International Review of Law - Volume 2012, Issue 1

The Rt Hon The Lord Phillips of Worth Matravers KG PC, President of the Supreme Court of the United Kingdom of Great Britain and Northern Ireland

Ambition and excellence. Those two words epitomize Qatar. Under the leadership of his Highness the Emir, this small State has set out to make an impact on the world that belies its size. Ambitious was the plan to have an international broadcasting station. Ambitious was the plan to build from scratch a Museum of Islamic Art. Ambitious was the bid – the successful bid to host the World Cup in 2022. Ambitious is the bid to stage the Olympic Games in 2020. Qatar not merely has ambitions, it realizes its ambitions. And when it does so it is not enough to say that the result is ‘world class’, for Qatar sets out to be a world leader in whatever it puts its hand to. Excellence is the norm. Al Jazeera has established itself as the broadcasting station of choice for many throughout the world. The Doha Museum of Islamic Art is recognized as being second to none. In addition, the scale and standard of development in Doha itself is setting new standards of excellence in the fields of architecture and civil engineering.

Thus when Qatar focuses its energies on education and the law, high achievements are expected. I shall have the honour of helping to achieve those expectations when I succeed Lord Woolf as President of Qatar’s new and impressive Civil and Commercial Court. The College of Law at Qatar University is already achieving excellence in the field of legal education. So, naturally, all expect great things of this new International Review of Law and I am delighted to have been invited to welcome it by this foreword.

The range of the first edition is both international and topical. Those countries that have experienced the turbulence of the Arab Spring are settling new constitutions, and other countries are bent on constitutional reform designed to avoid such turbulence. So an erudite article on constitution-making could not come at a better time. For a country about to embark on a $200 billion construction program, an article on identifying and managing risk in international construction projects is tailor made. Cross-border sales and the corporate opportunity doctrine are two further topics that will be of interest to a wide range of commercial lawyers. All these are weighty articles of obvious contemporary relevance. For those who seek a little light relief, Carol Tan’s article on Colonial Cleansing is a delightful and fascinating historical excursion into the efforts of British colonial rule to clean up a holiday resort in the leased territory of Weihaiwei in China.

The College of Law’s new project is ambitious and this is a splendid start to the excellence that must be its aim.

Constitutions have been made or changed in major ways in more than half the countries of the world in recent decades. This article deals with contemporary approaches to constitution-making, organising the analysis around three key phases: setting the agenda, in terms of both substance and process; design, drafting and approval; and implementation. It argues that, while all constitution-making processes are different, there are some distinctive features of constitution-making in the 21st century that include popular participation, the need to build trust, internationalisation in its various forms and the importance of process. The article canvasses examples of constitution-making practices that have been or are likely to be influential. It identifies and briefly explores some of the key tensions in constitution-making between, for example, international involvement and domestic ownership of a Constitution and public participation and leadership.

Part 10 of the UK Companies Act 2006 codifies the fiduciary and common law duties of directors as a means of addressing the key policy considerations which underpinned the company law reform project launched by the Labour Government in 1998. Focusing on the core fiduciary duty of loyalty and its corporate law manifestation in the form of the ‘corporate opportunity doctrine’, the article critically examines whether the statutory language adequately captures the totality of the duty as developed in the case law. It concludes that the formalistic language of the relevant provisions neither encompasses the breadth of the pre-existing jurisprudence nor addresses the policy objectives of the reform exercise.

Legal systems have different traditions about how to “prove” a contract for the sale of personal property. Most legal systems today permit the contract to be proved by any means but some States require that the agreement be concluded in or evidenced by writing. The United Nations Convention on Contracts for the International Sale of Goods adopts a freedom-of-form rule but authorizes a State to declare that the rule does not apply when the seller or buyer has its place of business in that State. This essay studies the consequences of such a declaration. The Convention text does not expressly state the consequences. The Convention’s travaux préparatoires suggest that this silence was deliberate. Doctrine and court opinions are divided on whether the writing formalities of the declaring State always apply or the formalities, if any, of the law applicable by virtue of the rules of private international law govern. In the absence of a consensus, this essay argues that the writing formalities of the declaring State apply. The argument is based on the policies implicit in the decision of non-declaring Contracting States to adhere to a Convention that allows certain Contracting States to opt out of the freedom-of-form rule. The result is consistent with recent private international law treaties that, while providing liberal rules that favor freedom of form, direct application of the fundamental policies not only of the forum but also of other jurisdictions.

In the leased territory of Weihaiwei, China (1898–1930), public health and related laws played an important part in the local British government’s effort to create and maintain a summer resort for European visitors. These laws ensured that the territory was clean, restful and safe from dangers to health, such as noxious fumes, rabies, infectious diseases and tainted food. Buildings in the town areas had to meet minimum standards of construction, ventilation, and sanitation; and the layout of streets, the location of factory buildings and building plans were subject to control. Beyond the physical environment, further cultural transformations were effected as European habits and tastes came to determine conceptions of space, time and leisure. Through express provision or uneven enforcement, public health laws helped to heighten the differences between the town areas in which visitors were expected to stay and the less regulated rural areas of the territory. This too, served to enhance the reputation of Weihaiwei as a summer destination because it offered familiar and modern comforts as well as the opportunity to observe a more authentic China a short distance away. Given the degree of intrusion into the lives of the local population that was authorized by the public health laws, a study of these laws also provides clues as to the conflict or convergence between the interests of the foreign British administration and those of the Chinese residing in the territory.

More than ever before foreigners, resident in the commercial centres of the Far East, see the necessity of seeking holiday resorts each year where they can breathe pure air away from the congestion of the Asiatic cities. In fact it has come to be recognised as imperative to the preservation of health.

By a happy hazard Providence has placed at their disposal an ideal health resort in WEIHAIWEI, situate at a few hours journey from a number of the business cities, so that commercial men can enjoy the full benefits of a first-class sanatorium, and still be within easy reach of the business world.

In Weihaiwei there is the best of accommodation, where invalids will find quiet, idlers the best pure air, pleasure-seekers and sportsmen the best recreation. At the Queen’s Hotel are excellent, large and cool rooms, well furnished, first-class attendance, and the best cuisine the market can afford.

Such are the unique advantages offered by the QUEEN’S HOTEL, WEIHAIWEI Ltd. (Advertisement for Queen’s Hotel, undated.)

Over the last decade, major construction projects have increasingly arisen in countries or regions that lack specialist, expert construction contractors, suppliers and consultants. Steps are being taken by governments in the Middle East, Eastern Europe, China, India and developing markets to address national infrastructure deficits, and by so doing, are creating new regions of booming construction demand. When coupled with anaemic growth in developed markets such as the United Kingdom, the USA and Western Europe, foreign markets present attractive opportunities to the global construction industry. However, foreign markets are littered with the cautionary tales of international contractors and consultants that have failed to grasp the intricacies and risks of operating in a new environment and have failed to capitalise on the opportunities available. By identifying the classes of risks, and undertaking detailed analysis, ranking and mitigation of relevant jurisdictional risks, participants in international construction projects will increase the likelihood of project success and commercial longevity in the new jurisdiction. Risk identification and assessment is not a science but an art, and while there are many potential approaches to the issue, we propose that our strategies for identifying, assessing, ranking and mitigating jurisdictional risks offer new international players a good chance of commercial success.