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The Hague Conference on Private International Law's Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?

Published online by Cambridge University Press:  31 October 2019

Saloni Khanderia Open the ORCID record for Saloni Khanderia [Opens in a new window]
Saloni Khanderia*
Affiliation:
OP Jindal Global University
*
skhanderia@jgu.edu.in
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Abstract

The Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments forms an integral part of the ambitious Judgments Project of the Hague Conference on Private International Law. In particular, this instrument endeavours to foster predictability and certainty in international commercial relations by enabling litigants to be accurately informed in advance of the circumstances in which the decision of the court of one contracting state will be recognized or enforced in the territory of another. The endorsement of the Draft Judgments Convention could accordingly prove advantageous to countries like South Africa, whose private international law on the recognition and enforcement of foreign judgments seems archaic and confined to a narrow set of precepts. This article identifies the loopholes in the country's policy and practice on the subject, and demonstrates the manner in which the Draft Judgments Convention could plausibly address these lacunae.

Keywords

Recognitionenforcementforeign judgmentDraft Judgments ConventionSouth African private international law
Type
Research Article
Information
Journal of African Law , Volume 63 , Issue 3 , October 2019 , pp. 413 - 433
Copyright
Copyright © SOAS, University of London 2019 

INTRODUCTION

A state's right to exclusive jurisdiction over its territory and population has long been considered to be one of the principal corollaries of sovereignty and equality among countries.Footnote 1 At the same time, the need to foster access to justice and the free flow of commerce has necessitated that judgments from the court of one nation be recognized or enforced in another forum in situations when the judgment-debtor has assets in the latter's jurisdiction.Footnote 2 The term “recognition” accordingly refers to the court's acknowledgement of the legal effect of a foreign judgment in its territory, while “enforcement” additionally involves the act of compelling the judgment-debtor to comply with the decision.Footnote 3

Each country currently adopts its own mechanisms for recognizing and enforcing foreign judgments, as determined by the principles of its private international law. In the absence of any multilateral treaty or convention, the vantage points of the law on the subject consequently vary.Footnote 4 The Special Commission of the Hague Conference on Private International Law (Hague Conference) recently attempted to address the lack of uniformity and predictability among jurisdictions through its proposed Draft Text on Recognition and Enforcement of Foreign Judgments (Draft Judgments Convention).Footnote 5 This instrument is a crucial attempt to harmonize the rules on the subject, considering the Hague Conference's three failed attempts to regulate the subject in the past. The Hague Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (1971 Convention)Footnote 6 was the first such attempt. The 1971 Convention failed to see the light of day as a result of the obligation on its signatories to conclude bilateral agreements among themselves before giving effect to its provisions, coupled with its frequent comparison with the then Brussels Convention,Footnote 7 which also contained rules on jurisdiction.Footnote 8 Likewise, the lack of consensus contributed to the catastrophe around the 1999 Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (1999 draft Convention)Footnote 9 and the subsequent 2001 Interim Text.Footnote 10

Currently containing 33 articles, the Draft Judgments Convention forms an integral part of the Hague Conference's Judgments Project, which was initiated in 1992. On coming into force, it would enhance the “practical effectiveness” of foreign judgments among its signatories by harmonizing the rules on the international jurisdiction of courts in civil and commercial matters.Footnote 11 The Draft Judgments Convention would, thus, complement the Convention of 30 June 2005 on the Choice of Court Agreements (HCCA),Footnote 12 insofar as the scope of its application would be extended to the execution of foreign judgments overseas, even when they do not concern an exclusive choice of court agreement.Footnote 13

The Draft Judgments Convention may prove to be potentially relevant to countries like South Africa that do not currently have any codified rules to ascertain the circumstances in which foreign civil and commercial judgments may be recognized or enforced in the jurisdiction. Under South African private international law, these factors have, thus far, been determined with the aid of case law. Accordingly, the purpose of this article is to examine the plausible benefits that the Draft Judgments Convention could have in the development of South African private international law. The next section of this article discusses the principles of South African private international law on the subject. It then provides an overview of the mandate of the Draft Judgments Convention and assesses if the instrument would benefit the development of South African private international law, before offering concluding remarks.

THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS UNDER SOUTH AFRICAN PRIVATE INTERNATIONAL LAW

South African private international law regarding the recognition and enforcement of foreign judgments is predicated on the principles of the Roman-Dutch common law on the subject. A decision from a foreign court does not, consequently, have any direct operation in South Africa and merely constitutes a cause of action,Footnote 14 unless it falls within the purview of the Enforcement of Foreign Civil Judgments Act, 1988. Even in such circumstances, a foreign judgment does not automatically become enforceable, but requires “domestication” or registration under the provisions of the act.Footnote 15

The rules in South Africa on this subject have not been codified. The courts have therefore been clarifying the circumstances in which the decision of a foreign court may or may not be executed in South Africa.

Grounds to determine the effectiveness of a foreign judgment in South Africa

The international competency of the court of origin

The South African rules to determine the international competency of a foreign forum have been referred to as being “unique to the recognition and enforcement of foreign judgments”.Footnote 16 In the landmark judgment of Jones v Krok, the Supreme Court of Appeal accordingly stipulated that the effectiveness of a foreign judgment in South Africa principally depends on whether the foreign court acquired its jurisdiction over the dispute according to the principles of South Africa's private international law.Footnote 17

South Africa's judiciary has, however, been adopting a narrow set of precepts to establish the eligibility of a foreign judgment for recognition or enforcement in its territory. The determination of whether the foreign court possesses the requisite international jurisdiction has, thus far, chiefly been based on two factors that were delineated by the Supreme Court of Appeal in Purser v Sales.Footnote 18

The first factor is residence or domicile. The significance of “residence” as an important factor to determine the international competency of a foreign forum may be demonstrated by referring to De Naamloze Vennootschap Alintex v Von Gerlach, in which the court refused to execute a judgment from a Dutch forum on the ground that the defendant had never visited the Netherlands.Footnote 19 A plethora of judicial dictaFootnote 20 and several commentatorsFootnote 21 have since confirmed the acceptance of “residence” as a prerequisite to determining the international jurisdiction of the foreign forum. At the same time, the precise parameters that would be relevant in establishing the “residence” of the defendant are ill-defined in South African private international law. In the absence of any clear dictum, it is unclear whether the courts would mandate “ordinary” or “habitual” residence for this purpose. A close examination of the decision of the appellate court in Ex Parte Minister of Native Affairs,Footnote 22 however, demonstrates that “ordinary residence” would suffice, provided that the defendant had “some interest” in the place where he is being served, so as to regard that state as the place of his “ordinary habitation”.Footnote 23 The defendant's permanent residence was, consequently, not mandatory to establish the international competency of a foreign court under South African law.Footnote 24

In a related vein, although the principles of South African private international law have supposedly acknowledged the defendant's “domicile” in the state of origin at the time of the commencement of the proceedings in its territory as a ground to confer international jurisdiction, it has remained doubtful whether the country's fora would in practice enforce such a judgment exclusively on this basis.Footnote 25 The lack of clarity may be evidenced from the court's decision in per Acutt Blaine & Co v Colonial Marine Insurance Co. This decision acknowledged the defendant's domicile while determining the international competency of the Natal court to recognize and enforce the judgment in South Africa,Footnote 26 but apparently “confused the two principles” by employing the term interchangeably with “residence”.Footnote 27

Besides residence and domicile, South African courts have also occasionally recognized judgments in circumstances where the foreign court's jurisdiction was based on the “mere presence” of the defendant at the time the proceedings commenced. This was the position in Richman v Ben Tovim, where the court per Zulman JA approved the works of Pollak to affirm that “the need to cater [sic] itinerant international businessmen” and the “exigencies of international trade” necessitate the recognition of the judgments of foreign courts that have assumed jurisdiction based on the mere presence of the defendant at the time the action was commenced.Footnote 28 The South African approach on the matter has, however, been subjected to severe criticism by leading authors,Footnote 29 chiefly because of its arbitrary nature and the potential to leave a judgment unenforceable and ineffective if the defendant escaped the jurisdiction without any assets to freeze or confiscate. The Constitutional Court has since discarded the consideration of “mere presence” in the case of Government of the Republic of Zimbabwe v Fick, which exclusively referred to the grounds mentioned above as stipulated in Purser v Sales when ascertaining the competency of the foreign forum.Footnote 30

The second factor is submission before a foreign forum. A person who initiates an action before a foreign court is, consequently, also considered to submit to its jurisdiction in a counterclaim to that suit.Footnote 31 The “submission by conduct” has, however, not been readily accepted in determining the international competency of a foreign court, unless the inference from the defendant's “state of mind” was clearly that he intended to be bound by the jurisdiction of the foreign forum.Footnote 32 In practice, it appears that the South African courts would, thus, reject this factor as a ground for determining international competency,Footnote 33 unless the defendant had appeared before the foreign court and pleaded the case on its merits, without opposing its jurisdiction as such.Footnote 34

Besides, the defendant's express submission to the jurisdiction of the foreign forum has been widely recognized when determining its international competence in respect of the recognition and enforcement of judgments before the South African courts.Footnote 35 In this context, writersFootnote 36 have consistently referred to the Namibian High Court's dictum in Argos Fishing Co Ltd v Friopesca Footnote 37 to reinstate the parties’ autonomy to confer jurisdiction on a foreign forum, where such submission would similarly constitute international competence under South African private international law.

Grounds to refuse the recognition or enforcement of a foreign judgment

The Court of Appeal in Jones v Krok further stipulated the factors that would disqualify the decision of a foreign forum from being executed in South Africa.Footnote 38 In general, South African private international law complements international practiceFootnote 39 and prohibits South African courts from reviewing the merits of a foreign judgment that has been rendered by an internationally competent forum.Footnote 40 South Africa's judiciary could, however, refuse to recognize or enforce a foreign judgment on one of the following three grounds.

The first ground is when a judgment lacks finality. It is irrelevant whether the decision in question was pronounced in default or without a full hearing of the case, so long as it was conclusive in the court that pronounced it.Footnote 41 The judgment would, therefore, not usually Footnote 42 be precluded by the fact that an appeal is pending or that the judgment is subject to an appeal,Footnote 43 provided it has created res judicata between the parties.Footnote 44

The second ground is when a judgment contravenes South African public policy. A foreign judgment would not be unenforceable in South Africa simply because it is inconsistent with South African law or when it has granted a remedy that is unknown in South Africa's legal system.Footnote 45 At the same time, South African courts have construed foreign court decisions that have been obtained by fraud as contravening the country's public policy and have, hence, refrained from enforcing such judgments.Footnote 46 The courts will, however, not refuse to recognize or enforce such a foreign judgment unless the judgment-debtor can prove that it was obtained by practising “extrinsic fraud” on the court of origin.Footnote 47 The decision will, accordingly, be disqualified from execution if the material documents that are crucial for a proper hearing have been fraudulently suppressed, when there has been perjury in the course of proceedings, or when the decision has been obtained by deceitfully inducing the defendant not to appear before the foreign forum.Footnote 48 In a related vein, decisions obtained in violation of natural justice have also been viewed as a contravention of South Africa's public policy.Footnote 49 The basic notions of fairness have, thus, been regarded as indispensable to the legal proceedings.Footnote 50 Foreign judgments obtained as a result of a contractual confession clause are, therefore, unenforceable in South Africa insofar as they are repugnant to the notions of natural justice.Footnote 51 If the court of origin fails to appraise the defendant of the appropriate procedure or if he is unfairly deprived of the opportunity to present his case, there would be a manifest violation of South African public policy.Footnote 52 Likewise, foreign judgments that award excessive or exorbitant damages have also been refused recognition or enforcement in South Africa for contravening public policy.Footnote 53 Lastly, the enforcement of foreign penal or revenue laws has also been considered to contravene public policy under the principles of South African private international law because of their pure territorial operation.Footnote 54

The third ground is if the provisions of the Protection of Businesses Act, 1978 prohibit execution of the judgment.Footnote 55 However, there has been no instance where the courts have invoked the provisions of this legislation to refuse to enforce a decision.Footnote 56

THE PROPOSED DRAFT TEXT ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS: AN OVERVIEW

Being in the form of a treaty, the scope of the Draft Judgments Convention will be limited to the recognition and enforcement of judgments among its contracting states. Its success will, therefore, be contingent on its ratification by a considerable number of countries.

Articles 4 to 7 form the cornerstone of the Draft Judgments Convention, insofar as they set out the parameters within which foreign judgments will be recognized or enforced among contracting states.Footnote 57 According to article 4, a forum in each contracting state (requested court) will be mandated to recognize or enforce a foreign judgment given by a court in another state (court of origin), if the latter assumes jurisdiction according to the grounds stipulated under articles 5 or 6.Footnote 58 As a result, the requested court is prohibited from reviewing the merits of the foreign decision.Footnote 59 The refusal to recognize or enforce would, consequently, be permitted only if the prerequisites stipulated in the instrument are satisfied.Footnote 60

Eligible bases of jurisdiction and the plausible advantages for South Africa

It must be noted that the provisions of the Draft Judgments Convention would be advantageous merely when a court of another signatory state has pronounced the decision that is sought to be recognized and enforced in South Africa. As a result, judgments outside the scope of this convention would continue to be governed by the existing principles of South African private international law, as discussed above. That said, unlike the principles of South African private international law, the Draft Judgments Convention clearly defines the circumstances in which a foreign judgment should be recognized and enforced in the requested state. In this respect, articles 5 and 6 imbibe the principle of predictability and certainty in international commercial relations by enabling litigants to be accurately informed in advance of the circumstances in which the judgment of the court of one contracting state will be eligible to be recognized and enforced in another state.Footnote 61

Article 5 is the “central provision” of the Draft Judgments Convention and prescribes the “minimum standard for the mutual recognition or enforcement” of transnational judgments.Footnote 62 In a related vein, article 6 further prescribes the exclusive bases of jurisdiction regarding international civil or commercial disputes that rule on specific aspects of intellectual property rights and immovable property.

Similar to South African private international law, which identifies the residence or domicile of the defendant and submission, article 5 of the Draft Judgments Convention also adopts these as jurisdictional bases to determine the eligibility of foreign judgments to be recognized and enforced in other contracting states. A foreign court will, consequently, be considered to have acquired the appropriate jurisdiction: (i) if the person against whom the judgment was pronounced was habitually resident in the jurisdiction of the court of origin at the time when it became a party to the proceedings in the state of origin;Footnote 63 or (ii) if the defendantFootnote 64 had (a) initiated the proceedings in its capacity as a plaintiff,Footnote 65 (b) expressly consented to confer the court with jurisdiction during the course of the proceedings,Footnote 66 (c) argued the case on its merits without contesting its jurisdictionFootnote 67 or (d) expressly chosen the jurisdiction through a non-exclusive choice of court agreementFootnote 68 or trust deed.Footnote 69

Although these grounds are analogous to those identified in South African private international law,Footnote 70 the Draft Judgments Convention would benefit South Africa by instilling predictability, considering that South Africa has failed to maintain a clear and consistent position regarding the recognition or enforcement of a judgment of a foreign forum if its “international jurisdiction” was based on the “domicile” or “mere presence” of the defendant.Footnote 71 As the Explanatory Report to the Draft Judgments Convention explains, neither domicile nor mere presence expresses a close connection between the defendant and his or her socio-economic environment.Footnote 72 While “residence” refers to a person's place of abode that they have adopted for a reason for the time being,Footnote 73 “domicile” connotes the person's permanent home, even though they may not dwell in that jurisdiction at the time.Footnote 74 It is, therefore, futile to construe these terms as interchangeable. At the same time, if the basis for the South African courts to establish the international competence of a foreign forum is the defendant's strong connection with a state via his allegiance, the acceptance of “mere presence”, which may only be fleeting, seems peculiar.Footnote 75

That said, the connecting factors listed in articles 5 and 6 are, unlike the principles of South African private international law, not restricted to the defendant's allegiance. The other indirect grounds mentioned in article 5 are reminiscent of “the development of the fundamental jurisprudence by the Canadian courts”Footnote 76 because this provision construes a foreign court as internationally competent if its jurisdiction is based on a “real and substantial connection” between the forum and the defendant or the claim. Particularly relevant in this context are the Canadian Supreme Court's judgments in Beals v Saldanha Footnote 77 and Club Resorts v Van Breda.Footnote 78 Recognizing a judgment from a forum in Florida, which ruled on an agreement for the sale of a vacation lot owned by the defendant in its jurisdiction,Footnote 79 the court in Beals v Saldanha “threw off the shackles”Footnote 80 of the old English view that the international competency of the foreign court should be restricted to residence and / or submission.Footnote 81 The test has now “evolved into an important constitutional test”Footnote 82 with the Supreme Court's subsequent decision in Club Resorts, which further provided a list of presumptive connecting factors that may indicate the defendant's or the claim's “real and substantive connection” with the foreign forum.Footnote 83 Thus, apart from the defendant's residence and submission, the fact that the contract was concluded, or the delict was committed, in its jurisdiction were also identified as relevant presumptive connecting factors in establishing the competence of a foreign forum.Footnote 84 Canadian private international law on the subject, thus, recognizes the right of the foreign court to bring within its embrace a defendant when “he or she has participated in something of significance or was actively involved”Footnote 85 in that jurisdiction. This “radical departure” has, to date, not yet been adopted by any other common law jurisdiction, including South Africa.Footnote 86

As a result of this transformation, many foreign judgments are enforceable in Canada, which has rendered the private international law of this jurisdiction “considerably more generous”Footnote 87 than the position in South Africa. In comparison, despite the mandate imposed under section 173 of the South African Constitution, granting the Supreme Court and High Court of South Africa the “inherent power … to develop the common law, taking into account the interests of justice”, there has not been much reform of the rules on the subject in South Africa. In the absence of any judicial dictum to the contrary, the fact that the business was carried on, or the immovable property was situated, in the foreign state would, perhaps, be irrelevant to a South African court that is called to establish the jurisdictional competence of an international forum.Footnote 88 The failure of the judiciary to revolutionize the private international law on the subject may be characterized by the juridical command imposed by the doctrine of stare decisis, under which a court must adhere to the decisions or precedents set by the higher courts.

The implementation of the provisions of the Draft Judgments Convention, on its coming into force, could thus be a starting point for a much-needed transformation in South African private international law. While the Draft Judgments Convention may not provide a perfect solution for addressing misgivings in South African law (considering its limited applicability to the free movement of judgments among its signatories), it would at least overcome certain deficiencies by identifying additional factors to establish the competency of a foreign forum. Articles 5 and 6 provide other grounds under which a requested court (in this case, the South African judiciary) may recognize and enforce a foreign judgment.

The first ground is that the jurisdiction of the foreign court is derived on the basis of the defendant's principal place of business,Footnote 89 branch, agency or another establishment (not having a separate legal personality) or the principal place of administration of a voluntarily created trust is located in the state of origin.Footnote 90 In the present era of heightened international trade and commerce, neither established South African law nor existing judicial dicta have managed to clarify whether the courts would give effect to the judgment of a foreign court that has based its jurisdiction, not on the habitual residence of the defendant per se, but instead on the activities that arose from his business that was carried on in the latter's territory. The case of Applebys (Pty) Ltd v Dundas,Footnote 91 albeit pertaining to residence in the internal context,Footnote 92 at best only indicates the plausible approach that South African courts may employ to establish the international competency of a foreign forum. In this case, the South African court based its considerations on commercial convenience to hold that the defendant company (incorporated in the United Kingdom) was “resident” in South Africa due to the presence of a branch in the latter's territory, and that it was, therefore, amenable to the jurisdiction of the Johannesburg courts.Footnote 93 Whether that argument could be applied in the international context, provided that the business was related to a cause of action arising in the state of origin, remains unanswered. In such circumstances, the endorsement of the Draft Judgments Convention could prove significantly advantageous and would consequently address the lacunae mentioned above. In particular, the international instrument would assist litigants in ascertaining more readily that transnational judgments ruling on activities arising out of the defendant's business, branch, agency or other establishments would, additionally, constitute a ground for international competence for their recognition or enforcement in South Africa.Footnote 94

The second ground is when the jurisdiction of the foreign court is based on a cause of action arising in the state of origin. The grounds stipulated in article 5(1)(g) and (j) are resonant with the approach adopted by the Canadian Supreme Court indicated above.Footnote 95 These provisions stipulate the factors to assess the eligibility of a foreign forum that has decided on a dispute concerning a contractual or non-contractual obligation respectively. A foreign judgment that has ruled on a contractual obligation will, therefore, be eligible for recognition or enforcement if the court had acquired jurisdiction because: the contractual obligation in question was either performed or should have been performed in its territory, in accordance with the parties’ agreement;Footnote 96 and if the defendant's activities had a “purposeful and substantial connection” with it.Footnote 97 In a related vein, a foreign judgment that concerns a non-contractual obligation will be considered eligible if it ruled on an act that occurred in its jurisdiction and directly resulted in death, physical (not psychological) injury, damages or the loss of tangible property.Footnote 98

As mentioned above, this factor has not been identified as an eligible basis under South African private international law. The endorsement of the Draft Judgments Convention would, therefore, benefit South Africa and would complement the country's practice at the domestic level, where a forum is considered internally competent for recognition or enforcement in another South African province if the contract has been performed either wholly or in part in its territory,Footnote 99 or where the wrongful act was committed in its jurisdiction.Footnote 100 Although the court in per Duarte v Lissack attempted to acknowledge the place of performance in a breach of contract as a ground for international jurisdiction,Footnote 101 the decision met with widespread criticism due to its incompatibility with existing principles of South African law.Footnote 102 It is, consequently, settled law that South African courts will refrain from recognizing or enforcing any foreign judgment that has not been based on at least the defendant's residence or submission to the foreign forum.Footnote 103 The Draft Judgments Convention would assist in the development of South African law insofar as it would enable the country's courts to offer meaningful relief to the judgment-creditor in circumstances where the foreign court has acquired its jurisdiction on grounds other than those mentioned above, but that bear a persistent connection with the dispute. For most, South African private international law similarly considers the place of performance as a significant factor in determining the proper law of the contract.Footnote 104

The third ground is when the jurisdiction of the foreign court is derived from immovable property being situated in the state of origin. According to article 5(1)(h) and (i) of the Draft Judgments Convention, a foreign judgment will be eligible for recognition or enforcement in a requested court even when the immovable property is situated in the state of origin and the dispute concerns a short-term tenancy for a period of less than six months,Footnote 105 or a contractual obligation that was “secured by” a right in rem.Footnote 106 At the same time, article 6 prescribes specific “exclusive” rules for determining jurisdiction, if the decision relates entirely to: the right in rem to immovable property (that does not primarily pertain to a contractual obligation); or a long-term tenancy that was situated in the state of origin.Footnote 107 In such circumstances, the requested court will be prohibited from recognizing or enforcing the foreign judgment unless the jurisdiction of the court of origin had been acquired on these grounds.

Several authorities have accepted the internal competency of a South African court based on the forum rei sitae [forum of where property is situated] rule for disputes concerning immovable property.Footnote 108 At the same time, the approach of South Africa's courts concerning the determination of the international competency of a foreign forum vis-à-vis immovable property has been tenuous, considering the absence of any dictum on the subject. Although Forsyth opines that forum rei sitae would lead to exclusive jurisdiction in respect of disputes on the subject,Footnote 109 whether this rule would extend equally to disputes regarding rights in rem and in personam of the immovable property remains unclear. South African private international law could, thus, benefit from the well-defined rules espoused in the Draft Judgments Convention, under which foreign judgments ruling on rights in personam would be eligible for recognition and enforcement in the country even when the court of origin based its jurisdiction on the residence or submission of the defendant.Footnote 110 In all other circumstances, a foreign court would be considered to have exclusive international competence with regard to disputes concerning immovable property when it is also the forum rei sitae and the action concerns a right in rem or rules on a tenancy longer than six months.Footnote 111

The fourth ground concerns the protection of intellectual property rights in the state of origin. Article 5(3) of the Draft Judgments Convention prescribes special rules for the recognition and enforcement of foreign judgments that rule on intellectual property rights, insofar as they subject disputes concerning these to the territoriality principle.Footnote 112 A requested court will, therefore, be prohibited from recognizing or enforcing a foreign judgment under the Convention if it concerns: an infringement of intellectual property that was granted or registered, such as a patent, trademark, industrial design or plant breeders’ right; or the infringement or validity of an unregistered intellectual property right, such as copyright, an unregistered trademark or industrial design, unless the decision was pronounced by a court in a state in which the right was protected (lex loci protectionis).Footnote 113 As article 11 further elaborates, a judicial ruling on such an infringement could merely be recognized and enforced (in another contracting state) insofar as it has granted a monetary remedy for the aggrieved party. Non-monetary remedies are, thus, outside the realm of this instrument. Accordingly, if the requested court desires to recognize or enforce foreign judgments on such matters by any other connecting factor, it may do so solely under the provisions of its national law and not by means of the Draft Judgments Convention.Footnote 114

At the same time, article 6 prescribes the rules for determining the eligibility of a foreign judgment concerning the validity or registration (and not the infringement) of registered intellectual property. The requested court may, accordingly, recognize or enforce the decision of a foreign forum on such a matter “if and only if” the jurisdiction was based on the principle of lex loci protectionis.Footnote 115

Given the rigid application of the rules to determine the international competency of foreign courts under South African private international law, it seems that South Africa's judiciary would fail to recognize and enforce transnational judgments that rule on rights concerning intellectual property, unless the defendant was a resident or had submitted to the jurisdiction of that forum. It must be noted that such an approach is incompatible with South Africa's intellectual property regime, which is founded on the internationally-accepted principle of territoriality.Footnote 116 As South Africa is a signatory to the Berne and Paris Conventions,Footnote 117 a South African court would not assume jurisdiction unless the infringement of the intellectual property rights to which these conventions apply occurred in its territory.Footnote 118 Accordingly, it only makes sense for the country to adopt a well-balanced approach by simultaneously refraining to recognize or enforce judgments unless the jurisdiction of the foreign court was also based on the principle of lex loci protectionis.

The Judgments Convention would significantly benefit the development of South African private international law by subjecting South Africa to uniform, predictable and internationally accepted rules on the subject. The country's courts would, accordingly, be compelled to disregard the “habitual residence” or “submission” of the defendant, insofar as these factors do not bear any substantial connection with the dispute when the foreign judgment concerns intellectual property or other analogous rights.Footnote 119 Consequently, South African courts would instead have to establish the international competency of a foreign forum ruling on an intellectual property right by the principle of lex loci protectionis, considering that its existence and the consequent privileges offered to the owners are limited to the state in which it is registered.Footnote 120 In such circumstances, demanding that the international jurisdiction of the foreign forum must necessarily be based on the defendant's residence or submission appears to be questionable, considering that the court in the country of the registration of such rights is competent and best qualified to decide on remedies for their infringement.

Grounds for the refusal to recognize or enforce a foreign judgment

A requested court may, under the provisions of the Draft Judgments Convention, refuse to recognize or enforce a foreign judgment of a court that acquired its jurisdiction under articles 5 or 6 merely when one of the prerequisites stipulated in articles 7 or 10 has been satisfied.Footnote 121

Accordingly, a foreign judgment may be disqualified under article 7 if: the defendant was not adequately notified of the essential elements of the claim; the judgment was obtained by fraud; it was manifestly incompatible with the state's public policy or rules of procedural justice; the proceedings contravened a (non-exclusive) choice of court agreement or a designation in a trust deed; the dispute concerned the infringement of an intellectual property right and the court of origin had applied a law other than that of its legal system; or the judgment is inconsistent with a decision that was pronounced by another court in the territory of the requested state (in a dispute between the same parties) or a forum of another state (in a matter between the same parties and the same cause of action).Footnote 122 If the foreign court proceedings create lis pendens [a pending suit], a requested court may refuse or postpone the execution of the foreign judgment if there are parallel proceedings between the same parties regarding the same cause of action that have not been concluded (and are pending) and are likely to give rise to inconsistent decisions,Footnote 123 provided the case concerns a matter that bears a close connection with the state in which it is located.Footnote 124

In a related vein, a foreign court decision may also be disqualified under article 10 if the court of origin has awarded damages “including exemplary or punitive damages, that does [sic] not compensate a party for [the] actual loss or harm suffered”.

Although South African private international law already identifies some of the grounds mentioned above,Footnote 125 the endorsement of the Draft Judgments Convention would play a crucial role in refining South Africa's approach to the subject in the following ways. First, in the absence of any clear dictum, it remains unclear whether the South African courts would consider a foreign judgment to be eligible to be recognized and enforced in South Africa when the international court has disregarded the parties’ choice of court agreement and has, instead, based its jurisdiction on some other factor, such as, for instance, the “residence” of the defendant. In such circumstances, the Draft Judgments Convention would subject South Africa to clear and predictable rules by obligating its courts to disregard the “international competency” of a foreign forum that has violated a (non-exclusive) choice of court agreement.Footnote 126

Secondly, an international instrument such as the Judgments Convention could accordingly provide suitable answers to South African courts regarding the recognition and enforcement of foreign judgments that involve the question of lis pendens.Footnote 127 South Africa currently acknowledges the principle of lis pendens at the domestic level to avoid “the unwarranted proliferation of litigation between the same parties, based on the same cause of action”.Footnote 128 However, its courts’ approach in invoking this principle in circumstances where one of the two actions is pending outside South Africa has not been uniform, and instead depends on the discretion of the forum concerned.Footnote 129 There are, in fact, reported cases where South African courts have, in the past, refused to dismiss or stay proceedings before them.Footnote 130 It, consequently, becomes significant to chalk a plausible approach for South African courts to follow when recognizing or enforcing foreign judgments when proceedings on the same matter are pending before themFootnote 131 or have been concluded and have given rise to inconsistent judgments.Footnote 132

CONCLUDING REMARKS

The current principles of South African private international law on the recognition and enforcement of foreign judgments are obsolete. The endorsement of an international instrument such as the Draft Judgments Convention is, therefore, much needed to bring the country's legal system into line with internationally accepted standards on the subject. In particular, the absence of any established law and the consequent necessity for litigants to assess the judicial dicta in each case before applying to the South African forum for a foreign judgment to be recognized or enforced tends to hamper international trade and the access to justice. Moreover, the prerequisite to filing a fresh suit for this purpose only adds to the woes of the judgment-creditor.

This discussion has demonstrated the superfluous nature of the grounds to determine the international jurisdiction of foreign fora and the consequent right of the South African courts to refuse to recognize or enforce the former's judgments. An international instrument such as the Draft Judgments Convention could, therefore, be crucial to the country's international interests by compelling it to think beyond the traditional grounds of residence or submission while construing the international competency of a foreign forum, insofar as these grounds are extremely constricted and may not always express a close connection with the judgment-debtor. In a related vein, the grounds on which a South African court would refuse to recognize or enforce a transnational judgment have also been confined to a narrow set of precepts, limited mainly to contravention of South African public policy. In such circumstances, endorsement of the Draft Judgments Convention would additionally provide suitable answers to the South African courts when they are called upon to address other eventualities that have arisen, for instance from judgments that are inconsistent with one another or have been pronounced in violation of the parties’ agreement regarding the choice of forum.

Footnotes

*

BA, LLB (Symbiosis Law School, Pune, India), LLM (National Law School of India University, Bangalore, India), LLM (University of Johannesburg, South Africa), PhD (National Law University, Delhi, India). Associate professor of law and deputy controller, OP Jindal Global University, Sonipat (India); visiting associate professor, Faculty of Law, University of Johannesburg.

References

1 See Silberberg, H The Recognition and Enforcement of Foreign Judgments in South Africa (1977, Institute of Foreign and Comparative Law, University of South Africa, Pretoria) at 1Google Scholar. See also Forsyth, C Private International Law (5th ed, 2012, Juta) at 417–18Google Scholar; and Schulze, C On Jurisdiction and the Recognition and Enforcement of Foreign Money Judgments (2005, University of South Africa Press) at 16Google Scholar.

2 Edwards, AB (updated by Kahn, E) “Conflict of laws” in Joubert, WA (ed) The Law of South Africa, vol 2, part 2 (2nd ed, 2003, LAWSA) at 384Google Scholar, note 10. See also, Forsyth, id at 417, and Schulze, id at 17.

3 See FJ Garcimartín Alférez and G Saumier “Judgments Convention: Revised preliminary explanatory report” (Hague Conference on Private International Law, note 10 of May 2018) (Explanatory Report) at 22–23, available at: <https://www.hcch.net/en/projects/legislative-projects/judgments/special-commission> (last accessed 28 July 2019); and Silberberg The Recognition and Enforcement, above at note 1 at 6.

4 See, Hague Conference on Private International Law “Overview of the Judgments Project”, available at: <www.hcch.net/en/projects/legislative-projects/judgments> (last accessed 28 July 2019) at 1.

5 For a detailed discussion of the work of the Special Commission towards the preparation of the final convention, see the various documents at: <www.hcch.net/en/projects/legislative-projects/judgments/special-commission> (last accessed 28 July 2019).

6 The full text of the convention, which came into force in August 1979, is available at: <www.hcch.net/en/instruments/conventions/full-text/?cid=78> (last accessed 28 July 2019). See also Pfund, PH “The project of the Hague Conference on Private International Law to prepare a convention on jurisdiction and the recognition / enforcement of judgments in civil and commercial matters” (1998) 24/1 Brooklyn Journal of International Law 7Google Scholar at 11–13.

7 See Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 27 September 1968 (Brussels Convention), now replaced by EU Reg No 1215/2012 of The European Parliament and Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels Recast).

8 See Smith, B “The proposed Hague Convention on Jurisdiction, Recognition and Enforcement of Judgments” (1999) 12/1 Revue Québécoise de Droit International 73Google Scholar at 74; and C Kessedjian “The permanent bureau, Hague Conference on Private International Law: Preliminary document no 7 - International jurisdiction and foreign judgments in civil and commercial matters” (1997) at 8.

9 Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (2000); and P Nygh and F Pocar “Report” (preliminary document no 11 of August 2000), available at: <www.hcch.net/en/publications-and-studies/details4/?pid=3494&dtid=35> (last accessed 28 July 2019). See also Kessedjian “The permanent bureau, Hague Conference”, above at note 8; and Smith “The proposed Hague Convention”, above at note 8 at 75 and following.

10 For discussion of the reasons for the failure of the 1999 Draft Convention, see the Permanent Bureau, Hague Conference on Private International Law “Some reflections on the present state of negotiations on the Judgments Project in the context of the future work programme of the conference” (preliminary document no 16 of February 2002), available at: <www.hcch.net/en/publications-and-studies/details4/?pid=3500> (last accessed 28 July 2019). For discussion of the reasons for the failure of the 2001 Interim Text, see Permanent Bureau and co-reporters, Hague Conference on Private International Law “Summary of the outcome of the discussion in Commission II of the first part of the diplomatic conference (6–20 June 2001)”, available at: <www.hcch.net/en/publications-and-studies/details4/?pid=3499&dtid=35> (last accessed 28 July 2019). Also see generally, Mehren, ATV “Drafting a convention on international jurisdiction and the effects of foreign judgments acceptable worldwide: Can the Hague Convention project succeed” (2001) 49 American Journal of Comparative Law 191CrossRefGoogle Scholar; Calliess, GF “Value-added norms, local litigation and global enforcement: Why the Brussels philosophy failed in the Hague” (2004) 5 German Law Journal 1490CrossRefGoogle Scholar; K Woestehoff “The drafting process for a Hague Convention on Jurisdiction and Judgments with special consideration of intellectual property and e-commerce” (2005) LLM Theses and Essays (paper no 54) at 13, available at: <https://digitalcommons.law.uga.edu/stu_llm/54/> (last accessed 28 July 2019); and Brand, RA “Community competence for matters of judicial cooperation at the Hague Conference on Private International Law: A view from the United States” (2002) 21 Journal of Law and Commerce 191Google Scholar.

11 See Explanatory Report, above at note 3 at 5. See also Regan, J “Recognition and enforcement of foreign judgments: A second attempt in the Hague” (2015) 14/1 Richmond Journal of Global Law and Business 63Google Scholar at 64.

12 The HCCA came into force on 1 October 2015. The instrument culminated in the second phase of the Judgments Project and at the time of writing had been ratified by Mexico, the EU (excluding Denmark) and Singapore.

13 See Explanatory Report, above at note 3 at 5.

14 See Jones v Krok 1995 (1) SA 677 (A); and Schulze On Jurisdiction, above at note 1 at 17. See also Inter-Union Finance Ltd v Franskraalstrand (Edms) Bpk and Others 1965 (4) SA 180 (W) at 181, which clarifies that, for recognition or enforcement in South Africa, a certified copy of the foreign judgment must be produced as evidence of the claim.

15 See Enforcement of Foreign Civil Judgments Act, 1988 secs 2 and 3. In particular, sec 2 provides that a foreign country must be “designated” under the provisions of the act for the judgments of its courts to be treated reciprocally under South African law. At present, Namibia is the only country that has been designated under this act. See also JP Niekerk, Van and Schulze, WG The South African Law of International Trade: Selected Topics (2011, SAGA Legal Publications) at 319–21Google Scholar.

16 See Forsyth Private International Law, above at note 1 at 419–20.

17 See Reis Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 at 1037B; and Jones v Krok, above at note 14.

18 2001 (3) SA 445, para 12 per Mpati AJA.

19 1958 (1) SA 13 (TPD).

20 See, for instance, De Naamloze Vennootschap Alintex, ibid; Ex Parte Minister of Native Affairs 1941 AD 53; Zwyssig v Zwyssig 1997 (2) SA 467; and Purser v Sales, above at note 18, para 12.

21 See Forsyth Private International Law, above at note 1 at 421–22; Schulze On Jurisdiction, above at note 1 at 18–19; Leon, PSG “Roma non-locusta est: The recognition and enforcement of foreign judgments in South Africa” (1983) 16 Comparative and International Law Journal of South Africa 325Google Scholar at 327; and Oppong, R Private International Law in Commonwealth Africa (1st ed, 2013, Cambridge University Press) at 319–20CrossRefGoogle Scholar.

22 Above at note 20.

23 Ibid; and Schulze On Jurisdiction, above at note 1 at 18–19.

24 Ibid.

25 See Foord v Foord 1924 WLD 81; Forsyth Private International Law, above at note 1 at 432; Leon “Roma non-locusta est”, above at note 21 at 338–39; Spiro, E Conflict of Laws (1973, Juta) at 213Google Scholar; Silberberg The Recognition and Enforcement, above at note 1 at 11; and Schulze On Jurisdiction, above at note 1 at 22–23. However, see Neels, JL “Preliminary remarks on the Draft Model Law on the Recognition and Enforcement of Judgments in the Commonwealth” (2017) 5 Journal of South African Law / Tydskrif Vir Die Suid-Afrikaanse Reg (TSAR) 1Google Scholar at 6, which recommends the consideration of “domicile” as a basis for recognition and enforcement in the text of the Draft Judgments Convention.

26 (1882) 1 SC 402, stating: “If it had been proved that the defendants were residents of Natal at the time [the] judgment was given, no difficulty would arise, because the court would be bound … to give effect to the judgment against persons domiciled in the States in which the judgment was given.”

27 Forsyth Private International Law, above at note 1 at 432; Schulze On Jurisdiction, above at note 1 at 22–23; and Leon “Roma non-locusta est”, above at note 21 at 338–39.

28 2006 (2) SA 591 (C) at 8–9, referring to W Pollak The South African Law of Jurisdiction (1st ed, 1937, Hortors) at 206. See also Borough of Finsbury Permanent Investment Building Society v Vogel (1910) 31 NLR 402; and Erskine v Chinatex Oriental Trading Co 2001 (3) SA 445 (SCA).

29 Forsyth Private International Law, above at note 1 at 430; Oppong, R “Mere presence and international competence in private international law” (2007) 3 Journal of Private International Law 321CrossRefGoogle Scholar; Schulze, C “International jurisdiction in claims sounding in money: Is Richman v Ben-Tovim the last word?” (2008) 20 South African Mercantile Law Journal 61Google Scholar; and Xaba, GMN “Presence as a basis for the recognition and enforcement of foreign judgments sounding in money: The ‘real and substantial connection’ test considered” (2015) 36/1 Obiter 121Google Scholar. See also Neels “Preliminary remarks”, above at note 25 at 6.

30 Case CCT 101/12 [2013] ZACC 22 at 53 per Mogoeng CJ.

31 Mediterranean Shipping Co v Speedwell Shipping Co Ltd and Another 1986 (4) SA 329 (D); and Zwyssig, above at note 20. Also see Oppong “Mere presence and international competence”, above at note 29 at 324.

32 Supercat Incorporated v Two Oceans Marine CC 2001 (4) SA 27 C. See also Forsyth Private International Law, above at note 1 at 424–26; Leon “Roma non-locusta est”, above at note 21 at 330–31; Oppong “Mere presence and international competence”, above at note 29 at 323–24; and Schulze On Jurisdiction, above at note 1 at 20–21.

33 Compare with Du Preez v Philip King 1963 (1) SA 801 (W), the leading case on submission in the domestic context.

34 Supercat Incorporated, above at note 32; and Forsyth Private International Law, above at note 1 at 426.

35 Mediterranean Shipping Co, above at note 31; and Forsyth Private International Law, above at note 1 at 422. See also Pistorius, D Pollak on Jurisdiction (2nd ed, 1993, Juta) at 162–63Google Scholar; and Silberberg The Recognition and Enforcement, above at note 1 at 13 and following.

36 See Forsyth, id at 423; and Schulze On Jurisdiction, above at note 1 at 19–20.

37 1991 (3) SA 255 (Nm).

38 Above at note 14.

39 See Collins, Lord and Harris, J (eds) Dicey, Morris and Collins on the Conflict of Laws vol 1 (15th ed, 2018, Sweet and Maxwell) at 99–100Google Scholar; Godard v Gray (1870) LR 6 QB 139; Davies, M, Bell, A and Brereton, PleG (eds) Nygh's Conflict of Laws in Australia (8th ed, 2010, Lexis Nexis) at 907–10Google Scholar; and Dolinger, J Private International Law in Brazil (1st ed, 2012, Kluwer Law International) at 324Google Scholar. The private international laws of these countries do not permit the courts to refuse to recognize and enforce a foreign judgment on the ground that it was not given on the merits of the case. In this context, a foreign judgment would be recognized even if it is void. Judgment-debtors who are aggrieved by the decision of the court of origin may, therefore, only initiate appellate proceedings to challenge the findings of the court of origin.

40 See Joffe v Salmon 1904 TS 317 at 319; and Gabelsberger v Babl 1994 (2) SA 677. See also Forsyth Private International Law, above at note 1 at 468–69; Oppong “Mere presence and international competence”, above at note 29 at 332–33; and Spiro, E “The incidence of jurisdiction in the recognition and enforcement of foreign judgments” (1978) Acta Juridica 59Google Scholar at 68–69.

41 See Jones v Krok, above at note 14 at 689–90. See also C Hoare & Co v Runewitsch 1997 (1) SA 338.

42 Ibid, clarifying that the South African courts, however, have the discretion to stay proceedings for the recognition or enforcement of a judgment in South Africa, pending the final determination of the appeal in the foreign forum.

43 Ibid, referring to the principles of the English common law in Nouvion v Freeman and Another (1889) appeal case 1. See also Forsyth Private International Law, above at note 1 at 457–60; Oppong Private International Law, above at note 21 at 332–33; and Schulze On Jurisdiction, above at note 1 at 28–29.

44 See Gabelsberger, above at note 40 at 679.

45 See Jones v Krok 1996 (1) SA 504; Pinchas and Another v Pienaar (2000) 3 All SA 632 (W); and Eden v Pienaar 2001 (1) SA 158. See also Oppong Private International Law, above at note 21 at 341.

46 See Jones v Krok, above at note 14.

47 Forsyth Private International Law, above at note 1 at 461 and 463. See also Leon “Roma non-locusta est”, above at note 21 at 343–44; Oppong Private International Law, above at note 21 at 341–42; and Schulze On Jurisdiction, above at note 1 at 29–30.

48 See Goodman v Goodman (1903) 20 SC 376; Jaffe v Salmon 1904 TS 317 at 318; and Jones v Krok, above at note 14. See also Forsyth Private International Law, above at note 1 at 463; Schulze On Jurisdiction, above at note 1 at 30.

49 See Jones v Krok, ibid.

50 Forsyth Private International Law, above at note 1 at 461. Also see Leon “Roma non-locusta est”, above at note 21 at 343–44; Oppong Private International Law, above at note 21 at 341–42; and Schulze On Jurisdiction, above at note 1 at 29–30. Compare with the Draft Judgments Convention, art 7(1)(a) and (c).

51 Steinberg v Cosmopolitan National Bank of Chicago 1973 (3) SA 885 (RA); and Corona v Zimbabwe Iron & Steel Co Ltd 1985 (2) SA 423 (TkA) at 426(B).

52 Lissack v Duarte 1973 (3) SA 615 (D) at 622 (C)–(D).

53 Jones v Krok 1996, above at note 45. Compare with the Draft Judgments Convention, art 10, which similarly permits the requested forum to refuse to recognize or enforce a foreign judgment if the court of origin has awarded damages “that do not compensate a party for the actual loss or harm suffered”.

54 Forsyth Private International Law, above at note 1 at 464; Leon “Roma non-locusta est”, above at note 21 at 344–46; and Schulze On Jurisdiction, above at note 1 at 30.

55 For a detailed discussion of the scope and applicability of the Protection of Businesses Act, 1978 vis-à-vis the recognition and enforcement of foreign judgments in South Africa, see: Forsyth Private International Law, above at note 1 at 466–68; Leon “Roma non-locusta est”, above at note 21 at 346–48; and Schulze On Jurisdiction, above at note 1 at 31–32.

56 Ibid.

57 It must be noted that the other provisions are merely incidental by nature, to the extent that they, inter alia: intend to permit the contracting states to make declarations on certain aspects (arts 18–20, 26 and 30–31); and provide clarifications with regard to the documents to be produced (art 13), the procedure to be followed (art 14) and its relationship with other international instruments (art 24). For this reason, the scope of this discussion has been limited to arts 4 to 7 of the Draft Judgments Convention.

58 See id, art 4(1) read with art 4(3) and 4(4). See also id, art 13, which prescribes the documents that the party seeking to recognize or enforce is required to produce before the requested court.

59 Id, art 4(2).

60 Id, art 4(1).

61 Explanatory Report, above at note 3 at 5. See also Mehren, ATV “Enforcing judgments abroad: Reflections on the design of recognition conventions” (1998) 24 Brooklyn Journal of International Law 17Google Scholar at 23.

62 See Explanatory Report, id at 26.

63 Draft Judgments Convention, art 5(1)(a), read with Explanatory Report, id at 27–29.

64 Id, art 3(1)(a), which defines the term “defendant”.

65 Id, art 5(1)(c) read with Explanatory Report, above at note 3 at 29–30. See also art 5(1)(l), which provides that the submission to an original claim includes the submission to the jurisdiction of that court of a counterclaim to that suit. A foreign judgment would, therefore, have to be recognized and enforced under this convention if the judgment had ruled on a counterclaim that “arose out of the same transaction or occurrence as the claim”.

66 Id, art 5(1)(e), read with Explanatory Report, id at 31.

67 Id, art 5(1)(f), read with Explanatory Report, id at 32–35.

68 Id, art 5(1)(m), read with Explanatory Report, id at 41–43.

69 Id, art 5(1)(k), read with Explanatory Report, id at 39–40. The jurisdiction of a foreign court when it has been expressly chosen via a trust deed, is, however, limited to disputes concerning the general administration of voluntarily created trusts.

70 In this respect, see the discussion above under “Grounds to determine the effectiveness of a foreign judgment in South Africa”.

71 See Acutt Blaine & Co v Colonial Marine Insurance Co (1882) 1 SC 402; Richman v Ben Tovim, above at note 28; and Government of the Republic of Zimbabwe v Fick case CCT 101/12 [2013] ZACC 22 [53].

72 See Explanatory Report, above at note 3 at 27, para 120, which explains the instrument's preference for considering “habitual residence” as a basis for recognition or enforcement, as against domicile and other similar factors.

73 North, P and Fawcett, JJ Cheshire and North's Private International Law (13th ed, 2006, Oxford University Press)Google Scholar at 160. Compare with Ex Parte Minister of Native Affairs, above at note 20.

74 Ibid.

75 Briggs, A “Crossing the river by feeling the stones: Rethinking the law on foreign judgments” (2004) 8 Singapore Yearbook of Private International Law 9Google Scholar.

76 See RA Brand and CM Mariottini “Note on the concept of ‘purposeful and substantial connection’ in art 5(1)(g) and 5(n)(ii) of the February 2017 draft Convention” (third meeting of the Special Commission on the Recognition and Enforcement of Foreign Judgments, 13–17 November 2017, preliminary doc no 6), available at: <https://assets.hcch.net/docs/94caa6bc-ca61-45ce-8ddb-8f724174d1b1.pdf> (last accessed 28 July 2019).

77 [2003] 3 SCR 416.

78 [2012] SCC 17.

79 [2003] 3 SCR 416.

80 Davies, Bell and Brereton (eds) Nygh's Conflict of Laws, above at note 39 at 897.

81 See generally, Brand and Mariottini “Note on the concept”, above at note 76 at 6 and following.

82 Id at 7.

83 Above at note 78, para 19.

84 Ibid.

85 Beals v Saldanha, above at note 77 at 32.

86 Briggs “Crossing the river”, above at note 75 at 12.

87 Davies, Bell and Brereton (eds) Nygh's Conflict of Laws, above at note 39 at 898.

88 Briggs “Crossing the river”, above at note 75 at 11.

89 Draft Judgments Convention, art 5(1)(b), read with Explanatory Report, above at note 3 at 27–29.

90 Id, art 5(1)(d) and (k) read with Explanatory Report, id at 30–31 and 39–40.

91 1948 2 SA 905 (E).

92 See Leon “Roma non-locusta est”, above at note 21 at 327–28.

93 See also Bisonboard Ltd v Braun Woodworking Machinery (Pty) Ltd 1991 (1) SA 482 (A) at 497 (C)–(D); and Bid Industrial Holdings (Pty) Ltd v Strang and Another (Minister of Justice and Constitutional Development, Third Party) 2008 (3) SA 355 (SCA).

94 Compare with Draft Judgments Convention, art 5(1)(b) and (d).

95 See Club Resorts, above at note 78, para 19, for the presumptive connecting factors discussed above. Also see Brand and Mariottini “Note on the concept”, above at note 76 at 6 and following; and Beals v Saldanha, above at note 77.

96 Draft Judgments Convention, art 5(1)(g), read with Explanatory Report, above at note 3 at 35–37.

97 Ibid.

98 Id, art 5(1)(j), read with Explanatory Report, above at note 3 at 38–39.

99 See Brooks v Maquassi Halls Ltd 1914 CPD 37; and Roberts Construction Ltd v Willcox Bros (Pty) Ltd 1962 (4) (SA) 326(A) at 331(H).

100 See Ongevallekommissaris v Unie en Nasionale Versekeringsmaatskappy Bpk 1969 (3) SA 438 (O) at 440 (B)–(H). The court pointed out that, in both these circumstances, it will, however, be crucial that the defendant's goods have also been attached ad confirmandam jurisdictionem [for the purpose of confirming jurisdiction].

101 1973 (3) SA 615.

102 Forsyth Private International Law, above at note 1 at 376; Spiro Conflict of Laws, above at note 25 at 213.

103 In re Fass & Co v Stafford (1885) 6 NLR 261; Smuts v Bolman (1897) 4 Off Rep 206; Borough of Finsbury Permanent Investment Building Society v Vogel (1910) 31 NLR 402; and Supercat Incorporated, above at note 32.

104 See Forsyth Private International Law, above at note 1 at 329–36; E Schoeman et al Private International Law in South Africa (1st ed, 2014, Kluwer Law International) at 53–56; Neels, JL and Fredericks, E “The music performance contract in European and South African private international law: Part 2” (2008) Journal of South African Law/Tydskrif Vir Die Suid-Afrikaanse Reg (TSAR) 529Google Scholar at 535; and Neels Preliminary Remarks, above at note 25 at 8.

105 Draft Judgments Convention, art 5(1)(h), read with Explanatory Report, above at note 3 at 37. Compare with art 6(c) of the Draft Judgments Convention.

106 Id, art 5(1)(i), read with Explanatory Report, id at 37–38. Compare with art 6(b) of the Draft Judgments Convention.

107 Id, art 6(b)–(c), read with Explanatory Report, id at 51–52. Compare with art 24(4) of the Brussels Recast.

108 See Forsyth Private International Law, above at note 1 at 455; and Silberberg The Recognition and Enforcement, above at note 1 at 19–21.

109 See Forsyth, id at 455–56. See also Pistorius Pollak on Jurisdiction, above at note 35 at 168–69.

110 Compare with Draft Judgments Convention, art 5(1)(h)–(i).

111 Compare with id, art 6(b)–(c).

112 See Explanatory Report, above at note 3 at 44. See also Draft Judgments Convention, art 11.

113 Draft Judgments Convention, art 5(3), read with Explanatory Report, id at 44–49. According to art 5(3), the only exceptions to this principle are: when the defendant had not initiated or furthered such infringement in the state in which such protection was claimed; or when such activity cannot reasonably be seen as having been targeted to that state.

114 See Explanatory Report, id at 46.

115 Draft Judgments Convention, art 6(a), read with Explanatory Report, id at 46 and 50–51. Compare with art 24(1) of the Brussels Recast.

116 For a general discussion of the application of the territoriality principle to resolve disputes on intellectual property rights, see “Final report to the study on intellectual property and the conflict of laws”, ETD/99/B-3000/E/16 (18 April 2000); European Parliament Think Tank “EU copyright reform: Revisiting the principle of territoriality” (briefing, September 2015), available at: <http://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_BRI(2015)568348> (last accessed 28 July 2019); A Peukert “Territoriality and extraterritoriality” in G Handl, J Zekoll and P Zumbansen (eds) Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (Queen Mary Studies in International Law, 2012, Brill Academic Publishing) 189.

117 See Berne Convention for the Protection of Literary and Artistic Works (last revised 1971), available at: <https://global.oup.com/booksites/content/9780198259466/15550001> (last accessed 28 July 2019); and Paris Convention for the Protection of Industrial Property, 1979, available at: <http://www.wipo.int/edocs/lexdocs/treaties/en/paris/trt_paris_001en.pdf> (last accessed 28 July 2019). Also see: <www.wipo.int/treaties/en> (last accessed 28 July 2019) for a list of signatories to these conventions. Compare with art 8(1) of EC Reg No 864/2007 of the European Parliament and Council on the Law Applicable to Noncontractual Obligations of 11 July 2007 (Rome II).

118 See Berne and Paris Conventions, arts 5 and 6 respectively.

119 Compare with Draft Judgments Convention, art 5(3).

120 See Explanatory Report, above at note 3 at 45.

121 Draft Judgments Convention, art 4(3).

122 Id, art 7(1)(a)–(g), read with Explanatory Report, above at note 3 at 52–60.

123 Id, art 7(2), read with Explanatory Report, id at 60–61.

124 Ibid.

125 See, in this respect, the discussion above on “Grounds to refuse the recognition or enforcement of a foreign judgment”.

126 See Draft Judgments Convention, art 7(d).

127 Id, art 7(2).

128 See Socratous v Grindstone Investment 2011 (6) SA 325 (SCA). See also Marks and Kenter v Van Diggelen 1935 TPD 29; Nestle (South Africa) Pty Ltd v Mars Inc 2001 (4) SA 542 (SCA); Eravin Construction CC v Twin Oaks Estate Development (Pty) Ltd (1573/10) [2012] ZANWHC 27 (2012). For a detailed discussion of the application of lis alibi pendens in South Africa, see generally Spiro, E “The defence of lis alibi pendens” (1976) 9/1 The Comparative and International Law Journal of Southern Africa 90Google Scholar.

129 Spiro, id at 97–98.

130 See Wolf NO v Solomon 15 SA 297 (1898); Buchbinder v Wolf 18SC (1901) 93; Westphal v Schlemmer 1925 SWA 127; Pink v Pink 1957 (4) SA 41 (T); Hubert v Hubert 1960 (3) SA 181 (W); Baldwin v Baldwin 1968 (1) PH B4 (R). See also Spiro, ibid.

131 See Draft Judgments Convention, art 7(2).

132 Id, art 7(1)(f)–(g).