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 CONTRACT
SECTION 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 CLAIMS
Section 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, 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.
KENYA LIMITATION TRUST CLAIMS
Section 20. Actions concerning trust property
(1) None of the periods of limitation prescribed by this Act apply to an action
by 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 in
the 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 a
future interest in the trust property, until the interest falls into possession.
UGANDA LIMITATION TRUST CLAIMS
Section 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; or
a 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 the
Government 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 2010
Section 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 DUTIES
SCHEDULE 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
MAURITIUS
2008
S15(2)
SS16, 18
S 19
S24
S27
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 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
PROCEDURE
RULES 1998
DIFC
RULES
2004
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
Part 1 rule 1.4
COURT TO FURTHER
“OO”
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
THANK YOU
phillipaliker@tanfieldchambers.co.uk
www.tanfieldchambers.co.uk
PHILLIP BLISS ALIKER
TANFIELD CHAMBERS
2-5 WARWICK COURT
LONDON WC1R 5DJ
ENGLAND
UNITED KINGDOM