AbstractDisputes arise in the course of international trade and contracting parties seek to secure effective outcomes. Although it is futile to obtain a judgment that cannot be enforced, the enforcement of foreign judgments is often shrouded in uncertainty in Africa. Reasons for such uncertainty include the complexity and inadequacy of relevant legal regimes, inconsistency of the courts and generally sparse scholarly works.
This thesis focuses on South Africa and Nigeria where courts apply South African and Nigerian rules of private international law when litigants seek to enforce judgments obtained abroad. The South African or Nigerian court’s assessment of whether the foreign court heard the case in a fair manner sometimes produces a different outcome from that of the foreign court. This implies that litigants face significant unpredictability and sometimes cannot enforce their judgments even after years of protracted litigation.
Drawing on the experiences of the European Union, the United Kingdom and the United States, this thesis undertakes a comparative analysis of how South African and Nigerian courts can promote the recognition and enforcement of foreign judgments in a fair manner. There is an in-depth examination of the process that leads to the South African or Nigerian court’s decision on whether the foreign judgment should be enforced. This thesis argues that there is a need for a fundamental change in approach or underlying assumptions, with a view to facilitating the free movement of foreign judgments in a globalised world. Considering the interests of litigants and the State is critical to attaining fairness for the parties involved in attempts to enforce foreign judgments.
|Date of Award||2018|
|Supervisor||Peter McEleavy (Supervisor), Aude Fiorini (Supervisor) & Jacques Hartmann (Supervisor)|