Approaches to Jurisdiction Clauses in Anglophone African Common Law Countries: Principle and Policy
| Pages | 378-399 |
| DOI | 10.3366/ajicl.2019.0280 |
| Date | 01 August 2019 |
| Author | |
| Published date | 01 August 2019 |
Suppose that a company registered in Sierra Leone enters into a commercial contract for the sale of goods with a company registered in Kenya. Suppose further that their contract contains within it a clause by which the parties agree that disputes arising out of the contract ought to be determined by the courts of Sierra Leone.
The answer to the question posited in the opening paragraph is of great significance, jurisprudentially. It should, in a principled manner, give effect to the legal policy (regarding the enforcement of contractual promises by the court) in place in the particular country in which the court is located. Additionally, commercial parties and those drafting contracts on their behalf will rely on it when taking commercial decisions.
This article reflects upon the various approaches which courts in Anglophone African common law
In order to meet that objective, the structure of this article is as follows: first, and in order to set up the remainder of the discussion, the legal effect of jurisdiction clauses is examined; second, the need for the court to identify the exact contractual promise embodied in the jurisdiction clause is set out; and third, the approach taken in different Anglophone African common law countries to the enforcement of jurisdiction agreements construed to be ‘exclusive’
In order to ascertain the legal effect of a jurisdiction clause, it is necessary at the outset to address how, in a common law legal system,
Whether, in fact, a court has jurisdiction to exercise – a question which is logically prior to the question of whether it
The importance of this statement, especially in relation to the effect of jurisdiction clauses, cannot be underestimated. Hence, it bears repeating that service, and only service, can establish the jurisdiction of the court. The exact procedure which must be followed in order properly to effect service of process on the defendant depends on her physical geographic location. Where the defendant is within the territorial jurisdiction of the court, what the plaintiff must do in order legitimately to effect service on her will be contained within the relevant rules of court and does not involve the investigation of any private international law matters.
Where the defendant is outside the territorial jurisdiction of the court, the plaintiff will still have to serve process on her in order to seise the court of jurisdiction. However, in order so to serve the defendant, the plaintiff usually
A jurisdiction clause, therefore, does not establish the jurisdiction of the court;
This point has occasionally been overlooked. In
In granting the orders which the defendant sought, Arach-Amoko J accepted that the ‘High Court of Uganda has no jurisdiction to adjudicate this dispute’;
Two difficulties emerge from the way in which the court's reasoning was expressed. First, because the defendant had been served with process within Uganda,
The reasoning of the court in the
This agreement shall be governed, construed and enforced in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.
On the basis of this clause, the defendant sought a declaration that the court had no jurisdiction over the substantive claim which had been brought before it. Izama J eschewed the formulation employed by Arach-Amoko J inThe Kenyan court has also, on occasion, elided the term ‘jurisdiction clause’ with ‘ouster clause’.
The starting point ought to be that a jurisdiction clause is a term of the parties' contract (or may be contained in, or constitute the entirety of, some other agreement between them). Jurisdiction clauses thus ‘contain promises which give rise to private law rights’.
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