The harmonisation of rules on the recognition and enforcement of foreign judgments in the southern African customs union
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The Member States of the Southern African Customs Union (SACU) have set as their objectives, amongst others, the facilitation of cross-border movement of goods between the territories of the Member States and the promotion of the integration of Member States into the global economy through enhanced trade and investment. Different approaches to the recognition and enforcement of foreign judgments by Member States and the risk of non-enforcement may lead to legal uncertainty and increased transaction cost for prospective traders, which ultimately act as non-tariff barriers to trade in the region. Trade is critical to Southern Africa, and the ideal is that barriers to trade, of which uncertainty concerning the recognition and enforcement of foreign judgments among Member States is one, should be removed. Certainty, predictability, security of transactions, effective remedies and cost are important considerations in investment decision-making; and clear rules for allocating international jurisdiction and providing definite and expedited means of enforcing foreign judgments will facilitate intraregional as well as interregional trade. In addition to trade facilitation, a harmonised recognition and enforcement regime will consolidate economic and political integration in the SACU. An effective scheme for the mutual recognition and enforcement of civil judgments has been regarded as a feature of any economic integration initiative likely to achieve significant integration. While the harmonisation of the rules on the recognition and enforcement of foreign judgments has been given priority in other regional economic communities, in particularly the European Union, any similar effort to harmonise the rules on recognition and enforcement of Member States have been conspicuously absent in the SACU – a situation which needs to receive immediate attention. The thesis considers the approaches followed by the European Union with the Brussels Regime, the federal system of the United States of America under the ‘full faith and credit clause’; the inter-state recognition scheme under the Australia and New Zealand Trans-Tasman judicial system; as well as the convention-approach of the Latin American States. It finds that the most suitable approach for the SACU is the negotiation and adoption by all SACU Member States of a multilateral convention on the recognition and enforcement of foreign judgments, comparable to the 1971 Convention of the Hague Conference on Private International Law; the EU Brussels I Regulation and the Latin-American Montevideo Convention, as complemented by the La Paz Convention. It is imperative that a proposed convention should not merely duplicate previous efforts, but should be drafted in the light of the legal, political and socio-economic characteristics of the SACU Member States. The current legislative provisions in force in SACU Member States are compared and analysed, and the comparison and analysis form the basis of a proposal for a future instrument on recognition and enforcement of foreign judgments for the region. A recommended draft text for a proposed Convention on the Recognition and Enforcement of Foreign Judgments for the SACU is included. This draft text could form the basis for future negotiations by SACU Member States.
- Doctor Legum - LLD