Abstract

The current English discussion on the ‘at the expense of ’ element proceeds on the assumption that it has the same meaning in all kinds of unjust enrichment claims. The same assumption was made under the unitary doctrine in Germany after 1900. However, problems in defining the ‘at the expense of ’ requirement led to the development of the doctrine of separation, which prevails today. Its essential feature is that the elements of ‘at the expense of ’ and ‘without legal ground’ have different meanings in the different condictiones. A recurring problem is how to explain the exclusion of restitution in cases of incidental benefits. It may be argued that there is a legal ground, that the benefit has not been at the claimant’s expense, or that the defendant did not receive a benefit at all. Those who deny an enrichment at the claimant’s expense, however, have to be aware that this explanation holds true only if no performance is involved.

Abstract

The past decade has seen a marked rise in unjust enrichment scepticism across the common-law world. Some argue that the ‘at the expense of ’ element in particular has been over-generalised and that the restitution of unjust enrichment should be principally confined to cases of deliberate conferral by the plaintiff. Others go further and argue that the law of unjust enrichment itself does not exist insofar as ‘unjust enrichment’ is neither a cause of action nor a consideration of justice capable of justifying restitution. This essay offers a tentative response to these arguments, defending a performance-based analysis of core Kelly v Solari-type cases but questioning whether the continued existence of the subject really depends on the tight normative unity that its critics demand. At the same time, the essay considers the ways in which legal history, comparative law and legal theory have acted as drivers of change in this context, examining the phenomenon of change and continuity in private law with reference to these developments.

Abstract

This essay gives an overview of the Scots law on rights of relief (contribution) of cautioners (sureties), co-debtors and indemnifiers (mainly insurers). The personal rights of relief of cautioners, co-debtors and double indemnifiers attract the civilian benefit of cession of actions (beneficium cedendarum actionum). By contrast, a paying insurer (or other indemnifier) is not an assignee of the insured but is subrogated to the insured’s rights against the person primarily liable for the loss, so he sues a subrogated action in the insured’s name. Subrogation is an eighteenth-century English doctrine transplanted later to Scots law, along with English insurance law. The law of relief (with cession of actions) and subrogation has the unique function, within the law of obligations, of ranking the liabilities of a plurality of debtors liable to the same creditor or insured in respect of the same debt or damage. Since it is a distinct source of obligation and a separate (albeit small) legal regime with rules of its own, it resembles negotiorum gestio rather than a branch of unjustified enrichment. Nevertheless, since the 1990s a handful of Scottish judicial opinions and decisions, reflecting a trend in English law, have sought to reconceptualise relief as a branch of the law of unjustified enrichment. The essay ventures to criticise this trend arguing, among other things, that it is based on a misreading of Scottish legal history and a failure to recognise the unique character of obligations of relief, and that it overlooks binding Court of Session Inner House authority that holds that in actions of relief the measure of recovery is the pursuer’s expenditure and not the defender’s enrichment.

Abstract

This essay explores the history of the South African government’s conclusion of a series of bilateral investment treaties (BITS) after 1994. It then examines the reasons why South Africa decided that BITS subverted a number of critical developmental goals, many of which were enshrined the Constitution. The legislation that followed revealed that the government was prepared to eschew certain forms of foreign investment pressure and to carve out an independent set of investment policies. This in turn raises the question explored in this paper about the scope of national sovereignty to trump global demands for a specified investment framework.

Abstract

Foreign direct investment (FDI) constitutes an important tool for generating capital inflow and economic growth and development, particularly in developing countries. The prevalent global mechanism for regulating and protecting is the bilateral investment treaty (BIT). After the apartheid era, and the associated economic isolation of South Africa, the country concluded numerous BITs, particularly with capital-exporting European countries. However, following an extensive review of its BITs in 2008, the South African government promulgated the Protection of Investment Act 22 of 2015 (PIA) in December 2015 to replace several of its BITs with national legislation.

This essay will show that the PIA constitutes a highly uncertain and vague legal framework for foreign investment, which is likely to decrease investor confidence. Particularly in regard to international law, the PIA provides a significantly narrower concept of expropriation and lacks sufficient provisions regarding the compulsory payment of compensation in the case of indirect expropriation. This essay concludes that the manner of practical implementation and application not only of the PIA but of all legislation related to foreign investment will be decisive in order to achieve a reasonable balance between the domestic public interest and policy space and foreign investors’ need for predictable and reliable investment protection. The government will have to show its dedication and commitment to the establishment of a balanced investment regime in order to maintain South Africa’s status as a foreign investment-friendly venue.

Abstract

This essay analyses the potential impact of the AfCFTA and in particular the envisaged investment protocol to the African Continental Free Trade Agreement on investment flows. Since the investment protocol has not yet been drafted, the first task of the essay is to determine the potential standards of investment liberalisation and protection, using the regional economic communities (RECs) and the national laws of the two major economies in Africa – Nigeria and South Africa. This is because the investment protocol cannot fall too far away from the position that African countries have adopted in their respective RECs and the national laws of the most influential countries in Africa. The essay finds that the investment protocol will not be anything other than the international standards, as modified to respond to challenges in international investment regulation. It is then argued that the investment protocol will nonetheless improve investment in Africa and South Africa by creating policy certainty and increasing the market size. However, the author cautions that greater benefits can be realised if African countries diversify their economies and participate significantly in global value chains.