When Burna Boy, who is based in Lagos, negotiates a contract to perform at the Paris Stade de France, perhaps doing so from his second home in London; private international law (“PIL”) is unavoidably engaged.[1] All parties involved need certainty and predictability on the legal norms that govern any international commercial contract, from jurisdiction to applicable laws; and that any agreement reached would be recognised and enforceable.
The draft Creative Industries Development Bill (“CIDB”) leads ground-breaking pursuits to protect, support and promote the growth of Nigeria’s creative industries through effective legal and regulatory frameworks. A Bill headed by Col Felix Orevoghene Alaita (rtd), Senior Special Assistant to The President, Federal Republic of Nigeria (Country Risk Assessment and Evaluation). As part of the consultation process, I attended a roundtable experts meeting convened at the University of Aberdeen by Dr Titilayo Adebola on 22 February 2023.
Indeed, in this age of globalisation, to quote Nigeria’s Attorney-General of the Federation and Minister of Justice Mr Abubakar Malami during a HCCH joint mission to Abuja in 2021, Nigeria was a country that “could not afford to operate in isolation” and “will not be an exception” for much longer.
Where private international law is engaged, the draft Creative Industries Development Bill at paragraph 11(1)(o) in its current form does provide that one of the functions of the Commission is to;
Ensure that the Commission takes into cognisance, and implements relevant provisions of the African Continental Free Trade Agreement and other international treaties and protocols that affect creatives and the creative industry;
“Other international treaties and protocols” is the part that concerns me most, and it is hoped that the PIL submission to the CIDB working group/drafters will shed some insight into key private international law multi-lateral treaties that apply. Before one gets to the implementation stage as envisaged by the Bill, of note is that important international treaties have not yet been acceded to or ratified by Nigeria, for instance Hague Convention Treaties. The Hague Conference on Private International Law (“HCCH”) is an intergovernmental organisation with origins dating back to 1893. The mandate of the HCCH is “to work for the progressive unification of the rules of private international law” (Art. 1, HCCH Statute). The HCCH develops treaties with rules that help individuals, families, and companies involved in cross-border- situations, by providing solutions to questions concerning jurisdiction, applicable law, and recognition and enforcement of judgments, as well as establishing effective cooperation mechanisms between States. Nigeria is neither a member of the HCCH nor a Contracting Party to any of the conventions, whereas there are 155 connected countries worldwide and one Regional Economic Integration Organisation (the EU).
Cross-border “private” relations are very common, with these relations being guided and protected under the auspices of various Hague Conventions, whether it be family law, legal cooperation and international civil procedure or international commercial and financial law mechanisms. As such, Burna Boy would need certainty that the Paris contract will be honoured no matter the jurisdiction it was made; and that should any issues arise, there is confidence in what court and in which country to pursue a claim without any bar on account of e.g., habitual residence or domicile, to mention but the few. This is of course an oversimplification of the rules of PIL, but hopefully conceptualises a small aspect of its use in everyday life. The importance of private international law instruments cannot be understated.
Where the CIDB is concerned, relevant HCCH Conventions will include,[2] but not limited to;
The Apostille Convention:
The Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention) facilitates the circulation and use of public documents abroad by abolishing the requirement of diplomatic or consular legalisation. The World Bank Group has recommended that States join the Apostille Convention, confirming that the Convention contributes to a regulatory environment that is more conducive to foreign direct investment. The International Chamber of Commerce has also recognised the role of the Apostille Convention in facilitating international trade and investment. The Convention has over 115 Contracting Parties, and is the most used HCCH Convention, with millions of Apostille issued around the world yearly.
Service and Evidence Conventions
The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (Service and Evidence Conventions, respectively) establish effective cross-border cooperation mechanisms that aim to reduce the time it takes to transmit requests for service abroad or requests for the taking of evidence abroad in civil or commercial matters.
Access to Justice Convention
The Convention of 25 October 1980 on International Access to Justice (Access to Justice Convention) is intended to facilitate, for any nationals of a Contracting Party or persons habitually resident in a Contracting Party, access to justice in all other Contracting Parties. The Convention’s purpose is not to harmonise domestic laws, but rather to ensure that the mere status as a foreigner or the absence of residence or domicile in a State are not grounds for discrimination with regard to access to justice in that State.
Choice of Court and Judgments Conventions
The Convention of 30 June 2005 on Choice of Court Agreements (Choice of Court Convention) ensures that choice of court agreements between parties to international business transactions are upheld by Contracting Parties. Based on the business-friendly principle of party autonomy, including freedom of contract, the Convention provides legal certainty and predictability to its users. The three basic rules of the Convention (subject to well-defined exceptions) are: (i) a court chosen by the parties must hear the case, (ii) any court not chosen by the parties must decline to hear the case in favour of the chosen court, and (iii) a judgment rendered by the chosen court must be recognised and enforced in other Contracting Parties. The Convention offers a real alternative to arbitration.
The Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Judgments Convention) lays down a set of commonly accepted rules on recognition and enforcement of foreign judgments in civil or commercial matters. By defining the criteria and grounds for refusal for recognition and enforcement, the Judgments Convention aims to promote the circulation of certain civil or commercial judgments among its Contracting Parties. In doing so, the Convention enhances the practical effectiveness of judgments and provides successful parties with better prospects of obtaining meaningful relief.
Securities Convention
The Convention of 5 July 2006 on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary (Securities Convention) establishes uniform conflict of laws rules that comport with the reality of how securities are held and transferred (i.e., by electronic book-entry debits and credits to securities accounts).
Principles on Choice of Law in International Commercial Contracts
This soft law instrument is designed to promote party autonomy in international commercial contracts, by acknowledging that parties to a contract are best positioned to determine the set of legal norms governing their transactions.
There are also relevant international child protection and family law conventions, giving effect to fundamental principles established by the 1989 United Nations Convention on the Rights of the Child, amongst others. These are the 1980 Hague Child Abduction Convention, the 1993 Hague Intercountry Adoption Convention, the 1966 Hague Child Protection Convention and the 2007 Hague Child Maintenance Convention (and Protocol). Private international law and the movement of artists inevitably engages family life, and thus these family Conventions are of equal importance for our creative artists and their children.
In order to promote CIDB’s agenda, ensuring that Nigeria is amongst the HCCH PIL community anchored by Conventions for effective cross-border trade and commerce is essential for our artists. Afrobeats may be a Nigerian music genre, but it is world recognised.[3] In some instances, artists make it a part of their music, with Rema telling us that he is straight out of Benin…his music is travelling from India to Asia to Berlin. Tems bagged a 2023 Grammy award. Alongside Burna Boy, the trio performed at the NBA All-Star Game in Utah, USA this February – the first of its kind Afro-beats themed performance. We’ve already had Wizkid at Afrochella. Tiwa Savage might even headline Coachella one day. This is just a drop in the ocean perspective of the many achievements and successes in the industry, lest we forget Nollywood.
And with these musings out of the way, the shared experiences of these artist (and all other Nigerian artists or artist habitually resident/domicile in Nigeria) makes the rules of private international law a vital aspect of the Bill, it is proposed that the wording lends itself to affirmative in Nigeria becoming a member of the HCCH and ratifying/acceding to key international treaties. By offering approbative language such as:
…the Commission takes into cognisance and implements relevant provisions of the African Continental Free Trade Agreement. The Commission shall also actively promote and support the implementation, ratification/accession to key international treaties and protocols that affect creatives and the creative industry; including through its membership with UNIDROIT and joining the Hague Conference on Private International Law. Where the Hague Conference is concerned, in particular accession or ratification, and implementation of HCCH Conventions relevant to commercial and financial law, dispute resolution and recognition of documents and foreign judgments...
[1] A hypothetical scenario.
[2] Summary based on the HCCH Succinct Overview Core Conventions pdf.
[3] To test this, think of the simplest ways. For me? It was whilst waiting for a sinfully early flight from Gatwick Airport, having my fill of coffee at Joe & the Juice who played Afrobeats non-stop. At first, I thought it was a fluke when Lil Kesh and Fireboy DML’s song came on, until the music just kept rolling in.
