Abstract

Keywords

International commercial law; private international law; international commercial contracts; African Principles of Commercial Private International Law; African Principles on the Law Applicable to International Commercial Contracts.

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1 Introductory remarks

My colleague Charl Hugo is an expert in banking law, especially the law in respect of documentary letters of credit and independent guarantees, both of which play an important role in international commerce. He is also known as a family man, mentor and linguistic connoisseur, an athlete and amateur ornithologist and, in general, a lover of the abundance of nature on our continent. Charl will therefore appreciate the references to hilly landscapes in my small interpretive history of international commercial law in Africa, which is dedicated to his academic and personal legacy.

2 International commercial law in Africa during the 20th century

Our story commences in the forgotten kingdom. Africa knows three kingdoms that are also sovereign states, one in North West Africa (Morocco) and two in Southern Africa – Eswatini (also written eSwatini or e-Swatini, previously known as Swaziland)1 and Lesotho.2 In an art movie released in 2013 that showcased the immense natural beauty of the country, Lesotho was baptised "the forgotten kingdom".3 But in the chronicles of the United Nations Convention on the International Sale of Goods of 1980 (widely

known by its abbreviation CISG, and also referred to as the Vienna Sales Convention, after the place of its conclusion),4 the mountainous kingdom has not been forgotten.

Perhaps the most important event in the annals of modern international commercial law was the conclusion of the Vienna Sales Convention on 11 April 1980. Lesotho made history by becoming the first country in the world to ratify the CISG on 18 June 1981.5 Hungary was the first country to sign the Convention6 but ratified it only in 1983.7 The Convention entered into force on 1 January 1988.8 For this reason, the name of Lesotho will live on wherever the CISG is studied.9

Among the first eleven contracting states to the CISG were three African countries – Egypt, Lesotho and Zambia.10 If one ignores Yugoslavia in this regard,11 as it no longer exists,12 this comes down to a high 30% of African participation. If Yugoslavia is considered, the percentage of participating African states would still be more than 27%.

The situation today is less comforting. This may partly be due to the strong common-law traditions in countries such as Ghana, Kenya and Nigeria,13 following the lead of the United Kingdom (and perhaps also India and South Africa) in not joining the CISG.14 Less than 14% of the current contracting

states are from Africa,15 while the number of countries in Africa constitute almost 28% of the countries in the world.16 Among the thirteen contracting states,17 there are only three from the region of the Southern African Development Community or SADC: besides Lesotho and Zambia, already mentioned, only one country, Madagascar, has joined since these early days.18

Many years earlier, the Convention sur la loi applicable aux ventes à caractère international d'objets mobiliers corporels, informally known as the 1955 Hague Sales Convention, attracted only one African country. Niger became (and remains) a contracting state, together with (now) seven European countries.19 Three African countries joined the original Convention on the Limitation Period in the International Sale of Goods of 197420 and six are contracting states to the Convention as amended by the 1980 Protocol.21 UNCITRAL has recorded that its Model Law on

International Commercial Arbitration of 198522 was used in the domestic legislation of only eleven African countries.23

However, already midway through the 20th century there was another hopeful sign, apart from the initial enthusiastic participation in the CISG: almost 78% of African countries became contracting states to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.24

3 International commercial law in Africa: the dawn of a new century

Just before and after the turn of the century the status of international commercial law in Africa undeniably started to improve. The UNCITRAL Model Law on Electronic Commerce of 199625 has been successful in Africa, as eighteen states on the continent (partially) based their national legislation on this template.26 The African participation is therefore at almost 23% of the total of 79 states which utilised the Model Law.27 During this era, much development took place in the seventeen OHADA countries in West and Central Africa. The Organization for the Harmonization of Business Law in Africa (OHADA)28 is a supranational organisation which has the authority

to enact uniform laws that are directly applicable in all member states.29 The current uniform acts are dated between 1998 and 2017 and deal inter alia with companies, secured transactions, insolvency, arbitration and the carriage of goods by road.30 There are even plans to revive the project on the codification of the law of obligations for the OHADA region, including its private international law aspects;31 it was on the agenda for the meeting of the Council of Ministers in December 2021.

International commercial law in Africa, in general, followed an upward trajectory in the first two decades of the 21st century. Important in this context is the adoption in 2001 of UNIDROIT's Cape Town Convention on International Interests in Mobile Equipment.32 The Cape Town Convention has been a successful instrument, with 83 contracting states already,33 including 25 African countries.34 This is a high percentage (more than 30%) of the total number of contracting states. Africa is indeed setting the trend here. All the 25 African countries are also contracting states to the Convention's Aircraft Protocol.35

The Hague Principles on Choice of Law in International Commercial Contracts were adopted on 19 March 2015 by consensus between all member states of the Hague Conference on Private International Law.36 At the time, these included seven African states (Burkina Faso, Egypt,

Mauritius, Morocco, South Africa, Tunisia and Zambia).37 Namibia joined in January 2021.38 But, in a recent publication, authors writing on the private international law of contract of 35 African countries39 are unanimously of the opinion that the Hague Principles would be useful in the development of the respective national conflicts systems.

UNCITRAL has recorded that its Model Law on International Commercial Mediation of 2002 has been used in domestic legislation in seventeen African states,40 that is almost 37% of the participating 46 countries.41 The Model Law has been amended and is currently known as the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation of 2018. There are no African contracting states to the Singapore Convention on Mediation42 yet, but it is a hopeful sign that the signatories include thirteen African states.43

4 The Kigali Agreement

On 21 March 2018 an agreement was concluded in Kigali, Rwanda, to establish the African Continental Free Trade Area or AfCFTA.44 The agreement, which entered into force on 30 May 2019, features in the field of international economic law, the public law arm of international commercial law. Today it has been signed by all member states of the African Union,45 except Eritrea, and has been ratified by 38 countries. The operational phase of the free trade area was launched in Niger on 7 July 2019. Trading under the agreement was approved to commence on 1 January 2021, but the full implementation of the agreement will take several years.46 The main aim is the creation of a single market for goods and services, in order to deepen the economic integration of the African continent; create a liberalised market for goods and services; facilitate investments; promote sustainable and inclusive socio-economic development; and enhance the competitiveness of the economies of state parties in the continent and the global market.47

Participating states now need to reconsider joining the CISG48 and incorporating the UNCITRAL Model Law on International Commercial Arbitration, the two founding documents of modern international commercial law. A third priority, the current author would suggest, is that Africa needs a supporting instrument on the private international law of contract.

5 The African Principles of Commercial Private International Law

5.1 Provenance of the project

The Research Centre for Private International Law in Emerging Countries at the University of Johannesburg has commenced a project to formulate the provisionally called African Principles of Commercial Private International Law. The most important one of these sets of principles will be the African Principles on the Law Applicable to International Commercial Contracts.

The research centre has requested the support of the South African Minister of International Relations and Cooperation to facilitate the process of endorsement of the project by the African Union (AU). According to the department, she did indeed discuss the issue with the AU, but no communication from the AU has been received since 2019. More recently, we communicated with officials of the Pan African Parliament. The proposal will be referred to the appropriate commission as soon as possible.

The preliminary design for the African Principles on the Law Applicable to International Commercial Contracts was introduced at a symposium entitled Building a Global Framework to Facilitate Trade and Investment, arranged by the research centre in cooperation with the Hague Conference on Private International Law, the Permanent Court of Arbitration and the International Court of Justice on 9 September 2014 at the University of Johannesburg; it also featured at the Pan-African Conference on Party Autonomy in Private International Law, held at the University of Johannesburg on 4 October 2017, and was introduced to the broader academic community at the end of 2018 with an article in the Stellenbosch Law Review.49 A first draft of the African Principles on the Law Applicable to International Commercial Contracts was published in the 2020 Uniform Law Review/Revue de droit uniforme.50 A French and Portuguese translation will appear in the Festschrift for Professor Christopher Forsyth, to be published at the end of 2022, DV.51 We invited the public to send us comments on the draft52 and extend that invitation to all current readers, and in particular Prof Charl Hugo – perhaps he could indicate his opinion on the references to the Uniform

Customs and Practice for Documentary Credits of the International Chamber of Commerce in article 4(1)(c) and article 4(3)(c) and, in general, on articles 4 and 7 (including, specifically, article 4(2) in relation to article 4(1)(c)).

5.2 Relation to the African Union's Agenda 2063 and the United Nations Sustainable Development Goals

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, ultimately, the alleviation of poverty on the African continent. The proposed African Principles may contribute to sustainable economic growth on a long-term basis. They are essential in the development of the African free-trade area and common market called AfCFTA, combined with increasing legislative powers for the African Union,53 as envisaged in the strategic plan of the African Union Commission called Agenda 2063.54

Aspiration 1 of Agenda 2063 strives towards prosperity for Africa by inclusive growth and sustainable development. For inclusive economic growth a stable legal infrastructure is needed, as this attracts traders and investors and leads to job creation. Increased living standards and the eradication of poverty will eventually be the result. The required stable legal infrastructure includes legal certainty in commercial private international law. The African Principles may provide this certainty and, in this way, contribute to inclusive economic growth. Aspiration 1 is linked to United Nations Sustainable Development Goal number 8 ("[p]romote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all") and, ultimately, goals number 1 and 2 (the eradication of poverty and hunger).55

Aspiration 2 of Agenda 2063 deals with legal integration in Africa (frameworks for a united Africa) and the ideals of Pan-Africanism and the African renaissance. The development of African private international law in general stagnated in the 1970s.56 The African Principles may therefore form

part of the phenomenon of the African renaissance. The Principles will be pan-African in nature, as they will be intended for use in all African countries, and will be based on African conceptions of private international law, taking into account global best practices (including those in other emerging regions of the world). The legal integration of the continent is envisaged to take place in the executive, legislative and judicial sphere. The African Principles may indeed be used by courts and arbitral tribunals and as a model law for national, regional or supranational legislation.

Aspiration 3 of Agenda 2063 deals with good governance and the rule of law, which should undoubtedly also pertain to commercial private international law. The African Principles are part of the enabling legal environment referred to in the Agenda.

5.3 The nature, objective and purposes of the African Principles on the Law Applicable to International Commercial Contracts

To indicate the nature, objective and purposes of the envisaged African Principles on the Law Applicable to International Commercial Contracts, the present author quotes from the proposed preamble:

1 This instrument sets forth general principles for determining the law applicable to international commercial contracts.57

2 They may be used as a model for national, regional and supranational legislative instruments in Africa.58

3 They may be used by African courts in the interpretation, supplementation and development of the rules of private international law of contract.59

4 They may be used by arbitral tribunals in the interpretation, supplementation and development of the rules of private international law, wherever appropriate, and whether the tribunal is seated in Africa or elsewhere.60

5.4 The role of substantive law instruments in the African Principles on the Law Applicable to International Commercial Contracts

The draft African Principles on the Law Applicable to International Commercial Contracts61 have a particular and close relationship to the CISG and other substantive law instruments, influenced by Prof Fritz Juenger's teleological substantive law approach to private international law, most comprehensively expounded in the monograph Choice of Law and Multistate Justice.62 Juenger encourages courts to choose from (a) the lex fori and (b) any other laws with a sufficient link to the specific case, the particular legal system with the best arrangement for the given situation.63 The reader gains the impression that both the quality of the rules and principles of the potentially applicable legal systems per se and the result of their application in the particular circumstances should be taken into consideration. Preferable above all, it seems, are international up-to-date and readily available codifications as the CISG and, especially, the UNIDROIT Principles of International Commercial Contracts.64

The Inter-American Convention on the Law Applicable to International Contracts of 1994, better known as the Mexico City Convention (or even the Mexico Convention), was strongly influenced by Juenger's approach.65 Prof Juenger was indeed an advisor to the American delegation at the Fifth Specialised Conference on Private International Law or CIDIP-V.66 According to the author, the first sentence of article 7 ("The contract shall be governed by the law chosen by the parties") includes a choice of instruments such as the CISG or the UPICC.67 Article 9 commences with the standard common law approach to determining the law applicable in the absence of a choice by the parties: "If the parties have not selected the

applicable law, … the contract shall be governed by the law of the State with which it has the closest ties. The Court will take into account all objective and subjective elements of the contract to determine the law of the State with which it has the closest ties." However, the next sentence testifies to an international substantive law approach to private international law: "It shall also take into account the general principles of international commercial law recognized by international organizations."68 According to Juenger, the drafters here intended to refer to the UPICC.69 He also refers to the CISG in this regard.70 Article 9 blends the proper law methodology with a substantive law approach and seems to reflect "an unbridled eclecticism that vacillates between geography and teleology", but, so Juenger adds, "[w]hile CIDIP-V can be faulted for mixing together the oil of supranationality and the water of positive laws, one can expect, in the natural course of things, the oil to rise and the water to sink".71

The Mexico City Convention is applicable in Mexico and Venezuela but also influenced the law in various other Latin American countries, including the Dominican Republic and Paraguay.72 Moreover, the Convention "remains a point of reference in contemporary conflicts discourse, perhaps especially due to the inclusion of the first examples in black-letter rules of the integration of substantive considerations in the relevant objective conflicts analysis".73 A decision of the Court of Appeal of Rio Grande do Sul in 2017 can indeed be explained only against the background of a substantive law approach to private international law of contract. The court applied "the new lex mercatoria" in the form of the UPICC and the CISG to an international sales contract without a choice of law clause, ignoring the traditional lex loci contractus approach in the Brazilian conflict of laws.74

The proposed African Principles display influences from an international substantive law approach to private international law but take a less

adventurous approach than the Mexico City Convention and the decision of the Court of Appeal of Rio Grande do Sul. References to international substantive law are strictly contained within a Savignian framework,75 as will become clear from the discussion below. Another point of difference with the position under the Mexico City Convention is the fact that the African Principles expressly mention important international substantive law instruments such as the UPICC, the CISG and the Uniform Customs and Practice for Documentary Credits.76

Due to its inherent uncertainty, article 4 of the draft African Principles opts against an unlimited choice of non-state law on the same level as state law; however, it intends to make this possible in cases where the choice of non-state law clearly has merit. The Hague Principles also provide parameters within which a choice of non-state law should be recognised: "The law chosen by the parties may be rules of law that are generally accepted on an international, supranational or regional level as a neutral and balanced set of rules, unless the law of the forum provides otherwise."77 Article 4(1) of the proposed African Principles provides even more certainty by supplying an exhaustive list of the instruments and types of instruments that may be chosen:

A choice of one or more of the following instruments is recognised on the same level as the choice of the law of a country:

a. the UNIDROIT Principles of International Commercial Contracts;78

b. a treaty, as defined in the United Nations Convention on the Law of Treaties;79

c. the Uniform Customs and Practice for Documentary Credits;

d. any instrument issued under the auspices of a regional economic integration organisation or an international, supranational or regional intergovernmental organisation.

Choosing the CISG as the governing law on the same level as a national legal system, when it would not otherwise be applicable, is therefore legitimised by article 4(1)(b). If the parties choose any one of the instruments listed, so determines article 4(2), the UPICC may be used in its interpretation and supplementation. This subarticle is inspired by paragraph 5 of the preamble to the UPICC: "[The UPICC] may be used to interpret or supplement international uniform law instruments."

Article 4(3) echoes paragraph 3 of the preamble to the UPICC,80 but refers to a broader palette of potentially applicable instruments: "If the parties choose the general principles of law, the lex mercatoria, international commercial law or the like to govern their contract, the following instruments may be applied, where relevant …" – followed by a list of instruments including the UPICC, the CISG "as interpreted and supplemented by the [UPICC]" and, finally, the UCP.

Article 7 of the draft African Principles is inspired by paragraphs 5 and 6 of the preamble to the UPICC,81 but refers to the same, more extensive inventory of potentially applicable instruments: "The law applicable to a contract by virtue of this instrument may be interpreted, supplemented and developed along the lines of the instruments listed in Article 4(3)", namely the UPICC, CISG (read with the UPICC) and the UCP.

6 Concluding remarks

Having started in the forgotten kingdom, our story now concludes in another mountainous country, this time in the north-eastern corner of Africa – not a kingdom but for long an empire. In front of the African Union building in Addis Ababa you indeed find a statute of Emperor Haile Selassie of Ethiopia, one of only two countries in Africa (namely, with Liberia) that have never been colonised – that is, if one ignores the Italian occupation of Ethiopia during WWII.82

In his address to African leaders in May 1963 the Emperor stated the following:83

Africa is today at mid-course, in transition from the Africa of Yesterday to the Africa of Tomorrow. Even as we stand here, we move from the past into the future. The task on which we have embarked, the making of Africa, will not wait. We must act, to shape and mould the future and leave our imprint on events as they slip past into history.

Hopefully it is not too optimistic to speak of a new dawn for international commercial law in Africa. Again, this is a critical time, waiting for our re-invention of the future of the continent and all its people. Charl has done his share in the context of international financial law (a subdivision of international commercial law) in Africa, and he has been invited in paragraph 5.1 above to also contribute to the project on the African Principles of Commercial Private International Law, more specifically the African Principles on the Law Applicable to International Commercial Contracts.

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Vienna Convention on the Law of Treaties (1969)

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List of Abbreviations