Cross-border commercial litigation: The jurisdictional challenge

Abstract

This thesis advocates that South Africa become a neutral jurisdiction venue for cross-border commercial disputes. It proposes the recognition and enforcement of jurisdiction clauses in South Africa as the ultimate means to this end. The research will make a notable contribution to the development of an effective and just system of cross-border/transnational litigation. International commercial contracts are the foundation for the development of infrastructure, industry, and food production. Effective systems of law to create and enforce these obligations, as well as to manage risks associated with different industries and enterprises, depend on sound cross-border jurisdictional rules that should supplement the new transnational arbitration regime. Based on its constitutional values of human rights and access to courts (justice), South Africa stands to gain immensely from incoming commercial arbitration and commercial litigation as forms of dispute resolution. This will establish the country as the preferred venue for arbitration and litigation on the African continent and beyond.

To this end, the investigation: (1) explores the principles underlying South African law relating to domestic and cross-border jurisdiction; (2) explores the extent to which domestic notions of jurisdiction misinform cross-border jurisdiction; and (3) explores, from a comparative perspective, the cross-border jurisdictional regimes in other comparable jurisdictions around the world, as well as those reflected in formal instruments such as the Hague Convention, the New York Convention, the Brussels Regime, the Lugano Convention, and the European Union Regulations.

In conclusion, the thesis proposes reforms to the South African law relating to jurisdiction in international commercial litigation, bearing in mind its relationship to international commercial arbitration and the possibility of an independent international commercial court (as in Singapore, for example). Ultimately, the aim is to attract international commercial litigation to South Africa with the appropriate checks and balances in place to avoid congestion in our courts.