Reciprocal Enforcement Research Articles

A reassessment of the challenges of enforcement of foreign judgments in Nigeria: the need for legislative reform to ease business

Enforcement of foreign judgments has significant relevance in this era of increased international investments and commercial relations across borders. Focusing on Nigeria as the central jurisdiction of analysis, this paper takes the position that rules of private international law form an often understated yet important aspect of the governance system of a country often measured by the Ease of Doing Business (EDB) ranking of the World Bank. This paper further argues that central to opening up the economy and inviting FDI into the country, the obvious matter of the inconsistency in the application of the foreign judgment enforcement statutes ought to be settled so as to create determinacy in Nigeria’s legal system – a potential attraction for foreign investors who appreciate predictability in the laws of a host country. It recommends the review and adoption of the Foreign Judgment (Reciprocal Enforcement) Act 1990 in order to quell the circumspection of the investor and trade participant due to uncertain legislation.

China-Korea Recognition and Enforcement of Judgments: From the Perspective of Reciprocity

Both China and Korea have provided for reciprocal enforcement of foreign judgments in their civil procedure law respectively, and in practice, a Korean court first recognized a Chinese judgment in 1999, a Chinese court first affirmed the existence of reciprocity in 2019 after twice refusal based on lack of reciprocity. Given the current situation, there are still inconsistencies in the operation of reciprocal standards between the two countries, which may lead to uncertainties for mutual recognition and enforcement. This Article provides an overview of mutual recognition and enforcement between the two countries and analyzes the similarities and differences in rules and practices, aiming to explore a set of feasible paths for promoting the smooth circulation of judgments between China and Korea.

Quo Vadis Consumer Dispute Resolution? UK & EU cross border consumer dispute resolution in the post Brexit landscape

The United Kingdom’s exit from the European Union challenges the existing framework for cross border consumer dispute resolution and exacerbates the negative effect of the EU’s harmonisation approach in this area. Both EU and UK consumers face an uncertain future after the transition period. This paper will analyse and evaluate key challenges to UK and EU consumer cross border dispute resolution after the transition period ended on 31 December 2020. The paper will consider procedural impediments to UK consumers enforcing consumer rights against EU/EEA traders as well as to EU consumers enforcing rights against UK traders. The paper will also consider the jurisdictional impact of UK’s status and its effect upon the reciprocal enforcement of consumer court judgments/ADR decisions between the EU and UK. Finally, the paper suggests that a Lugano+ approach would help to mitigate the impact of the impediments to effective consumer dispute resolution between EU and UK entities. In doing so, it first takes a preliminary look at the existing paradigm of cross border cooperation in consumer dispute resolution. The chapter also includes some thoughts on the normative clashes facing the creation of a new relationship in this area.

Enforcement of Arbitral Awards in Nigeria and the Jigsaw of Limitation Period: The Need for Compliance with Global Best Practices

In Nigeria, the limitation period begins to run from the date the dispute leading to the arbitration arose instead of when the award was rendered. While highlighting the rationale and effect of limitation period to the jurisdiction of court, I argue that the period set out in the Arbitration and Conciliation Act (ACA) for enforcement of arbitral awards fails to countenance the inherent delays in Nigeria’s justice system which can be exploited to render the enforcement of an award nugatory. The operationalisation of limitation period unless amended, can be a dissuading factor for choosing Nigeria as a seat of international arbitration which rubs her of the attendant benefits. It is further argued that, anyone, wishing to enforce an award in Nigeria, must ingeniously act timeously to avoid untoward outcome due to the repressive limitation period. This article identifies registration of award pursuant to Foreign Judgment (Reciprocal Enforcement) Act as a leeway to enforce foreign arbitral awards. It compares the practice in Nigeria with jurisdictions like India, Canada, United Kingdom and Ethiopia and draw lessons for Nigeria. It makes a case for amendment of the existing legal framework to bring the law on limitation of time in tandem with global best practices.

Reciprocal Enforcement and Other Collateral Issues With Licensure Discipline

While the fear of liability is generally related to malpractice lawsuits, for nurses, including nurse practitioners (NPs), the greater risk is in licensure discipline. Unlike physicians, NPs are more likely to be disciplined by their board of nursing than they are to be sued in malpractice.1 In addition, licensure discipline can be more consequential than malpractice lawsuits, because licensing boards have the authority to temporarily, or even permanently, separate an NP from practice. Because punitive action by a nursing board can create other problems, it is important to understand the potential effects of having one’s license disciplined.

试论内地、香港、澳门法院判决承认与执行的依据

2008年4月30日，香港特别行政区通过了《内地判决(交互执行)条例》，至此，香港特区现行的认可和执行域外法院判决制度有了“内地判决”和“外地判决”之分，这表明香港特区法制有所变化，是香港特区与内地进行相互认可和执行法院判决的新起点。然而，这并没有改变香港特区承认和执行域外法院判决的法律制度。实际上，香港特区认可和执行内地判决要比认可和执行外地判决在范围上更小，在条件上更严格和繁琐。另外，内地与香港、澳门特区之间开展法院判决承认与执行活动的依据问题上有明显的国际因素。但是，内地与香港特别行政区、澳门特别行政区进行的民商事判决承认与执行活动，属于一国之下的区际司法协助问题，不宜参照“国际”做法，也不应墨守成规。三地开展区际法院判决承认与执行活动的重要原因或依据主要有三个方面：一是经贸关系；二是公民权利；三是法律体系。 Mainland Judgments (Reciprocal Enforcement) Ordinance was passed by the government of Hong Kong SAR in April 30, 2008. So far, there are “mainland judgments” and “foreign judgments” in current legal system of the recognition and enforcement of the extraterritorial judgments in Hong Kong, which means that changes are happening in the legal institution of Hong Kong SAR and that a new starting point is arising in the activities of legal recognition and enforcement of judgments between Hong Kong and Mainland China. However, the legal system of the recognition and enforcement of the extraterritorial judgments in Hong Kong SAR has not been transformed. In fact, in Hong Kong, the scope of the recognition and enforcement of mainland judgments is narrower than foreign judgments and the conditions are more rigorous and complex. In addition, the gist in terms of the recognition and enforcement by the courts between Mainland and Hong Kong, Mainland and Macau exhibits evident “international” elements. Nonetheless, the activity of the legal recognition and enforcement of commercial settlement between Hong Kong SAR and Mainland China and between Macau SAR and Mainland China belongs to the scope of regional judicial assistance within PRC. It can’t be referred to the “international” practice and shouldn’t be a stick in the mud. The three significant reasons of the activity of legal recognition and enforcement between three regions are as below: a) the relationship of economy and trade; b) the civic right; c) the legal system.

Enforcement of Foreign Judgment in E-Commerce Consumer Contracts In Malaysia: Issues and Challenges

Electronic commerce or e-commerce is gaining momentum in Malaysia. Consumers are finding transacting online to be a convenient method especially to buy goods and services. As online transactions involve transborder commerce, disputes are inevitable. As such the question of conflict of laws arises, one of which involves enforcement of foreign judgement. Even though there is a law regulating enforcement of foreign judgement in Malaysia, however it does not take into consideration consumer protection. Adapting doctrinal research, this article discusses issues and challenges arising in the enforcement of foreign judgement in e-commerce consumer contracts in Malaysia.
 Keywords: Enforcement of Foreign Judgement, Reciprocal Enforcement of Foreign Judgement Act 1958, Brussels I Regulation, E-Commerce Consumer Contract

A Comparative Analysis of the Agreement for Reciprocal Enforcement of Arbitral Awards among China, Hong Kong and Macao

A Comparative Analysis of the Agreement for Reciprocal Enforcement of Arbitral Awards among China, Hong Kong and Macao

The Enforcement of Foreign Judgments in Nigeria: Scope and Conflict of Laws Questions

It is a generally acceptable principle of Conflict of Laws that the powers of the courts are limited by their territorial boundaries (i.e. territorial jurisdiction). Thus a judgment (inclusive of a commercial arbitral award), pronounced by the court of one jurisdiction, may have no force or effect beyond its own territory save for situations where other jurisdictions or states have agreed to allow reciprocal enforceability within their own territories of judgments of Nigerian courts. There is no specific bilateral agreement of reciprocity signed by Nigeria with any foreign country at present. The Reciprocal Enforcement of Foreign Judgments Ordinance,1958 (‘the 1958 Ordinance’) only extends the reciprocity treatment to the judgments from the courts in Britain and other Her Majesty’s territories within the British Commonwealth. While the Foreign Judgment (Reciprocal Enforcement) Act, 2004 (‘the 2004 Act’) specifically empowers the Nigerian Minister of Justice to extend the reciprocal treatment to any foreign country with substantial reciprocity of treatment with respect to the enforcement of foreign judgments. To date, the Minister of Justice is yet to act as provided under the 2004 Act. The foregoing statutes are the enabling laws and they form the bedrock of the recognition and enforcement of foreign judgments in Nigeria with grave internal conflicts of the application of both laws in the Nigerian courts. However, Nigerian courts seem to enforce foreign judgments, especially foreign arbitral awards, of states that are made in any contracting state to both the Convention on the Recognition and Enforcement of Foreign Arbitral Awards ∗ Yomi Olukolu, LLM, MPhil, lecturer, Department of Jurisprudence & International Law, Faculty of Law, University of Lagos, Akoka, Nigeria. kolyom@yahoo.com 1 I. O. Agbede, Themes on Conflicts of Law, Shaneson (1989). 2 CAP 175, Laws of the Federation of Nigeria and Lagos, 1958 (a colonial statute in Nigeria which was originally enacted as LN 8, of 1922 and is still in force as an enabling statute). 3 See section 1, 1958 Ordinance. 4 CAP F35, Laws of the Federation of Nigeria, 2004 (originally enacted as LN 56 in 1961). 5 See section 3, 2004 Act. 6 New York, 10 June 158.

Fight Against Corruption: Sanctions Regimes of Multilateral Development Banks

Much has been written about the consequences for companies of criminal convictions for bribery and other corrupt practices. However, less attention has been paid to the sanction regimes that have been developed by multilateral development banks (MDBs) in order to combat fraud and corruption in their operations. This may change in view of the fact that, on 9 April 2010, the heads of five leading MDBs--the African Development Bank, the Asian Development Bank, the European Bank for Reconstruction and Development, the Inter-American Development Bank and the World Bank--signed an agreement providing for mutual and reciprocal enforcement of debarment decisions. The Agreement for Mutual Enforcement of Debarment Decisions (the 'Agreement') thus increased the risk faced by commercial organizations that do business in the developing world, while affirming the MDBs' commitment to combating fraudulent, corrupt and collusive practices. Consequently, companies will need to invigorate their procedures with a view to managing their risks not only in relation to national legislation, but also in relation to the MDBs' sanctioning authorities, which have much broader geographic scope than that of national legislations such as the U.S. Foreign Corrupt Practices Act or the UK Bribery Act. This article first provides a brief history of anti-corruption measures taken by the MDBs and examines the tenets of collective enforcement action established by the Agreement. Further, as the signatories of the Agreement continue to maintain their own sanctions mechanisms, the article analyses the individual sanctions systems of each of the five signatories of the Agreement. Finally, the article describes the types of sanctions that may be imposed by MDBs and looks at some of the challenging issues surrounding MDBs' sanctions practices. Oxford University Press 2012, all rights reserved, Oxford University Press.

Enforcement and capacity building in international cooperation

I examine enforcement and capacity building in international cooperation. In a game-theoretic model, a wealthy donor gives foreign aid in exchange for policy implementation by a poor recipient. The recipient has limited capacity to comply with international agreements, so the donor is not sure if cooperation failure is caused by willful disobedience or unintended error. I show that if perceived cooperation failure prompts reciprocal suspension of cooperation, the donor and recipient have a common preference for capacity building. But when the donor can request compensation for perceived cooperation failure, it only chooses to build capacity if cooperation is otherwise impossible. Consequently, the choice of enforcement mechanism shapes capacity building. This result lays a foundation for a genuine synthesis between the enforcement and managerialist schools of compliance. It generates falsifiable hypotheses and explains why reciprocal enforcement, which unfortunately inflicts collateral damage on the victim, is often considered legitimate.

Exercise of Extraterritorial Jurisdiction by CCI Under Section 32 of Competition Act and Process for its Enforcement

This paper is aimed to analyse the extraterritorial jurisdiction of Competition Commission of India set forth in Section 32 of the Competition Act, 2002. As per the legislative framework, the duty of the competition authority is to “eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India”. This mandate is very wide and in order to meet the ends of this mandate the Commission need to play a dynamic and strong role as a market regulator. The Power structure of the Commission also gives a reference of a dynamic and strong regulator. Section 32 and Proviso of Section 18, gives certain extraordinary power to the Commission to perform its duties in efficient manner. This paper starts with the introduction in which the researcher has given the primary introduction of the project. Chapter 2, describes the concept of extraterritorial jurisdiction and practice of extraterritorial jurisdiction by the competition authorities in two major jurisdiction i.e. US and UK. Chapter 3 is set to analyse the extraterritorial power vested in Indian Competition Commission. This chapter gives an analysis of Section 32 of the Competition Act, 2002 as amended in 2007. An analysis has also been made of some other Sections of the Act, which helps section 32 to show its full effect like Section 39, section 36, 27, 31 etc. Chapter 5 and 6 proposes the procedure for the effective enforcement of extraterritorial jurisdiction by the Commission. It would be pertinent to say at this juncture that the Commission has not notified any special regulation for the enforcement of Section 32 of the Act and very recently in May, 2009 has notified the Competition Commission of India (General) Regulations 2009, 2 of 2009, so the process for the enforcement of extraterritorial jurisdiction shall be according to this regulation and the Code of Civil Procedure, 1908 wherever applicable. In Chapter 7, the researcher has tried to find out legal provisions for the enforcement and recognition foreign countries in some major economic superpowers of the world. In pursuant to the extraterritorial jurisdiction of the Competition of India this Chapter is very important as India has bilateral agreement with only eleven countries for the reciprocal enforcement of the judgments. Chapter 8 deals with the international co-operation and co-ordination for the smoother exercise of powers by the various Competition and antitrust authorities of the world. At the end of the project the researcher has given his suggestion and conclusion.

A Formal Prescriptive Approach to General Principles of (International) Law

From the analytical viewpoint a norm can formally be regarded as a right-duty (or claim-obligation) relation (1) that regulates behaviour (action/inaction) (2) among subjects (3) in definite space (4) and time (5). In normative terms, general principles (the 'basis') of (international) law can be conceived of as general obligations, i.e. obligations erga omnes (towards everyone). Obligations erga omnes, indivisible or divisible because of their content, link a subject to every other subject of international law, endowed with a correlative claim, so that the whole obligations erga omnes are matched by the whole claims erga omnes of all the subjects of international law. Indivisible obligations erga omnes are unavailable from the viewpoint of the power, so cogentes, breaches violate necessarily all the correlative claims, possibly enabling every subject to invoke the responsibility and impose sanctions. Correspondingly, sanctions should be regarded as indivisible obligations erga omnes, the violation of which allows universal enforcement. Nevertheless, specifically by reason of the gravity of the breach, it is possible to split primary and secondary norms, conceiving of the sanction as a bilateral relation allowing solely reciprocal enforcement in the case of an infringement. Divisible obligations erga omnes are available from the viewpoint of the power, so dispositivae, breaches must be seen as relative, enabling only the subject(s) injured to invoke the responsibility and impose sanctions. Correspondingly, sanctions should be regarded as bilateral obligations, the infringement of which gives rise to reciprocal enforcement. Nevertheless, it is possible to figure out that specifically the gravity of the breach 'unifies' the primary divisible obligation, allowing universal invocation of the responsibility, so that the secondary obligation could be either bilateral or a general indivisible one, respectively permitting relative or absolute enforcement in the case of a breach.

Regulating Hate Speech in Cyberspace: Issues of Desirability and Efficacy

Cyber-libertarians advocate a free and unfettered cyberspace, unencumbered by regulation. Despite this idealised view, nations around the world are asserting their right to enforce individual regimes of content regulation. Universal agreement on Internet content regulation is almost impossible to obtain. Even in an area that is universally abhorrent--child pornography--the First Amendment to the United States Constitution stands as a stumbling block to effective government regulation. When the content under discussion concerns hate speech, consensus becomes more elusive. There are those who argue that freedom of speech principles preclude censorship of opinion, and that more speech is the best antidote to racist views. Others argue that hate speech silences minority opinion and is really an equality issue, which if not addressed, runs counter to International Human Rights principles. Nations such as Germany and France have prohibited hate speech on the Internet, and have brought both criminal and civil penalties against defendants. However, enforcement is fraught with difficulties, especially when the defendants are not nationals, and when the content emanates from foreign jurisdictions. The Council of Europe has recently moved to include an additional Protocol to the Convention on Cybercrime. This Protocol would cover offences of racist or xenophobic propaganda, making them subject to reciprocal enforcement provisions by Member States. Whether international efforts can succeed where a piecemeal approach has failed is yet to be seen. Although the United States and its First Amendment currently present the greatest obstacle to hate speech regulation, technological advances as well as judicial development in First Amendment jurisprudence may yet provide an avenue for regulating hate speech in cyberspace.

Recognition and Enforcement of Judgments on the Existence and Validity of an Arbitration Clause under the Brussels Convention

THE BRUSSELS Convention of 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (‘Brussels Convention’) is based on Article 220 of the Treaty of Rome, which calls the Member States of the European Economic Community (‘EEC’) to enter into negotiations with each other for the ‘simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards’. The Brussels Convention excludes arbitration from its subject matter. This conclusion is evidenced at Article 1(2)(4) of the Brussels Convention, which states that ‘the Convention shall not apply to: … (4) arbitration’. In retaining this exclusion, the Committee of Experts which prepared the Brussels Convention explained that: > There are many international agreements on arbitration. Arbitration is, of course, referred to in Article 220 of the Treaty of Rome. Moreover, the Council of Europe has prepared a European Convention providing a uniform law on arbitration, and this will probably be accompanied by a Protocol which will facilitate the recognition and enforcement of arbitral awards to an even greater extent than the New York Convention.1 The Accession Conventions, negotiated between the Contracting States and the new Member States of the EEC in compliance with Articles 63 of the Brussels Convention and 220 of the Treaty of Rome, contain the same exclusion of arbitration. For example, the report on the Greek Accession Convention declares: ‘Arbitration, a form of proceedings encountered in civil, and in particular, commercial matters is excluded because of the existence of numerous multilateral international agreements in this area.’2 The issue of whether the Brussels Convention would apply to proceedings concerning the existence and validity of an arbitration clause and to the judgments rendered thereon arose during the preparation of the Convention of 9 October 1978 on the Accession of the …

The Law and Practice of Commercial Arbitration by Richard H McLaren and Earl Edward Palmer QC

The reviewed book is composed of the text by the authors (151 pages), six appendices: (a) Arbitration Acts; (b) Reciprocal Enforcement of Judgments Acts; (c) Recognition and Enforcement of Foreign Judgments Acts; (d) International Arbitration Rules; (e) Forms and (f) Precedents, covering 256 pages (155 to 411), table of cases (16 pages: xi to xxvi), table of statutes (12 pages: xxvii to xxxviii) and index (10 pages: 413–422). As the authors explain in their introduction the book is organised ‘chronologically in a way that will be understandable to all involved in the arbitration process’ (page xli). The chapters of the book are titled as follows: (1) The nature of arbitration; (2) Agreements for arbitration; (3) The courts and arbitration; (4) Appointment of arbitrators; (5) The hearing of an arbitration; (6) Preparing the award; (7) Costs and arbitrators' fees; (8) Enforcing the award; (9) Impeaching the award; (10) The proper law of the contract; (11) International commercial arbitration.

Enforcing Child Support Using the Revised Uniform Reciprocal Enforcement of Support Act

Enforcing Child Support Using the Revised Uniform Reciprocal Enforcement of Support Act

Reciprocal Enforcement: A Practical Guide to Magistrates' Courts' Jurisdiction and Procedure in International Domestic Proceedings. By Desmond A. G. James. With a Foreword by Dewi E. Davies ll.b., Solicitor, Clerk to the Pembrokeshire Justices. [Chichester: Barry Rose Publishers Ltd.1984. 73 and (Appendices and Forms) 59 pp. £17·75 net.

Reciprocal Enforcement: A Practical Guide to Magistrates' Courts' Jurisdiction and Procedure in International Domestic Proceedings. By Desmond A. G. James. With a Foreword by Dewi E. Davies <scp>ll.b.</scp>, Solicitor, Clerk to the Pembrokeshire Justices. [Chichester: Barry Rose Publishers Ltd.1984. 73 and (Appendices and Forms) 59 pp. £17·75 net.

Conflict of Laws—Foreign Nullity Decree—Recognition— Foreign Judgments (Reciprocal Enforcement) Act 1933, S. 8—Interpretation

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Some Recent Aspects of the Recognition and Enforcement of Foreign Judgments in Western Europe

IT would for various reasons not seem to be inopportune to discuss this subject at the present time. In the first place, after a comparatively long time of legislative inactivity in this field, a number of treaties (which, irrespective of their different descriptions, I shall hereinafter call conventions) for reciprocal recognition and enforcement of court decisions have come into existence during the last few years. Thus, the United Kingdom has concluded such conventions with Germany in 1960,' with Norway 2 and with Austria 3 in 1961. The Federal Republic of Germany, having revived the convention with Italy of 1937 in 1952 and replaced the lapsed convention with Austria of 1923 by a new one in 1959, concluded, for the first time, a convention with Belgium in 1958.4 Although no other conventions have so far come into force between West European countries since the beginning of the Second World War, it is understood that several others have been signed and await ratification.