The English CPR's gate-keeping rules, foreign claimants and access to justice.

Foreign victims of wrongful acts ostensibly committed by companies domiciled in the United Kingdom and or their subsidiaries are increasingly turning to UK courts for redress. Many of these actions encounter jurisdictional challenges right at the start of proceedings. The challenges, in their various iterations, invariably throw up two fundamental questions namely, whether the English courts have jurisdiction to hear the claims, and if so, whether England is the most appropriate or suitable forum. Ensuing proceedings have often been elaborate, extensive, time consuming and resource-intensive, leading to questions about whether the current rules on jurisdiction facilitate or stifle access to justice. This piece attempts a review of the relevant civil procedure rules on jurisdiction of English courts over cases involving foreign claimants - mainly victims of mass wrongs resulting from the activities of English domiciled companies and their foreign subsidiaries post Brexit. It highlights problems with the current approach to resolving jurisdictional challenges around service of claims outside England. To stem the tide of the use of masses of documents, long witness statements, detailed analysis of the issues, and long arguments, a rule change is proposed. It is further proposed that the substantive justice criterion currently considered as part of the requirements for deciding whether England is the proper place to try a case should become an overarching consideration even where jurisdiction is not established

Dispute resolution under the FIDIC and NEC Conditions: paradox of philosophies and procedures?

A careful reader of the philosophical underpinnings and the dispute resolution frameworks of the FIDIC and NEC Conditions of Contract will likely be baffled by the paradoxical relationship between the underpinning ethos of these forms and the approaches to dispute handling: the more traditional of the two sets of Conditions - the FIDIC forms - has more collaborative approaches to dispute resolution than the NEC Conditions which have collaboration as a central theme. This piece discusses this paradox. It sets out the theoretical contexts of these Conditions and examines how they shape dispute resolution expectations under the forms

Foreign parties and the tort jurisdiction gateway under the English CPR.

The Supreme Court of the United Kingdom took an expansive view of the word ‘damage’ under paragraph 3.1(9)(a) of the CPR Part 6, PD 6B on the tort jurisdictional gateway in the recent case of FS Cairo (Nile Plaza) LLC v Lady Brownlie. To the court, there was no good reason to limit the meaning of the word ‘damage’ to what was necessary to complete a cause of action in tort. It extended the meaning of the word to cover physical and financial damage caused by the wrongdoing and thereby allowed victims of torts committed outside the UK to maintain action for damages in an English court. The decision by the highest court in the UK raises the question whether the related paragraph 3.1(9)(b) of PD 6B of the CPR should also benefit from expansive interpretation. This piece critically examines the implications of a liberal interpretation of paragraph 3.1(9)(b) of PD 6B of the CPR for actions by foreign claimants in the English courts alleging duty of care by parent companies and their subsidiaries, especially those not domiciled in the UK. It explores the extent to which damage resulting from wrongful acts complained of – injuries to claimant’s and damage to their properties occurring outside the UK – could be linked to the decisions or activities of parent companies made in the United Kingdom, and implications for the application of the tort gateway

FIDIC, NEC and the dispute board concept: extent and style of adoption.

The Fédération Internationale des Ingénieurs-Conseils (FIDIC) 2017-2022 and NEC4 Engineering and Construction Conditions introduced some significant amendments to the dispute resolution provisions in both Conditions of Contract. Both contract suites now have provisions on dispute boards. This article critically explores the extent and style of adoption of the dispute board concept by the two influential contract giants, gaps, and likely implications for their respective dispute handling strategies. The pathways of adoption of the concept are surprisingly similar but the infrastructure for delivery of dispute board services differ. Both contracts will benefit from additional reforms to introduce early dispute board involvement and a post-performance review or feedback system

Understanding legal research in the built environment.

Legal research is often misunderstood by many a researcher in the built environment, especially beginners. Its role as a suitable research approach employing both primary and secondary sources of data to arrive at logically sound outcomes is often undervalued or even mischaracterised as a tool for preliminary enquiry. These misconceptions stem from lack of understanding of the province of legal research in the built environment and the procedures involved. This chapter seeks to dispel this misunderstanding by explaining the scope and the procedures involved in legal research. Doctrinal legal research is a dominant aspect of legal research. In its basic form, it is about locating, describing, interpreting and systematising legal principles and concepts, with the legal system as a conceptual framework. The resources for this exercise are primary data (legislations) and secondary data (e.g. law reports, legal commentaries and other law literature) and the outcomes are supported and based on sound reasoning

Marine engineering education in Ghana

From the 23rd to the 26th of February, 1777, the third Ministerial Conference of West and Central African States on Maritime Transport CMINCONMAR), was held in Accra, Ghana. At the end of this meeting, a convention institutionalizing the conference was adopted. Based on the charter of Abidjan which was established on the sixth of May, 1975, the members agreed among other objectives: - To harmonise and coordinate their policies on matters concerning maritime transport and, — To promote the development of appropriate machinery and bodies for the improvement of maritime transport. Under the second objective was a proposal for setting up regional centres for maritime training. This gave birth to the Regional Maritime Academ

Arbitrability in the context of Ghana's new arbitration law.

Examines the approach of Ghana's Alternative Dispute Resolution Act 2010 to the question of arbitrability. Reflects on the concept of arbitrability under international law, the relevant trends emerging from case law, and the approach adopted by the Ghanaian High Court in Attorney General v Balkan Energy LLC. Reviews the Act's arbitrability exemptions, their implications for international arbitration in Ghana, the potential jurisdictional challenges under the legislation and how its provisions could be amended to increase its conformity with international trends on arbitrability

Interplay between contract and public law: implications for major construction contracts and transparency.

The relationship between infrastructure project owners and their contractors is generally governed by contract law. However, where the project owner is a State, there are often additional requirements from public law to be complied with. The challenges posed by the interplay between public law and private contractual relationships in such context have been highlighted by litigation concerning the effect of a constitutional requirement that any international business and economic transaction to which the Government of Ghana (GoG) is a party is not to become operational without parliamentary approval. Through analysis of five decisions of the Supreme Court of Ghana on the interpretation of this constitutional provision, this piece highlights the devastating consequences that inattention to public law could have on parties who contract with the GoG and its agencies. It also examines the extent to which the judicial interpretation of the constitutional requirement really furthers the interests of transparency and openness that it was intended to promote

"Smart contracts" versus "smart legal contracts": shifting terminology. [Blog post]

The notion that smart contracts are not actually contracts is a common assertion found in various writings on the subject. Lawyers can be forgiven for being confused, given that "smart contracts" do not qualify as contracts in the conventional sense. The term "contract" in its noun form consistently denotes some form of agreement or pact. From a business and legal standpoint, the term evokes imagery of an interchange between two parties - whether it is the exchange of commitments, actions, or a combination of promises and actions. It is for this reason that the debate around the nature of smart contracts persists. This piece briefly explores the controversy surrounding the meaning of smart contracts. It delves into the reasoning behind the differing opinions and examines the most recent effort by the English Law Commission to address and resolve this ongoing dispute

The impact of blockchain and smart contracts on dispute settlement: a case for mediation.

The research is premised on two important developments, accelerating technological innovation and shifts in dispute resolution paradigms. These advancements offer an innovative framework for dispute avoidance and a more efficient, transparent process for resolving conflicts, particularly in commercial settings. To make this case, we use blockchain technology and smart contracts as technological exemplars, and mediation as an example of dispute resolution mechanism that can be positively impacted by the use of the relevant technology. The potential of these technologies to promote dispute avoidance and the emerging legal frameworks for resolving blockchain technology and smart contract disputes were also explored. We also examine how blockchain technology and smart contracts can be integrated into the mediation process, the advantages, challenges, and possible solutions