INTERNATIONAL CONTRACTUAL OBLIGATIONS AND THE LIMITS OF PARTIES’ AUTONOMY IN THEIR CHOICE OF JURISDICTION AND APPLICABLE LAW

Authors

  • Sani Emmanuel Principal Partner, Phoenix & Volge LP, 100 Marian Hill Road, Calabar, Cross River State

DOI:

https://doi.org/10.53704/fulaj.v1i2.554

Abstract

 

Abstract

The courts in Nigeria recognises the freedom of parties to contract, which is hinged on the principle of party autonomy. It presupposes that parties to an international contract are at liberty choose the law to govern their contract, and also select the forum or jurisdiction where any dispute that arises from the contract will be adjudicated. Parties are also at liberty to submit their dispute to arbitration and also chose the applicable law to the substance of the dispute.  The question that readily comes to mind therefore, is whether the choice of the party in that context, is sacrosanct or without qualification.  Based on a doctrinal research approach, it was observed that the autonomy of parties to so do, is not without qualification. Statutory and case law have streamlined the enforceability of such choices in certain circumstances. The choice of the parties in that regard, must not only be reasonable, but made bona fide. It must also not contravene mandatory laws or public policy in Nigeria.

Keywords: International Contract, Contractual obligations, Disputes, Jurisdiction of courts and Forum Selection

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References

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Ibid

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Conflicts of law govern multijurisdictional legal problem that arises in the context of transnational disputes. It is essentially procedural in nature and deals with questions relating to the adjudicatory jurisdiction of domestic courts, the law applicable to the substance and the recognition and enforcement of foreign judgment within the territory of municipal courts.

(n. 1)12

Ibid

Jan Dalhuisen, Dalhuisen on Transnational Comparative, Commercial, Financial and Trade Law (Hart Publishing, Oxford, 2010) 271

Forum non conveniens is a Latin word used to express that a forum is inconvenient. It is a legal doctrine trough which a court acknowledges that the court in another forum is a more appropriate venue to adjudicate in a case brought before it.

(n.1) 14

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J. Dalhuisen, Dalhuisen on Transnational. Comparative, Commercial, Financial and Trade Law vol.1 (Hart Publishing, 2010) 16

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Ibid

(n.1) 6

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Ibid

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Ibid

Ibid

Ibid

Ibid

See Section 78 and 80 Companies and Allied Matters Act, 2023

The rule presupposes that the court can exercise jurisdiction over any person, including a foreigner within jurisdiction; even if the person’s state within jurisdiction is temporal. See Maharanee of Broda v. Wildenstein (1972) 2 All E.R 689.

Long arm Jurisdiction is the ability of local courts to exercise jurisdiction over a foreign defendant, whether on a statutory basis or through s court’s inherent Jurisdiction, and this jurisdiction permits the court to hear a case against a defendant and enter binding judgment against a defendant who is ordinarily resident outside the jurisdiction of the court

See Order 2 of the Federal High Court (Civil Procedure) Rules 2019, order 5 of the High court of Cross River State (Civil Procedure) Rules, 2008.

Ibid

(n.18) 558

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(1987) 4 NWLR (Pt.66) 520,543

Ibid

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Ibid

(1987) AC 460

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(n.34) 205

Ibid

(1984) A.C 398, 415

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(1967) LLR 18

(1957) 2 All E. 707

(n.34) 205

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(1987) AC 71

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(n.49) 40

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(1998) 10 NWLR (Pt. 568) 106

(2013) EWHC 1328 (comm)

(2013) I.LP R.12

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Ibid

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(n.34) 212.

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(n. 70)170

Vita Food product Inc v Unus Shipping Co Ltd (1939) AC 277

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Vita food Product Inc v Unus Shipping Co Ltd(supra)

(n.70)171

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(n.18) 570

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APP. Cas. 277.

APP CAS. 583,603.

Jan Paulsson, ‘Arbitration in Three Dimensions’ ICLQ (2011) (60) 291

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(n.89)

Arbitration and Mediation Act, 2023, Section 15 (1), (2), (3) & (4)

Ibid, section 15(5)

The modern Lex Mercatoria is rooted in the ancient law of merchant, and conjures up romantic notions of laws and practices adopted by merchants in medieval times as they traded from place to place. There is no universal consensus as to what the precise definition of lex mercatoria and it exact content. Scholars from continental Europe of civil law tradition argue strongly in support the concept of lex moratoria as a distinct system of law applied by international merchants based on commercial rules and principles, whereas scholars with the common law background views the concept with cautions, and do not largely accept that it constitutes an autonomous system of law. According to Ole, the new lex mercatoria constitutes a legal system comprising of commercial rules and principles, model law, general terms and conditions and general principles and international arbitration, and is valid law because it had obtained its binding character from the fact that it had been accepted by the societies form the state and regulates commerce. See Lando Ole, ‘The law Applicable to the Merit of the Dispute’, in Sarcevic (ed), Essays on International Commercial Arbitration (Boston, London 1991)129

Lord Mustill stated the sources of lex mercatoria to include: public international law, Uniform laws, general principle of law, rules of international organisation, international customs and usages, standard form contracts, and reporting of arbitral award. See Michael Mustill, ‘The New Mercatoria: The First Twenty- five years’, Arb. Int’l (1988) 86

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Ibid, .622

UNCITRAL Arbitration Rules, Article 33, ISCID Convention, Article 42(6)

(1937) AC

(1939) App. Cas.277 (P.C), the appeal incidentally emanated from Nigeria.

(n.18) 570.

(1970) App. Cas. 583,603

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(1967) L.L.R.18,19

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(1987) 4 NWLR (Pt.66)520

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Ibid p.198

Hans van Houtte, The Law of International Trade (2nded, London, Sweet & Maxwell, 2002).17

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Published

2024-06-14