Browsing by Author "Mancuso, Salvatore"

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    Challenges of safeguarding national interest in negotiating private investment contracts in Africa: case study on Malawi
    (2014) Zingano, Chitsanzo Ivy; Mancuso, Salvatore
    This dissertation seeks to examine how factors like weak and incoherent mining laws, weak governance, transparency and accountability measures, political influence and negotiating power negatively contribute to the negotiation of EDAs in the mining extractive industry of countries that are rich in mineral resources like Malawi. The analysis of these factors is to provide a better understanding why countries like Malawi enter into EDAs on containing terms and conditions that are against their national interest, which in the cases of these contracts are their social and economic development goals. The conclusion of EDAs by countries that want to further their economic development is not reflected in the terms they agree to. Thus the conclusion of these contracts fails to serve the underlying goal, which is to advance social and economic development.
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    The duties and rights of tenants and landlords under Swiss and South African law - a comparative analysis
    (2015) D'Amato, Giuseppe; Mancuso, Salvatore
    In comparison with other European and international countries, Switzerland has long had a relatively high proportion of tenants, and thus in the public consciousness been considered as the 'land of tenants'. In South Africa, on the other hand, data estimate that around 20 per cent of all households do in rent. However, this does not mean that nowadays the rental housing market in South Africa does not play as important a role as in Switzerland. Indeed, the case is precisely the opposite. Therefore, in order to make a considerable contribution towards the social well - being of the population for the rental housing market of both countries, a functioning rent legislation that enables the accessibility to rental housing in general, and guarantees the protection of the tenants without neglecting the legitimate interest of the landlords in particular, is crucial. Indeed, both countries, although having two different legal systems, can fall back on rent legislation that has been developed over several decades. To what extent the two rental legislations can currently be considered as progressive and practical will be examined with the help of this thesis by performing a comparative analysis of the principal rights and obligations of the landlords an d tenants , which are granted and imposed by each jurisdiction. Thereby, in order to gain a better understanding of these rights and obligations, not only is a minimum amount of knowledge about the essence of contracts between landlord and tenant required, but if necessary certain procedural aspects in connection therewith need to be considered. Accordingly, before looking concretely at the specific rights and duties of the renting parties in both countries alongside the determination of the applicable law, a brief introduction to the nature and formation of the contract between the landlord and tenant of each jurisdiction will be provided. With regard to the granted rights, particular attention will also be paid to the several solutions which are available to one contracting party in case of non - performance of the contractual and legal obligations by the other party. Finally, an assessment will be made on whet her the Swiss rent legislation can serve as a role model or basis for an improvement and further development of the South African rent legislation, and vice versa, by pointing out their similarities and differences, and strengths and weaknesses.
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    Enforcement of the law in the People's Republic of China - with focus on international civil litigation and arbitration
    (2014) Irnsperger, Elena Maria; Castellucci, Ignazio; Mancuso, Salvatore
    The main aspect of the paper is the investigation of the enforcement of law of foreign (and domestic) judgments as well as arbitral awards in People´s Republic of China (PRC). The focus lies on international civil litigation and arbitration. For this purpose it is essential to elaborate on the judicial structures and its impact on the enforcement of laws in the PRC. The court system as well as its size and performance, the prosecution system, the lawyer system, the jurisdiction and the arbitration system will be briefly discussed. Thereafter, the study focuses on the recognition and enforcement of civil judgements and arbitral awards in the PRC. The organization of the enforcement and its procedure, laws and regulations in general will be addressed before the enforcement of civil judgements and arbitral awards will be investigated in detail. The investigation of the enforcement of judgments in the people’s courts of China is separated in the enforcement of domestic judgments and foreign judgments. While examining the recognition and enforcement of arbitral awards it is important to consider the different categories of awards. In the following the challenges and obstacles facing the Chinese judicial system will be determined. The legal education, the lack of professionalism, local protectionism and the lack of judicial independence are just some of them. The progress China has made in the last decades will also be mentioned. Especially the judicial reforms from 1999 to 2014 and the efforts made to improve the enforcement of law. In addition the practical side will be determined, therefore, important or recent cases will be considered. The goal of the paper is to give an overview of the current social and economic environment of law enforcement and the measures which should be taken to improve the law enforcement in the PRC. Due to the lack of official statistics in regard of law enforcement in the PRC, the study is based on collected information from different sources.
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    Federalism as an institutional device for peace in Somalia: prospects and challenges
    (2021) Harun, Ibrahim; Mancuso, Salvatore; Ordor, Ada; Kunuji, Oluwole
    Since the turn of the 20th century, there has been intensified use of federalism as a tool for conflict resolution. Scholars are divided, however, about the potential of federalism to manage conflict. Some argue that it can accommodate the aspirations of both national and regional actors. Others see it as a road to conflict or state disintegration. The debate over the pros and cons of federalism is undecidable as both sides make reasonable theoretical claims and can point to some evidence in support of their propositions. Hence, the lesson drawn from divergent views on federalism is that there is no single federal formula for peace in divided societies. Instead, the degree to which federal institutions can contribute to preserving peace depends on how these institutions respond to the characteristics of the societies they govern. The findings of this study are that Somalia's Provisional Constitution makes provision for a number of significant institutional features of federalism that, if correctly embraced, could enhance peace in Somalia. However, most of these provisions are defective. Some need follow up legislation, while others need to be agreed upon by both the federal government and the federal member states. This thesis further reveals that Somali societies are inherently federal. For instance, practices such as negotiation and reconciliation, decentralised decision-making, and transparent dispute resolution form part of the governance system in the traditional Somali society. If properly adapted and utilised, these features of the Somali traditional governance system can help to strengthen the federal political system in Somalia. The major argument of this dissertation is hence that in view of the peculiarities of the Somalia state, the federal values inherent in the Somali traditional governance system should be included in a new federal constitution. Only a federal system built on such traditional values will be conducive to peace and stability in Somalia and help stem the tide of secession currently threatening to tear the federation apart.
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    The Informal sector under Ohada: Implications for law and development
    (2016) O'Malley, William Joseph; Mancuso, Salvatore
    This dissertation evaluates the Organization for the Harmonisation of Business Law in Africa (OHADA) in relation to the informal sector in West Africa. The paper also considers the challenges to successful legal reform arising from the interaction of African cultural and social values with imposed formal law. Means to improve links between OHADA formal laws and institutions to the realities of the majority of Africans living and operating in the informal sector are suggested. These topics are explored within a thematic context of desiring to enhance the development prospects for the people in the region.