Bridging Gaps to Facilitate International Commerce – Implications for Nigeria

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April 2, 2020

Private international law is unique partly because of the expansive territory that it claims. Several areas of law fall within the remit of private international law including matrimonial causes and family law in general (e.g. child adoption and child abduction), tort, intellectual property, and contract – the latter being at the core of commercial law. Some recent unification efforts in private international law are instructive. For example, the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters is a clear reflection of determined efforts to produce a global legal framework that can support the free movement of foreign judgments. This convention was produced by the Hague Conference on Private International Law, the organisation that aims to unify the rules of private international law. Some African countries are members of the Hague Conference and other countries have ratified certain Hague conventions.

The interests of the Hague Conference on Private International Law extend to international commercial law and it is critical to avoid an unhelpful dichotomy in how Nigeria deals with international commercial law matters. A good example is the Hague Principles on Choice of Law in International Commercial Contracts which was approved in 2015. Determining the applicable rules in matters of international commerce requires a robust approach that can leverage the current camaraderie that seems to exist on the African continent in the context of international trade. Signing the African Continental Free Trade Agreement has brought Nigeria’s focus on facilitating international commercial transactions to the fore. It is instructive that Africa is operating at the other end of the current global trade spectrum, although in a good way. This is an era where global trade has become contentious and patterned on territorial lines underpinned by power play. However, Africa has forged its own path when the rest of the world wavers on free trade. With this bold outlook, hopefully anchored to a deliberate philosophy, Nigeria should demonstrate a clear indication of its trajectory on international commerce. Such trajectory should not be a patchwork of policies and approaches. It seems inevitable that international frameworks (e.g. the African Continental Free Trade Agreement) would influence domestic laws and regulations, but it is necessary for Nigeria to control this process rather than vice versa.

The inroads created by international frameworks should not be taken lightly. This point may seem obvious in some cases such as the New York Convention 1958 which has since been etched in statutory law and general Nigerian jurisprudence. However, the demands for different instruments that can support dispute resolution in international commercial matters continues to evolve – the list is not, and should not be, exhaustive. Nigeria should be capable of evolving in this manner vis-à-vis its approach to international commercial legal frameworks or legal frameworks that concern international commercial transactions. The tripod on which private international law stands is instructive: appropriate courts to exercise jurisdiction, applicable rules and the recognition and enforcement of foreign judgments.

It would be beneficial to take more interest in private international law, but even more useful to adopt a harmonised approach in dealing with international commercial law. There are several justifications for Nigeria to consider the high-octane aspects of international trade such as free trade. Nevertheless, a journey towards sustainable growth would be to operate a rather seamless philosophy that brings different strands of commercial law interests together in dealing with the world. Various commercial aspects are governed by different, sometimes technical, rules that may make it challenging to adopt a coherent philosophy. However, the African Continental Free Trade Agreement is a reminder that there should be a clear consideration of the gains that can accrue to countries in international commercial law generally and ensure Nigeria benefits from that dynamic. A careful consideration will influence the decisions taken in different international contexts such as the Hague Conference on Private International Law.