Tort Policy in a Plural Context: Pathways Towards Objective Liability in UAE Tort Law

This article approaches tort policy contextually, as an argument around actually available alternatives within a historically-specific legal tradition, like that of the United Arab Emirates (UAE), which combines French civil law influence with roots in Islamic law. The article examines alternative tunings of the requirements of tort liability, in view of cases where a technically sophisticated investigation is required to ascertain what precautions the tortfeasor might have taken to prevent injury. For this purpose, it takes as its point of departure a careful assessment of the availability of the “extraneous cause” exception in UAE law, which allows defendants to avoid liability by demonstrating the occurrence of a causal factor outside their sphere of control. To understand when this exception ought to be available, the paper engages in critical dialogue with French doctrines on tort liability, distinguishing a fault-based “subjective approach” from an “objective approach” (strict liability). These doctrines also speak to Arab jurisdictions that have adopted a civil code (like the UAE), modelled after the French one. The article therefore proceeds to situate the tort regime in the UAE Civil Code with respect to those French doctrines. With respect to these, the UAE Civil Code takes an intermediate position drawn from Islamic law. However, additional provisions, e.g. on liability for nuclear installations or for machinery of which a person is in charge, demonstrate a timid reception of the objective approach. The article proposes a reform of UAE tort liability on the basis of the objective approach, which is robust even in complex cases, where an investigation around causation would risk being inconclusive. Finally, the paper considers the additional possibility of arguing for a voluntary assumption of liability on the part of the tortfeasor, as yet another way of orienting tort liability in the UAE towards an objective approach.

Eliciting Best Evidence from a Child Witness: A Comparative Study of the United Kingdom and India

The successful prosecution of any criminal offence relies on evidence that proves its commission. Although the admissibility of evidence is key at first instance, the weight attached to a piece of evidence i.e. how “reliable” or “persuasive” it is will tilt the scale of justice in one or another direction. The problems with various forms of evidence i.e. that elicited from an eye or ear-witness has been thoroughly explored by academics and lawyers alike. Those same problems are potentially exacerbated where the witness is a child who has not only witnessed a gruesome crime but is required to give evidence in a forum (court) that is accompanied by intimidating surroundings. Whilst witness evidence, regardless of whether it is given by an adult or child, is a factual part of criminal justice, it is salient to note that the entire process has been made more witness-friendly in some commonwealth jurisdictions. This article explores the differences in the rules designed on eliciting best evidence from a child witness in the United Kingdom and India. In so doing, the case law from each jurisdiction is contrasted. There are two aims of the article, the first is to facilitate a conversation where one criminal justice system may learn from another’s experience. The second, a result of the first, is to make suggestions on improving the experience of a child witness in the Indian Criminal Justice Process.

Bumped Redundancy and the Range of Reasonable Responses: To what Extent, if any, should Employers Consider Bumping? Life after Mirab v Mentor Graphics Limited UKEAT/0172/17DA

Employers often face a plethora of issues in redundancy situations. Likewise, employees often fear or are overwhelmed by the prospect that they may be chosen for redundancy. Whilst these issues have been widely written about there is little discussion of “bumping.” When the issue appears in the employment tribunal, in cases such as Mirab v Mentor Graphics Limited, it is too late and the employer faces a successful unfair dismissal claim against it. Bumping occurs where an employer makes redundant a junior employee: one whose role has not identified as being at risk of redundancy. The result is that the more senior employee, one whose role was been identified as being at risk of redundancy, is placed into the junior role and therefore becomes subject to terms and conditions that are often less beneficial for example the junior role will inevitably come with a reduction in salary and/or perks. This article explores the legal issues that surround the instances in which an employer should consider “bumping,” its relationship with the band of reasonable responses and the resultant effect, if any, of failing to do so.

Deconstructing the Opacity of Pari Passu Clause as a Pathway to Interpretative Clarity: Guidepost to Optimal Adjudicatory Outcomes

The opacity that underlines the substantive content and interpretation of pari passu clause in financial contracting requires more clarity to ensure predictability for the contracting parties relying on it to access fund in the financial markets. The re-awakening of the contextual and textual controversy that underpins the clause by the NML case has once again re-enacted the divergent positions, namely: the broad or payment interpretation and narrow or equal ranking obligation. Consequently, there is a need for more clarity on the substantive content of the pari passu clause so that contracting parties will not be prejudiced in the event of dispute. Effectively, parties can achieve this by clarifying ex ante the applicable meaning of the clause. The contracting parties may state in the financial contractual agreement that the applicable meaning of the clause is a broad or payment interpretation. Alternatively, the contracting parties may adopt narrow interpretation; or entirely exclude the application of the pari passu clause. Also, parties may need to incorporate collective action clause (CAC) to ensure that the collective decisions of the majority of lenders prevail over undue proclivity for holdouts of the minority. This will dispel the possibility of controversy ex post over rateable payment, while ensuring orderly debt restructuring.

Legal Specifics of Bankruptcy Proceedings of Insurers in Ukraine

Many countries adopted legal regulation of insolvency problems of insurers and rules for bankruptcy proceedings (insolvency) to mitigate and prevent consequences of bankruptcy and preserve the assets of insurance companies. To a certain extent, Ukraine follows the similar track. The authors describe the specifics of bankruptcy proceedings, defined by the laws of Ukraine on bankruptcy, and “complicated” by the legal status of the insurance company. On the basis of the analysis, the authors put forward a proposal to modernize bankruptcy law as part of the legal regulation of bankruptcy of insurers-debtors (bankrupts). It is established that the Law of Ukraine of 1992 provides for the possibility of applying a procedure of sanation to the insurers. The authors state that the specific legal consequences of the liquidation procedure and the recognition of a debtor as a bankrupt include the termination of all insurance contracts and sale of property. It has been established that the incoherence of bankruptcy laws of different countries is explained by different approaches to legal regulation.

Thou Shall Not Kill: The Constitutionality of Death Penalty Under Nigerian Legal System

Two wrongs cannot make a right; there is hardly any justification for the continual use of capital punishment (death) as a form of punishment in Nigeria. This paper will canvass that, even though death penalty is a constitutionally permissible form of punishment in Nigeria, but it goes against the recent positive and developmental strides in the areas of civilization, criminology and human right. The paper leans in favor of the abolitionist perspective by arguing that life imprisonment is as effective as the death penalty as a means of deterrence.

Legislating for Same-Sex Marriage: Sophistical Effectiveness in Australian Law

This paper by-passes the various public tropes, such as “marriage equality”, and concentrates on determining whether or not a same-sex marriage law would be sophistically effective in Australia. It revives the ancient Greek sophistical rhetorical skill of proposing a law, and applies it as a critical context to the topic of legislating for same-sex marriage. The objective is to assess whether or not a same-sex marriage law will be effective in its legislative objects. It proposes to discuss whether the parliament could introduce such a law so that the law’s objects were achieved effectively in the public mind. Argument will try to show that introducing a law to create same-sex marriage would fail because of subsisting priestly legislation on the subject of marriage. Its two hypotheses are that the canon law and other English priestly legislation restrict the scope of marriage regulation, and marriage could not be re-defined to cover same-sex marriage. Sections of the paper examining the law historically employ the historiographical method of identifying underlying norms, the effect of which is occasional reverse chronologies. The article’s conclusion will assert that a statute for legal and duly registered same-sex marriage likely would be, according to sophistical rhetorical reasoning, a fiction misrepresenting the truth of the subsisting legal and social institutions of marriage.

Death and the Dowry System: India’s Women and Female Children at Global Risk of Gendercide Over Money

Increasing globalization means that some actions or events transcend national boundaries and often require harmonization of responses. This is increasingly apparent in the context of violence against women and girls as movement of people and culture creates new challenges. News of accusations of dowry harassment against actress Smita Bansal caused a sensation in December 2015. The allegations arose during her brother’s divorce in London. It was suggested that her family had taken away jewelry and money from her sister-in-law during marriage to her brother. The allegations were refuted. True or otherwise, the issue of dowry has been catapulted onto the world stage. Whilst the demanding and giving of dowry has been effectively illegal in India since 1961 (The Dowry prohibition Act, 1961), the practice continues and has been exported globally with migration. No similar provisions appear outside India to protect extra territorial dowry demands or harassment. Research is scant but news reports suggest that women are burned, poisoned, beaten and forced to commit suicide. Female children suffer infanticide and foeticide when dowry is unpaid or deemed insufficient. This paper explores these issues.

From Apprentice to Paralegal: The Rise of the Paralegal Profession in America

In 1980, the South Carolina Supreme Court noted, “Paralegals are routinely employed by licensed attorneys to assist in the preparation of legal documents such as deeds and mortgages.” According to the court, the activities of a paralegal were of a preparatory nature, such as legal research, investigation, or the composition of legal documents. This assessment of paralegal utilization in 1980 might well have been surprising to many readers of the court’s decision. As the delegation of legal work to non-lawyers evolved, so has the paralegal profession. The goal of this paper is to trace the transition of paralegals from a somewhat glorified – albeit very specialized – secretarial role to a professional position, emphasizing the period just before and after the creation of the ABA definition of the legal/assistant paralegal position. Legal professionals, rather than historians, provide most of historiography that is available. Historians appear to have focused on particular lawyers, especially those who became political leaders, and the efforts of persons other than white males to enter the profession with little mention of the personnel that supported those lawyers. Discussion of the historical development of paralegals and the paralegal profession has been limited to introductory chapters of practice manuals written by lawyers and paralegal educators for paralegals. The utilization of legal assistants from the 1970s to the present is well-documented, however, in contemporary writings by lawyers, law office managers, and social scientists. This paper is concerned with the development of the paralegal profession and the paralegal role in American law offices. This study examines writings from the twentieth century lawyers, paralegals, law office managers, paralegal educators, and social scientists to track the paralegal profession in five respects: (1) Definition of the nature of the role of the persons considered part of the occupation; (2) Establishment of educational requirements and forums; (3) Organization of professional associations; (4) Self-regulation; and, (5) Development of enforceable codes of professional conduct. In addition to the contemporary writings, the study uses information obtained through communications with paralegals, paralegal educators, and paralegal association directors who practiced during the 1970s, 1980s, and 1990s.