oa Comparative and International Law Journal of Southern Africa - Foreign business comparisons and South African private international law
This contribution shows that South Africa has two choice-of-Iaw regimes governing aspects of the corporate phenomenon. In deciding how (if at all) the existing arrangements could be improved there are constant and variable factors to contend with. One constant factor is the distinction which is drawn, and must be retained, between corporations which do business in South Africa and corporations which establish a place of business in the Republic. Another constant factor is that the personal law of a corporation predominates in the choice-of-Iaw rules which apply to "foreign corporations". The main variable factor is South African law. It is variable both in regard to its applicability or non-applicability and to the extent of its applicability. When the two choice-of-Iaw regimes are assessed with specific reference to the constant and variable factors, it emerges that, realistically, it is only the hybrid (South African law/personal law) choice-of-Iaw rules which apply to "external companies" that could be adjusted. More particularly, it is the South African law component of this choice-of-law regime that can be adjusted freely. It follows, of course, that any adjustment which is made to the South African law component would have a converse effect on the parameters of the personal law component.
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