Assessing the efficacy of forum selection agreements in Commonwealth Africa

Assessing the efficacy of forum selection agreements in Commonwealth Africa

Author: Theophilus Edwin Coleman

ISSN: 2521-2605
Affiliations: BA LLB LLM LLD; Postdoctoral Research Fellow, Centre for International and Comparative Labour and Social Security Law (CICLASS), University of Johannesburg, Republic of South Africa.
Source: Journal of Comparative Law in Africa, Volume 7 Issue 2, p. 1 – 40
https://doi.org/10.47348/JCLA/v7/i2a1

Abstract

Any international commercial agreement has the potential to be the subject of a dispute. In resolving international commercial disputes, parties to a contract are at liberty to choose any dispute resolution mechanism that best serves and meets their commercial interests. Generally, parties to an international commercial contract may resort to courtroom litigation or choose an alternative dispute resolution (ADR) mechanism as a method of resolving their transnational disputes. Underlying almost every international commercial contract, therefore, is a very primary question about where, by whom and how the parties prefer their disputes to be litigated. The response to this question depends on whether parties prefer traditional courtroom litigation, or an ADR mechanism. In most instances, countries put in place dispute resolution regimes that seek to afford contracting parties the liberty to submit their disputes to a foreign forum or an arbitral tribunal for legal redress and/or a remedy. However, while the efficacy of resolving international disputes through arbitration has garnered immense international and domestic support, the submission of disputes by parties to a foreign forum through a forum selection agreement is regarded with much ambivalence in most countries. This article assesses the efficacy of forum selection agreements in Commonwealth Africa. It appraises the judicial approach of courts in Commonwealth African countries relative to the essence and effect of forum selection agreements. This article argues and calls for a higher degree of judicial commitment to the juridical choices of private individuals who are party to an international commercial contract, especially with regard to forum selection agreements.

A re-examination of the conflict rules governing the validity of international contracts

A re-examination of the conflict rules governing the validity of international contracts

Author: Prince Obiri-Korang

ISSN: 2521-2605
Affiliations: BSc LLB (Cape Coast), PLT LLM LLD (Johannesburg). Postdoctoral Research Fellow, Research Centre for Private International Law in Emerging Countries, Faculty of Law, University of Johannesburg.
Source: Journal of Comparative Law in Africa, Volume 7 Issue 2, p. 41 – 59
https://doi.org/10.47348/JCLA/v7/i2a2

Abstract

Generally, under choice of law, the issue of uncertainty associated with the determination of the governing law of international contracts is quite clear. The level of this uncertainty, however, increases when dealing with questions about which law governs the validity of such contracts. Like other areas of private international law, matters concerning validity present several unique challenges both in theory and in practice, making it the most complicated topic in private international law literature. In fact, the uncertainty in this area has led to a situation where different rules are applied by different states, without taking into consideration the link that should exist between the state whose law becomes applicable and the function that the law is expected to serve – determining the validity of a contract. This article attempts to contribute to existing literature on choice of law questions regarding the validity of international contracts and also provides solutions, based on the underlying principles of private international law of contract that effectively address the uncertainty in this area of law. The article submits that the law that governs the validity of an international contract must, at all times, be one that has a legitimate interest in matters concerning the legality or otherwise of such contracts. In this regard, the article strongly opposes the theory that the parties’ intention determines the law that governs the validity of their contract. After a careful examination of literature and landmark judicial decisions in both civil law and common law jurisdictions, the article concludes that the lex loci solutionis is the appropriate law to determine matters relating to the validity of international contracts.

Revisiting the role of the judiciary in enforcing the state’s duty to provide access to the minimum core content of socio-economic rights in South Africa and Kenya

Revisiting the role of the judiciary in enforcing the state’s duty to provide access to the minimum core content of socio-economic rights in South Africa and Kenya

Revisiting the role of the judiciary in enforcing the state’s duty to provide access to the minimum core content of socio-economic rights in South Africa and Kenya

Author: Justice Alfred Mavedzenge

ISSN: 2521-2605
Affiliations: Research Fellow at the Democratic Governance and Rights Unit of the University of Cape Town, and a Legal Advisor at the International Commission of Jurists
Source: Journal of Comparative Law in Africa, Volume 7 Issue 2, p. 60 – 89
https://doi.org/10.47348/JCLA/v7/i2a3

Abstract

Although the realisation of the full scope of each socio-economic right is meant to be achieved progressively, Kenya and South Africa have an international obligation to immediately provide vulnerable persons with access to the minimum core of each of these rights. As revealed (again) by the COVID-19 pandemic, the two states are in violation of this obligation as millions of people in both countries are living in abject poverty, without access to the bare necessities. Attempts to enforce the government’s minimum core obligations have failed at least three times in South Africa, and the Court of Appeal in Kenya has hesitated to enforce these obligations. Relying on the doctrinal review of jurisprudence from both countries and international law, this article proposes that, in order to enforce the minimum core obligations without violating the separation of powers doctrine, the judiciary must be perceived to have a primary role and a secondary role. The primary role of the court must be to enforce meaningful engagement between the state and the rights bearers in determining the quantitative aspects of the minimum core content of each right. Once the state has developed this core content, the court can review its reasonableness by measuring it against the qualitative minimum standards imposed by the right. In circumstances of urgent need, where the state has failed to develop a reasonable quantitative minimum core content and rights bearers are in danger of suffering irreparable harm, the court should invoke its secondary role which entails setting the quantitative minimum core content to be provided by the state as a temporary measure.

Intensifying legal protection against human rights violations in the Covid-19 era: A case study of Kenya, Uganda and Tanzania

Intensifying legal protection against human rights violations in the Covid-19 era: A case study of Kenya, Uganda and Tanzania

Author: Ratemo Tom Junior

ISSN: 2521-2605
Affiliations: Postgraduate Diploma in Law CCA BCom LLB LLM PhD; Lecturer, Kenyatta University School of Law, Nairobi, Kenya
Source: Journal of Comparative Law in Africa, Volume 7 Issue 2, p. 90 – 122
https://doi.org/10.47348/JCLA/v7/i2a4

Abstract

The coronavirus pandemic has, since its outbreak in late 2019, not only caused a global health care crisis but has also had a negative impact on the exercise of social, economic, cultural and political rights. Vulnerable and marginalised groups in Kenya, Uganda and Tanzania are among the worst affected. To respond to the crisis, the three East African countries imposed several measures aimed at curtailing the spread of the disease, which included a mandatory 14 days of self-quarantine for persons arriving from abroad; the closure of borders, religious and educational institutions; the suspension of international and domestic flights; the suspension of public court proceedings and gatherings; the imposition of a dusk to dawn curfew; and the restriction of people’s movement in certain areas. All these measures in one way or another affect the exercise of fundamental human rights. In the past few months, the number of reported cases of human rights violations has been escalating. This article seeks to highlight the three states’ practice of avoiding the ‘naming, shaming and prosecuting’ of perpetrators of human rights violations during the coronavirus pandemic. It also exposes instances of human rights violations in Kenya, Uganda and Tanzania during the pandemic. In addition, the paper proposes measures to be undertaken to intensify legal protection against human rights violations during the coronavirus pandemic. Finally, the paper explores the elusive option of making the top state officials legally accountable for individual human rights violations.