Contractual Capacity in Private International Law: The Lizardi Rule in the Far East

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Contractual Capacity in Private International Law: The Lizardi Rule in the Far East

Authors Eesa Allie Fredericks

ISSN: 2522-3062
Affiliations: Senior Lecturer, Head of Department: Practical Business Law, Deputy Director: Research Centre for Private International Law in Emerging Countries, University of Johannesburg
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 116 – 134

Abstract

This article concerns the contractual capacity of natural persons in the conflict-of-law rules in various Far Eastern jurisdictions. In particular, attention is devoted to the so-called Lizardi rule, which is based on a decision of the French Cour de cassation in 1861. The rule provides certain conditions for the application of the law of the place of contracting in addition to the relevant personal law(s). The Lizardi rule, in amended form, became part of European regional and supranational private international law. The influence of the rule is traced in the conflicts codes in force in China, Japan, Macau, Mongolia, the Philippines, South Korea, Taiwan, Thailand and Vietnam. The various arrangements in these codes are compared to the original formulation of the rule in the Lizardi case, and with its amended form in the Rome Convention and the Rome I Regulation on the Law Applicable to Contractual Obligations. The author submits that the arrangement in the South Korean Conflict of Laws Act is the most preferable in this regard, as it constitutes a commendable via media between the interests of the incapacitated party and the capable contractant.

Class Action Settlements: Issues and the Importance of Judicial Oversight

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Class Action Settlements: Issues and the Importance of Judicial Oversight

Authors Estelle Hurter

ISSN: 2522-3062
Affiliations: Professor of Law, Department of Criminal and Procedural Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 97 – 115

Abstract

Like ordinary civil matters, most class actions settle before trial. However, unlike ordinary civil matters, the representative nature of the class action and the consequential risk of collusive practices to the detriment of the absent group members, have led the leading class action jurisdictions to require court approval of all settlements. Various criteria have been developed (mainly by courts) in order to assess whether a proposed settlement meets the required fairness standard. This article briefly examines the concerns regarding collective settlements; the various sets of criteria used by leading class action jurisdictions; and presents a set of criteria for possible consideration and adoption by South African courts when in future confronted by the need to develop local assessment criteria.

Spotlight on the Guardians of the Gatekeepers: An Assessment of the Judicial Service Commission of Malawi

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Spotlight on the Guardians of the Gatekeepers: An Assessment of the Judicial Service Commission of Malawi

Authors Mwiza Jo Nkhata

ISSN: 2522-3062
Affiliations: Associate Professor of Law, University of Malawi and Research Fellow, Free State Centre for Human Rights, University of the Free State
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 66 – 96

Abstract

The judiciary is commonly regarded as the gatekeeper of democracy and constitutionalism. In Malawi, the work of the judiciary must be appreciated closely with the powers and functions of the Judicial Service Commission (JSC). While precise connections have yet to be fully unravelled, it is clear that the JSC or any other body, however named, that manages appointments and discipline of judges, can influence the quality of a judiciary. By focussing on the JSC, the article demonstrates that the JSC has remained dormant, especially in terms of elaborating on the framework governing its operations. The article focuses specifically on the composition and legal status of the JSC; the record of the JSC in maintaining discipline among judicial officers; the accountability of the JSC in its operations and the role of the JSC in the appointment of judges and the maintenance of judicial independence. It is the article’s conclusion that these aspects of the work of the JSC are in dire need of reform. Building on a comparative expose, the article recommends that legislation should be adopted to clarify the duties and operations of the JSC; that there should be enhanced transparency and accountability in the operations of the JSC; that greater administrative support be rendered to the JSC; and that the composition of the JSC be altered to increase its size and diversity.

Protection of Internally Displaced Persons in Kenya under the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act of 2012: An Appraisal

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Protection of Internally Displaced Persons in Kenya under the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act of 2012: An Appraisal

Authors Laurence Juma

ISSN: 2522-3062
Affiliations: Professor of Law, Rhodes University
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 44 – 64

Abstract

This article discusses Kenya’s Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act of 2012, which is among the very few national legislations globally that addresses the plight of internally displaced persons. While it records the momentous achievement in creating a viable and legally enforceable legislative framework for the protection of IDPs, the article highlights some of the areas that could be improved for the Act to realise its promise. It notes for example the inchoate manner in which institutions are created and the lack of resources. The article while isolating these challenges also suggests numerous ways in which such challenges can be overcome. It underscores the need for harmonised legal regimes, improvement of data collection and proper monitoring programmes, all which can be achieved and strengthened by a supportive political establishment as well as strategic amendments to various provisions of the Act.

The Prohibition of Child Slavery in South Africa, Uganda and Zimbabwe: Overcoming the Challenges of Implementation of Legislation

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

The Prohibition of Child Slavery in South Africa, Uganda and Zimbabwe: Overcoming the Challenges of Implementation of Legislation

Authors Rufaro Audrey Mavunga

ISSN: 2522-3062
Affiliations: Institute for Dispute Resolution, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 19 – 43

Abstract

The elimination of child slavery is a priority in many international instruments today. This article investigates the extent to which South Africa, Uganda and Zimbabwe comply with international instruments to which they are party. It therefore compares and contrasts the different legislative provisions that prohibit child slavery in South Africa, Uganda and Zimbabwe. The municipal laws of these countries in some cases do not always reflect the principles and standards of international law. The research subsequently prompts the reformulation or refinement of some laws. In other instances, legislation adequately prohibits child slavery, but the law is ineffectively enforced. These states face challenges with the enforcement of legislation and this article further investigates some of the problems faced with regard to the implementation. Furthermore, this article also proposes practical ways in which states can effectively overcome the challenges they face in enforcing such laws.

Deferrals of Investigations and Prosecutions in the International Criminal Court

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Deferrals of Investigations and Prosecutions in the International Criminal Court

Authors Johan D van der Vyver

ISSN: 2522-3062
Affiliations: IT Cohen Professor of International Law and Human Rights, Emory University, School of Law; Extraordinary Professor in the Department of Private Law, University of Pretoria
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 1 – 18

Abstract

In its efforts to stifle the prosecution of Sudanese President Omar al-Bashir from prosecution in the ICC, the AU has appealed to the Security Council of the United Nations to order the deferral of proceedings against the accused within the confines of Article 16 of the ICC Statute. The AU has also submitted a proposal for the amendment of Article 16 of the ICC Statute. The proposed amendment would: (a) authorise states with jurisdiction in a particular situation to request the Security Council to use its Article 16 powers; and (b) grant the power to defer proceedings in the ICC to the General Assembly in cases where the Security Council, within a period of six months, fails to take action under Article 16. The fact, though, is that Article 16 was inserted into the ICC Statute to avoid a conflict of interest between the Security Council and the ICC in cases where both institutions are seized with investigations into the same situation. The Security Council could not use its Article 16 powers in the case against al-Bashir because it was not engaged in an investigation into the situation in Darfur. The proposed amendment of the ICC Statute is in total conflict with the true meaning of Article 16 as reflected in the history and purpose of its creation.