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.

Contractual Capacity in Private International Law: The Lizardi Rule in the Far East

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Contractual Capacity in Private International Law: The Lizardi Rule in the Far East

Authors Eesa Allie Fredericks

ISSN: 2522-3062
Affiliations: Senior Lecturer, Head of Department: Practical Business Law, Deputy Director: Research Centre for Private International Law in Emerging Countries, University of Johannesburg
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 116 – 134

Abstract

This article concerns the contractual capacity of natural persons in the conflict-of-law rules in various Far Eastern jurisdictions. In particular, attention is devoted to the so-called Lizardi rule, which is based on a decision of the French Cour de cassation in 1861. The rule provides certain conditions for the application of the law of the place of contracting in addition to the relevant personal law(s). The Lizardi rule, in amended form, became part of European regional and supranational private international law. The influence of the rule is traced in the conflicts codes in force in China, Japan, Macau, Mongolia, the Philippines, South Korea, Taiwan, Thailand and Vietnam. The various arrangements in these codes are compared to the original formulation of the rule in the Lizardi case, and with its amended form in the Rome Convention and the Rome I Regulation on the Law Applicable to Contractual Obligations. The author submits that the arrangement in the South Korean Conflict of Laws Act is the most preferable in this regard, as it constitutes a commendable via media between the interests of the incapacitated party and the capable contractant.

Class Action Settlements: Issues and the Importance of Judicial Oversight

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Class Action Settlements: Issues and the Importance of Judicial Oversight

Authors Estelle Hurter

ISSN: 2522-3062
Affiliations: Professor of Law, Department of Criminal and Procedural Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 97 – 115

Abstract

Like ordinary civil matters, most class actions settle before trial. However, unlike ordinary civil matters, the representative nature of the class action and the consequential risk of collusive practices to the detriment of the absent group members, have led the leading class action jurisdictions to require court approval of all settlements. Various criteria have been developed (mainly by courts) in order to assess whether a proposed settlement meets the required fairness standard. This article briefly examines the concerns regarding collective settlements; the various sets of criteria used by leading class action jurisdictions; and presents a set of criteria for possible consideration and adoption by South African courts when in future confronted by the need to develop local assessment criteria.

Spotlight on the Guardians of the Gatekeepers: An Assessment of the Judicial Service Commission of Malawi

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Spotlight on the Guardians of the Gatekeepers: An Assessment of the Judicial Service Commission of Malawi

Authors Mwiza Jo Nkhata

ISSN: 2522-3062
Affiliations: Associate Professor of Law, University of Malawi and Research Fellow, Free State Centre for Human Rights, University of the Free State
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 66 – 96

Abstract

The judiciary is commonly regarded as the gatekeeper of democracy and constitutionalism. In Malawi, the work of the judiciary must be appreciated closely with the powers and functions of the Judicial Service Commission (JSC). While precise connections have yet to be fully unravelled, it is clear that the JSC or any other body, however named, that manages appointments and discipline of judges, can influence the quality of a judiciary. By focussing on the JSC, the article demonstrates that the JSC has remained dormant, especially in terms of elaborating on the framework governing its operations. The article focuses specifically on the composition and legal status of the JSC; the record of the JSC in maintaining discipline among judicial officers; the accountability of the JSC in its operations and the role of the JSC in the appointment of judges and the maintenance of judicial independence. It is the article’s conclusion that these aspects of the work of the JSC are in dire need of reform. Building on a comparative expose, the article recommends that legislation should be adopted to clarify the duties and operations of the JSC; that there should be enhanced transparency and accountability in the operations of the JSC; that greater administrative support be rendered to the JSC; and that the composition of the JSC be altered to increase its size and diversity.