Foreign Judgments and Foreign Law
Application of International Law By The Sierra Leonean Courts
LAW AND COURTS
Sierra Leone has a two-tiered legal system based on the English common law model. Outside of Freetown and the Western Area, local customary law also applies. The court system comprises two levels, the Superior Courts (High Court, Court of Appeal and Supreme Court) and the Lower Courts (Magistrates Court and Local Courts). The High Court consists of a number of divisions, including the Fast Track Commercial Court (FTCC). The Court of Appeal deals with appeals from the High Court. The Supreme Court is the country’s final appeal court.
Civil proceedings are normally commenced by a writ of summons or originating summons filed together with a statement of claim at the High Court or District Registry. The time between issuance of a writ of summons and the start of a trial can be up to three months and the length of time from trial to final judgment can extend to over a year. Proceedings often advance at a slow pace due to frequent adjournments and procedural issues. The Ebola outbreak caused further delays within the courts system, leading to an increase in the already substantial backlog of cases.
The FTCC was established in 2010 with the aim of reducing the time taken to resolve commercial disputes. Whilst the efficiency of the new Court was impeded by the Ebola crisis, there are two FTCC courts in operation with three full-time judges. Ensuring effective and efficient justice delivery is a priority of the GoSL. In the MTNDP, the GoSL highlights a target by 2023 of ensuring that the number of cases awaiting judgment for six months or more is considerably lower than in 2018.
Foreign investors can access the court system, although it has historically been criticised as potentially subject to financial and political influence. The Justice Sector Reform Strategy and Investment Policy 2015-2018 (JSRSIP III) established by the government of Sierra Leone set out various planned system reforms to increase the efficiency and integrity of the justice system. The GoSL has indicated its intention to revisit this reform strategy to bring about further improvements. The GoSL has suggested that a “national dialogue” on justice be convened, in order to discuss reforms and how to make the justice sector more effective. It has also indicated that family and small claims courts will be established in all parts of Sierra Leone to deal with family and neighbour related cases, debt, consumer complaints and low-level land and property disputes in order to free up the Magistrates and High Courts to deal with more-complex cases. The UNDP and the UK have recently supported judicial reform projects in Sierra Leone with similar objectives and the GoSL has expressed its commitment to working with the World Bank, the Open Society Initiative for West Africa (OSIWA) and other partners to identify funding to support the GoSL’s investment in this area. The GoSL’s strategic aims for the justice sector are set out more fully in the MTNDP.
The judiciary is headed by the Chief Justice, who, along with other judges of the Superior Courts, is appointed by the President on the advice of the Judicial and Legal Services Commission. Each appointment is subject to Parliamentary approval. Before appointment, judges must have been permitted to practise as counsel in Sierra Leone (or a country with an analogous legal system) for 10, 15 or 20 years for the High Court, Court of Appeal and Supreme Court respectively.
FOREIGN JUDGMENTS AND FOREIGN LAW
The Sierra Leonean courts may recognise foreign judgments emanating from particular jurisdictions which recognise Sierra Leonean court judgments. Specifically, the Sierra Leonean courts have reciprocal enforcement arrangements with Ghana, Nigeria, Guinea and Gambia. UK judgments have been recognised in the past although there is no reciprocal arrangement between the UK and Sierra Leone.
In order to enforce a foreign judgment in Sierra Leone, a party must apply (with supporting evidence) to the High Court for registration of the judgment. Judgment debtors are entitled to apply to set aside the registration. Investors should note that the court may refuse to register a foreign judgment which is within the scope of the legislation in certain circumstances, including where the originating court did not have jurisdiction, in cases of fraud, where the judgment debtor had insufficient notice of the proceedings, or where enforcement would be contrary to public policy.
Generally, as a matter of practice, Sierra Leonean courts do not apply foreign law. The courts may hear evidence on foreign law but are not obliged to do so. If the application of foreign law cannot be proven by the party concerned, the Sierra Leonean courts will decide the case according to the Sierra Leonean lex fori.
APPLICATION OF INTERNATIONAL LAW BY THE SIERRA LEONEAN COURTS
Sierra Leone has a dualist system and as such international law is not directly applicable domestically. International law must first be implemented before it can be applied by the national courts.
In Sierra Leone, arbitration is governed by the Arbitration Act, Chapter 25 of the Laws of Sierra Leone 1960 (Cap 25).
Under the Arbitration Act, the High Court of Sierra Leone will stay proceedings where there is a valid arbitration submission/clause providing for arbitration, provided it is satisfied that there is no sufficient reason why the matter should not be referred to arbitration, and that the party applying for the stay was and remains ready and willing to do all acts necessary for settlement of the matter through arbitration.
An award of an arbitral tribunal seated outside of Sierra Leone can be registered with the High Court and may then be enforced as if it were a judgment of the High Court of Sierra Leone, provided that it has become enforceable in the same manner as a judgment of the court in the place where it was made and subject to the permission of the court. Investors should note that the court may refuse to register arbitral awards in circumstances such as fraud, insufficient notice, or where enforcement would be contrary to public policy. The experience of the Sierra Leone courts with enforcement of foreign awards is limited and enforcement may not therefore be straightforward.
On 28 October 2020, Sierra Leone deposited its instrument of accession to the New York Convention with the UN Secretary General. The Convention will come into force for Sierra Leone on 26 January 2021 and will apply to arbitration agreements and awards rendered after that date. The Law Reform Commission has drafted a modern Arbitration Bill which would implement the obligations of the Convention into domestic law.
Sierra Leone’s accession to the Convention was one of the key recommendations generated by a wide range of stakeholders at Sierra Leone’s inaugural Commercial Law Summit in March 2017. Accession to the Convention promotes foreign investment by sending a strong signal to the international investment community that the contracting state will uphold the parties’ choice to resolve disputes by arbitration without potential interference from local state courts, and will enforce foreign arbitral awards in a consistent and predictable way. It can also benefit Sierra Leonean parties to international contracts (including the Sierra Leone state) by decreasing the cost of enforcement risk which is often factored into commercial terms. It can obviate the need for Sierra Leone parties to agree that the home courts of a foreign investor shall resolve disputes.