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- Volume 21, Issue 5, 2009
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 21, Issue 5, 2009
Volume 21, Issue 5, 2009
Author Kathleen Van Der LindeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 31 –644 (2009)More Less
The nature of securities and of securities transactions facilitates the flow of capital across borders and the development of an increasingly globalised securities market. Securities represent bundles of rights against a company and are thus intangible. The dematerialisation of securities not only eliminates paper-based evidence of the rights embodied in the securities but also results in the involvement of intermediaries who for practical reasons may hold securities as nominees on behalf of beneficial holders. Electronic share transactions on regulated markets as well as alternative Internet-based trading platforms add impetus to the integration of capital markets.
The questionable role of the JSE Ltd as a regulatory authority in the aftermath of its demutualisation and listing on its own stock exchangeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 601 –630 (2009)More Less
Stock exchanges have been known to be pioneers of modernisation and economic efficiency. One instance of modernisation is the recent phenomenon of demutualisation. But this change has brought to the fore a host of regulatory problems that seem to suggest that a demutualised and listed stock exchange is not suitable for carrying out its regulatory role. This article will focus on conflicts of interest that arise when a stock exchange lists on its own exchange and continues carrying out regulatory functions. It is widely believed that a listed exchange cannot effectively carry out its regulatory functions because it has to focus on activities that will generate enough revenue to satisfy the needs of its shareholders and other investors. The discussion will be premised on the role that the JSE Ltd plays in the regulation of market participants and whether this role should be modified or transferred in the light of the JSE Ltd's listing on its own exchange.
Author Wim AlbertsSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 645 –660 (2009)More Less
Statutory protection for trade-mark rights under English law was introduced by the Trade Marks Registration Act 1875. Another significant development was the introduction of the Trade Marks Act 1938. To bring the English system into line with European norms, and to reflect, otherwise, modern trends, the Trade Marks Act 1994 ('the 1994 Act') was passed. This legislation was to be understood against the background of, in particular, the European Trade Marks Directive ('the Directive'). Another important international instrument of relevance is the TRIPS Agreement. The perceived sophistication of these various instruments created the impression that rights relating to trade marks are comprehensively dealt with by the 1994 Act, virtually to the exclusion of the common law. So, eg, Annand and Norman, in commenting on the impact of the 1994 Act, predicted that passing off as a separate cause of action would 'decline in importance' and have a 'confined' role to play. The common-law tort of passing off was perhaps only a vestige of earlier, more primitive times.
Author Tana PistoriusSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 661 –679 (2009)More Less
The South African domain name dispute resolution procedure has proved to be effective. Two panels have effectively addressed abusive domain name registrations. One puzzling trend is the prevalence of techno-jacking in the South African abusive registration arena. A searchable database of national decisions will raise the level of consistency of adjudications and promote legal certainty. A review of the second round of .za adjudications also shows that the time is ripe for a review of the relevant regulations.
Enforcing patent rights against goods in transit : a new threat to transborder trade in generic medicinesAuthor Caroline B. NcubeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 680 –694 (2009)More Less
Intellectual property (IP) protection has critical consequences for transnational trade in generic medicines, one of South Africa's most important imports. The free transit of generic medicines, unhindered by patent claims, is essential for their importation into South Africa where they will be deployed to prolong or save lives. This article will discuss the import of using Council Regulation (EC) No 1383/2003 to halt the transit of generic medicines en route to developing countries. Dutch customs authorities have done this on several occasions, eg, in February 2009. Such action forces importing and exporting states to find alternative routes that may be more expensive and take longer than a route that traverses Dutch ports. Such a situation would obviously be contrary to the freedom of transit provided for by art 5 of the General Agreement on Tariffs and Trade (GATT). Secondly, when consignments of medication do not reach their destinations, lives may be lost. This reverses the gains of the major battles won in South Africa and other developing countries to improve access to generic medicines. Thirdly, using patents to block, or delay, the provision of generic medication to ill people is unacceptable, because it violates the very foundations of, or justifications for, patent law. As shown by the quotation above, patents are intended to secure the public good, by enabling the production of, and trade in, useful goods.
Author Amos SaurombeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 695 –709 (2009)More Less
The harmonisation of trade laws and commercial practices is an important ingredient of regional integration, without which meaningful economic integration cannot be achieved. Economic integration needs a legal framework to foster and support it. It is widely acknowledged that conflicts and divergences arising from the laws of different states in matters relating to international trade constitute an obstacle to the development of that trade. The existence, in the Southern African Development Community (SADC) of widely accepted trade laws and commercial practices would eliminate a number of problems that currently plague intra-regional trade.
Initiatives of the international chamber of commerce to prevent fraudulent calls on demand guarantees and standby letters of creditAuthor Michelle Kelly-LouwSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 710 –733 (2009)More Less
A person (eg, a buyer or employer for construction work) planning to enter into a contract for the purchase of goods or the construction of works by the intended counterparty to the contract (eg, a seller, exporter, supplier or contractor) may wish to have security for the counterparty's performance of his obligations, especially when no previous dealings have taken place between them. In the past, it was common practice in international and local transactions to require the furnishing of a cash deposit to serve as a form of security that the counterparty would indeed perform the undertaken obligation. Later, when international trade expanded, this practice of furnishing cash deposits became prohibitively expensive for the counterparty to comply with. It was difficult for sellers, exporters, suppliers and contractors to survive the strain on their cash flow if they had to rely on their own resources to furnish the cash deposits, and therefore the assistance of financial institutions became essential in this regard. In due course, this practice was replaced with a safer and more convenient practice : the provision of a written undertaking by a bank in favour of the buyer or employer, payable on demand.
Author E.C. SchlemmerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 734 –752 (2009)More Less
International investments are especially fraught with risks both commercially and politically (also legally), and one sees that developing countries are looking with growing concern into revising their investment policies and their existing international investment agreements. This is due to the number of disputes that have arisen and the fact that those countries have been summoned to appear before international arbitration tribunals for alleged breaches of international investment agreements because they did not comply with their international law obligations to protect foreign investors and investments. Some of these states perceive that it is only the foreign investor who benefits, and that the developing country (ie, the host state) stands to gain nothing, because the foreign investor is granted protection or sometimes even said to be granted a number of 'rights'. Developing countries often do not take cognisance of the fact that any action they take at the level of central or local government might affect their international obligations. Advisors to developing countries are thus hesitant to advise their principals to continue signing and negotiating these agreements since compliance with their (ie, the host government's) perceived social justice obligations to their citizens very often results in a breach of their international investment agreements.
International investment dispute resolution : a review of the resolution of investment disputes arising out of the land reform programme in ZimbabweAuthor Carias T. ChokudaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 753 –772 (2009)More Less
In the late 1990s, the Government of Zimbabwe instituted a programme of land reform that has given rise to numerous disputes relating to the expropriation of private investments. There is a cross-border or international element to the resolution of these investment disputes. For instance, some of the disputants whose investments were expropriated by the Government of Zimbabwe are nationals of European states. In addition, some of the disputes have been adjudicated upon by various national, regional and international forums such as the courts in Zimbabwe, South Africa and the Southern African Development Community (SADC) Tribunal as well as the International Centre for the Settlement of Investment Disputes (ICSID).
The challenges of taxing profits attributed to permanent establishments : a South African perspectiveAuthor Annet Wanyana OgutuSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 773 –803 (2009)More Less
When countries enter into a tax treaty, the treaty lays down the rules for the taxation of income by the two countries. Tax treaties are usually signed on the basis of a particular model and they generally follow the provisions of the prescriptive articles in the latter. It is a principle of international tax treaties that the profits of an enterprise of a contracting state are taxable only in that state, unless the enterprise carries on business in the other contracting through a permanent establishment ('a PE') situated therein. Even if a PE exists, only the profits attributable to the PE are taxable. Thus, the significance of a PE is that it gives the country in which it is situated (the source country) the right to tax its income, even though the PE has no separate legal existence.
Author R.H. ZulmanSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 804 –817 (2009)More Less
At the outset, it would be as well to define what is meant by the term 'transnational insolvency' or 'international insolvency' or, to use the more widely accepted term, 'cross-border insolvency'. The expression is used to denote those situations in which an insolvency occurs in circumstances which in some way transcend the 'confines of a single legal system, so that a singleset of domestic insolvency law provisions cannot be immediately and exclusively applied without regard to the issues raised by the foreign elements in the case'.
Author Stella VettoriSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 818 –830 (2009)More Less
Until recently, it has generally been accepted that since the contract of employment forms the basis of any employment relationship, there can be no such relationship if there is no valid employment contract. The natural consequence of this is that if there is no valid contract of employment underlying the relationship, the labour legislation is not applicable. This traditional view that a contract of employment provides the 'cornerstone of the edifice' of labour regulation is not unique to South Africa.
Author D.J. MeyerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 831 –849 (2009)More Less
Migration is a global reality. Each year an estimated 2.5 to 4 million migrants cross international borders without authorisation. In 2005 international migrants in South Africa were estimated to number 11 062 million, or 2.3 per cent of the total population. In 2007 only 250 000 of the migrant workers in South Africa were documented. Statistics show an influx of migrants whose legal status in the country is often uncertain.