An assessment of the success of the Convention on Choice of Court Agreements 2005 as an instrument of transnational commercial dispute resolution

by | Oct 30, 2022 | JCCL, JCCL V7 I2

An assessment of the success of the Convention on Choice of Court Agreements 2005 as an instrument of transnational commercial dispute resolution

Author: Samuel Maireg Biresaw

ISSN: 2521-2575
Affiliations: Lecturer, School of Law, Debre Tabor University
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 168 – 198
https://doi.org/10.47348/JCCL/V7/i2a9

Abstract

The Convention on Choice of Court Agreements (Convention), which was developed by the Hague Convention on Private International Law (HCCH) is a transnational litigation instrument adopted in 2005 and brought into force in 2015. By providing the required methods and tools to disputants in a commercial relationship, the objective of the Convention is to create an internationally uniform legal framework of dispute resolution that promotes cross-border trade and encourages judicial cooperation by recognising and enforcing foreign judgments that are given based on a choice of court agreement. This article assesses the existing successes of the Convention in achieving its specific commercial objectives, and considers whether it has been generally successful in transnational commercial dispute resolution. The article argues that the Convention has the tools needed to achieve its specific commercial objectives, and its success in this regard depends on the parties who choose to apply the tools provided in the Convention to resolve their commercial disputes by signing a choice of court agreement to that effect. I argue that although the Convention remained generally unsuccessful until 2015, due to its late enforcement and low rate of ratifications, since 2015 it has gradually become a success story as more states are ratifying the Convention. The future therefore looks bright.

Case Notes: Barnard Labuschagne Incorporated v South African Revenue Service [2022] ZACC 8 (11 March 2022) – The rescindability of a certified statement filed in terms of section 172 of the Tax Administration Act

by | Oct 30, 2022 | JCCL, JCCL V7 I2

Case Notes: Barnard Labuschagne Incorporated v South African Revenue Service [2022] ZACC 8 (11 March 2022) – The rescindability of a certified statement filed in terms of section 172 of the Tax Administration Act

Author: Arthur van Coller

ISSN: 2521-2575
Affiliations: Associate Professor – Nelson R Mandela School of Law, University of Fort Hare
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 199 – 216
https://doi.org/10.47348/JCCL/V7/i2a10

Abstract

None

Case Notes: Complaint initiations and prescription provisions in the Competition Act – The Constitutional Court provides clarity in Competition Commission v Pickfords Removals

by | Oct 30, 2022 | JCCL, JCCL V7 I2

Case Notes: Complaint initiations and prescription provisions in the Competition Act – The Constitutional Court provides clarity in Competition Commission v Pickfords Removals

Author: Precious Nonhlanhla Ndlovu

ISSN: 2521-2575
Affiliations: Senior Lecturer, Faculty of Law, University of the Western Cape
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 217 – 233
https://doi.org/10.47348/JCCL/V7/i2a11

Abstract

None

The Escalation of Corporate Corruption During the Covid-19 Pandemic: is the Anti-Corruption Framework of the Companies Act 71 of 2008 Adequate?

by | Oct 26, 2022 | SLR, SLR V33 I3

The Escalation of Corporate Corruption During the Covid-19 Pandemic: is the Anti-Corruption Framework of the Companies Act 71 of 2008 Adequate?

Author: Rehana Cassim

ISSN: 1996-2193
Affiliations: BA LLB LLM LLD, Associate Professor, Department of Mercantile Law, University of South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 349 – 375
https://doi.org/10.47348/SLR/2022/i3a1

Abstract

During the Covid-19 pandemic, corruption in South African companies, both state-owned and privately-owned, reached staggering proportions. This included bribery, procurement irregularities, overpricing and fraudulent deals between government officials and companies. This article identifies provisions of the Companies Act 71 of 2008 that may be used to address corporate corruption. This is done with a view to ascertaining whether the anti-corruption framework of the Companies Act is adequate to counteract corporate corruption. It concludes that the Act contains a fairly comprehensive framework to tackle corruption in companies registered under it. In spite of this framework the level of corporate corruption remains high, and increased substantially during the Covid-19 pandemic. The article makes recommendations to reduce these high levels of corporate corruption.

The Social and Ethics Committee and The Protection of Non-Shareholder Constituencies: Teething Problems or No Teeth at All?

by | Oct 26, 2022 | SLR, SLR V33 I3

The Social and Ethics Committee and The Protection of Non-Shareholder Constituencies: Teething Problems or No Teeth at All?

Authors: Tangeni Nanyemba and Mikovhe Maphiri

ISSN: 1996-2193
Affiliations: LLB LLM, Candidate Attorney; LLB LLM, Lecturer and doctoral candidate, UCT, Attorney of the High Court
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 376 – 395
https://doi.org/10.47348/SLR/2022/i3a2

Abstract

Traditionally, shareholders have been the only stakeholders to hold priviledged positions in the governance of companies because they are the exclusive beneficiaries of the director’s fiduciary duties. However, the requirement for certain companies to appoint social and ethics committees in terms of section 72(4) of the Companies Act 71 of 2008, read with regulation 43 of the Companies Regulations, arguably disrupts the traditional focus on exclusive shareholder protection by offering non-shareholder constituencies limited legal recognition. These provisions require certain companies to report on how the operations of a company impact a broad range of non-shareholder constituencies, which include the employees, the environment, consumers, suppliers, and communities. The social and ethics committee thus presents itself as an ideal conduit for sensitisation of the board of directors of a particular company to issues of national priority in South Africa, such as job creation, adequate housing, anti-corruption, climate change and access to healthcare. However, the ability of the social and ethics committee to deliver on its mandate and to address the concomitant issues affecting non-stakeholder constituencies under company law is curtailed by a plethora of uncertainties and ambiguities. The Companies Act and the Companies Regulations contain many contradictions as they include generic terms of reference regarding the committee’s role and they do not provide clarity about the committee’s powers, functions, objectives and purpose. This article considers whether section 72(4) of the Companies Act read with regulation 43 of the Companies Regulations is a viable mechanism that can be enforced to protect non-shareholder constituencies. The committee’s shortcomings are analysed to determine whether the committee has teething problems or is simply ineffective as a committee that can protect non-shareholder constituencies in the South African context.