REFLECTIONS ON RECENT DEVELOPMENTS IN AFRICAN PRIVATE INTERNATIONAL LAW

I. INTRODUCTION

That is the second symposium relating to personal worldwide legislation in Africa to be hosted on this weblog, following a sequence that has run persistently since 2 February 2026. The primary symposium, which targeted on non-public worldwide legislation in Nigeria, came about on 14 December 2020 and was collectively hosted on Afronomics and this weblog. It was organised by Professor Richard Frimpong Oppong and me.

Professor Beligh Elbalti and I are deeply grateful to the students who agreed to take part on this symposium at brief discover, together with Dr Solomon Okorley, Dr Theophilus Edwin Coleman, Dr Elisa Rinaldi, Miss Anam Abdul-Majid, Mr Kitonga Mulandi,  Dr Boris Awa, and Dr Abubakri Yekini.

The concept for this second symposium originated with my expensive colleague, Professor Beligh Elbalti, and I’m grateful to him for involving me within the management and organisation of this undertaking. The symposium finds its true genesis in a bigger edited quantity we’re presently making ready on the popularity and enforcement of international judgments in Africa, which examines developments throughout no fewer than twenty-six African jurisdictions.

In the midst of organising the undertaking, we have been struck by the depth and richness of engagement with non-public worldwide legislation in African courts. This actuality stands in sharp distinction to the favored however mistaken assumption that non-public worldwide legislation in Africa is stagnant. Quite the opposite, the sector could be very a lot alive and kicking.

African courts are more and more being known as upon to have interaction with points of personal worldwide legislation, and that is an empirical actuality that our symposium seeks to display. On the similar time, courts face vital and well-documented challenges, together with insufficient authorized frameworks, inadequate engagement with comparative legislation, and analysis approaches that prioritise the transplantation of international views reasonably than the event of options grounded in native realities.

We subsequently hope that courts, legislators, and researchers will actively interact with, develop, and refine the rules of personal worldwide legislation from an African perspective, in a fashion that’s context-sensitive, doctrinally sound, and aware of the continent’s lived authorized expertise.

On this put up, I briefly replicate on 5 overarching themes: situating African non-public worldwide legislation inside its broader context; the usage of comparative legislation to advertise impartial and significant pondering; strengthening cooperation amongst African students; the significance of sustainable funding; and the necessity for stronger native institutional infrastructure.

II. RE-SITUATING AFRICAN PRIVATE INTERNATIONAL LAW WITHIN ITS PROPER CONTEXT

One of many central challenges confronting African non-public worldwide legislation is its persevering with reliance on inherited colonial traditions, notably these of European powers similar to England, France, the Netherlands, Spain and Portugal. Throughout the continent, many authorized programs nonetheless mirror the frameworks they obtained in the course of the colonial interval. Thus, widespread legislation African jurisdictions are likely to observe the English method; Francophone programs largely undertake French doctrine; Roman–Dutch jurisdictions replicate a mix of Dutch and English influences; Lusophone international locations retain Portuguese fashions; and there are additionally Spanish legislation influences on few African international locations.

This inherited construction has not at all times served African non-public worldwide legislation effectively. Whereas many European states have modernised their guidelines to facilitate financial integration, cross-border commerce, and improvement, quite a few African jurisdictions have but to undertake comparable reform. The result’s usually a physique of legislation that’s traditionally spinoff reasonably than functionally aware of modern African realities.

These issues have lengthy been recognised within the scholarship. Greater than three many years in the past, Professor Uche Uche, delivering lectures on the Hague Academy of Worldwide Regulation, known as for “a genuinely African-based and African-influenced work on the battle of legal guidelines.” Professor Christopher Forsyth equally cautioned towards the “unthinking” acceptance of international options, warning that African non-public worldwide legislation mustn’t behave like “the weathervane flipping by some means because the winds blow from overseas.” In the identical spirit, Professor Richard Frimpong Oppong has argued that, whereas extra-African sources stay related, African scholarship ought to draw totally on African case legislation, laws, and tutorial commentary, and may situate its evaluation inside the continent’s current challenges, together with regional financial integration, the promotion of commerce and funding, migration, globalisation, and authorized pluralism.

Encouragingly, modern African scholarship more and more displays this mental independence. The current symposium presents a transparent illustration. Contributors rely principally on native African sources and contexts reasonably than treating European doctrine because the default template. My joint put up with Yekini highlights the rising significance of recognition and enforcement of worldwide court docket judgments in Anglophone Africa and reveals that African jurisdictions are starting to guide intellectually in an space that continues to be underdeveloped elsewhere. Awa’s weblog demonstrates that Member States of the Central African Financial and Financial Neighborhood (CEMAC) have a big variety of conditions wherein they try recognising and implementing one another’s judgments. Elbalti’s research of Mozambique illustrates the dangers of students mechanically decoding colonial transplanted guidelines with out shut consideration to native jurisprudence. Abdul-Majid and Mulandi’s dialogue of Kenya reveals judicial concern that unique jurisdiction clauses could export dispute decision to international courts to the detriment of home adjudication. Rinaldi reveals that South African courts are attentive to cross-border employment disputes involving restraints of commerce, and that any critique of their rulings by practitioners or students must be rigorously anchored in sound authorized precept.  Coleman additional demonstrates Ghana’s distinctive method to proving international legislation in cross-border marriages, together with probably polygamous unions.  Lastly, Okorley examines a call of the South African Supreme Courtroom of Enchantment affirming {that a} youngster’s recurring residence beneath the Hague Baby Abduction Conference is just not decided by the marital standing of the mother and father.

Externally, in one other contribution, Coleman attracts on the South African idea of ubuntu to interrogate the inequalities that could be embedded in celebration autonomy. Oppong and I additionally argue that African authorities contracts shouldn’t be subjected to international governing legal guidelines on public coverage grounds.

None of this means that African non-public worldwide legislation ought to grow to be insular or excessively curiosity based mostly. Quite the opposite, comparative engagement stays indispensable. The purpose is to not reject international affect, however to adapt it critically and constructively, guaranteeing that non-public worldwide legislation develops in a fashion that displays African realities whereas collaborating confidently in world authorized discourse.

III. UTILIITY OF COMPARATIVE LAW IN ENHANCING INDEPENDENCE AND CRITICAL THINKING

An extra space wherein non-public worldwide legislation in Africa might be strengthened is thru deeper and extra systematic engagement with comparative legislation. In a latest research I co-authored with Yekini, we concluded that non-public worldwide legislation in Nigeria—and, by extension, in a number of different African jurisdictions—stays underdeveloped partly due to restricted comparative engagement. Certainly, it has been persuasively argued by Professor Diego Arroyo that non-public worldwide legislation is scarcely conceivable with out comparative legislation. As Professor Otto Kahn-Freund, famously remarks “comparative legislation is the mom of personal worldwide legislation.” I share these views as effectively.

Comparative evaluation, nevertheless, shouldn’t be equated with continued dependence on the approaches of former colonial powers. Removed from it. Correctly understood, comparative legislation entails a broad and significant examination of numerous authorized programs internationally to be able to establish options finest suited to native wants. Its goal is mental openness, not slavish imitation. At present, Asian non-public worldwide legislation has advanced primarily by way of imitation earlier than transitioning right into a part of innovation and eventual exportation (see right here). This has primarily been accomplished by way of intensive comparisons with authorized programs around the globe. I’ve additionally remarked that the Asian method can “considerably profit the continued improvement and reform of personal worldwide legislation in Africa” (see right here).

This underscores the significance of authorized training {and professional} coaching. Exterior South Africa and a small variety of different jurisdictions, authorized training in lots of African international locations stays closely formed by inherited colonial curricula, with restricted publicity to comparative or regional views. Furthermore, significant dialogue throughout African authorized programs is usually missing. Other than components of Southern Africa—and, to a lesser extent East Africa—many jurisdictions not often interact systematically with developments elsewhere on the continent.

The sensible penalties of this insularity are tangible. In a latest weblog put up, I mentioned a Nigerian Courtroom of Enchantment resolution that enforced a South African choice-of-court settlement in a dispute that was in any other case completely home. Counsel for the claimant had undertaken no analysis into South African legislation. Had they accomplished so, they’d doubtless have found that South African courts themselves would decline jurisdiction on that case for need of a adequate connection to South Africa, leaving the claimant and not using a discussion board to sue! A modest comparative inquiry would possibly subsequently have altered each the litigation technique and the result.

South Africa has, in lots of respects, emerged as a pacesetter in fostering comparative engagement. On this regard, explicit credit score is because of Professor Jan Neels for his work on the College of Johannesburg as Director of the Analysis Centre for Personal Worldwide Regulation in Rising International locations, which has educated and mentored a rising cohort of African students with sturdy comparative experience. Elbalti and I’ve benefited vastly from collaboration with many of those students.

Importantly, the instruments for comparative analysis are more and more accessible. Open-access databases similar to AfricanLII and SAFLII present wealthy repositories of African jurisprudence that may and must be utilised extra systematically by legal professionals, judges, and students. Comparative engagement of this type promotes mental independence reasonably than dependence. By inspecting a variety of doable approaches earlier than making doctrinal decisions, African courts and legislatures can craft options which might be each contextually applicable and globally knowledgeable.

IV. COOPERATION AMONG AFRICAN SCHOLARS

An extra space wherein non-public worldwide legislation in Africa can and must be strengthened is scholarly cooperation. The South African idea of Ubuntu aptly captures the spirit required: “I’m as a result of we’re.” The event of African non-public worldwide legislation can’t be the achievement of a single scholar or perhaps a single jurisdiction. It should as a substitute be the product of sustained collaboration throughout the continent. Collective mental effort, reasonably than remoted nationwide initiatives, is crucial to constructing a coherent and contextually responsive physique of doctrine.

Encouragingly, some institutional foundations exist already. Along with the vital work facilitated by Neels on the College of Johannesburg, the Nigeria Group on Personal Worldwide Regulation (NGPIL) has sought to advertise dialogue and capability constructing inside Nigeria. The NGPIL, co-founded by Dr Onyoja Momoh, Dr Abubakri Yekini, Dr Chukwudi Ojiegbe, Dr Pontian Okoli and myself, brings collectively primarily UK-based students dedicated to strengthening Nigerian non-public worldwide legislation by way of common lectures, mentorship of early-career researchers, prize initiatives for college kids, and coverage engagement aimed toward encouraging the Nigerian authorities to recognise the strategic significance of personal worldwide legislation for financial improvement.

Nonetheless, extra stays to be accomplished. Efforts by Elbalti and me to ascertain a broader, continent-wide African non-public worldwide legislation community have so far proved tough to maintain, notably when it comes to constant participation. This highlights each the logistical challenges and the necessity for stronger institutional help buildings.

Comparative expertise demonstrates what is feasible. Different areas have efficiently institutionalised scholarly cooperation by way of our bodies such because the Asian Personal Worldwide Regulation Academy and the European Affiliation of Personal Worldwide Regulation, which offer common boards for dialogue, analysis collaboration, and the change of concepts. An analogous, genuinely pan-African platform would considerably advance the sector. It’s my hope that such an initiative will quickly emerge and assist consolidate the rising momentum behind African non-public worldwide legislation.

VI. FUNDING AND LOCAL INFRASTRUCTURE

For personal worldwide legislation in Africa to generate significant and lasting worth, it requires sustained and vital funding. The blunt actuality is that this accountability should relaxation primarily with African stakeholders — together with governments, companies, skilled our bodies, and regional establishments.

Against this, established dispute-resolution hubs similar to England, New York, Singapore, and Switzerland derive substantial financial and reputational advantages from worldwide industrial adjudication. With deliberate funding in trendy, environment friendly, and credible non-public worldwide legislation frameworks, African jurisdictions can retain comparable income inside the continent and scale back the persistent dominance of World North fora in resolving African disputes.

Elbalti in his forthcoming paper on international legislation in Africa, has known as for the institution of a devoted analysis centre for comparative legislation, akin to the Max Planck Institute or the Swiss Institute of Comparative Regulation. He additional means that Neel’s centre on the College of Johannesburg might play such a job by serving as a hub for sustained comparative analysis and doctrinal improvement.

If Africa is to compete successfully for worldwide litigation and arbitration enterprise, nevertheless, funding alone is not going to suffice. Severe institutional reform is indispensable. Infrastructure should be strengthened, judicial high quality and consistency enhanced, delays decreased, coaching regularised, and corruption decisively addressed. With out these structural enhancements, even essentially the most subtle authorized guidelines will wrestle to draw confidence.

VI. CONCLUSION

Taken collectively, the reflections supplied on this symposium problem the persistent false impression that non-public worldwide legislation in Africa is marginal or stagnant. The other is true. Throughout the continent, courts are partaking meaningfully with cross-border disputes, students are producing more and more wealthy and context delicate analyses, and new networks of cooperation are starting to emerge. African non-public worldwide legislation is not merely spinoff of exterior fashions; reasonably, it’s slowly however steadily turning into extra self-aware, self-confident, and intellectually impartial.

The trail ahead is obvious. By grounding doctrine in African realities, embracing comparative studying with out slipping into slavish imitation, strengthening scholarly collaboration, and investing severely in funding and institutional capability, African jurisdictions can construct non-public worldwide legislation programs which might be each regionally responsive and globally aggressive. If these foundations proceed to develop, Africa is not going to merely observe world traits however will more and more assist form them.

Professor Ralf Michaels made a remark within the Asian context which I’ll quote and adapt to the African context by inserting “Africa” as a substitute of the unique use of “Asia”, “Africa is not object or topic however methodology, not one however many components which might be in dialogue with one another, not recipient or opponent of Western legislation and as a substitute co-producer of modernity and of recent legislation. On this, the West has not less than as a lot to study from Africa as Africa did from the West. “

The vitality, creativity, and dedication demonstrated by the contributors to this symposium — and by the broader group of African students and judges — give ample cause for optimism. The way forward for non-public worldwide legislation in Africa is just not solely promising; it’s shiny.