community-law

In the context of international law, community law is a set of common rules or laws which regulate cross-border or transnational commercial transaction. The Late Professor John Ademola Yakubu, a PhD Professor of Law at the University of Ibadon, Nigeria identified

Written by: Lord Fiifi Sampson

1/17/20253 min read

In the context of international law, community law is a set of common rules or laws which regulate cross-border or transnational commercial transaction.

The Late Professor John Ademola Yakubu, a PhD Professor of Law at the University of Ibadon, Nigeria identified

[1] ‘’three conventional issues that may be involved in trans-border transaction; (1) choice of law (2) choice of the appropriate court to assume jurisdiction; (3) timely recognition and of judgments. He explained further that these issues concerning choice of law or forum or concerning enforcement, increase the unpredictability of commercial transactions in three ways.

Firstly, if the parties neglect to agree expressly on the law or to accept jurisdiction, the indeterminacy of the application of conflicts of laws and jurisdictional principal intervenes. Secondly, if the parties do specify choice of law and submit to jurisdiction, at least one party, and both if a neutral jurisdiction is selected, will still have to operate in a foreign law and jurisdiction. Because even the most skilled foreign jurist cannot appreciate the nuances of a legal system as clearly as does the local jurists, the foreigner’s uncertainty increases the client’s transaction cost.

These costs include out-of-pocket expenses such as legal fees for local counsel, but the cost of uncertainty as well. The party for whom the law or jurisdiction is foreign will be unable to quantify the risk as fully as would a local businessperson, and therefore will have to charge more.

It is widely agreed among international law practitioners that the only solution but a partial one to the issues raised above is the creation of community law. Thus, Professor John Ademola rightly noted[2] that ’If both parties belong to the same community, the community’s law is local to both. If the community is one in reality, both parties will be familiar with applicable social as well as legal norms, including those relating to resolution of disputes. The promise of a unified legal system is

that all economic operators within the territory will be using their own internal law and judicial institutions.’’

In practice, there are two approaches in creating this community law which are;

(1) Unification

(2) Harmonization

UNIFICATION APPROACH

By the unification approach, the states involved in the economic cooperation negotiate for a common law (community law) to determine certain areas of law or issues, these community law once agreed upon subjectively abrogate or repeal any national legislation dealing with same areas of law or issues.

Professor John Ademola explains that the unification approach, as the name suggests, requires at least one of the participating countries and perhaps all of them, to substitute a new law to achieve identity.

How? Nations may come together for the purpose of having uniform laws to govern germane issues or transactions where community laws relating to this cooperation or agreement govern those issues, these community laws are substituted for the segmental or nationals. This unification effort will therefore produce uniform laws.

Jean Alain Penda Matipé, similarly identified that the unification approach entails the elimination of any differences within of national laws by the substitution of a uniform act for the member states ‘national laws.

The OHADA treaty’s articulated objective is harmonization, however it truly works towards unification

[4]. The unification of laws normally takes the form of code or sometimes treaties. OHADA for instance now has 10 Uniform Codes[5] or acts and by virtue of Article 10 of the OHADA treaty, automatically and directly repeal all existing legislation, and supersede any future legislation, on the same subject.


Unified Business Laws for Africa: Common law perspective on Ohada; Chapter 1 Community Laws in International Business Transactions

Asssociation Henri Capitant, l’Organisation pour l’Harmonisation en Afrique du Droit des Affaires

(OHADA), Petites Affiches La Loi, nume´ro spe´cial, le quotidien juridique, Archives Commerciales de la France, 205, p 61.

Some of the Uniform Acts includes; Uniform Act Relating to General Commercial Law (General Commercial Code), Uniform Act Relating to Commercial Companies and Economic Interest Groups etc