The recent global financial crisis: delinking security-protectionism and relinking fraudulent misrepresentation in MNCs and the global market-contending existing issues in international law and international relations

by | Oct 1, 2019 | CILSA, CILSA V50 I3 2017

The recent global financial crisis: delinking security-protectionism and relinking fraudulent misrepresentation in MNCs and the global market-contending existing issues in international law and international relations

Authors Brian Ikejiaku

ISSN: 2522-3062
Affiliations: Senior Lecturer in law Coventry University, United Kingdom
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 3, p. 442 – 467

Abstract

The global financial crisis that started in the late 2000s incited a heated debate in academic circles with divergent viewpoints. The view that dominated the debate between 2008 and early 2010, was politics that is protectionist-bid of the US and UK—that is, the war on terror, particularly in Afghanistan; and/or the quest for mineral-resource wealth—for example, the US invasion of Iraq. However, since mid-2010 the perspective has shifted to global business in most quarters with some crucial legal issues. This article argues that the primary problem is not that the GFC has affected businesses, but rather that the reverse is the case—the fraudulent business activities of multinational corporations (MNCs) and poor corporate-governance accountability issues, specifically fraudulent misrepresentations, are at the root of the crisis. This article examines on the one hand the impact of politics—security-protectionism—and on the other hand the implication of fraudulent misrepresentations within global business on the recent GFC. This is examined in theory and is analysed by applying such theory in practice using two brief empirical illustrative cases: the strained US-China economic relations and the Euro-zone crisis; as well as other examples, such as Lehman, Enron, Anderson, Mediaset and Mahindra.

New directions by the Panel in Russia-Commercial Vehicles and the implications for South African anti-dumping investigations

by | Oct 1, 2019 | CILSA, CILSA V50 I3 2017

New directions by the Panel in Russia-Commercial Vehicles and the implications for South African anti-dumping investigations

Authors Gustav Brink

ISSN: 2522-3062
Affiliations: Extraordinary Lecturer: Mercantile Law, University of Pretoria
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 3, p. 417 – 441

Abstract

A World Trade Organisation (WTO) Panel recently issued its report in the Russia—Commercial Vehicles matter. It made some interesting decisions, deviating from earlier decisions on the same topic by other Panels and the Appellate Body; it further diluted the requirement of establishing a causal link between dumped imports and the injury experienced by the domestic industry; and it strengthened earlier panels’ findings on issues, such as the requirement to inform all interested parties of the essential facts under consideration in an anti-dumping investigation. This article considers seven key findings in the report, compares them with the requirements of the WTO Anti-Dumping Agreement and, where applicable, previous Appellate Body and Panel reports, and then considers what each finding means for anti-dumping in South Africa. It concludes that South Africa’s anti-dumping system fails to meet its WTO obligations in several respects and that there is a need to amend the Anti-Dumping Regulations.

Access to international justice in Africa: the conundrum of states’ non-compliance with judicial decisions

by | Oct 1, 2019 | CILSA, CILSA V50 I3 2017

Access to international justice in Africa: the conundrum of states’ non-compliance with judicial decisions

Authors Swikani Ncube

ISSN: 2522-3062
Affiliations: Post-Doctoral Research Fellow, South African Research Chair in International Law, University of Johannesburg
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 3, p. 395 – 416

Abstract

Following the African Court on Human and Peoples’ Rights decision in the Atebong Denis Atemnkeng case in 2013, critics predictably focused on Article 34(6) of the Protocol Establishing the Court as far as its application is a hindrance to individuals’ access to justice on the continent. Forgotten in this discussion were the far-reaching consequences of states’ noncompliance with judicial decisions, even where individuals have direct access to international judicial organs. This article argues that, in Africa, greater threats to access to justice are posed by states’ conduct post adjudication. Using the experiences of the ECOWAS Court of Justice, the International Criminal Court and the suspended SADC Tribunal as empirical evidence, this article argues that post adjudication, states can seriously reverse the gains made by the international justice agenda. Finally, this article cautions against judicial activism as a means of seeking the extension of locus standi to individuals before the African Court on Human and Peoples’ Rights and urges contentment with the snail’s pace at which the continent’s judicial organs are evolving.

Harmonising or unifying the law applicable to international sales contracts between the BRICS states

by | Oct 1, 2019 | CILSA, CILSA V50 I3 2017

Harmonising or unifying the law applicable to international sales contracts between the BRICS states

Authors Marlene Wethmar-Lemmer

ISSN: 2522-3062
Affiliations: Associate Professor, Department of Jurisprudence, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 3, p. 372 – 394

Abstract

This article seeks to investigate the harmonisation of international sales law between the BRICS states in order to foster successful trade and investment relations within this trading bloc. It is postulated that the United Nations Convention on Contracts for the International Sale of Goods (CISG) offers a good starting point for the harmonisation of substantive sales laws among the BRICS states—especially in light of the fact that three of these states are already CISG contracting states. However, harmonisation of substantive sales laws does not supersede the need to refer to the rules of private international law. Therefore, rules relating to choice of law also need to be harmonised within the BRICS grouping.

Domesticating the World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) flexibilities to access essential medicines: Any lessons for the SADC from Botswana?

by | Oct 1, 2019 | CILSA, CILSA V50 I3 2017

Domesticating the World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) flexibilities to access essential medicines: Any lessons for the SADC from Botswana?

Authors Lonias Ndlovu

ISSN: 2522-3062
Affiliations: Associate Professor, Department of Mercantile Law, University of Venda, Thohoyandou, South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 3, p. 347 – 371

Abstract

The Southern African Development Community (SADC) has a high disease burden. This is largely attributed to HIV/AIDS, tuberculosis, malaria, and, most recently, life-style diseases, such as cancer and heart disease. In order for the disease burden to be reduced, access to medicines, which are usually expensive and protected by patent rights, must be improved. Access to medicines, a concept with no clear definition, is generally considered to include various dimensions, such as accessibility, affordability, acceptability and availability. In developed nations, over 70 per cent of drugs are publicly funded or reimbursed. However, in Africa, 50 to 90 per cent of pharmaceutical expenditure is funded out of pocket. This impedes access to medicines, because, in the absence of price regulations, drug prices create affordability barriers. One of the most frequently touted solutions to access to medicines is the continuing call to reform intellectual-property (IP) laws, especially patent laws, to reduce the effect of monopolistic prices charged by large pharmaceutical companies. It has been suggested that, in order for this law-reform project to yield positive results, it must be conducted in compliance with the tenets of the World Trade Organisation’s (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement by taking advantage of flexibilities, which include parallel imports, competition law, compulsory licensing, pre- and post-grant patent opposition and research exceptions. Botswana, a WTO member, has set the trend for other SADC members by courageously initiating patent-law reform in order to improve access to medicines through promulgating the Industrial Property Act of 2010. The Act incorporates most of the TRIPS Agreement flexibilities and Botswana’s experience may, therefore, offer a useful example for other SADC members. This article provides a critical appraisal of Botswana’s recent IP law-reform project directly relevant to access to medicines and identifies thematic lessons from which other SADC members may benefit.

Credit bureaus in South Africa and Namibia: A comparative analysis of the regulatory frameworks evaluated against the World Bank’s principles for credit reporting-Part II

by | Oct 1, 2019 | CILSA, CILSA V50 I3 2017

Credit bureaus in South Africa and Namibia: A comparative analysis of the regulatory frameworks evaluated against the World Bank’s principles for credit reporting-Part II

Authors André Boraine, Jani van Wyk

ISSN: 2522-3062
Affiliations: Dean, Faculty of Law, University of Pretoria; Doctoral candidate under the auspices of the ABSA Chair in Banking Law in Africa, Department of Mercantile Law, University of Pretoria
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 3, p. 303 – 346

Abstract

Part I of the article dealt with the regulatory and supervisory frameworks for consumer-credit information in South Africa and Namibia. The principles developed by the World Bank were canvassed as a point of departure for evaluation of the chosen jurisdictions. In Part II, the substantive frameworks in South Africa and Namibia are investigated and the development in the two systems compared in order to learn from each other. The themes discussed are: registration or licensing of credit bureaus, the notion of consumer-credit information, obligations imposed on credit bureaus in respect of data quality and consumer rights. We also refer to some themes dealt with by the World Bank, but not in detail by the drafters of the South African and Namibian frameworks. We conclude with observations and recommendations pertaining to the article as a whole and present South Africa and Namibia as in-house examples of credit bureau regulatory drafting in these two select African jurisdictions, against the backdrop of the World Bank’s principles. As such, it may serve as case studies for other African countries.