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THE COMMONWEALTH OF NATIONS
AFRICAN COLONIAL HERITAGE
“THE REALITY”LEGAL TECHNICAL DEFICIENCIES
• CONTRACT TERMS
• ARBITRATION AGREEMENT
• ARBITRATION RULES
• LIMITATION PERIODS (Contractual
and Statutory)
COMPOUNDING DEFICIENCIES
• RECORD KEEPING
• GOVERNMENT FUNDING
• EXPERTS
• PERSONNEL - CONTRACT
• PERSONNEL - ARBITRATION
• CORRUPTION
CULTURAL SENSITIVITY
MODESTY
ASPIRATION
COMPETENCE
LONG-TERM RELATIONS
ASPECTS OF ENGLISH LAW
• CONTRACT LAWS
• LIMITATION LAWS
• THIRD PARTIES
• ARBITRATION LAWS
• CIVIL PROCEDURE
ZAMBIA CONTRACT LAW
English Law (Extent of Application) Act as amended by the English Law (Extent of Application)(Amendment) Act 2011
Zambian Arbitration Act 2000 – No 19 of 2000 (Model Law)
ZAMBIA ENGLISH LAW (EXTENT OF APPLICATION) ACT AS AMENDED BY THE ENGLISH LAW (EXTENT OF APPLICATION)(AMENDMENT) ACT 2011
SECTION 2
2. Subject to the provisions of the Constitution and to any other written law—(a) the common law;(b) the doctrines of equity;(c) the statutes which were in force in England on 17th August, 1911, being the commencement of the Northern Rhodesia Order in Council, 1911; and(d) any statutes of a later date than that mentioned in paragraph (c) in force in England, now applied to the Republic, or which shall apply to the Republic by an Act of Parliament, or otherwise; shall be in force in the Republic.
KENYA CONTRACT LAW
LAW OF CONTRACT (CAP 23)
ARBITRATION ACT NO. 4 OF 1995 (AMENDED BY THE KENYA ARBITRATION (AMENDMENT) ACT 2009)(Model Law)
KENYA LAW OF CONTRACTSECTION 2
2. English law of contract to apply in Kenya
(1) Save as may be provided by any written law for the time being in force, the common law of England relating to contract, as modified by the doctrines of equity, by the Acts of Parliament of the United Kingdom applicable by virtue of subsection (2) of this section and by the Acts of Parliament of the United Kingdom specified in the Schedule to this Act, to the extent and subject to the modifications mentioned in the said Schedule, shall extend and apply to Kenya provided that no contract in writing shall be void or unenforceable by reason only that it is not under seal.
(2) After the commencement, and subject to section 4, of this Act, the provisions of section 74 of the Kenya (Constitution) Order in Council, 1958, shall have effect, in relation to paragraph (2) of Article 4 of the Kenya Colony Order in Council, 1921, as if the Contract Act, 1872, of India had never been applied to Kenya.
ENGLAND LIMITATION TRUST CLAIMSSection 21. Time limit for actions in respect of trust property.(1)No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action—(a)in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or (b)to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use. (3) Subject to the preceding provisions of this section, anaction by a beneficiary to recover trust property or in respectof any breach of trust, not being an action for which a periodof limitation is prescribed by any other provision of this Act,shall not be brought after the expiration of six years from thedate on which the right of action accrued.
KENYA LIMITATION TRUST CLAIMSSection 20. Actions concerning trust property(1) None of the periods of limitation prescribed by this Act apply to an actionby a beneficiary under a trust, which is an action—(a) in respect of a fraud or fraudulent breach of trust to which the trustee was a party or privy; or(b) to recover from the trustee trust property or the proceeds thereof inthe possession of the trustee or previously received by the trustee and converted to his use. (2) Subject to subsection (1), an action by a beneficiary to recover trust property or in respect of any breach of trust (not being an action for which a period of limitation is prescribed by any other provision of this Act) may not be brought after the end of six years from the date on which the right of action accrued:Provided that the right of action does not accrue to a beneficiary entitled to afuture interest in the trust property, until the interest falls into possession.
UGANDA LIMITATION TRUST CLAIMSSection 19. Limitations of actions in trust property
1)No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action—
(a)in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or (b)to recover from the trustee trust property or the proceeds of the trust property in the possession of the trustee, or previously received by the trustee and converted to his or her use.
(2) Subject to subsection (1), an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued; but the right of action shall not be deemed to have accrued to any beneficiary entitled to a future interest in the trust property until the interest fell into possession.
PUBLIC AUTHORITIES PROTECTION LEGISLATION
• ENGLISH PUBLIC AUTHORITIES PROTECTION ACT 1893
• CROWN PROCEEDINGS ACT 1947
UGANDA CIVIL PROCEDURE AND LIMITATION (MISCELLANEOUS PROVISIONS) ACT
Section 3. Limitation of certain actions.(1) No action founded on tort shall be brought against—the Government;a local authority; ora scheduled corporation, after the expiration of two years from the date on which the cause of action arose.(2) No action founded on contract shall be brought against theGovernment or against a local authority after the expiration of three years from the date on which the cause of action arose.
KENYA PUBLIC AUTHORITIES LIMITATION ACT
Section 3.(1) No proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the cause of action accrued.(2) No proceedings founded on contract shall be brought against the Government or a local authority after the end of three years from the date on which the cause of action accrued.(3) Where the defence to any proceedings is that the defendant was at the material time acting in the course of his employment by the Government or a local authority and the proceedings were brought after the end of -
(a) twelve months, in the case of proceedings founded on tort; or
(b) three years, in the case of proceedings founded on contract,
from the date on which the cause of action accrued, the court, at any stage of the proceedings, if satisfied that such defendant was at the material time so acting ,shall enter judgment for that defendant.
ENGLISH CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
Section 1(1)Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—(a) the contract expressly provides that he may, or (b) subject to subsection (2), the term purports to confer a benefit on him.(2)Subsection (1) (b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.(3)The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.(4)This section does not confer a right on a third party to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract.(5)For the purpose of exercising his right to enforce a term of the contract, there shall be available to the third party any remedy that would have been available to him in an action for breach of contract if he had been a party to the contract (and the rules relating to damages, injunctions, specific performance and other relief shall apply accordingly).
UGANDA CONTRACTS ACT 2010Section 65 (1) Subject to this Act, a person who is not a party to a contract may in his or her
own right enforce a term of the contract where—(a) the contract expressly provides that he or she may do so; or (b) subject to subsection (2), a term of the contract confers a benefit on that person.
(2) Subsection (1) (b) does not apply where on a proper construction of the contract, it appears that the parties did not intend the term to be enforceable by a third party.
(3) A third party shall be expressly identified in a contract by name, as a member of a class or as answering a particular description; but need not be in existence at the time the contract is entered into.
(4) This section does not confer a right on a third party to enforce a term of a contract except where the term is subject to and in accordance with any other relevant term of the contract.
(5) For the purpose of exercising the right to enforce a term of a contract, a third party shall have available any remedy that would have been available to him or her in an action for breach of contract, had that third party been a party to the contract, and the rules relating to damages, injunctions, specific performance and other relief shall apply accordingly
SOUTH SUDAN CONTRACT ACT 2008
Section 97(1)Subject to the provisions of this Act, a person who is not a party to a contract may in his or her own right enforce a term of the contract where—(a) the contract expressly provides that he or she may do so; or (b) subject to the provisions of subsection (2) below, a term of the contract confers a benefit on that person. (2) Subsection (1) (b) above, does not apply where on a proper construction of the contract, it appears that the parties did not intend the term to be enforceable by a third party.(3)A third party shall be expressly identified in a contract by name, as a member of a class or as answering a particular description; but need not be in existence at the time the contract was entered into.(4) This section does not confer a right on a third party to enforce a term of a contract except where the term is subject to and in accordance with any other relevant term of the contract.(5) For the purpose of exercising the right to enforce a term of a contract, a third party shall be entitled to any remedy that would have been available to him or her in an action for breach of contract, had that third party been a party to the contract, and the rules relating to damages, injunctions, specific performance and any other relief shall apply accordingly.(6)Where a term of a contract excludes or limits liability in relation to any matter, any reference in this Act are to the enforcement of a term of a contract, shall be construed as a reference to the third party availing himself or herself of the exclusion or limitation.
MANDATORY DUTIESSCHEDULE 1 AA 1996
• DUTIES OF THE TRIBUNAL: Section 33
• DUTIES OF THE PARTIES: Section 40
ENGLISH INSPIRED CHANGES TO UNCITRAL MODEL LAW
APPLICATION FOR RELIEF OF LIABILITY ON
RESIGNATION OF ARBITRATOR
COURT ORDERS ON RESIGNATION OF
ARBITRATOR INCLUDING FEES
IMMUNITY OF ARBITRATOR
GENERAL DUTY OF THE TRIBUNAL
GENERAL DUTY OF PARTIES
ENGLAND 1996
S 25(3)(a) S 25(3)(b) S 29 S 33 S 40, 41
MAURITIUS2008
S15(2) SS16, 18 S 19 S24 S27S27
KENYA 2009
S 16A(1)(a) S 16A(1)(b) S 16B S19 SS 19A, 20, 26
GHANA 2010
S 19(2)(a) S 19(2)(b) S 23 SS 31, 44(3) S 29S 29
CIVIL PROCEDURE RULES 1998“OVERRIDING OBJECTIVE”
CPR 1998 Part 1, rule 1.1(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.(2) Dealing with a case justly includes, so far as is practicable –(a) ensuring that it is dealt with expeditiously and fairly;(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;(c) ensuring that the parties are on an equal footing;(d) saving expense; and(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.
A NEW CIVIL PROCEDURE CODE
ENGLISH CIVIL PROCEDURERULES 1998
DIFC RULES2004
KENYA APPELLATE JURISDICTION ACT (Cap 9) 2009
KENYA CIVIL PROCEDURE ACT (Cap 21)2009
OVERRIDING OBJECTIVE
Part 1 rule 1.1(2)
Part 1 rule 1.5
Section 3A(1) Section 1A(1)
APPLICATION BY COURT OF “OO”
Part 1 rule 1.2 Part 1 rule 1.6
Section 3A(2) Section 1A(2)
DUTIES OF THE PARTIES TO FURTHER “OO”
Part 1 rule 1.3 Part 1 rule 1.7
Section 3A(2) Section 1A(3)
DUTIES OF THE COURT TO FURTHER “OO”
Part 1 rule 1.4 Part 1 rule 1.8
Section 3B Section 1B
TRIPARTITE INTEGRATION
http://africausedvehicleadviser.
DRAFT RWANDA ARBITRATION LAW
• ARTICLE 11 (1) – ADR ALTERNATIVE • CPR 1998 PRE-ACTION PROTOCOL AND PART 29PD.4 PARA 4.10 (9) • ARTICLE 11 (3) – COSTS ESTIMATES/ BUDGETS• CPR 1998 PART 3 RULES 3.12 & 3.13• ARTICLE 36 – DUTIES OF THE PARTIES/ O O• ARTICLE 37 – DUTY OF THE TRIBUNAL/ O O
PHILLIP BLISS ALIKER
TANFIELD CHAMBERS 2-5 WARWICK COURTLONDON WC1R 5DJENGLANDUNITED KINGDOM
