OpenUCT :: Browsing by Subject "International Trade Law"

Browsing by Subject "International Trade Law"

Now showing 1 - 20 of 31

Open Access
A Comparative Analysis of Legal Frameworks for Investments in Africa by China and the European Union
(2020) Hügens, Jonathan; Ordor, Ada; Lefifi,Tebogo
This thesis presents a comparative analysis of the legal investment frameworks of the European Union and China in African countries. The thesis reviewed financial instruments of foreign direct investments, official development assistance and other official flows. The legal analysis focus on the demand on political conditions to access the financial assistance; under which conditions are the projects tendered; and which labor standards set the parties while the project is implemented. All reflected under the aspect of the fairest condition for African countries. The comparison figured out that the European Union with its demands for the implementation of human rights, democracy and the rule of law facing certain reluctance of most African governments for a full implementation while contrary to that the OneChina principle is broadly acknowledge by African governments to gain investments. When projects are tendered the research presents that the European Union searches for local and regional providers to strengthen African businesses. This with guidelines for core labor laws based on human rights when it comes to the implementation. While China tenders with a strong commercial self-interest and does not set any labor standards relaying on local laws and showing limited interest and understanding when it comes to implementation.
Open Access
An analysis of competition law implementation in the EAC, SADC, and COMESA and the problem of overlapping membership
(2020) Khabo, Lebona; Nkomo, Marumo
Competition law is an integral building block in the attainment of regional integration, with Regional Economic Communities (RECs) on the continent making specific provision for competition policy in their founding and developmental agreements. However, in the Southern African Development Community (SADC), the East African Community (EAC) and the Common Market for Eastern and Southern Africa (COMESA), Partner and Member states have implemented competition law in varying degrees, in some cases there is a complete vacuum. In this paper I wish to analyse the development and implementation of competition law in the respective regions, by dissecting the manner in which the regions have gone about promoting competition law in the regions, I shall further analyse the domestic development of competition law in some of the Partner and Member States. Due to the voluntary nature of the RECs some Member and Partner States of SADC and the EAC are also members of COMESA, this creates a multiplicity of regional obligations as well as domestic obligations. In light thereof I will further analyse the effect of overlapping membership of RECS, and whether it creates any unintended problems, and if so, how this has been dealt with or can be dealt with.
Open Access
An analysis on creating balance between economic transformation and investment in Namibia's mining industry
(2018) Nangolo, Eino Kandali; Ismail, Faizel
The study is based on inclusive economic transformation and foreign direct investment (FDI) in Namibia's mining industry. The author seeks to find out how the two competing interests can be balanced, so that readers understand the relevance of both to economic growth and poverty alleviation among the society. In doing so, the study uses the distributive justice theory to justify inclusive economic transformation whereas on the other hand, uses the rational choice theory and investment laws to demonstrate the impact of FDI on the Namibian mining industry. Advise and ratings from the World Bank and international rating agencies have been considered in this regard. In addition, the study includes a brief comparative analysis on how economic transformation affects the economy South Africa and Zimbabwe. The comparison is necessary in order to determine whether Namibia will yield different outcomes or it will fall into the same category like its neighbouring countries. Thereafter, the study concludes with a discussion on the recommendations for future.
Open Access
Applicability of WTO Law in the European Union
(1999) Muller, Eva; Devine, Derry; Philippe, Xavier
In April 1994, the ministers of more than a hundred governments signed the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations achieved after seven and a half years of negotiation. The Act comprises the Agreement Establishing the Multilateral Trade Organization with its important Annexes 1 to 4 in its Part II, Ministerial Decisions and Declarations in its Part III and the Understanding on Commitments in Financial Services in Part IV. The WTO came into effect on 1 January 1995 and has 134 Members presently.
Open Access
An argument for more plurilateral agreements and their value for developing countries: stemming the tide of preferential trade agreements, post-Doha
(2017) Houston-McMillan, Jason; Lehmann, Karin
The latest round of multilateral trade negotiations at the WTO, the Doha Round, is deadlocked, and it is unlikely that any further significant rule-making progress will be made there. The system's faltering has resulted in an unprecedented move towards preferential trade agreements between WTO Members as alternative negotiating platforms. The result is an ever-expanding divergence of the global trading system, which gives rise to added complexity and wider discrimination than would follow from alternatives - specifically the increased use of plurilateral agreements. Preferential agreements, particularly worryingly, may also have serious consequences for developing and least-developed countries in particular. This paper argues that, in light of the stalling of the Doha Round, greater effort should be made by WTO Members to pursue plurilateral agreements in specific policy areas and to move towards a system incorporating more 'variable geometry' which will result in progress in existing areas which have seen little movement since the Doha Round began. Given the recent proliferation of Preferential Trade Agreements and their potential negative effects on rule-making and the WTO, and on developing countries, it is vital that alternatives are explored in order to promote adaptability which would result in a more effective and relevant WTO.
Open Access
Attaining uniformity in the meaning and application of good faith in international trade instruments
(2016) Gariseb, Adolf Nana; Bradfield, Graham
The objective of this dissertation is to ascertain whether it is possible to have a universally acceptable meaning of good faith and if indeed such a meaning can finally lead to uniformity in the application of the concept in international commercial transactions. It will be argued that such uniformity is possible but that it cannot be achieved without addressing the obstacles that have prevented a uniform adoption of the concept to date and how such difficulties can be solved in international trade. In answering the above question the dissertation will look into the meaning and application of the concept of good faith within international trade instruments, primarily article 7(1) and (2) of the Convention on the International Sale of Goods (CISG); article 1.7 of the UNIDROIT Principles on International Commercial Contracts, and the Principles of European Contract Law (PECL). The purpose of considering these instruments is to identify the current difficulties in the meaning and application of good faith in international commercial transactions and how they can be addressed if uniformity is to be attained. Furthermore the dissertation will also examine the different definitions of good faith and the methods of application adopted by major European legal systems, particularly the German civil code, the Dutch civil code, the Uniform Commercial Code and the position in English law. The purpose for considering these domestic legislations is to identify the possible meaning and application that will be given to good faith in situations where courts and tribunals gap fill with reference to national laws.
Open Access
Brexit: The lead up to, and the repercussions of, Britain's proposed exit from the EU
(2019) Grunder, John Jay; Ismail, Faizel
Brexit is one of the most important events of the last decade, but it is still relatively poorly understood. This paper will look at the impact of Brexit, as well as analyse the development of British trade policy, in order to set out potential options for Brexit and a post-Brexit British trade policy. In order to understand Brexit in its full context, it is necessary to understand how British policy has fluctuated over the centuries, as well as look at the potential options for a Brexit deal and what these will mean for Britain going forward. As a relatively recent event, academic work on Brexit is relatively sparse, and previous work often fails to analyse it beyond its immediate impacts. By looking at a history of British trade policy; this paper aims to anaylse Brexit in the context of Britain’s frequent shifts in strategic priorities. Focusing on a review of the existing literature on British trade policy, and that on Brexit, this paper will look at the development of British trade policy, as well as Britain’s relationship with its primary partners (the United States, the EU, and its Empire), and set out both this history and the potential options for future British relationships and policy. While the exact outcome of Brexit is not yet known, this paper will set out some of the potential scenarios. Once Britain leaves the EU, it will have the chance to create its own trade policy independently for the first time in several decades. Although it may face resistance, there is an opportunity for Britain to grasp the chance to create a liberalized 21st century trade policy that caters for its services based economy. Implementing such a strategy could go a long way towards minimizing the inevitable negative consequences of Brexit.
Open Access
Comparison of South Africa's automotive investment scheme to similar trade, export and investment financial assistance regimes (incentives) of Nigeria and Kenya
(2015) Cser, Melinda; Gutuza, Tracy
Comparison of South Africa 's Automotive Investment Scheme to similar trade, export and investment financial assistance (incentives) regimes of Nigeria and Kenya The AIS is a South African government investment incentive offered within South Africa's Automotive Production and Development Program. The intention of the AIS is to grow and develop the automotive sector through investment in the production of new and/or replacement models and components. The overall aim of the research is to analyse whether the manner in which the AIS incentives seek to achieve the above objectives , and the objectives themselves are aligned and furthermore to indicate the potential weakness of the AIS . The analysis of the weaknesses focuses in particular on potential inconsistencies amongst the provisions of the AIS or amongst the provisions of the AIS and the provisions of its sub - components. Furthermore, the research will review whether the economic benefit criteria of the AIS to be fulfilled by applicants are sufficiently detailed or the lack of details creates uncertainty with the interpretation and implementation. Lastly, the paper will review the transparency elements of the AIS. To obtain an answer to this question, the AIS will be analysed and will be compared against the policies and/or legislation of Nigeria and Kenya, where applicable, to determine whether the policies of these two countries could inform the AIS in achieving its objectives. The analysis will be executed in six chapters. The first chapter is an introduction. Chapter two will cover the policy reasons for the introduction of automotive (and manufacturing related) policies in South Africa, Nigeria and Kenya. Chapter three will provide an overview of the policies and, where applicable, the relevant legislation in the three countries that deal with the automotive industries. As the policies of the three countries are very differently construed , the intention of this paper is not to undertake a full and comprehensive overview of all the relevant South African legislation dealing with tax, customs duties or investment protection to investors in the automotive sector because such legislation is currently one of the key pillars of the Nigerian and Kenyan policies . Therefore, the focus will be on comparing the structure, objectives and operation of the policies of Nigeria and Kenya where it is comparable with the AIS or the APDP. The fourth chapter will deal with the investment specific incentives and benefits provided in the three countries , in particular in relation to cash grants and t heir availability (or not) for investors in Nigeria and Kenya. In relation to Nigeria and Kenya the legislation and policies having similar objectives or structure will be discussed. For South Africa the achievements of the AIS will also be analysed briefly to understand how it has performed against its objectives up until 2015. Chapter five will discuss the institutions and government agencies which are authorized and responsible for handling funding applications, for negotiating funding/investment agreements , and approving and monitoring investment projects related to the automotive industry. The final chapter shall conclude on the findings, and highlight the potential weaknesses of the AIS by providing proposals for improvement based on the lessons learnt from Kenya and/or Nigeria, where or if possible.
Open Access
Concept and evolvement of Chinese Contract Law
(2015) Jacobs, Faizel; Castellucci, Ignazio
This dissertation discusses the evolvement of Chinese Contractual law and establishes as to whether it converges or has any similarity with any Western legal norms and standards. I will view the recent history and early sources of Chinese law as influenced by political changes and tradition; as well as the influence of international commercial transaction agreements. The formation of a contract, standard terms and modification of contracts and the dissolution and breach in Chinese contracts will be discussed and also whether parties do in fact have the freedom to enter agreements with each other without third party interference. The role played by the Judiciary when addressing the issue of contractual disputes and in particular the Interpretations and Opinions of the Supreme Peoples' Court of China on the new Chinese Contract Law will be considered, as well as whether the concept of Doctrine of Precedent as practiced in the West does in fact exist in China. My motivation for choosing this topic is based on the fact that China is (1) the second largest economy in the world and her consequential impact on world trade, (2) its economic influence in the world especially Africa, (3) the fact that China is South Africa's largest trade partner, (4) South Africa's membership of BRICS [1] , and (5), China's growing influence in the world in the creation of parallel institutions to the West, such as the New Development Bank (formerly known as the BRICS Development Bank) rivalling current Western institutions such as the World Bank and the International Monetary Fund.
Open Access
Developing a suitable competition law and policy for developing countries: a case study of Tanzania
(2014) Musiba, Ephraim; Davis, Dennis
This dissertation aims to examine one major issue: namely, the most appropriate competition law for developing countries from the perspective of ‘looking from the inside out’.1 Reference is made particularly to Tanzania, with a close evaluation of its Fair Competition Act, 2003 and some case law, so as to assess the efficiency and effectiveness of competition policy and law within its Tanzanian context. This involves taking into consideration the inherent characteristics of the Tanzanian economy since it is necessary that Tanzania have a competition law that reflects and addresses its particular needs. So the basis of this dissertation is to analyse the efficacy of the Fair Competition Act to deal with the specific requirements of Tanzanian society; and if the result is found to be in the negative, then the dissertation goes on to suggest what type of competition law model Tanzania should develop that will best suit the country’s needs.
Open Access
Digital trade and development: A way forward for Africa at a continental and multilateral level
(2019) Harvey, Caitlin Megan; Ismail, Faizel
This paper argues that digital trade can benefit developing countries and result in substantial financial gains. The regulation thereof has been at the forefront of negotiations at the multilateral level and within regions of Africa. While developing economies do not typically reap the benefits of digital progression, this paper proposes that digital trade can be developed in such a way so as to prioritise the developmental considerations of Africa specifically. Through observing the progress of the WTO platform for digital trade, namely the Work Programme on Electronic Commerce, it is seen that the multilateral regulation of digital trade is a complex task. Developing country participation at this level is essential to the sustainable development of digital trade. Within Africa, there have been notable advancements in the regulation of digital trade, evidenced by the establishment of COMESA’s Digital FTA. The considerations for the advancement of digital trade for a developing continent are numerous as not only do the traditional barriers to trade still remain a primary concern but there is also the potential threat of furthering the existing digital divide that persists between the developing and the developed world. Therefore, the paper proposes that should Africa consider developing digital trade through AfCFTA (the African Continental Free Trade Agreement) digital trade in services should be prioritised ahead of digital trade in goods. This would help overcome Africa’s trade facilitation and development challenges and advance Africa’s position in the multilateral trading system.
Open Access
The effect of the East African community integration process on informal cross-border trade (ICBT) : an analysis of the Customs Union Protocol
(2015) Muthee, Karen Wangu; Nkomo, Marumo
Informal cross border trade (ICBT) includes imports and exports that are traded across borders informally by escaping the normal border procedures like customs clearance. As a consequence of the said informality, ICBT is viewed as illegal cross border activities. Despite the fact that it is not possible to give the accurate extent of ICBT in the East African Community (EAC), it continues to grow by the day and has contributed significantly to economic and sustainable growth. It therefore has the potential to support the ongoing initiatives on poverty reduction and raise the standards of living for a majority of the people. In fact, if properly managed, it definitely has the effect of boosting the economies. The concept therefore that ICBT is illegal trade shows that legislators have not fully appreciated the benefits of this trade and the fact that they have downplayed it means overlooking a significant proportion of trade. The main aim of the study therefore is to give an overview of the nature and scope as well as the significance of ICBT in EAC. In this regard, the three major advantages are that it is a source of employment, assists in eradicating poverty and contributes immensely towards food security in the region. The study also analyzes the Customs Union Protocol and highlights opportunities that can be derived from specific articles for the benefit of the informal cross border traders and eventually comes up with policy recommendations to provide a regulatory environment that can accommodate both the formal and informal sector without harming either of the two. The research has also discussed the regional integration initiatives taken with the aim of promoting economic development in the Community and their effect on ICBT. The route taken by Africa as a whole is market integration which has not been without difficulties. As an alternative, regionalism from below could be the better way forward in the quest for regional economic integration considering ICBT has greatly supported the shrinking formal economy. This would mean tapping into this informal trade by building on those informal trade networks to create a robust economy bearing in mind that is where a substantial proportion of cross-border trade is conducted. This would ultimately lead to formalizing ICBT. While it may seem difficult, the study shows that formalizing ICBT and having its official recognition in the Customs Union Protocol would be a stepping stone to realizing economic integration within the Community. It is a kind of trade that is there to stay and as a result of the shrinking formal economy; EAC will with time have to deal with ICBT as a parallel and alternative source of employment in relation to the formal sector. Therefore, it is necessary that the Community deals with ICBT sooner rather than later considering it has become a social-economic lifestyle for a large number of EAC citizens.
Open Access
Effects of the Economic Partnership Agreements on Regional Integration in Africa
(2017) Awinador-Kanyirige, Darkowa; Ordor, Ada
After gaining independence, African states embraced the idea of regional integration as an approach to boost economic development on the continent. This was evident in the new regional organizations that were predominantly generated among developing states in the southern hemisphere. Majority of these organizations, e.g. Economic Community of West African States (ECOWAS) and Southern African Development Community (SADC), have continuously been striving to deepen social, political and most importantly economic integration and cooperation in Africa. In an attempt to further the regional integration agenda, there have been quite a number of colonial cross-border arrangements with EU. Assessed based on conventional integration theories by scholars like Ernst B. Haas, the prerequisites for effective regional economic integration in Africa, appear to be less successful, juxtaposed with the more developed and economically independent European Union. Although regional organizations like ECOWAS and SADC have managed to establish free trade areas (FTAs), they have failed to attain their agenda of establishing customs unions. Agendas of this kind among other things, are pertinent to consolidating the regional integration process. Even though several issues may be identified as causes of the inefficiency of the integration scheme on the continent, this paper explores the effect of north south trade agreements, in this case the economic partnership agreements (EPAs), on regional integration processes in Africa.
Open Access
An examination of whether the protection of Investment Act represents a successful alternative to bilateral investment treaties
(2017) Boyce, Gizelle Marie; Bradfield, Graham
The aim of this thesis is to examine whether South Africa's recently promulgated Protection of Investment Act represents a viable alternative to the bilateral investment treaty regime. In undertaking this examination, the bilateral investment treaty regime which preceded the Protection of Investment Act was first reviewed and some of the typical clauses found in these treaties were examined. Pursuant to this examination, the Foresti arbitration, through which a group of Italian and Luxembourgish investors challenged South Africa's affirmative action measures in the mining industry on the basis of the bilateral investment treaties that South Africa had entered into, was then introduced. The author examined the claim made in Foresti, South Africa's response and the final award. The next Chapter then turned to the effects of the Foresti arbitration, which set in motion South Africa's review of the BITs it had entered into, and then the eventual termination of these BITs and replacement with the Protection of Investment Act. In answering the central question of this thesis, a clause by clause analysis of the Protection of Investment Act was conducted in order to determine whether that Act is able to satisfy the deficiencies highlighted in the BIT review pursuant to Foresti. In conducting this analysis, the author highlighted some notable omissions in the Protection of Investment Act. Through this review and comparison, it was concluded that the Protection of Investment Act fails as a viable alternative to the bilateral investment treaty regime for a number of reasons, and in particular for crystallising the flawed BIT regime through a legislative savings provision. A better alternative for South Africa would have been renegotiating historical BITs based on a Model BIT incorporating the necessary amendments to rectify the perceived BIT limitations as highlighted in South Africa's BIT review.
Open Access
Fostering foreign direct investment in the `new' South Africa in the context of a changing world trading system: challenges, opportunities, policies
(1997) Moloi, Sehloho Francis
The focus of this thesis is on foreign direct investment (FDI). This is an aspect of international trade that has recently become increasingly important, not only to developing and developed countries in general, but to South Africa in particular; notably so when this country was admitted back to the larger international community of nations after April 1994. In the quest to address the many imbalances engendered by apartheid, South Africa's . ' policy-makers maintain that FDI may play a critical role in helping achieve the goals and objectives of the government's Reconstruction and Development Programme (RDP). It is for this reason that the creation of a climate conducive to both local and foreign investment is expected to be one of the top priorities of the new government of national unity (GNU). The important point stressed in this thesis is that, when devising policies and strategies aimed at increasing trade flows and attracting foreign investment into the 'new' South Africa, this country's policy-makers should, always, take into account the profound changes that the world trading system is currently undergoing. The current trends in world trade, FDI and regional integration are poised to influence the position of South Africa and the role it may play in the world economy of the 1990s and beyond. The writer of this thesis believes that the daunting challenge facing South Africa's policymakers is to understand these patterns and changes, as well as forces behind them, as a basis for developing the ability to respond constructively and positively. This is important, because this country will be expected to play its respective role according to the existing rules of the prevailing world economic order. In short, South Africa's policy-makers are faced with the task of devising some ingenious strategies and policies that may maximise the opportunities provided for South Africa by the new world trading environment. At the same time, those measures should also aim to minimise the potential negative effects arising from increased world-wide competition for international markets, trade and investment funds. The point is also made however, that the effectiveness of such strategies and policies will depend in large part on South Africa's efforts and political will to adjust to the new opportunities and challenges of the international trading environment. This thesis comprises four chapters. Chapter One discusses trends in world trade, FDI and regional integration in the 1990s and their possible implications for South Africa. Its aim is to provide the reader with a fuller appreciation of the international context within which South Africa's future trade and investment policies should be considered and implemented; because whatever approach South Africa adopts, it is imperative that it must be viable in the world trading environment of the 1990s. It will be shown for instance that, although the world trading environment of the 1990s is characterised by rapid 'globalisation' of world markets and proliferation of inward-looking regional trading arrangements (RT As), this decade is experiencing, on the one hand, growing 'protectionism' and concentration of world trade and investment funds in the developed market economies and greater marginalisation of the developing and least developed (LDCs) countries on the other. It will be shown further that these phenomena have a negative impact on the ability of the latter countries to play a meaningful role in international trade and investment. Chapter One concludes by looking at the World Trade Organisation (WTO) and the impact it will have on international trade relations in the 1990s and beyond. Chapter Two discusses the various determinants of FDI. In this chapter, it will be demonstrated that many analysts and governments hold the view that FDI is a 'good thing' as it is perceived to have a positive impact on other economic variables such as balance-of-payments, employment and capital creation, access to new markets and technological know-how. It will also be shown that in fact, many developing and transition countries are engaged in fierce competition for foreign investment, and that to this end, these countries have recently changed their respective foreign investment laws with the sole aim of creating a climate attractive to foreign investment in their respective economies. The determinants of FDI in this chapter are discussed under the following headings, viz. government policies ( e.g. ownership policies, taxation and subsidies, convertibility of foreign exchange and remittance of earnings, performance requirements, capital and price controls, etc.), locational determinants (e.g. host comparative advantage, host market size, etc.), structural determinants (e.g. economic 'openness', investment infrastructure, etc.), and economic determinants (e.g. international trade links, etc.). The impact of these various determinants will also be discussed as well as policy implications for South Africa. Chapter Three discusses the current constraints and opportunities for the 'new' South Africa in the quest for increased foreign-direct-investment-flows. It will be argue.d that although South Africa has deep-seated structural problems ( e.g. shortage of foreign capital and skills, lack of international competitiveness of its manufactured products, chronic unemployment, etc.), this country stands a good chance (given its developed infrastructure and a relatively dynamic manufacturing sector by African standards for instance) of being a possible destination for FDI and international trade flows. The last Chapter (Four) discusses various policy implications for South Africa in its attempt to attract FDI into this country. It will be demonstrated that whatever approach South Africa adopts, will be impacted upon by various factors, inter alia, the prevailing world trading environment, growing protectionism in the developed market economies, its obligations under the WTO, its trade relations with other SACU and SADC countries, and so on. It is suggested that South Africa's current trade regime needs to be overhauled as it is not conducive to the development of competitive industrial capabilities inter alia, due to a strong anti-export bias that is inherent in its policies. It will also be argued that the state - like in other high-growth East Asian economies - has an important role to play in fostering the competitiveness of certain industries for instance, as a way of promoting the international competitiveness of South Africa's manufactured products. The Conclusion summarises briefly the major issues covered in this thesis. Before turning to Chapter One it is important to make the following point: the idea of FDI is broad, controversial and multi-faceted. The writer of this thesis does not claim to provide a definitive account of how South Africa should deal with this complex phenomenon. On the contrary, this thesis should be treated merely as an attempt to provide a broad introductory overview from the South African perspective, of how this country could begin to address the issue of FDI with the aim of addressing its economic and trade problems, in the context of a changing world trading system of the 1990s.
Open Access
From OAU To AFCTA - Analysing The Prospects For Economic Development In Africa
(2019) Nagu, Yakubu Idisire; Ordor, Ada
On the 21st March 2018, leaders from across the African continent met at an extraordinary summit of the African Union (AU) in Kigali, Rwanda to sign a deal for the formation of an African continental free trade area (AfCFTA). This step is perhaps the biggest leap towards the age-long dream of cross-border economic integration on the African continent since the formation of the Organisation of African Unity (OAU) in 1963. With the continent’s population expected to hit the two billion mark in 2050, it seems the pact could not have come at a better time. Africa, the subject of the agreement, consists of fifty- five States which collectively, is a 1.2 billion people large market however possessing a joint GDP of only $2.5 trillion dollars. If negotiations are concluded, the African continent would have succeeded in the creation of the largest free trade area since the Marrakesh agreement which led to the WTO governed multilateral trading system. Today the top trading partners of African Union member States are non-African countries. Only twenty per cent of Africa’s total trade is with its continental neighbours, whereas an estimated eighty per cent of its trade is with other trading partners across the world. The African continental free trade initiative aims to shift the trade paradigm in this regard, in a way that will increase the region’s share of its internal trade and consequently lead to growth and development. It is against this background that this work assesses the prospects of the new African Continental Free Trade Area (AfCFTA) towards meeting the goal of continental development. This research argues that the development integration approach is the most suitable option for the attainment of the ambitious goals of the initiative. In particular, the work explores the ways in which the new AfCFTA can manage the asymmetrical developmental needs of various African States. The research also assesses the dispute settlement mechanisms which are necessary to resolve friction which may arise as deeper levels of integration are attained.
Open Access
Harmonisation of Data Protection Regimes in the Southern African Development Community: Considering the influence of the SADC Model Law on Data Protection and the European Union on data protection laws in SADC
(2021) Ferreira, Christoff; Cupido, Robin
This minor-dissertation considers the issue of data protection coverage within the Southern African Development Community (SADC) and its importance to the Internet Telecommunications (ICT) sector in the various states of SADC but also its importance in providing protection to individuals in a region where internet penetration is increasing at a rapid pace. SADC introduced the SADC Model Law with the assistance of the Support for Harmonisation of the ICT Policies in Sub-Saharan Africa (HIPSSA Project). This is meant to provide a model in terms of which states in SADC could introduce or improve their own data protection regimes. Nevertheless, this instrument has not been successful in changing data protection practices within SADC, with only one state introducing a draft Bill on the basis of the Model Law. Nonetheless, despite the apparent failure of the Model Law, there will still be a degree of harmonisation between the various data protection laws in the sub-region due to the influence of the European Union (EU)'s Data Protection Directive. The approach taken is a comparative study which first considers the data protection laws of Mauritius and South Africa which have the two largest ICT sectors in SADC, the Zimbabwean draft Bill on Data Protection which was based on the SADC Model Law, and the Model Law itself. The purpose of this analysis is to determine whether a level of harmonisation has been achieved in SADC, despite the failure of the Model Law. The next step was a comparative study between the Model Law and the European Union's Data Protection Directive 95/46/EC and the General Data Protection Directive (GDPR) 2016/679. The purpose of this was to track the development of data protection law in the European Union due to the impact which these laws had on data protection globally and to show differences between data protection regimes in SADC and the European Union. The comparative study of laws in SADC illustrated that there is significant similarity between the laws considered, thereby proving that the Data Protection Directive played a more significant role in the harmonisation of data protection laws than the SADC Model Law. Nonetheless, the Model Law bared a significant resemblance to the other two existing data protection regimes. It also illustrated the weakness of the Model Law by demonstrating the lack of protection and shortcomings found in the Zimbabwean Bill based on the Model Law. The comparative study between the regimes in the EU and the Model Law illustrates disparities in the level of protection found in the Current European regime, the GDPR and in SADC. The GDPR is stricter than the Model Law and has extra-territorial application with the potential to apply in SADC. Further, the Model Law is based upon the Directive, and is, thus, outdated and weaker. The Model Law has, therefore, failed its stated goal of harmonising data protection laws in SADC yet there is still a degree of harmonisation due to the influence of the Data Protection Directive. The study showed the importance of having a strong data protection regime and also the shortcomings of existing regimes in SADC, when compared to the European Union.
Open Access
Harmonising investment laws in the OHADA space
(2015) Mugangu, Marie Providence Ntagulwa; Nkomo, Marumo; Bosman, Lise
The Organisation for the Harmonisation of Business Law in Africa (OHADA) was established for the purpose of restoring legal and judicial security in the region to attract more investment. The OHADA Treaty included certain areas of business law within its ambit but omitted investment law. There are several laws on investment in the region at the national, regional and sub-regional level that regulate the treatment of foreign investments such as CEMAC and UEMOA investment charters. Moreover OHADA states sign BITs to protect foreign investments. The relationship between the different sub regional laws on investment and OHADA is not yet clear but case law suggests that CEMAC and UEMOA courts recognise the supremacy of OHADA law and their lack of competence to hear matters regulated under OHADA. The standards of protection granted by OHADA states in BITs are very high thus taxing on them. This thesis suggests that OHADA states should either qualify these standards of protection or replace them with more specific provisions. The OHADA system of arbitration cannot effectively settle investment disputes arising out of a BIT leaving international arbitration systems such as ICSID as the best alternative to resolve investment disputes arising out of BITs.
Open Access
The impediment of non-conformity of goods, as an excuse under Article 79 of the United Nations Convention on contracts for the international sale of goods (CISG)
(2015) Ruiters, Jesse-Scott Ranier; Hutchison, Andrew
The focal area of research is to ascertain, if whether the delivery of non-conforming goods, may or may not exist as an excusable impediment under Article 79 of the CISG? To determine this I have taken a different approach, than that, of the more conventional approach of critiquing the prevailing arguments. Essentially by analyzing the commentary of the relevant Advisory Council Members as well as other major contributors to the debate, of which one argument finds its basis on legislative intent of the negotiating parties (Travaux preparatoires) and the other being ascertained on a purely textual interpretation of Article 79. In order to reach a more precise conclusion, the author of this dissertation has funneled these two arguments through the different interpretative methods of treaties to discern which of the two arguments should be regarded as the more appropriate choice, which should be adopted. The existing question therefore would be, should we find a definitive conclusion with the fact that negotiators to the Sales Convention have decided that the delivery of non-conforming goods should not be excused under Article 79? Or should we side with a purely textual approach? Based on the phrase 'failure to perform any of his obligation', the words "any" and "obligation" would consequently include the obligation of the seller to meet the level of conformity as expressed under the contract according to Article 35 of the CISG.
Open Access
Legal analysis of the challenges and prospects of the SADC Tribunal
(2014) Majatame, James; Scholtz, Werner
The primary purpose of the Tribunal is to ensure adherence to and the proper interpretation of the provisions of the SADC Treaty and its subsidiary instruments and to adjudicate upon such disputes as may be referred to it. It has been pronounced by the Treaty that the Protocol to the Tribunal is an integral part of the Treaty and this distinguishes the Tribunal as playing a significant role within the region. The basis of the Tribunalâ€™s jurisdiction lies in both the Treaty and the Protocol respectively. Article 32 of the SADC Treaty permits reference to the SADC Tribunal of 'â€¦any dispute arising from the interpretation, application or validity of Protocols or other subsidiary instruments made under this Treaty, which cannot be settled amicablyâ€™. More so, Article 16(1) of the SADC Treaty states that the Tribunal shall be constituted to ensure observance of and the appropriate interpretation of the SADC Treaty and other subsidiary instruments and to decide upon such matters as may be referred to it. Furthermore, Article 14 of the SADC Tribunal Protocol gives the SADC Tribunal jurisdiction over 'all disputes and all applications referred to it in accordance with the Treaty and this Protocol which relate to various SADC instruments. In terms of Article 15 the Tribunal has jurisdiction over legal and natural persons and member states and Article 15(2) subsequently contains an exhaustion of local remedies rule, in regard to natural persons. The Tribunal also functions as a labour tribunal. More so, it has an appellate function in relation, for instance, to the trade panels established in terms of Article 31(b) of the SADC Protocol on Trade. The Tribunal also plays a role of advisory function as stipulated in Article 20 of the Tribunal Protocol. In more general terms it is conspicuous that the SADC Tribunal is expected to serve as a key institution in the SADC legal and institutional integration process. On the 18th of August 2005, The Summit of Heads of State which is the Supreme Policy Institution of SADC, pursuant to Article 4(4) of the Protocol on the Tribunal, appointed the members of the Tribunal during its Summit of Heads of State and Government held in Gaborone, Botswana.48 On 18 November 2005 the Tribunal was inaugurated and the judges were sworn in. The Tribunal received its first cases in 2007 among which most of them were related to labour disputes. The Campbell case was the first matter brought before the Tribunal which dealt with issues of human rights, democracy and the rule of law. The Tribunal ruled against Zimbabwe in this matter and ordered Zimbabwe to, among other things, compensate the applicants for their confiscated farms. Zimbabwe refused to comply with the decision of the Tribunal. The Tribunal referred the matter to the Summit of the Heads of States and Governments for them to impose appropriate sanctions on Zimbabwe. The summit responded by a de facto suspension of the Tribunal. The suspension of the Tribunal and the refusal of Zimbabwe to enforce the Tribunal decisions indicate that the Tribunal is plagued by various problems, especially in relation to the enforcement of its decisions. Nevertheless, it is clear that the Tribunal is pivotal for the pursuit of sub-regional integration of SADC members as it constitutes an integral part of the Treaty. Therefore, the de facto suspension of the Tribunal may have a negative effect on the goals of SADC to 'â€¦promote sustainable and equitable economic growth and socioeconomic development that will ensure poverty alleviation with the ultimate objective of its eradication, enhance the standard and quality of life of the people of Southern Africa and support the socially disadvantaged through regional integration.â€™ Hence, it is the primary objective of this dissertation to conduct an analysis of the various aspects of the Tribunal and its decision in the Campbell case in order to generate recommendations for the strengthening of this judicial institution of SADC pursuant to regional integration.