Dissertations / Theses on the topic 'Commercial law'

The Constitution, being the Supreme Law of the Peruvian legal system, irradiates its normative force towards all the legal fields. For its part, Commercial Law is an area based on privatea utonomy; however, in our legal system a zone free of constitutional control does not exist.In this article, the author conducts a remarkable analysis about the constitutionalization of Commercial Law, making reference to the Constitutional Court’s jurisprudence which, applying fundamental principles  and  rights,  has had an effect on the application of the commercial laws in our country.
La Constitución, al ser la Norma Suprema del sistema jurídico peruano, irradia su fuerza normativaa todos los ámbitos del Derecho. Por su parte, elDerecho Mercantil es una rama que se basa en laautonomía privada; sin embargo, en nuestro orde-namiento no existe zona que esté exenta de controlconstitucional.En este artículo, el autor realiza un notable análisis acerca de la constitucionalización del Derecho Mercantil, haciendo un recorrido por la jurisprudencia del Tribunal Constitucional que, aplicando principios y derechos fundamentales, ha influido en la aplicación de las normas mercantiles en nuestro país.

In the face of the desire to re-establish the sharī^ca in commercial activity, study of new perspectives in fiqh is a crucial part of modern Islamic legal thought. This study deals with hawādith tāri'a, one of the new legal terms in fiqh which is concerned with the status of a contract in commercial transactions. Despite the fact that hawādith tāri'a is usually considered in Western sources as coming under the law of contract, this study is confined to the Islamic legal category of commercial transactions. Therefore, this study begins by considering the law of contract and its connection with the Book of Sales. As a theory in contemporary Islamic legal circles, hawādith tāri'a addresses exceptional circumstances in commercial contracts which render the performance of the contractual obligation onerous. This study is concerned with understanding the sources of the theory, particularly the hadīths of the Prophet (peace the upon him) dealing with wad^c al-jawā'ih, where the foundation of the theory can be seen to have its origins. The significance of wad^c al-jawā'ih, a classical doctrine regarding calamities that occur to crops after the completion of a sales contract, is examined at length, together with the classical legal texts on the sale of fruit before its ripeness is evident (bay^c al-thimār qabla an yabduwa salāhuhā). Also, the doctrine of ^cudhr, which concerns being excused in the performance of contractual liability in hiring and leasing, is studied. From all of the above, the classical underpinnings of the concepts of hawādith tāri'a become abundant evident.

Includes bibliographical references.
This dissertation paper is based on the decision of the Wal-Mart cases in respect to competition law, mergers and acquisition in Namibia. Owing to the fact that Namibian law is mostly derived from South African law, the exploration and analysis will be based on both Wal-Mart cases in Namibia and South Africa in respect of the subject matter with specific particularity on the significance of the court’s judgment to competition law development in Namibia. The paper will also contain an exposition of the High Court and Supreme Court’s judgment in Namibia as well as the judgment of the South African Court on the same subject respectively. This is aimed at providing an in-depth understanding of the approaches taken by the two courts with respect to mergers and also to derive guidelines from the interpretation of the court in South Africa owing to the fact that the court in South Africa has successfully and efficiently dealt with the same issues many times compared to the Namibian courts. The guidelines that will be looked at will be based on how the courts in Namibia and South Africa have applied and interpreted the provisions within the Act pertaining to statutory granting or refusal of mergers in the sphere of competition law with specific reference to the question of public interest. An analysis on the respective judgments will be provided.

During the elections for the European Parliament in June 2009, an unknown party in Sweden turned out to be very successful. The Pirate Party, campaigning for patents to be scrapped and copyright to last just five years instead of 70, received 7% of the votes in the Scandinavian country, giving the party the right to a seat in the Parliament in Brussels. These modern day pirates are most successful in Sweden, but similar parties exist in the United States and a number of European countries as well. In modern society, copyrights, patents, and other forms of intellectual property play a bigger role in normal life than they did one or two decades ago. This development makes people more aware of all the effects of intellectual property theory and policy cause. It also brings up the discussion concerning whether the original goals of the policies are still being pursued properly. Is the chosen path in IP law still a valid one in this digital age or is it time to rethink the structure?

This study explores selected issues in the legal environment created by domestic and international electronic contracting practices on the Internet within the United States and international jurisdictions: questions regarding the formation of the contract through the Internet, the enforceability of such a contract (contractual writing requirements, legally binding signatures), the contents of the contract, the ways to prove the electronic contract, the applicable law and the competent court, and finally, the best ways to settle disputes arising from electronic contracts are considered. We examine to what extent contract law, and in particular article 2 of the Uniform Commercial Code (UCC), provides a satisfactory legal ground for the Internet, and how the various model trading partner agreements or the United Nations Commission on International Trade Law's Draft Model Statutory Provisions (UNCITRAL DMSP) deal with legal contract issues. We attempt to show that contracts in Cyberspace do not require any substantial reform but only some changes and adaptations to existing law, since when the policy considerations that underlie an existing rule still make sense as applied to Cyberspace, a completely new rule is not worth having. (Abstract shortened by UMI.)

Space activities are increasingly undertaken by private companies. Space law, however, was mainly developed in the beginning of the space age, at a time where space activities were predominantly state activities. The rules that developed were thus focusing on the duties of states and concerned private entities only through the intermediary of states.
This thesis explores the applicable principles of space law and of the international law of responsibility. Taking into account the recent practice of private companies engaged in space business, the work also focuses both on its impact on the responsibility and liability regime as well as on the legal efficiency of the links between private entities and states.
In conclusion, the thesis makes several recommendations to improve the responsibility regime for space activities.

The principle of party autonomy is widely accepted in the practice of international commercial arbitration. However, it still encounters certain limitations in its applications, especially for the fact that the demands of natural justice and the public good cannot be neglected by the parties. The various states in the international system have and operate peculiar systems of mandatory rules and public policies, which tend to impart significantly on the arbitral procedure, thereby creating a situation of discordance of outcomes of arbitration in different countries. For this reason, this writer intends to examine ways by which the various procedural laws can actually be harmonised. This thesis shall therefore focus on the discordances and confusion that often arise in the interacion of the various laws that may be applicable to the arbitral process in International commercial arbitration, as well as ways of achieving a harmonisation of these laws.

The modern world is characterized by a variety of international economic relations. The regulation of these relations in the legal field plays an essential role from the point of view of the integrity and effectiveness of international law. Today, such a phenomenon as transnational corporations (TNCs) has become an important component of international economic relations. International law with its branch – international economic law - can serve as a solid basis for the general international legal regulation of the activities of TNCs. An important role in this process is played by the norms of international legal regulation of foreign investment.
Сучасний світ характеризується різноманітністю міжнародних економічних відносин. Регулювання цих відносин у правовому полі відіграє важливу роль з точки зору цілісності та ефективності міжнародного закону. Сьогодні таке явище, як транснаціональні корпорації (ТНК) стали важливою складовою міжнародних економічних відносин. Міжнародне право з його галуззю - міжнародним економічним правом - може слугувати як міцна основа загального міжнародно-правового регулювання діяльності Російської Федерації ТНК. Важливу роль у цьому процесі відіграють норми міжнародно-правового регулювання іноземних інвестицій.
Современный мир характеризуется разнообразием международных экономических отношений. Регулирование этих отношений в правовом поле играет важную роль с точки зрения целостности и эффективности международного закона. Сегодня такое явление, как транснациональные корпорации (ТНК) стали важной составляющей международных экономических отношений. Международное право в его отраслью - международным экономическим правом - может служить как прочная основа общего международно-правового регулирования деятельности Российской Федерации ТНК. Важную роль в этом процессе играют нормы международно-правового регулирования иностранных инвестиций.
Duarte Henriques

The commercial space transportation industry is growing with the technology that creates more capable spacecrafts to access space. However, there are still some academic discussions related to the delimitation of the outer space and the definition of space objects that could interfere with the regulation of this growing space activity. Because these discussions are not predicted to be solved soon, the developing space policies must attempt to clarify these issues between the parts avoiding the retard in the development of the industry. Moreover, these policies have to promote public-private partnerships and the emersion of private entrepreneurs for a faster development of a safe, reliable, and affordable commercial space transportation.

Thesis (LLD (Private Law))--University of Stellenbosch, 2011.
Dissertation presented for the degree of Doctor of Laws at Stellenbosch University.
ENGLISH ABSTRACT: The state participates in the market place in a large number of ways, spending millions annually. It buys and sells goods and services; it employs a massive workforce; it acquires, develops and disposes of land; it engages in all kinds of financial transactions; it sets up companies, holds shares and enters into partnerships. Yet, the legal treatment of the state as commercial player remains an enigma. In South African law there is no shortage of legal rules that apply or can potentially apply to state commercial activity, but there is nevertheless no coherent view of the conceptualisation of state commercial activity and as a result no clarity on how such conduct should be legally regulated. A voluminous, but extremely fragmented collection of statutory mechanisms aims to regulate a large variety of matters connected to state commercial activity. The courts have shown an almost schizophrenic attitude towards the application of the common law to these state actions, alternating between opting to apply general contract law and general administrative law rules. Constitutional transformation in South Africa necessitates a critical reevaluation of the legal approach to the regulation of state commercial activity. This necessity flows from a number of factors that converge in the judicial regulation of state commercial activity. These factors include a shift in the nature and function of the state, including the judiciary under the new constitutional dispensation; the use of commercial conduct to advance important transformation goals; the proper relationship between courts in protecting fundamental societal values captured in the Constitution and the executive as the key driver of social change; and the role of law in this changing environment. An analysis of the judicial regulation of state commercial activity creates an opportunity to probe basic questions about legal methodology, particularly in a transformative context such as South Africa. A central theme in this reassessment is the role of dichotomous reasoning in legal methodology, based on sharp distinctions between monolithic concepts such as public/private, state/private enterprise, rule/standard, contract/administrative action, delict/contract that no longer seem to adequately relate to experience in the real world. An analysis of South African case law on state commercial activity reveals the underlying judicial premise that all such state action can be classified as either administrative or contractual in nature. Once this conceptual classification is done the rules that apply follow automatically. State commercial activity is consequently subjected to either administrative law or private law rules in a manner that denies or obfuscates the choice on the part of the individual judge. The criteria used to classify the nature of the action under the classification approach have varied over time. The most prominent criteria are the source of the power exercised and the presence of superior power, with the courts currently alternating between these two. However, these criteria cannot be formulated with certainty and they do not provide consistent guidelines. While the criteria identify important aspects of state commercial activity that merit increased judicial control, the relationships between the criteria and the ensuing substantive regulation and particularly the relationships between them remain nebulous. Ultimately, the classification approach is characterised by excessive conceptualism and formalism. The reality that judges choose what regulation to apply to particular instances of state commercial activity is hidden. The application of specific substantive rules is made to seem natural, inevitable and selfevident. This closes off dialogue about that choice. Two alternatives to the classification methodology exist in South African law, namely an exclusively private law approach and a comprehensive public law approach. The exclusively private law approach highlights the commercial nature of the state action to the effect that state contracting is treated on par with all other forms of (private) commercial activity. However, it is questionable whether private law regulation can adequately address the regulatory concerns specific to the public context of state conduct. An analysis of this alternative approach identifies promising private law doctrines that can inspire such regulation, but significant further development is required before the desired level of regulation will be feasible on private law grounds. The comprehensive public law approach insists on the consistent application of public law rules to all state conduct, irrespective of the commercial nature of that conduct. Although this option may seem highly desirable, especially because it ensures public scrutiny of all state conduct, it is not ideal either. Particularly problematic is the high cost of such regulation and resultant inefficiency that may not be realistic given the current demands on South African public administration. The German and French legal systems provide examples of a third alternative approach in the form of distinct legal figures that exist between contract and administrative law. Recognition of such a distinct figure provides the prospect of developing a separate set of regulation tailored to the specific needs of that figure. A separate branch of government contract or government commercial law can thus be created. In South African law it may be possible to stimulate such development by recognising state contracts as a separate class of contract. However, it is doubtful whether the development of a third regulatory category will encourage the integration of public and private law rules to overcome the conceptualism of the current approach; it could also reinforce conceptualism by adding a third conceptual category. The most promising alternative methodology is premised on a more complex view of the interacting factors that inform judicial regulation and, by extension, legal treatment of state commercial activity. Such an approach perceives the distinctions between the various relevant concepts and factors not as sharp dichotomies, but as continuous and fluid relationships. It recognises that the legal treatment of a specific instance of state commercial activity is a function of the relationship between the various concepts and factors. Such an approach calls for more open and direct engagement with all the factors informing the regulation of state commercial activity. Ultimately, it requires individual judges to take responsibility for the choices they make in their involvement in state commercial activity by means of the regulatory control they exercise. It accordingly fosters dialogue and public debate about the role of law in social phenomena such as state commercial activity. This approach is in line with a culture of justification and transformative constitutionalism that ground the democratic enterprise in South Africa.
AFRIKAANSE OPSOMMING: Die staat neem op 'n groot aantal wyses deel aan die handelsverkeer en spandeer jaarliks miljoene. Dit koop en verkoop goedere en dienste; dit stel 'n massiewe werkerskorps in diens; dit bekom, ontwikkel en vervreem grond; dit sluit allerhande finansiele transaksies; dit rig maatskappye op, hou aandele en sluit vennootskappe. En tog bly die regsbeskouing van die staat as kommersiele speier 'n enigma. In die Suid-Afrikaanse reg is daar geen tekort aan regsreels wat op kommersiele staatsoptrede van toepassing is of potensieel van toepassing kan wees nie, en tog is daar geen koherente benadering tot die konseptualisering van kommersiele staatsoptrede nie en gevolglik geen duidelikheid oor hoe sodanige optrede deur die reg gereguleer moet word nie. 'n Groot volume uiters gefragmenteerde statutere meganismes poog om 'n verskeidenheid kwessies rakende kommersiele staatsoptrede te reguleer. Die howe toon 'n bykans skisofrene houding jeens die toepassing van gemeneregreels op sodanige staatsoptrede en wissel tussen 'n keuse vir die toepassing van algemene kontraktereg en algemene administratiefreg. Konstitusionele transformasie in Suid-Afrika noodsaak die kritiese herbeskouing van die regsbenadering tot die regulering van kommersiele staatsoptrede. Hierdie noodsaak vloei uit 'n aantal faktore wat ineenloop by die geregtelike regulering van kommersiele staatsoptrede. Sodanige faktore sluit in 'n verskuiwing in die aard en funksie van die staat, insluitende die regbank, onder die nuwe grondwetlike bedeling; die gebruik van kommersiele optrede om belangrike transformasie-oogmerke te bereik; die gepaste verhouding tussen die howe in hul beskerming van fundamentele gemeenskapswaardes in die Grondwet en die uitvoerende gesag as sentrale dryfkrag agter sosiale transformasie; en die rol van die reg in hierdie veranderende omgewing. 'n Analise van die geregtelike regulering van kommersiele staatsoptrede skep die geleentheid om basiese vrae rakende regsmetodologie aan te spreek, spesifiek in 'n transformatiewe konteks soos Suid-Afrika. 'n Sentrale tema in hierdie herbeskouing is die regsmetodologiese rol van digomatiese of tweesydige redenering gebaseer op starre onderskeide tussen een-dimensionele konsepte soos publieklprivaat, staat/private onderneming, reel/standaard, kontrakladministratiewe handeling, deliklkontrak wat skynbaar nie meer genoegsaam in verband staan met ervaring in die werklikheid nie. 'n Analise van Suid-Afrikaanse regspraak rakende kommersiele staatsoptrede openbaar die onderliggende regterlike hipotese dat aile sodanige staatsoptrede geklassifiseer kan word as 6f administratiefregtelik 6f kontraktueel van aard. Sodra hierdie konseptuele klassifikasie gedoen is, volg die regsreels van toepassing outomaties. Kommersiele staatsoptrede word gevoglik 6f deur administratiefregreels 6f uitsluitlik deur reels van die privaatreg gereguleer op 'n wyse wat die keuse van die betrakke regter ontken of verberg. Die kriteria wat gebruik word in die klassifikasiebenadering om die aard van die handeling te klassifiseer het oor tyd verander. Die belangrikste kriteria is die bran van die magte uitgeoefen en die teenwoordigheid van staatsmag, met die howe wat tans hierdie twee kriteria afwissel. Hierdie kriteria kan egter nie met sekerheid geformuleer word nie en dit bied geen konsekwente riglyne nie. Terwyl die kriteria belangrike aspekte van kommersiele staatsoptrede identifiseer wat strenger geregtelike beheer ondersteun, is dit veral die verhouding tussen die onderskeie kriteria sowel as die verhouding tussen die kriteria en die daarapvolgende substantiewe regulasies wat vaag bly. Uiteindelik word die klassifikasie-benadering gekenmerk deur oormatige konseptualisme en formalisme. Die realiteit dat regters kies watter regulasie om toe te pas op besondere gevalle van kommersiele staatsoptrede bly verborge. Die toepassing van spesifieke substantiewe reels word voorgehou as natuurlik, onvermydelik en voor-die-hand-liggend. Hierdie benadering sluit dialoog oor sulke keuses uit. Twee alternatiewe tot die klassifikasie-metodologie bestaan in die SuidAfrikaanse reg, naamlik 'n suiwer privaatregtelike benadering en 'n omvattende publiekregtelike benadering. Die suiwer privaatregtelike benadering fokus op die kommersiele aard van die staatshandelinge, met gevolg dat staatskontraktering soos aile ander vorme van (privaat)kommersiele optrede gehanteer word. Dit is egter te bevraagteken of die suiwer privaatregtelike regulasie op 'n bevredigende wyse al die regulatiewe oogmerke spesifiek tot die publieke konteks van staatsoptrede kan aanspreek. 'n Analise van hierdie alternatiewe benadering dui op belowende privaatreg-leerstukkke wat sodanige regulasie kan onderle, maar aansienlike verdere ontwikkeling van hierdie leerstukke is nodig alvorens die privaatreg die verlangde vlakke van regulasie kan bied. Die omvattende publiekregtelike benadering dring aan op die konsekwente toepassing van publiekregtelike reels op aile staatsoptrede, ongeag die kommersiele aard van sodanige handelinge. Hoewel hierdie opsie uiters wenslik blyk te wees, veral gegewe die wyse waarop dit publieke oorsig oor aile staatsoptrede verseker, is dit ook nie 'n ideale benadering nie. Veral problematies is die hoe koste van sodanige regulasie en die gepaardgaande ondoeltreffende staatsadministrasie wat, gegewe die eise wat tans aan die Suid-Afrikaanse staatsdiens gestel word, onrealisties mag wees. Die Duitse en Franse regstelsels verskaf voorbeelde van 'n derde alternatiewe benadering in die vorm van 'n afsonderlike regsfiguur wat bestaan tussen die kontraktereg en die administratiefreg. Die bestaan van so 'n afsonderlike regsfiguur skep die moontlikheid vir die ontwikkeling van afsonderlike regulasie toegespits op die spesifieke behoeftes van daardie figuur. 'n Afsonderlike veld van staatskontrakte of staatshandelsreg kan gevolglik ontstaan. In die Suid-Afrikaanse reg mag dit moontlik wees om sodanige ontwikkeling te stimuleer deur die erkenning van staatskontrakte as 'n afsonderlike, spesifieke klas van kontrakte. Dit is egter te betwyfel of die ontwikkeling van 'n derde kategorie van regulasie die integrasie van privaatregtelike en publiekregtelike reels sal bevorder en die konseptualisme van die huidige benadering sal oorkom; dit mag ook bloot konseptualisme versterk deur 'n derde konseptuele kategorie by te voeg. Die mees belowende alternatiewe metodologie is gegrond op 'n meer komplekse benadering tot die wisselwerkende faktore wat die geregtelike regulering van en die regsbenadering tot kommersiele staatsoptrede onderle. Sodanige benadering beskou die onderskeid tussen die betrokke konsepte en faktore nie as 'n skerp digotomie nie, maar as aaneenlopende en beweeglike verhoudings. Dit beskou die regsbenadering tot 'n spesifieke geval van kommersiele staatsoptrede as 'n funksie van die verhouding tussen die verskeie konsepte en faktore. So 'n benadering vereis 'n openliker en meer direkte omgaan met die faktore wat die regulering van kommersiele staatsoptrede onderls. Uiteindelik vereis dit dat individuele regters verantwoordelikheid sal neem vir die keuses wat hulle maak in hul betrakkenheid by kommersiele staatsoptrede deur middel van die regulatiewe beheer wat hulle daaraor uitoefen. Oit bevorder gevolglik dialoog en publieke debat oor die ral van die reg in sosiale praktyke soos kommersiele staatsoptrede. Hierdie benadering is in Iyn met 'n kultuur van regverdiging (culture ofjustification) en transformatiewe konstitusionalisme (transformative constitutionalism) wat die grandslag vorm van demokratiese ontwikkeling in Suid-Afrika.

Includes bibliographical references.
The purpose of this paper was to determine whether arbitration is a viable alternative for resolving commercial disputes in Kenya. More so, because Kenya has adopted the UNCITRAL Model law, 1985 and revised the same in line with the model law, 2006. Furthermore, Kenya has set up the Nairobi Centre for International Arbitration, with an aim to promote and improve the conducting of arbitrations in the country. To answer the research question, the writer looked at the history of the arbitration law in Kenya, how the communities living in Kenya settled their disputes. In doing so, the writer looked at the dispute resolution mechanisms of the Kamba, the Kikuyu and the Kipsingis, all communities living in Kenya before the country was colonised by the British. We also looked at how the law of arbitration was introduced. Having established the basis of the Arbitration law in the country, the writer canvassed on the development of the law since independence in 1963 to the current situation. This included the support recently given to alternative dispute resolution mechanisms by the Constitution of Kenya as well as the establishment of the Nairobi Centre for International Arbitration. The writer also gave an overview of the role of the court in arbitration in Kenya, giving instances and examples at which the law envisages the involvement of the court in the arbitration process. Court supervised arbitration was also canvassed. The paper went on to look at the situation of commercial arbitration in two other developing countries in Africa, South Africa and Mauritius. It was found that Mauritius, which enacted its International Arbitration Act in 2008, has moved decisively to market itself as a viable, safe and prospective place of international commercial arbitration. It was also established that South Africa has not been able to review its Arbitration law, which was enacted in 1965. Last the writer looked at the opportunities, the benefits and the challenges that face arbitration in Kenya today. The research was limited by the fact that it was not possible to write about the practice of all communities in Kenya and therefore the three chosen were taken as samples to represent all the others.

It has been increasingly argued that international commercial arbitration is stripping off its intrinsic features of an alternative dispute resolution method and turning into a mechanism that is almost indistinguishable from litigation. The development describing the metamorphosis of international commercial arbitration into a method that is very similar in process and substance to national litigation is referred to as the judicialisation of international commercial arbitration. The focus of this research is the process of judicialisation. The thesis questions whether it exists at all and, if yes, to what extent it has permeated both international arbitration proceedings and arbitral decision-making. While attempting to answer those questions other salient considerations are raised, such as: • Which characteristics of international commercial arbitration are fundamental for this method of dispute resolution and should remain intact; • What are the driving forces of the process of judicialisation; • Is the judicialised approach entirely consistent with the benefits of international commercial arbitration and to what extent? The ultimate objective of this thesis is to answer the question whether the judicialisation of international commercial arbitration is a positive development and thus be encouraged. Where negative implications are recognised, an attempt is made to identify the causes of the judicialisation process and offer solutions, if attainable.

The object of this thesis was to establish whether a culture has developed in England and Wales towards international instruments of commercial harmonisation. In doing so, the thesis has examined the approach of five main institutions and groups, who represent the structures and mechanisms responsible for the functioning and on-going development of international commercial law, namely Universities; Practitioners; Cargo Owners, Freight Forwarder and Carriers; the Judiciary and Government/Parliament. The interaction of these institutions and groups with international commercial conventions, protocols and practices was analysed and the research has shown that although these institutions and groups generally display an outward sense of internationality, there is an underlying sense that international commercial laws are used as a means of better fitting English law to the transaction at hand, rather than as a means of applying another body of rules in preference to the governing national law. The research provides evidence that the approach of the institutions and groups to international commercial instruments is informed by complex and frequently inter-related factors, and that this generally results in a continued reliance on English law as the primary law for cross-border commercial transactions. Whilst there is support for the process of harmonising international commercial law, it is clear that the systems and processes for putting such laws into practice are at best incomplete. The research provides significant new data as to the current attitudes and approaches to international commercial instruments that are held by some of the main commercial sectors in England and Wales. The thesis further documents how these attitudes and approaches have been informed and this may help support a platform from which the use and implementation of harmonised commercial laws in England and Wales may be better enabled in the future.

Long term finance schemes are, to a little extent, employed in Tanzania since major economic reforms which occurred in the 20th C. Shifting from public finance mechanism, the government of Tanzania have initiated mechanism such as PPP in order to instil private sector in engaging in several economic activities. As projects basis form of investment have been adopted in catering with developmental plans, especially in becoming an industrialized nation - Tanzania - by 2025, an effective legal and regulatory framework for project finance is crucial. Despite having PPP, Tanzania still faces several challenges, especially on its recognition and implementation, mainly, inadequate legal framework as project finance not only caters for PPP transactions, but also for private and public finance of projects, lack of specific regulatory body/division, as well as extensive government interference in projects. The lack of an effective legal and regulatory framework for project finance mechanism deters its success unless it is redressed, hence the purpose of this dissertation which is to ascertain and review project finance setting in Tanzania, experiences and lessons will be drawn from the UK and South Africa in determining the legal and regulatory framework of project finance in Tanzania, tackling of challenges within, and way forward in the incorporation of project finance mechanism as a new mechanism in Tanzania's jurisdiction.

The tremendous growth of the commercial software industry in the United States represents an excellent opportunity for the United States Department of Defense ("DoD") to acquire quality software products that will help the DoD achieve its missions. However, the DoD struggles to acquire commercial computer software ("CCS") and commercial computer software documentation ("CCSD") effectively because of the inconsistencies and contradictions found in its rules governing the acquisition of CCS and CCSD.

The DoD's rules governing the acquisition of CCS and CCSD appear simple on the surface and represent an admirable attempt to enable the DoD to more easily acquire CCS and CCSD in the commercial marketplace and to allow commercial vendors to sell their products to the DoD. However, these rules contain many unseen inconsistencies and problems and therefore lead to many areas of confusion and even contradiction.

The primary purpose of this paper is to find ways to help the DoD and CCS vendors work together more effectively, by explaining the DoD's rules governing acquisition of CCS and CCSD, explaining fourteen primary problem areas associated with the acquisition of CCS and CCSD and, finally, by exploring potential solutions to these problems.

This thesis investigates the subject of legal stratagems \((hiyal)\) in Islamic jurisprudence, in general and more particularly the \(hiyal\) used to evade the usury \((ribā) \)prohibition. The context of this thesis is the nascent Islamic finance industry in which these \(hiyal\) play a leading role. The \(hiyal\) have been appropriated from the classical Islamic legal corpus without appreciating their historical contextual framework. This thesis seeks to explicate that framework and clarify the purpose and role of those \(hiyal\) as envisaged in the discourse of the classical Islamic jurists. The \(hiyal\) are shown to be premised upon a teleology which demarcates them as normative exits, \(makhārij\). The \(makhārij\) are conditioned by the systematic reasoning of the Ḥanafī jurists, which both justifies their utility and circumscribes their juridical remit. The \(hiyal\) of \(ribā\) are demonstrated to have been utilised primarily as substitutes for philanthropy, and not in the commercial sector. The commercial sector relied on the Islamic prescriptions for equity investment partnerships which precluded the need for interest based loans. Although the jurists sanctioned the \(hiyal\) of \(ribā\) for the poor, they did so at the expense of systematic consistency. This means that these \(hiyal\), as opposed to the \(makhārij\), are not regarded as normative exits, but rather, as transitory concessions. The use of these \(hiyal\) as financial norms is therefore unwarranted. The substantive repercussions of this juridical reassessment were demonstrated using the historical experience of the Ottomans, where the long term use of the \(hiyal\) of \(ribā\) resulted in the negative socio-economic conditions generally associated with usurious economies.

One of the paradoxes in company law is the phenomenon of treasury shares. Their complex nature coupled with the risks attached to their use has rendered them problematic and unnecessary in modern company law. Refuting arguments stated against the use of treasury shares, this paper aims to build a case for the introduction of treasury shares into South African company law. In order to achieve this, the paper will firstly examine the nature and complexity of treasury shares. Thereafter, it will discuss their importance in modern company law by highlighting their commercial value. A study of their incorporation into a few jurisdictions will also be discussed in an attempt to propose a manner in which South Africa can introduce treasury shares into its law. It is a suggestion of this contribution that the recent company law reform was a missed opportunity to adopt treasury shares. The adoption of treasury shares would have been an indication of a complete breakup from traditional straitjacket concept of capital maintenance. However, as they were not adopted when the new Companies Act 71 of 2008 this paper will propose, in conclusion, that treasury shares ought to be adopted.

There seems to be wide acceptance of the idea that divergencies between legal systems give rise to disadvantages. These divergencies are, and have always been, regarded as inconveniences to overcome, particularily between the Civil and Common Law traditions, which present quite diverging points of view in the way the Law is thought. Today, one criterion of evaluating any harmonization of international legal norms is the extent to which the effort enhances certainty, a quality much appreciated in the field of international commercial contracts.
In fact, today, there is a detectable effort on the international level to harmonize the laws, especially in relevance to international contracts, in order to provide a better environment for world trade.
When we decided to go through this subject, we had in mind the importance of understanding this harmonization tendency on the international sphere. That may be the reason why we have tried, in this thesis, to expose the harmonization process adopted by some recent conventions. Our purpose was to prove that, even though differences and disparities may exist, as long as there is a uniform tendency toward social and cultural uniformity, one might predict that these divergencies would eventually even out. We see in this tendency an indication of the convergence of the Common and Civil Law toward the same destination: make this world a better place.

Includes bibliographical references (leaves 73-78).
Social security is an expression of social solidarity and an attempt to curb the ills of exclusion and poverty. The welfare state was premised on this very ideal of social solidarity. As a result of the changed and changing times, the welfare state which has now come to be known as social security is under siege by several forces unique to individual states. For this reason, social security is an area of rich diversity and the challenges facing social security are not homogenous. Whereas for rich and industrialized countries social security is very meaningful, for most of Sub Saharan Africa it is an abstract and relatively novel concept. The Universal Declaration for the Rights of man, to which every country should aspire and to which most, if not all, constitutions are modeled provides for the right to social security. Whereas the declaration implies that social security is an inalienable right, the definition of social security or 'western notion of social security' adopted by most countries with a semblance of social security eliminates the vast majority of people namely; those in the informal sector, the poor and those in the rural areas. Studies of social security advance the theory-that the conventional definition of social security is not adequate for the African continent because formal social security schemes were introduced in Africa during the colonial era as a response to the social security needs of expatriate white workers. In Uganda, formal social security caters for less than 20 per cent of the population leaving the rest to harness any other means possible to maintain subsistence and a level of sanity. The needs envisaged by traditional formal social security are not the needs an ordinary Ugandan today faces. As a result of this disparity, there has been and there continues to be out cries to reform a system that government has been reluctant to change much because of the multi-faceted and overwhelming social demands. The cliché that 'a drowning man clutches at a straw' could not be put better: Africans do not give up; we simply make the most of what we have.

The aim of this dissertation is to recommend an alternative approach to the fraud exception in South African law. The Current South African position as with the English law, places more weight on upholding the sanctity of the autonomy principle in letters of credit than preventing fraud. This is mainly because the courts have traditionally taken the view that protection of the autonomy principle is central to promoting the needs of trade and maintaining the integrity of the international banking community. Hence, this dissertation argues that an approach to the fraud exception in South African law that is more in line with that of the American law and/or the UNCITRAL Convention strikes a better balance in upholding the value of letters of credit and combatting fraud than the current South African position. Based on the comparative analysis of the position in the United Kingdom, United States of America and under the UNCITRAL Convention, the dissertation seeks to draw upon important lessons and principles pivotal to a preferable approach to the fraud exception in South African law that would enhance a better balance between the autonomy arguments and deterrence of fraud.

This thesis analyses how Kenya should apply intellectual property (IP) law in the country’s oil and gas sector to foster innovation and support economic growth within the context of the country’s development plan, Kenya Vision 2030. Specifically, the thesis considers the possible influence of IP law on innovation, investment and economic growth in the oil and gas sector in Kenya. Using doctrinal methodology, the thesis examines legislation and case law from Kenya, South Africa and the United Kingdom relating to competition and protection of patents, copyright, trade marks, trade secrets and industrial designs. This examination is based on a public interest approach to IP law and competition law and seeks to determine the possible effect of Kenya’s IP laws on investment and innovation in the sector. The study finds that IP law and competition law reflect an attempt to accommodate public interest and the interests of investors. It argues that regulation of Kenya’s oil and gas sector using IP law is likely to enhance innovation and support economic growth if relevant IP laws provide for protection of IP whilst safeguarding public interest. The thesis also finds that protection of traditional knowledge (TK) is likely to be relevant to the upstream oil and gas sector in Kenya for environmental resource management. It argues that optimal management of TK is likely to entail collaborative work between indigenous communities, public institutions and private enterprises, as provided for in Kenya’s Environmental Management and Coordination Act (Number 8 of 1999). The thesis makes proposals for a regulatory environment that is likely to provide a firmer basis for investment in the country’s oil and gas industry, promote competition in markets for IP in Kenya, provide a sustainable IP law framework for the sector for economic growth in Kenya, preserve TK of local communities and enhance equitable sharing of benefits related to TK in the context of the country’s oil and gas industry. The thesis contributes to literature on Kenya’s oil and gas industry by filling the apparent gap in analysing the possible effect of the country’s IP law on investment in the industry and public interest.

The nature and potential application of the common-law fiduciary doctrine, and of the distinctive nature of the duties to which it gives rise, is seldom appreciated or analysed in South African law. This is particularly evident in the law of employment, where the courts’ references to the ‘fiduciary’ nature of employment and the ‘fiduciary duties’ of employees have often been ambiguous, confused and unprincipled. In addition, there is almost no reference to employee fiduciary duties in the general literature on South African labour and employment law and, even where these duties are (briefly) mentioned, they are not acknowledged as being in any way separate or distinct from the employee’s other duties to the employer. This contrasts noticeably with other Commonwealth jurisdictions, where fiduciary duties form the basis of increasing numbers of cases, and are well-established and extensively debated aspects of the general jurisprudence, both generally and in relation to employees. This thesis critically explores and advances certain propositions about the general theoretical nature of the South African common- law fiduciary concept and the principles that govern the incidence, nature, purpose, scope and operation of fiduciary duties, with comparative reference to the positions in English and Canadian law. The first six chapters provide a critical analysis of those general propositions and principles. They also locate them and the debates that surround them within their broader legal and theoretical context. Chapter 7 considers their application to relationships of employment in order to determine the basis and boundaries of the fiduciary duties of employees (as ‘ordinary’ employee and in certain other established ‘fiduciary’ capacities commonly associated with employment) in terms of South African common law. In particular, the chapter considers when those duties will arise, their scope of application, what they require of the employee, and how they differ from other employee duties. Chapter 8 considers the broader issues of whether all relationships of employment are inherently and necessarily ‘fiduciary’ ones and whether they ought generally to be classified as a class of ‘fiduciary relationship’. The final chapter critiques the current position in South African law on these matters. It also suggests a set of fiduciary principles and propositions for the future application and development of fiduciary duties, both generally and in relation to employment, that are theoretically sound, clear, coherent and, where appropriate, consistent with contemporary jurisprudence in other comparable jurisdictions.

Includes bibliographical references.
This study examines the way in which the South African judiciary approaches the interpretation of fiscal legislation. It refers back to the use of the literal/textual approach (traditional approach), its shortcomings and the modification of such approach if it leads to absurdity. It also explores the purposive and contextual approaches to the interpretation of fiscal statutes. It then ana- lyses whether the advent of the Constitution (The Constitution of the Republic of South Africa of 1996) has brought a paradigm shift from the strict literal approach to the purposive approach. The conclusion reached is that the Constitution has been a catalyst for change from the literal/textual approach to a purpo- sive approach. However, the conclusion does not shy away from showing that, in practice; there is a continued practical applica- tion of the literal/textual approach by South African courts.

In this dissertation I shall highlight the shortcomings of the microcredit regulations in the NCA to develop proposals that ensure that the microfinance regulatory framework is not only made sensible on paper but in practice. Furthermore, it is hoped that these proposals will reflect a prosperous reality for South Africa’s socio-economic context, at present and in the future. Through analysing South Africa’s unique context, and drawing on experiences of the microcredit industry in Bangladesh (a similar developing country), I shall contribute to South Africa’s policy framework in making recommendations on amendments. These recommendations will support the objective of giving effect to the aims of the NCA relating to equally accessible and responsible credit and in ensuring that the social and economic welfare of South African citizens are advanced. Research into this topic is essential for two reasons: The first reason is that it is a necessary contribution to the literature on microfinance in South Africa. Not only will this dissertation focus on highlighting all the main aspects of microcredit regulation in South Africa, but it will also tell a cohesive story from the introduction of microcredit regulation to present-day recommendations on the improvements of such. The second reason is that this dissertation will contribute to policy reform in South Africa, intended to be a feed for further research and action on creating amendments to the microcredit policy framework. In sum, this dissertation will have both theoretical and practical significance.

Bibliography: leaves 324-333.
The purpose of this dissertation is to analyse the definitional rules of fiscal jurisdiction as well as the tax consequences resulting from the application of these rules, as implemented in the national tax law of the chosen jurisdictions. In essence, there are two main rules, which give content to the chosen theory of fiscal jurisdiction, mainly source and residence. It is trite that globalisation of the world's economies poses certain problems for international tax policy. Companies and individuals are becoming more mobile and therefore are able to exploit tax differences between states. In consideration of the natural concern of governments that they should get an acceptable share of the profits generated by international businesses, this research study analyses the bases through which a country could claim the right to tax. The plasticity of these two key concepts (source and residence) may well subvert a country's ultimate tax objective because of the potential for exploitation of ambiguity in the search for effective avoidance. The residence tax system and its implications have been analysed mainly from the South African perspective, and where necessary, the analysis has sought reference in other jurisdictions such as the United Kingdom and the United States. The source principle of taxation and its effects have also been studied from the South African context, with a comparative approach from Hong Kong. It has been found that the countries considered in this research have, in various ways, adopted different combinations of subjective factors for tax liability in their domestic tax laws. At the same time, the relentless search of additional tax revenue, has led countries to implement in their tax laws, stringent anti-avoidance measures designed to prevent the deferral of tax, for instance on foreign source income. Factors such as the increasing complexity of modem business and the greater sophistication of tax planning techniques have contributed to this state of affairs. Thus, this dissertation highlights that competition between governments, in the face of international economic integrity, may lead countries to adopt tax rules, which though they follow the usual international standards, are nevertheless very complex in application and administration. This can maintain the problem of international double taxation and lead to excessive or unpredictable compliance burdens. It is shown how countries in the exercise of their fiscal jurisdiction can move towards harmonisation of rules and common interpretation of the tax base in the application of their national tax legislation.

About 1.7 billion people globally and 36.8 per cent of Nigerians have no access to financial services due to reasons such as distance, financial illiteracy, irregular income, unemployment and account ineligibility. Justifications for the research include the scale of financial exclusion, the proven capacity of financial inclusion to lift people out of poverty, the need for tailored regulatory policies and the opportunity to harness the value and ubiquity of digital financial services (DFS) for the financially excluded. This research examines the broad question: how suitable are the enabling laws and institutions for digital financial services in Nigeria for addressing the needs of the financially excluded? In considering this broad question, the reasons as to why many Nigerians remain financially excluded, in spite of the abundance of regulatory initiatives, are addressed. Using a combination of doctrinal and empirical methods, the burden of accessing financial services is highlighted, strategies for financial inclusion are considered and options for suitable legal and institutional frameworks are explored. In summary, financial inclusion is broadly discussed in chapter one, while a law and development theoretical and analytical framework is constructed in chapter two. Chapter three examines the legal and institutional framework for financial inclusion in Nigeria while the barriers to financial access are discussed in chapter four. The empirical component of the research is analysed in chapter five, and chapter six considers the impact and prospects of eight new and emerging technologies on financial inclusion. The thesis concludes with recommendations and conclusions in chapter seven. Research results indicate that the path to financial inclusion in Nigeria is characterised by a myriad of laws, slow DFS adoption rates, a bank-centred regulatory model and a wide disparity in the pattern of inclusion across gender and geographical locations. Transaction costs remain high and cash is still king. Recommendations such as adopting a more consumer-centred approach to regulation, permitting alternative providers for on-boarding and adapting laws and regulatory policies tailored to the needs of the excluded are made. Additionally, it is recommended that increased financial literacy and transactional capacity are needed to harness digital financial services. It is expected that the findings of this research will inform regulatory changes that will enable a methodical migration of more of the financially excluded class into the formal finance sector.

This PhD thesis studies the facilitation of trade in the Southern African Development Community (SADC). It considers the fact that there have been several regional and international agreements that the SADC countries have entered into with the objective of alleviating trade facilitation obstacles in their region. In addition to these agreements, the states have devised national strategies to implement their regional and international commitments. However, despite all of these efforts, the effects on the easing of obstacles to trade facilitation have been minimal and the positive impact on the development of these countries predicted by mainstream trade theory is not evident. This is the first conundrum or question that this study explores. Second, while there have been several studies on the general challenges related to treaty compliance and implementation in the Southern African Development Community, few have attempted to explain why there has been poor compliance in these countries. This study uses the insights from several theoretical frameworks to illuminate this question. Third, the study reviews the World Trade Organization's Trade Facilitation Agreement and explores whether it's unique advantages may enable it to be more effective in resolving the trade facilitation challenges of the SADC member states. The study consists of a desk review of relevant academic literature, as well as an empirical study of the state of trade facilitation in the SADC region in general, and in the Kingdom of Lesotho, in particular. This entails the use of case studies and interviews with trade policy makers, trade negotiators, border officials as well as traders. The study concludes that the previous agreements suffered from inabilities to secure the compliance of state parties. In addition, the states themselves faced a plethora of domestic implementation challenges. The study observes that the WTO Trade Facilitation Agreement has unique features that address the compliance and implementation issues in innovative ways. It is argued that its distinctions make it likelier to be a more successful tool for the countries in the Southern African Development Communities to use to improve trade facilitation in their region. This research is a contribution to the academic literature on trade, law and development and seeks to provide policy insights to developing country practitioners engaged in the negotiation and implementation of trade facilitation agreements.

The thesis examines the ownership model and various control arrangements of state-owned companies (SOCs) to establish how the division of corporate power between the boards of directors and shareholder-representatives and the exercise of corporate power by these organs impact corporate governance. The thesis makes several claims. First, it argues that the architecture of ownership and control is not underpinned by a sound theoretical base and lacks a clear and consistent economic and political logic. Second, the motivations for state ownership are vague and contradictory, resulting in an irrationally amorphous ownership model. Third, shareholder control powers are excessive, often abused, and lead to shareholder proximity to the locus of governance, which engenders interference and erodes boards' autonomy and authority to govern effectively. Fourth, the legal and regulatory regime governing SOCs is plural, complex, fragmented, and contradictory. Collectively, these and other conceptual flaws have an adverse impact on governance. To address the flaws, the true nature and role of SOCs as entities of a special kind designed to fulfil an overarching public interest mandate need to be reimagined. To realise the public interest mandate, SOCs must be governed in the public interest. This has several aspects. The first is the truncation of excessive shareholder powers and the elimination of interference by removing SOCs from direct political control and placing them under an independent and professional shareholder entity akin to Singapore's state holding company, Temasek. The second aspect is a rethink and expansion of the duties of SOCs' directors by introducing a novel duty to act in the public interest, in addition to their traditional duties. The third aspect is that the legal and regulatory framework must be de-layered, responsive, and complementary to accommodate and give impetus to the public interest approach to corporate governance. Ultimately, these changes must culminate in a nuanced and bespoke architecture of ownership and control that is minimalist and structured and that can, arguably, address the idiosyncratic governance challenges that confront South African SOCs.

This research examines the operational and financial shortcomings of South African State-Owned Companies (‘SOCs') which is shown to primarily stem from a lack of enforceable accountability. The resolution of this accountability issue begins with the identification of SOCs. An analysis is undertaken of the predominant statutes with which SOCs are required to comply: the Public Finance Management Act and the Companies Act. An examination of these statutes, together with relevant case law and secondary sources, reveals contradictory, convoluted and confusing provisions relating to the definition and categorization of various State-Owned Enterprises (‘SOEs') and SOCs. A complete overhaul of these statutory definitions and categorisations is required through the enactment of an overarching legislation to govern all aspects relating to all SOEs, under which SOCs will be subsumed, as was previously proposed by the Presidential Review Committee on State-Owned Entities in 2012. The various accountability mechanisms, which should currently be implemented by SOCs, are analysed in terms of primary and secondary sources of law. This analysis divides the mechanisms into two distinct categories: internal and external mechanisms. Internal accountability mechanisms include: the directors, the board and its committees, the role of the company secretary and internal audit and the state, as the sole shareholder of the SOC. The external accountability mechanisms include: the external audit, the role of the Auditor-General and Public Protector, the legislature, the judiciary and the public, as the ultimate stakeholder of the SOC. Notwithstanding the availability of these accountability mechanisms, SOCs still fail to actually account for their continued underperformance. Research conducted through a direct analysis and interpretation of the annual, integrated reports of South African Airways SOC Limited (‘SAA'), from 2012 to 2017, will illustrate the inability of an SOC to effectively account for its performance. It is shown that one of the significant challenges which contributes to the accountability issue facing an SOC stems from the fact that the state is its sole shareholder. Evidence from this case study, together with that garnered from the investigation of the Zondo Commission of Inquiry into State Capture, will conclusively unveil the significant accountability issues experienced by many SOCs in South Africa. There is limited case law on the corporate governance and accountability of SOCs, however, an examination of secondary sources of law illustrates the growing trend for the board of an SOC to implement 3 corporate governance structures to achieve accountability. However, it is submitted that corporate governance, whilst popular, may not be the best method for achieving the accountability of SOCs. A structured framework entailing the enforceable accountability of SOCs is proposed as a solution to the accountability issue through the implementation of a reward-based system which incentivizes the board of an SOC, and the state, to achieve real and significant accountability. This system requires the establishment of an independent rating agency which will rate the accountability of an SOC. The rating of the SOC will be linked to the provision of state funding, with maximum thresholds based on specific rating levels. The board of an SOC will retain the discretion of deciding which mechanism is to be instigated to attain actual accountability, of which corporate governance is just one method. The board of an SOC, and the state, will be incentivized to achieve a high rating level in order to secure preferential state funding. This reward-based enforcement mechanism for the accountability of SOCs will require legislative reform through the enactment of overarching SOE legislation to govern all aspects relating to SOEs. In addition, legislation will be enacted to establish an independent rating agency, akin to the state institutions established under chapter nine of the Constitution. The implementation of an effective enforcement mechanism will result in the achievement of actual and significant accountability for SOCs which will ultimately improve their performance and reduce their reliance on the state's scarce resources.

The use of financial derivative instruments has outpaced the development of a comprehensive tax policy framework for these instruments in South Africa. Income character determination relies on common law principles which provide limited certainty within the context of modern portfolio management. How the courts will approach character determination for financial derivative instruments within investment portfolios is uncertain. This thesis considers applicable tax legislation and case law in three common law jurisdictions. The United States, the United Kingdom and Australia provide insight into the difficulties associated with formulating legislation in the light of rapid market innovation. The detailed tax code of the United States has proved a less than satisfactory policy approach and the courts have struggled with doctrines of interpretation. Australia and the United Kingdom have followed accounting principles. Simplifying proxies are used in this thesis to help disentangle the analysis from the varied and complex ways in which derivatives can be used in financial transactions. Only equity derivatives are considered within the context of regulated investment portfolios. Insolvency case law following the filing for bankruptcy by Lehman Brothers Holdings Incorporated in 2008 provides authority with which to analyse the nature of standardised derivative contracts used in the markets and the rights therefrom as ‘property'. The researcher argues per Smalberger JA in CIR v Pick ‘n Pay Employee Share Purchase Trust 1992 (4) SA 39 (A) that, ‘transactions involving shares do not differ from transactions in respect of any other property and the capital or revenue nature of a receipt is determined in the same way whether one is dealing with land or shares'. A definition is proposed to incorporate legal attributes of these instruments highlighted in the literature, and interpretive guidance issued by Her Majesty's Revenue and Customs in the United Kingdom is supported for adoption as policy principles aligned with our own common law. There can be no context distinct from the general concepts of law specific to derivatives. Continuity and coherency within a long tradition of case law on capital and revenue characterisation should be maintained and a policy framework developed from this premise.

Non-Standard employment in South Africa: How have we adapted in the past five years post the amendments related to non-standard employment? Chapter 1 This chapter introduces the research question. Chapter 2 Focus on legislative history pertaining to non-standard employment. Chapter 3 Review four cases prior to the recent amendments with regard to the protection of non-standard employees. 3.1 Assist Bakery 115 CC v Ngwenya N.O. and Others. 3.2 Enforce Security Group v Mwelase and Others. 3.3 Piet Wes Civils CC and Another v Association of Mineworkers and Construction (AMCU) and Others. 3.4 Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others. Chapter 4 Conclusion in response to the research question.

Human capital signifies the idea that skills and capabilities embodied in human beings constitute a form of capital. The collection of human skills and capabilities i.e. human capital, in a country, represents the human capital accumulation in that economy. This human capital accumulation is achieved through a process of instilling, building up and developing skills and capabilities. This dissertation considers use of tax incentives to contribute to human capital accumulation in Kenya and South Africa. Currently, there are some indirect tax incentives in both countries which give favourable treatment to some employee related expenses. There also exists, in both Kenya and South Africa, a direct employer tax incentive aimed at encouraging employment of graduates and specific job seekers. In both countries, however, there is no broad direct tax incentive that benefits all employers who contribute to developing various other forms of human capital. The dissertation therefore looks at considerations and reforms which are necessary to establish a desirable tax incentive for employers in Kenya and South Africa that contributes to human capital accumulation. Some of the considerations which the dissertation looks at include; why employers should be given the incentive, why the incentive should be direct, whether the existing tax incentives meet the goal of human capital accumulation and the relevance of human capital accumulation to Kenya and South Africa. The dissertation also suggests some reforms that should be made in developing a desirable direct tax incentive for employers. The suggested reforms are based on deficiencies identified from an evaluation of the like direct employment incentive schemes offered by Kenya and South Africa to employers to encourage employment of graduates and specific job seekers.

Includes bibliographical references.
As a general rule in company law, the business of the company is conducted based on the votes of the majority of shareholders in that company. In certain instances however, the majority might take decisions that are detrimental to the minority shareholders of the company and therefore it is imperative that any company legislation has significant protective measures for minority shareholders in place. This paper will discuss the concept of minority shareholder protection. This paper will do a comparative study between the shareholder appraisal regimes in the United States, Canada and South Africa. Since appraisal rights do not exist in Swaziland, a comparative study of minority shareholder protection in the United Kingdom will also be undertaken because Swaziland was colonised by the British and as such most of its law is rooted in English Law. It is from this lens that this paper will then examine minority shareholder protection in Swaziland. The research question addressed by this dissertation is two-fold. The first part of the question analyses the current measures in place for minority shareholder protection in Swaziland in comparison to measures that other jurisdictions have in place for the protection of minority shareholder rights. The second part looks at what the ideal shareholder appraisal rights law in Swaziland should contain in light of the current legislation as a means to make it more easily accessible to minority shareholders. The purpose of the dissertation is not to recommend a wholesome transplant of shareholder appraisal rights of either one of the jurisdictions under discussion, but to highlight the best practices of the jurisdictions and suggest a shareholder appraisal rights law that best suits the Swaziland business and economic environment.

The case for cross-border merger control and the need for a supranational merger control system has been debated upon and several scholars have written extensively on the subject. What is immediately evident from literature is that it is not easy to regulate such mergers because of the challenges encountered. The challenges are pronounced in developing and emerging economies (DEEs) as arguably they have less experience in the enforcement of merger laws and lack adequate resources for such an exercise. Other challenges identified from publicly available information are the lack of extra territorial application of national competition laws to conduct taking place outside their borders, limited skills and expertise and poor cooperation and coordination arrangements among the jurisdictions involved. Further cross-border merger regulation presents challenges to merging parties too due to their exposure to different national competition laws. The dissertation focuses on whether supra-national competition authorities address the challenges of cross-border merger regulation in DEEs. However, there are a number of supranational competition authorities established by DEEs that generalising the study would be an unrealistic and impractical task to undertake. In view of this, the Common Market for Eastern and Southern Africa (COMESA) was selected as a sample because it is the regional economic community that has recently established a fully operational supra-national competition authority to regulate inter alia, cross border mergers. Further, all COMESA Member States are DEEs which provides to a greater degree a relatively uniform sample.

In South African company law, shareholders remain to be the only stakeholders to hold a privileged position in the governance of companies because they are the exclusive beneficiaries of the director's fiduciary duties. However, the requirement for certain companies to appoint a Social and Ethics Committee in terms of section 72(4) of the Companies Act 71 of 2008 read with Regulation 43 of the Companies Regulations, 2011, arguably disrupts the traditional focus on exclusive shareholder protection by purporting to offer non-shareholder constituencies' legal recognition. These provisions require certain companies to report on how the operations of a company impact a broad range of non-shareholder constituencies including employees, the environment, consumers, suppliers, and communities. In this regard, the committee presents as an ideal conduit through which it can sensitize the board of directors of companies to issues of national priority in South Africa such as job creation, adequate housing, anti-corruption, climate change, and access to health care. However, the ability of the committee to deliver on its mandate and to address the concomitant issues of national priority is curtailed by a plethora of shortcomings and ambiguities. The Companies Act and Regulations contain many contradictions as they refer to generic terms of reference regarding the committee's role and they do not provide clarity regarding its powers, functions, objectives, and purpose. Furthermore, there is much uncertainty regarding the committee's appointment by either the board of directors or the shareholders of the company. This dissertation examines the philosophical foundation of the committee to determine whether it is conducive for protecting non-shareholder constituencies. The main objective of this dissertation is to examine the committee's legal status and structure. This will entail an analysis of its duties, capacities, and incapacities to determine whether section 72(4) of the Companies Act read with Regulation 43 of the Companies Regulations is a viable mechanism that can be enforced to protect non-shareholder constituencies. This analysis is also conducted to identify gaps in the committee's statutory formulation to develop and recommend a tailormade stakeholder protection model for South Africa. Furthermore, a comparative overview of stakeholder protection in the United States and the United Kingdom is undertaken to determine how these countries protect non-shareholder constituencies and to establish whether there are lessons to be drawn that may influence corporate law reform in South Africa.

The problem when it comes to the concept of possession in terms of technology and transferring possession which requires the concept of exclusivity which cannot be tampered with. Data messages cannot in their current state cannot be a symbol of goods that by constructive possession rights of a holder could be transferred. Other researchers have commented on the fact blockchain could remedy this situation. It should be maintained that a specific type of blockchain should be the preferred approach to the dematerialisation of bills of lading in electronic form, but that does not exist yet. Other researchers think that blockchain generally should be the genus of technology that should be recognised to facilitate the electronic equivalent of documentary bills of lading.1 I think only a specific type should. As the technology in theory exists, it does not mean it is available. This should mean that an open standard to allows any technology to fulfil the void that is required for recognition in bills of lading should be facilitated to facilitate trade because of the multi-dimensional cost of dealing in paper.

a) Overview The question to be answered in this dissertation is whether the National Credit Act 34 of 2005 (the NCA), promotes or impedes the sustainable growth of the South African economy. This question will be answered through exploring the importance of the contribution made by small, micro and medium enterprises (SMMEs) to the economy. This research question is premised on the findings in structural change theory of development economics.1 This theory advances the view that for a developing country to obtain sustainable growth of its economy there needs to be a decline in the number of microenterprises over a period of years and an increase in the number small and medium enterprises (SMEs). 2 This dissertation interrogates whether the NCA supports this kind of sustainable growth of the South African economy. The hypothesis proposes that the NCA impedes the sustainable economic development of South Africa. In support of this, I have examined the NCA and the protection that it affords to SMEs in South Africa. Specifically, I have examined the extent to which the NCA permits lending to SMEs by financiers, in contrast to the permission given to financiers to lend to microenterprises. In addition, I have examined the extent to which the NCA protects SME borrowers in cases where the SME qualifies for a loan, so bringing it within the provisions of NCA. This is then contrasted with the protection extended by the provisions of the NCA to microenterprises. In this investigation, I have undertaken a review of case law in South Africa to substantiate my view that the NCA inhibits sustainable growth of the South African economy. The decisions raise some important considerations, including problems caused by the concept of separate legal personality of juristic persons run by an individual in the context of borrowing, the extent to which credit guarantees offered by these individual owners should be legally enforceable and the ambiguity of developmental loans envisaged by the NCA. To address these problems, I have looked to foreign jurisprudence, especially the legal protection offered to SMEs in Australia when taking out a loan. A comparison between South African law and Australian law suggests how access to credit by SMEs and microenterprises can be improved to ensure sustainable economic growth of the economy. b) Research Methodology A doctrinal, desktop-based research method is used. The main documentary data analysed to answer the research question is primary legislation, specifically the NCA and the Usury Act 73 of 1968. Secondary sources, such as commentaries and publications by various researchers will be explored. Further documentary data will include empirical data collected in secondary sources. Other persuasive legal texts will be utilised, such as the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC), The Australian National Consumer Credit Protection Act 2009 (the ACCPA) as well as the Australian Code of Banking Practice (the COBP) c) Limitations to the Study The main limitation to this dissertation has been determining the exact number of SMMEs that exist in South Africa. Studies so far undertaken have used different methodologies and research strategies and their objectives may have differed to the objectives of this paper.3 Despite the growing amount of literature and research that is being conducted regarding SMMEs, there is still very little known about them. This is largely a result of the high number of unregistered SMMEs that exist. A further limitation on the research is that each survey contains different definitions of small, micro and medium business. For example, the South African General Entrepreneurial Monitor (GEM) measures different types of entrepreneurship and not the number of businesses to enable international comparisons. In contrast the department of trade and industry’s (DTI) definition of small business is used to determine the number of small businesses in South Africa; and this is the definition used in the National Small Business Act 102 of 1996 (the Small Business Act).

Includes abstract.
Includes bibliographical references (leaves 288-340).
Mediation is not a novel process in South Africa. It was used as the primary method of dispute resolution in some traditional pre-indusrial societies. Corporate South Africa is beset by conflict and urgently requires processes such as mediation which dignify and empower participants to tackle commercial conflict at source. Statutes, case law, books, journals and numerous other publications were reviewed in order to assess the relevant issues in the development of commercial mediation and investigate how this process could become a viable alternative to arbitration and the court system in South Africa. Empirical research gleaned from interviews conducted in Cape Town and Johannesubrg reflects the experience of those who currently act as commercial mediators. The ultimate aim of this process is to reach agreement. In light of this extensive jurisprudence that has developed in this area in othe jurisdictions, careful drafting of agreements can go a long away in avoiding enforcement complications. The conversion of a settlement agreement into a judgment or award has proved useful on the small number of occasions when compliance with a settlement appears that it may be an issue. A delicate balance is required between supporting mediation, on the one hand, and not freezing litigation or upholding illegiality, on the other. Absolute rules or uniform statutes, while appearing to offer straightforward rules for an informal process, can in practice prove overreaching or inappropriate. A possible middle path could protect mediation confiddentiality and also allow evidence about the mediation to be admitted in limited curcumstances to be specified by the court on a case-by-case basis.

This thesis examines possible synergies and points of friction between understandings of disability that emphasise its social contingency and jurisprudential debates on substantive equality and access to social security in the context of the promotion of access to work for disabled persons in South Africa. In consequence of an analysis of theoretical debates in the field of disability studies and how these find application in the sphere of employment equity law, it is concluded that, while social understandings of disability mostly focus on structural changes that would see people with disabilities who can and want to work gain access to such work, the positive obligations imposed on employers and the state in terms of equality rights and employment equity legislation are of limited depth and breadth. It is proposed that one potential course of action to address the limited scope of equality law would be to emphasise the state's obligations in terms of socio-economic rights where these rights are relevant to work inequality. Particular emphasis is placed on how the interpretation and application of the right to access to social security could be used to activate government's duties in respect of unemployment protection and work creation. The conclusion reached is that while this strategy poses risks and has its limitations, it can be used to improve information gathering in respect of disabled work seekers that will aid planning and enforcement; to facilitate support for disabled work seekers who experience discrimination; to compel government to improve the implementation and enforcement of employment equity laws in respect of disabled work applicants; to catalyse a holistic approach to social security that considers the interrelationship between social assistance and promoting unemployment protection for disabled persons who are willing and able to work; and to provide different forms of support to disabled people who do not operate in the formal labour market, but who can and do perform work that falls outside the scope of traditional labour market regulation.

The integrated global economy has presented challenges as well as opportunities for companies and their surrounding communities. This has resulted in many jurisdictions having to re-evaluate the question of company failure and how best to deal with it. The South African context has seen the enactment of a new Companies Act, ushering in a rescue regime which evidences a significant departure from its predecessor; judicial management. Contained within Chapter 6 of the Companies Act of 2008, business rescue adopts a fresh approach to company resuscitation. With relatively easy access to the procedure, business rescue caters for the restructure of the business, debt or its equity to ensure either a return to solvency or a better return to creditors than in liquidation. The new regime is further underpinned by the 2008 Act purpose provision, which envisages an efficient business rescue procedure and further mandates that the resolution of financial distress be conducted in a manner that balances the rights and interests of all relevant stakeholders. It is in this light, that this study explores the interplay between section 7(k) and Chapter 6 of the new Act. Specifically, the work sets out to critique the manner in which our new business rescue regime balances competing stakeholder interests in its provisions and investigates whether current provisions provide an adequate framework for this to be done in a manner that enhances the regime's ability to return a financially distressed company to a position of solvency, as a primary objective. After discussing the previous judicial management regime and exploring the mechanics of Chapter 6, a comparative study of similar procedures in the United Kingdom and the United States is undertaken. The study further identifies a number of weaknesses and makes recommendation for improvement.

This thesis answers the question of how South Africa ought to regulate ownership of patentable employee-inventions within the prevailing patent system. It is concerned with developing a South African legal regulatory framework for an optimal default allocation of ownership in patentable inventions made by employee-inventors in the private sector. It approaches this concern from the perspective that the law relating to ownership of employee-inventions should align with the purpose of patents as tools for encouraging private sector investment in technological innovation. This perspective is informed by a theoretical framework based on assumptions about, amongst other things, the role of patents as individual incentives, the nature of inventorship, and the likely incentive effect of a grant of a patent on employers' and employee-inventors' contributions to inventive activity. The core of the thesis is an analysis of the South African law relating to the allocation of ownership of patentable inventions between employers and employees to determine whether and how it supports the incentive function of the patent system. This includes a consideration of the ownership of intellectual property which may arise as a consequence of the inventive activity and which attract statutory protection in the form of copyright, industrial design rights, and plant breeders' rights. In the absence of international guidance and a dearth of sources about the South African approach, an examination of the British and American approaches provides insight into divergent legal regulatory responses to the same issue. A key conclusion is that the prevailing South African law does not provide for an efficient legal framework for the allocation of patent rights between employers and employees when reviewed against the purpose of the patent system in the innovation context. Based on this and other conclusions about the factors which ought to inform the regulation of the allocation, recommendations for a new legislative framework which is responsive to the purpose of patents as individual incentives, but which is also cognisant of the dynamics of the employment relationship, are made.

Includes abstract.
Includes bibliographical references (leaves 258-302).
The focal research question of this thesis is the relevance of the contract of employment in modern employment. In answering this question three broad areas associated with the contract are explored: (1) the evolution of the contract of employment in South Africa and the dichotomy between the contract of employment and the independent contract; (2) the forms of engagement of workers in the South African labour market; and (3) alternative regulatory models with specific reference to models that are consistent with the South African Constitution. Using a comparative approach it is shown that the contract of employment in South Africa is in a relative state of unification. However, some assumptions about its historical evolution and the influence of Roman and Roman-Dutch law are overstated, and more recent developments, such as tax legislation, arguably had a greater influence on the dichotomising of labour law. The study of the South African world of work illustrates that modern work is performed in diverse ways. After illustrating that labour law has both countervailing and social developmental roles, it is concluded that the contract of employment as traditionally understood is no longer capable of performing these roles. It is further claimed that a process of diversification (as opposed to the unification of the contract of employment) will help to redefine the contract of employment and this may extend the coverage of labour legislation to those who, bearing in mind the purpose of labour law, ought to be protected by labour laws. Finally, it is argued that the South African Constitution provides a ready paradigm within which to achieve such a process of diversification which would ultimately lead to an extension of the coverage of labour laws.

According to Olasupo Owoeye, as the world is becoming increasingly globalized, it is difficult for some regions, for example, the African continent, to become competitive in the global market because of their overly protectionist measures1 . Former WTO Director, Pascal Lamy, also noted that Africa should no longer rely on external demand for its goods and services to support its growth but must take steps to accelerate regional integration, as it remains the least developed continent with the highest number of least developed countries in the world2 . This explains the formation of the African Continental Free Trade Area by the African Union members; whose main objective is to boost intra African trade and create a single continental market for goods and services. The African Continental Free Trade Area is expected to enhance competitiveness at both the industry and enterprise level through exploitation of opportunities for scale production, continental market access and better allocation of resources. 3 The AfCFTA is also expected to facilitate a better integration of the African economy into the global market, thus contributing to sustainable economic growth, poverty reduction, enhanced foreign direct investment and employment creation in Africa. It is also considered to be a steppingstone towards two of the deeper integration stages envisaged in the Abuja Treaty of 1991, namely the creation of a continental customs union by 2019 and an African Economic Community (AEC) by 20284 . The AfCFTA can however pose some challenges to the signatory countries as through trade liberalization, domestic markets will become open to foreign competition and susceptible to anti-competitive practices originating outside their national borders. These include crossborder competition concerns, international cartels, mergers and acquisitions that risk monopolizing or creating abuse of dominance in the internal market5 . Some firms may gain market power and abuse their dominance through taking advantage of the economies of scale. Hence the need for the member countries, not only to dismantle trade barriers but also to adopt complementary competition policy to ensure a smooth transition and to benefit from gaining access to new markets. As was stated by Ernst-Ulrich Petersmann, competition laws are important to the preservation of economic freedom and the free trade system as is with the Bill of Rights to the protection of fundamental freedoms6 . The competition and trade policies are both based on the conviction that free trade is a means of maximizing the economic welfare of trading nations through the efficient allocation of resources. The two policies therefore complement each other as without competition, the African Continental Free Trade Area lacks legitimacy because private restraints to trade will undermine its achievement. Hence the negotiations on competition which are supposed to take place beginning of 2019 by the African Union countries who have signed the African Continental Free Trade Area. The research will therefore discuss the formation of the African Continental Free Trade Area, discuss the relationship between trade and competition and will also scrutinize the likely positive and negative impacts of the African Continental Free Trade Area vis a vis competition. Reference will also be made to other regional agreements on competition linked with regional efforts to set up free trade zones, particularly, the European Union where regional integration has been used to enhance economic growth and the useful lessons that can be learnt from those.

This study is about labour dispute resolution in Botswana, Lesotho and Swaziland. The study involves an extensive examination of the political philosophy, methods, structures and rules of engagement comprehensively described as 'emerging' trends. It concerns labour relations in developing African countries and is necessarily located along the continuum of the socio-legal and historical context of each country. The study asserts that there is an indisputable connection between the past colonial state and the post-colonial state. It contends that the post-colonial elite openly assimilated the regulatory legal framework of the colonial master and consolidated this framework soon after independence. The study therefore examines the mode of buttressing the status quo and the sustenance of command and control inherent in labour legislation. This tendency was rationalised by a misguided fear that those advocating for reforms, particularly those with economic power exerting a diluting influence on the dominant position of the state. The research demonstrates how such orientation accounts for subsequent reluctant tinkering with transformational efforts. It also resulted in sporadic, reactive and generally incremental concessions in the direction of workplace democracy. Essentially, this study is about societies in conjunction with law. Inferentially, this means the impact of legal rules and agencies on society in the finding of solutions to societal problems. The study is not based on an assumed premise on the basis of which a credibility test may be made or comparisons drawn. The study sets out to study each society as a unique, discrete entity within a particular blend of social, historical, political and legal contextual permutations. The primary objective therefore is to examine and try to understand and appreciate the strengths, weaknesses, threats and both missed and potential opportunities of each, in addressing a specific social issue such as labour disputes. This study adopts a 'law in context' approach as a sub-text within the broad framework of socio-legal studies. It does not derive from any abstract theoretical hypothesis. It is not based on any quantitative survey approach that warrants the administration of questionnaire. It is strictly an academic observation of distinct, discrete social formations. These are then considered as in transition along the continuum of their socio-economic developmental trajectories. It also ascertains the ground realities such as the political economy of labour disputes. This study required an interdisciplinary perspective, using a sociological approach to the study of law. By consciously focusing on the central institutions of substantive law, it demonstrates the weakness of law's claim to autonomy, its factual interpenetration of all levels with more general structures of government power, In effect, the conclusion drawn is that the attempt at effective dispute resolution, via the instrumentality of legislation, can lead to juridification, the multiplicity of institutionalised structures, over- administration and eventual dysfunction.