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Portuguese-speaking Africa and the Lusophone legal system: all in the family?

Trento
This Saturday I will be presenting a paper at the “XI Young Scholars Workshop on International Law – Africa 2013: Was there something missed in the decolonization process? The international law perspective”, at the Faculty of Law of the University of Trento (Italy). The paper is entitled: “Portuguese-speaking Africa and the Lusophone legal system: all in the family?” You can download the full program here.

Here is the abstract: ‘Portuguese-speaking Africa’ comprises five African countries in which Portuguese is an official language: Angola, Cape Verde, Guinea-Bissau, Mozambique and São Tomé and Príncipe. Besides having a common language, these former colonies of the Portuguese Empire share a similar cultural identity and legal system. Together with Portugal, Brazil and East Timor, they are members of the Community of Portuguese-speaking Countries (CPLP). Founded in 1996, the CPLP pursues political and diplomatic cooperation among the member states and, inter alia, the implementation of projects aimed at promoting and spreading the Portuguese language. Although it is common to talk about a ‘Lusophone world’, uniting different countries and continents, the existence of a ‘Lusophone legal system’ is open to discussion. Some authors, although acknowledging the existence of clear similarities between the different legal systems of the Portuguese-speaking countries (PSCs), reject the existence of a ‘Lusophone legal system’. Some of the arguments used are the lack of a specific theory regarding the legal system; the application, in some African countries, of customary law instead of the official law; or the existence of several factors that impede the inclusion of all PSCs in the same legal system, like the European Union, Mercosur or several African organisations. Others accept the existence of a Lusophone legal system.

Although the existence of a ‘Lusophone legal system’ is disputed, the similitude between legal frameworks in the Portuguese-speaking world cannot be argued. A common history left a clear trace and the influence of Portuguese law is still evident today. Not very long ago, several PSCs have approved legislation which has a clear Portuguese inspiration; for example, Angola enacted the new Company Laws in 2004, highly influenced by the Portuguese Company Law of 1986; and Mozambique adopted of a new Commercial Code in 2005, also clearly marked by the Portuguese tradition. Such a clear similarity between the legal systems of PSCs brings undeniable advantages. The existence of common legal values and, above all, of a common language, makes it easier to boost commercial exchanges and deepen long-lasting relationships between Lusophone companies.

Despite encompassing countries which have a common legal background, the CPLP has not engaged in any law reform purposes. Unlike the case of its francophone African counterpart, OHADA, the CPLP’s constitutive documents do not reflect a direct role for the organisation in the creation of supranational legislation or in the resolution of international disputes. According to one author, the ‘CPLP is a vessel, as yet largely unfilled, through which dual goals of law reform and promotion of Portuguese language might be pursued’. For the time being, there does not appear to be any probability of reforms to provide the organisation with legislative or judicial institutions like those of the European Union and of OHADA. Language promotion through law reform could, however, easily be considered within the CPLP’s purposes. In the absence of legislative tools and law-making institutions, the approaches of restatements, expert association working groups and model laws could offer a good opportunity of aligning the CPLP’s goal of language promotion with law reform to support international commerce.

In our paper we aim to discuss whether it would be beneficial for Lusophone Africa to deepen its affinity with the Lusophone legal system, namely through the CPLP. Would the harmonization of legal rules within the Community bring about advantages, for instance, in the fields of Business Law and Commercial Arbitration? Would the creation of a legal ‘Commonwealth’ of Lusophone Countries be positive for these countries in different stages of economic development, or could it be seen as a type of neo-colonialism? Should they deepen their family ties or break them?


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