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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 

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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).