 index

Gambia diplomatic immunity, 113–14 administration of estates, 297 domicile of origin and of choice, arbitration agreements, 92 28–9 bills of exchange, 169 enforcement of foreign judgments children international competence for, 322 adoption, 221 statutory regime, 361–5 custody, 235 exclusion of foreign law, 23–4 decline of jurisdiction, 92 foreign arbitration awards domicile of origin and of choice, 28 enforcement, 398–9 enforcement of foreign judgments New York Convention, 406–8 res judicata, 336 foreign currency obligations, 154–5 statutory regime, 360–1 forum non conveniens,92 foreign arbitration awards, 405–6 grounds of jurisdiction, 49–54 foreign marriage decrees, recognition insolvency, 265 of, 201 international judicial assistance grounds of jurisdiction, 47–9 service of foreign process, 439 international judicial assistance taking of evidence for foreign service of foreign process, 438–9 courts, 447–8 taking of evidence for foreign marriage courts, 447 recognition of foreign decrees, 201 matrimonial causes validity, 183 enforcement of foreign matrimonial causes maintenance orders, 207–8 enforcement of foreign jurisdiction, 191 maintenance orders, 208–9 New York Convention, 405–6 jurisdiction, 191 proof of foreign law, 13 proof of foreign law, 13–14 service of foreign process, 438–9 property stay of proceedings, 72 jurisdiction, 258 succession, revocation of wills, 287 ownership and transfer, 261–2 taking of evidence for foreign courts, remedies, 426 447 service of foreign process, 439 gay and lesbian relationships stay of proceedings, 93 domicile, 43–4 succession Ghana intestate succession, 290–2 administration of estates, 297–9 revocation of wills, 287 arbitration agreements, 93 validity of wills, 279–80 bills of exchange, 170–69 taking of evidence for foreign courts, capacity to invoke jurisdiction, 126 447–8 children torts, 149 abduction, 236 guardianship see children adoption, 222 custody, 235 legitimacy and legitimation, 245 Hague Conventions choice of law, conceptual issues, 4 Civil Aspects of International Child contracts Abduction (1980), 240–4 applicable law, 131–2 Conﬂict of Laws relating to the Form capacity and formal validity, 142 of Testamentary Dispositions decline of jurisdiction, 92–3 (1961), 284

index 485

International Recovery of Child jurisdictional immunity, 122 Support and Other Forms of insolvency Family Maintenance (2007), country reports, 264–73 217 international judicial co-operation, Law Applicable to Trusts and their 275 Recognition (1985), 276 recognition of foreign proceedings Protection of Children and Co- and representatives, 275–6 operation in respect of Inter- winding up of foreign company, Country Adoption (1993), 275 229–30 intellectual property Recognition and Enforcement of jurisdiction, 277 Decisions relating to statutory regimes, 277 Maintenance Obligations interest rates (1973), 217 foreign currency obligations, 167 Recognition of Divorces and Legal international adoption see children Separations (1970), 205 international conventions Service Abroad of Judicial and administration of estates, 306 Extrajudicial Documents in carriage by sea and carriage by air, Civil or Commercial Matters 134, 141–2 (1965), 438 contractual obligations, 140–1 Taking of Evidence Abroad in Civil enforcement of foreign maintenance or Commercial Matters orders, 217–19 (1970), 453 inter-country adoption of children, human rights 229–30 attachment of property, 86–7 jurisdictional immunity, 121–2 Jurisdictional Immunity of States, 349 ICSID Convention limitation of contracting party enforcement of awards, 417–19 autonomy, 141–2 illegitimacy see children, legitimacy and party autonomy, 141–2 legitimation service out of jurisdiction, 438 immunity taking of evidence for foreign courts, court’s mandate to give effect, 124–5 453 distinction between substance and validity of wills, 284 procedure, 125 see also Hague Conventions; ICSID from jurisdiction and from execution Convention; New York distinguished, 350 Convention; Vienna lex causae and, 125 Convention on Diplomatic in personam actions Relations bases of jurisdiction, 47 international court judgments jurisdiction as to, 260 jurisdiction as to, 261 incidental question international judicial assistance country reports, 4–6 African regional economic decisions as to, 5–6 community courts, 455–8 ﬁeld of, 3 evidence see evidence incola plaintiffs generally, 433 jurisdiction, 69, 84–5 service see service of foreign process; individuals service out of jurisdiction

486 index

international organisations children jurisdictional immunity, 122–4 adoption, 222–3 intestate succession see succession legitimacy and legitimation, 245–6 contracts applicable law, 132 judgments performance, 146 characterisation as ‘governmental’ or decline of jurisdiction, 93–6 ‘commercial’ acts, 349–51 diplomatic immunity, 114–15 immunity from execution distinction between substance and distinguished from immunity procedure, 7–8 from jurisdiction, 350 domicile of dependency, 39–40 jurisdiction domicile of origin and of choice, bases generally, 47 29–30 common law countries, 47–64 enforcement of foreign judgments decline of exercise generally, 91, 106 defences against recognition and, equivalence test, 328 340–1 immunity see diplomatic immunity; ﬁnal judgments, 331 immunity; sovereign international competence for, 322 immunity res judicata, 336 physical presence as basis, 49, statutory regime, 365–9 64–5 foreign arbitration awards, 408–9 residence as basis, 56, 63–6 foreign currency obligations, 156 Roman-Dutch law countries, 68–84 grounds of jurisdiction, 54–6 submission to insolvency, 265–6 by conduct, 49, 66 international judicial assistance voluntary submission, 56, 63–4 service of foreign process, 439–40 see also arbitration agreements; taking of evidence for foreign jurisdiction agreements; courts, 448 see also under speciﬁc topics; jurisdiction agreements, 94–5 service; service out of marriage jurisdiction recognition of foreign decrees, 202 jurisdiction agreements validity, 183 country reports, 91–106 matrimonial causes generally, 91 enforcement of foreign limitations on enforceability, 108–9 maintenance orders, 209 stay of proceedings, 107–8 jurisdiction, 192 submission to jurisdiction by, 49, 66 New York Convention, 408–9 as waiver of immunity, 124 proof of foreign law, 14 see also arbitration agreements property jurisdiction, 258 ownership and transfer, 262 – Kenya service of foreign process, 439 40 – administration of estates, 299–300 stay of proceedings, 93 4 arbitration agreements, 95–6 succession bankruptcy, 265–6 intestate succession, 292 bills of exchange, 170–1 validity of wills, 280 capacity to invoke jurisdiction, taking of evidence for foreign courts, 126–7 448

index 487

torts, 150 as to claims, 9 winding up of foreign company, domain of, 3, 8–9 266–7 foreign law presumed to be kidnapping see children, abduction equivalent, 22 see also under speciﬁc topics lex loci celebrationis legitimacy and legitimation see children marriage validity, 183–5 lesbian and gay relationships lex loci contractus domicile, 43–4 contractual capacity, 144–6 Lesotho marriage validity, 183–6 administration of estates, 300 lex loci delicti choice of law, conceptual issues, 4–5 as governing law, 150–3 contracts, applicable law, 132–3 test of jurisdiction, 151 decline of jurisdiction, 96 lex loci solutionis distinction between substance and contractual capacity, 144 procedure, 8 lex situs domicile of dependency, 40–1 property see property domicile of origin and of choice, 30 reference to, 4 enforcement of foreign judgments, libel statutory regime, 369–70 jurisdiction, 150 grounds of jurisdiction, 71–2 lien intestate succession, 293 lex fori,9 jurisdiction agreements, 96 limitation of actions marriage enforcement of foreign judgments, property rights, 187 352, 392–3 recognition of foreign decrees, 202 foreign arbitration awards, 420–2 validity, 184 lex causae and, 7–9 matrimonial causes lis alibi pendens enforcement of foreign country reports, 91–106 maintenance orders, 209–10 generally, 91 jurisdiction, 192–3 loan repayment proof of foreign law, 14–15 debtor resident within jurisdiction, 56 torts, 150 letters of administration see administration of estates maintenance orders see foreign lex adoptionis maintenance orders as governing law, 232 Malawi lex causae administration of estates, 300–1 domain of, 3, 7–9 arbitration agreements, 96–7 exclusion on public policy grounds, bankruptcy, 266–7 24 bills of exchange, 171–2 see also foreign law children lex domicilii adoption, 223 contractual capacity, 144–5 custody, 236 marriage validity, 183 contracts, performance, 146 lex domicilii matrimonii decline of jurisdiction, 96–7 as governing law, 187–8 distinction between substance and lex fori procedure, 8

488 index

Malawi (cont.) enforcement of foreign maintenance domicile of origin and of choice, 31 orders see foreign enforcement of foreign final maintenance orders judgments, 332 issues generally, 190 foreign arbitration awards, jurisdiction, 198 409–10 recognition of foreign decrees, insolvency, 266–7 200–6 jurisdiction agreements, 96 money claims marriage attachment of property, 70, 74–5, property rights, 187 88–9 validity, 183–6 multilateral conflict rules matrimonial causes categories and connecting factors, 27 enforcement of foreign maintenance orders, 210–11 jurisdiction, 193–4 Namibia New York Convention, 409–10 administration of estates, 301 proof of foreign law, 15 bankruptcy, 268 property, jurisdiction, 258 bills of exchange, 172–3 succession capacity to invoke jurisdiction, intestate succession, 293 126–7 revocation of wills, 288 children, legitimacy and legitimation, validity of wills, 280–1 246 maritime lien decline of jurisdiction, 97 lex fori and, 9 distinction between substance and marriage procedure, 8 dissolution see divorce domicile of dependency, 41 domicile of dependency, wife’s, domicile of origin and of choice, 39–44 31–2 essential and formal validity, enforcement of foreign judgments 185–6 final judgments, 332 independent domicile, wife’s, 39–40, international competence for, 42–3 322–3 issues generally, 181 statutory regime, 370–2 lex domicilii, 183 grounds of jurisdiction, 72–3 lex domicilii matrimonii, 187–8 insolvency, 268 lex loci celebrationis, 183–5 international judicial assistance lex loci contractus, 186 service of foreign process, 440–1 nature of, 181–3 taking of evidence for foreign polygamous courts, 448–9 proof of foreign law, 19 matrimonial causes property rights enforcement of foreign choice of law, 4–5 maintenance orders, 211–12 conversion from polygamy to jurisdiction, 194 monogamy, 188 proof of foreign law, 15–16 voided, continuing legitimacy of property, nature and legal situs, 255 children, 250–1 service of foreign process, 440–1 matrimonial causes taking of evidence for foreign courts, choice of law, 199–200 448–9

index 489

validity of wills, 281 jurisdiction agreements, 98 nationality marriage domicile distinguished, 28–9 recognition of foreign decrees, natural justice defence 201–2 enforcement and recognition of validity, 184 foreign judgments, 345–7 matrimonial causes New York Convention enforcement of foreign cases maintenance orders, 212 national public policy concerns, jurisdiction, 194–5 417 proof of foreign law, 16–17 as to recognition and enforcement property of awards, 416 jurisdiction, 259 scope of Convention defences, nature and legal situs, 255–6 416–17 remedies, 426–7 parties, 110 service of foreign process, 441 statutory schemes giving effect to stay of proceedings, 98 compliance with Convention, succession, intestate, 293 415–16 taking of evidence for foreign courts, country reports, 405–15 449 enacting legislation, 415 torts, 150 Nigeria nominalism principle arbitration agreements, 99 foreign currency obligations, 163–4 bankruptcy, 268–9 nullity bills of exchange, 173 voided marriage, continuing capacity to invoke jurisdiction, legitimacy of children, 250–1 126–7 children, legitimacy and legitimation, 246 obligations see bills of exchange; contracts, applicable law, 133 contracts; foreign currency decline of jurisdiction, 97–100 obligations; torts diplomatic immunity, 115–17 domicile of dependency, 41 domicile of origin and of choice, 32 payment date rule enforcement of foreign judgments foreign currency obligations, 166–7 jurisdiction, 319 pending actions – res judicata, 336 7 stay of proceedings, 109–10 – statutory regime, 372 5 peregrinus defendants foreign arbitration awards arrest, 71–2, 84 – enforcement, 398 9 jurisdiction, 69–71, 84–5 – New York Convention, 410 11 peregrinus plaintiffs – foreign currency obligations, 156 8 enforcement of foreign judgments, – forum non conveniens,97 8 320–1 – grounds of jurisdiction, 56 60 personal representatives international judicial assistance see administration of estates service of foreign process, 441 persons taking of evidence for foreign capacity to invoke jurisdiction, courts, 449 126–7 intestate succession, 293 jurisdictional immunity, 122

490 index

physical presence succession see succession basis of international competence, trusts see trusts 327 public policy basis of jurisdiction, 49, 64–5 defences against enforcement and as basis of jurisdiction, 49, 64–5 recognition of foreign plaintiffs judgments, 344–7 incola plaintiffs, 69, 84–5 exclusion of foreign law, 23–5 polygamous marriage as to international competence, proof of foreign law, 19 328 prescription limitation of contracting party lex causae and, 7–9 autonomy, 141 private international law as to New York Convention, 417 Africa as study ﬁeld, lix–lx comparative law contrasted, 12 purpose and structure of book, lviii, quantiﬁcation of damages lx–lxii lex fori,9 see also choice of law; foreign judgments; jurisdiction probate see administration of estates real and substantial connection procedural law basis of international competence, – country reports, 7 9 327–8 substantive law distinguished, 3, recognition of foreign judgments and – 10 11 orders see foreign arbitration see also lex fori awards; foreign judgments property regional court judgments administration see administration of jurisdiction as to, 261 estates regional economic community courts attachment see attachment of see international judicial property assistance bankruptcy see bankruptcy registration see foreign judgments; insolvency see insolvency registration; foreign intellectual property see intellectual maintenance orders property relief issues generally, 255 lex fori,8 jurisdiction remedies – country reports, 257 60 arbitration proceedings, 431–2 – foreign judgments, 260 1 country reports, 425–9 international court judgments, 261 exercise of ‘extra-territorial limits, 260 jurisdiction’, 429–31 in personam actions, 260 generally, 425 regional court judgments, 261 lex fori and, 9 marriage see marriage statute barring, distinction between ownership and transfer substance and procedure, – country reports, 261 2 10–11 – lex situs, 263 4 types, 429 situs renvoi – country reports, 255 6 country reports, 4–6 – generally, 256 7 domain of, 3

index 491

exclusion of, 285 alternative method as foundation of occurrence, 7 jurisdiction, 47–9 repayment of loan as basis of jurisdiction, 47–9 debtor resident within jurisdiction, service of foreign process 56 country reports, 438–43 res judicata international conventions, 444 ﬁnal judgments and see foreign lex fori, 444 judgments, enforcement by plaintiff, 445 lex fori and, 9 statutory regimes, 444 residence service out of jurisdiction domicile distinguished, 28–9, 31–2 application for, 50, 54, 56, 60, 62, 63 see also under speciﬁc topics as basis of jurisdiction, 47–9, 66–7 restrictive immunity doctrine Civil Procedure Rules, 49, 54–6, enforcement of foreign judgments 433–5 against states, 349–50 commencement, 68–9 revenue law edictal citation, 73, 81, 83, 89–90 enforcement, exclusion of foreign as foundation of jurisdiction, 54 law, 24, 26 grounds for, 51–63, 67–8 rights international conventions, 438 prescription as to extinction or notice of writ, 433–4 creation, lex causae,9 order for, 51 statute extinguishing, distinction by plaintiff, 435–6 between substance and Roman-Dutch law, 437–8 procedure, 10–11 substituted service, 436 Roman-Dutch law Sierra Leone arrest of peregrine, 71–2, 84 administration of estates, 301–2 attachment of property children see attachment of property adoption, 224 incola plaintiffs, 69, 84–5 legitimacy and legitimation, 246–7 jurisdiction, 68–90 decline of jurisdiction, 99–100 peregrinus defendants, 69–71, 84–5 diplomatic immunity, 117 peregrinus plaintiffs, 320–1 grounds of jurisdiction, 60–1 international judicial assistance, 450 matrimonial causes same-sex relationships enforcement of foreign domicile, 43–4 maintenance orders, 213 security for costs jurisdiction, 195 – burden of, 462 stay of proceedings, 99 100 courts’ discretion to award, 461 taking of evidence for foreign courts, requirement for, 459–60 450 residence in economic region, 461–2 South Africa – separation and divorce see divorce administration of estates, 302 3 sequestration see bankruptcy arbitration agreements, 102 – service bills of exchange, 173 4 actions outside and within capacity to invoke jurisdiction, – jurisdiction rules combined, 126 7 53–4 children – on agent, 53 abduction, 240 4

492 index

South Africa (cont.) matrimonial causes adoption, 224–6 enforcement of foreign custody, 236–7, 240 maintenance orders, 213–14 legitimacy and legitimation, 247 jurisdiction, 195–6 choice of law, conceptual issues, 5–6 proof of foreign law, 17–18 contracts property applicable law, 133 jurisdiction, 259 capacity and formal validity, nature and legal situs, 256 142–3 ownership and transfer, 262 interpretation, 148 remedies, 427–8 performance, 146 service of foreign process, 441–2 decline of jurisdiction, 100–2 stay of proceedings, 100–2 diplomatic immunity, 118–19 succession distinction between substance and intestate succession, 293 procedure, 9 revocation of wills, 288 domicile of dependency, 41–2 validity of wills, 281–2 domicile of origin and of choice, taking of evidence for foreign courts, 32–4 450–1 enforcement of foreign judgments torts, 150–1 defences against recognition and, sovereign immunity 341–2 court’s mandate to give effect, 124–5 ﬁnal judgments, 332–3 diplomatic immunity distinguished, international competence for, 122 323–4 restrictive or absolute doctrine, 123 jurisdiction, 319–20 violations of immunity, 125–6 res judicata, 337–8 waiver, 124 against states, 348 states statutory regime, 375–6 capacity to invoke jurisdiction, 127 exclusion of foreign law, 24–5 enforcement of foreign judgments foreign arbitration awards against see foreign enforcement, 399 judgments, enforcement New York Convention, 411–13 statutes foreign currency obligations, 158–9 distinction between substance and forum non conveniens, 101–2 procedure, 10–11 grounds of jurisdiction, 73–81 as evidence of foreign law, 22 insolvency, 269–71 statutory regimes intellectual property, 277 bills of exchange, 177–8 international judicial assistance capacity to invoke jurisdiction, 127 service of foreign process, 441–2 contracting party autonomy, 139–40 taking of evidence for foreign defences against enforcement and courts, 450–1 recognition of foreign jurisdiction agreements, 79–80, 102 judgments, 344 lis alibi pendens, 100–1 domicile, 29–30, 37 marriage enforcement of foreign judgments property rights, 187–8 see statutory regimes for recognition of foreign decrees, enforcing foreign judgments 202–3 enforcement of foreign maintenance validity, 184 orders, 217–18

index 493

exclusion of foreign law, 25 generally, 290 ﬁxed sum judgments, 330 intestate succession foreign arbitration awards see foreign choice of law, 4 arbitration awards country reports, 290–4 inter-country adoption of children, governing laws, 295 229 lex domicilii, 295 judicial notice of federal laws, 16–17, lex situs, 294 22–3 issues generally, 278 jurisdiction, 65–6 matrimonial property, choice of law, matrimonial proceedings, 4–5 recognition of foreign revocation of wills decrees, 205 country reports, 286–9 presumption of equivalence of home generally, 289–90 and foreign law, 15–16, 22 validity of wills renvoi,7 bases of, 284–5 surrogacy agreements, 232–3 country reports, 278–84 statutory regimes for enforcing foreign essential validity, 285–6 judgments international conventions, 284 country reports, 357–86 law at time of making of will as exclusivity, 353–6 governing law, 286 foreign currency judgments, 393–4 renvoi, 285 international competence, 390–1 see also administration of estates issues generally, 353 surrogacy agreements see children limitation of actions, 392–3 Swaziland power to make foreign judgments capacity to invoke jurisdiction, unenforceable, 356–7 126–7 registration see foreign judgments, contracts, applicable law, 133 registration decline of jurisdiction, 103 scope and application, 386–9 enforcement of foreign judgments, stay of proceedings statutory regime, 377 decline of jurisdiction, 107 grounds of jurisdiction, 81–2 jurisdiction agreements, 107–8 jurisdiction agreements, 103 pending actions, 109–10 matrimonial causes, jurisdiction, 196 submission to arbitration proof of foreign law, 18 enforcement at common law, 400–1 recognition of foreign marriage submission to jurisdiction decrees, 203 see jurisdiction substantive law country reports, 7–9 Tanzania procedural law distinguished, 3, administration of estates, 303–4 10–11 arbitration agreements, 103 see also lex causae bankruptcy, 271 substituted service (alternative method bills of exchange, 174–5 of service) capacity to invoke jurisdiction, as basis of jurisdiction, 47–9 126–7 succession children interpretation of wills adoption, 226 country reports, 286–9 custody, 237

494 index

Tanzania (cont.) contract creating trust, governing legitimacy and legitimation, 247 law, 276–7 choice of law, conceptual issues, 4 jurisdiction, 276 contracts applicable law, 134 capacity and formal validity, 143 Uganda decline of jurisdiction, 103 administration of estates, 304 diplomatic immunity, 119–20 arbitration agreements, 105 distinction between substance and bills of exchange, 175–6 procedure, 9 capacity to invoke jurisdiction, domicile of origin and of choice, 34 126–7 enforcement of foreign judgments children, adoption, 226–7 defences against recognition and, contracts, interpretation, 148 343 decline of jurisdiction, 104–5 res judicata, 338 diplomatic immunity, 120 statutory regime, 378–80 domicile of dependency, 42 foreign arbitration awards, 413 domicile of origin and of choice, 34–5 foreign currency obligations, 160 enforcement of foreign judgments international judicial assistance, defences against recognition and, 451 343 intestate succession, 293–4 international competence for, marriage 324–5 recognition of foreign decrees, 203 res judicata, 338 validity, 184–5 against states, 349 matrimonial causes statutory regime, 380–2 enforcement of foreign foreign arbitration awards, 414 maintenance orders, 214 foreign currency obligations, 160 jurisdiction, 196–7 grounds of jurisdiction, 62–3 New York Convention, 413 international judicial assistance proof of foreign law, 19 service of foreign process, 442 property ownership and transfer, 262 taking of evidence for foreign stay of proceedings, 103 courts, 452 succession, intestate, 293–4 intestate succession, 294 taking of evidence for foreign courts, jurisdiction agreements, 104–5 451 marriage, property rights, 188 winding up of foreign company, 271 matrimonial causes third parties enforcement of foreign attachment of property, 86 maintenance orders, 214–15 torts jurisdiction, 197 country reports, 149–51 New York Convention, 414 double actionability rule, 151–3 proof of foreign law, 19 issues generally, 149 service of foreign process, 442 lex fori, 151 stay of proceedings, 104 lex loci delicti, 150, 153 succession, intestate, 294 test of jurisdiction, 151 taking of evidence for foreign courts, trustee in bankruptcy 452 vesting of property, 274 unilateral conﬂicts rule trusts surrogacy agreements, 233–4

index 495

Vienna Convention on Diplomatic validity of wills, 282 Relations winding up of foreign company, parties, 121–2 272–3 voided marriage Zimbabwe continuing legitimacy of children, administration of estates, 305–6 250–1 arbitration agreements, 106 bankruptcy, 273 bills of exchange, 176–7 welfare principle capacity to invoke jurisdiction, best interests of child as to custody, 126–7 240 children wills see succession adoption, 228–9 winding up of foreign company custody, 238–9 jurisdiction, 275 choice of law, conceptual issues, 6 wives see marriage contracts applicable law, 134 performance, 147 – Zambia decline of jurisdiction, 105 6 administration of estates, 305 diplomatic immunity, 121 arbitration agreements, 105 distinction between substance and bankruptcy, 272–3 procedure, 9 bills of exchange, 176 domicile of dependency, 42 children domicile of origin and of choice, – adoption, 227–8 35 6 legitimacy and legitimation, 247–8 enforcement of foreign judgments contracts, performance, 147 defences against recognition and, – decline of jurisdiction, 105 343 4 ﬁ domicile of origin and of choice, 35 nal judgments, 334 enforcement of foreign judgments international competence for, – international competence for, 325 325 6 – statutory regime, 382–4 statutory regime, 385 6 – foreign arbitration awards, 414 foreign arbitration awards, 414 15 – foreign currency obligations, 160 foreign currency obligations, 161 2 – grounds of jurisdiction, 63–4 grounds of jurisdiction, 82 4 insolvency, 272–3 international judicial assistance international judicial assistance, service of foreign process, 443 442–3 taking of evidence for foreign – matrimonial causes courts, 452 3 enforcement of foreign lis alibi pendens, 105 maintenance orders, 215–16 marriage New York Convention, 414 property rights, 188 proof of foreign law, 19 recognition of foreign decrees, – recognition of foreign marriage 204 5 decrees, 204 validity, 185 service of foreign process, 442–3 matrimonial causes stay of proceedings, 105 enforcement of foreign succession maintenance orders, – revocation of wills, 288 216 17

496 index

Zimbabwe (cont.) stay of proceedings, 105 jurisdiction, 197–8 succession New York Convention, 414–15 revocation of wills, 289 proof of foreign law, 19–20 validity of wills, 282–4 property, jurisdiction, 260 taking of evidence for foreign courts, remedies, 428–9 452–3 service of foreign process, 443 trusts, 276