A comparative analysis of the approaches to trade secrets protection between Namibia and the USA

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

A comparative analysis of the approaches to trade secrets protection between Namibia and the USA

Authors: Johannes A. Iitembu & Lineekela Usebiu

ISSN: 2521-2575
Affiliations: Senior Lecturer, Department of Fisheries and Ocean Sciences, University of Namibia; Senior Lecturer, School of Law, University of Namibia
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 83 – 100
https://doi.org/10.47348/JCCL/V7/i2a4

Abstract

The adequacy of trade secret protection is one of the key pillars for promoting domestic and foreign-derived innovations. Therefore, various countries have chosen varying approaches that they deem adequate to protect the trade secrets of their citizens and foreigners. This article compares the approaches to protecting trade secrets in Namibia and the United States of America (USA). The analysis demonstrates that the USA approach better protects trade secrets, whether domestic or foreign, as it removes many uncertainties and brings simplicity and uniformity to litigating trade secrets issues, including clarity on available civil or criminal remedies. For members of the World Trade Organization (WTO), having an adequate statute for the protection of trade secrets also removes the weakness of the Trade-Related Aspects of Intellectual Property Rights (TRIPS), which only requires that members enforce IPR through domestic law enforcement in the member state. Developing nations, like Namibia, can therefore adopt a statutory approach as applied in developed nations like the USA. Adequate protection of trade secrets will not only increase domestic innovation but may also lead to ease of collaboration with developed nations in innovation-related projects.

Unveiling the contemporary arbitration regime in Tanzania: Anecdotes worth sharing, prospects and challenges

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

Unveiling the contemporary arbitration regime in Tanzania: Anecdotes worth sharing, prospects and challenges

Authors: Hassan Kimela & Julius Cosmas

ISSN: 2521-2575
Affiliations: Tutorial Assistant, LLM Candidate, Faculty of Law, Mzumbe University; Senior Lecturer in Law, Mzumbe University
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 101 – 121
https://doi.org/10.47348/JCCL/V7/i2a5

Abstract

This article critically discusses the new changes brought about by Tanzania’s new Arbitration Act of 2020 of Tanzania and its regulations and their implications for domestic and international arbitration and other related laws. The article finds that the establishment of the Tanzania Arbitration Centre; the requirement for accreditation of arbitrators; the introduction of a code of conduct for arbitrators; the ability of international arbitral tribunals to arbitrate investor–state disputes; the introduction of qualified immunity; and clarification of other grey areas are a long-awaiting milestone. The article also argues that the changes will have enormous and far-reaching implications on the arbitration framework in Tanzania, including propelling crossborder commerce and investments. It is further argued that despite its prospect, some areas in the novel arbitration regime need to be revisited to create a more credible framework for both international and domestic arbitration.

A critical review of the powers and duties of the Namibian Law Society in respect of legal practitioners’ conduct

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

A critical review of the powers and duties of the Namibian Law Society in respect of legal practitioners’ conduct

Author: Marvin R. Awarab

ISSN: 2521-2575
Affiliations: Lecturer, School of Law, University of Namibia
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 122 – 133
https://doi.org/10.47348/JCCL/V7/i2a6

Abstract

Legal practitioners practising in any jurisdiction, including Namibia, are bound by the provisions of the enabling legislation. In the Namibian context, legal practitioners operate under the Legal Practitioners Act 15 of 1995 read together with the Rules of the Law Society of Namibia. The Law Society of Namibia has the mandate to ensure that the legal practitioner’s conduct is in line with the law and to investigate allegations of any legal practitioner’s breach of duty. All legal practitioners operating in private practice have a legal obligation to open and operate two bank accounts, namely a business bank account and a trust bank account. Any violation of the law in respect of the keeping of business and trust bank accounts may invite s 31 consequences. This article therefore provides a critical review of the powers and duty of the Law Society in intercepting legal practitioners’ trust accounts. Furthermore, the article provides an overview of the statutory-based conduct of legal practitioners in managing trust accounts and the functionality of the Namibian Law Society Fidelity Fund.

Evaluation of the cause-and-effect relationship of internal controls on financial reporting in the Ministry of Health and Social Services, Namibia

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

Evaluation of the cause-and-effect relationship of internal controls on financial reporting in the Ministry of Health and Social Services, Namibia

Authors: Tariro Chata & Lillian Pazvakawambwa

ISSN: 2521-2575
Affiliations: Faculty of Commerce, Management & Law, School of Accounting, University of Namibia; Faculty of Agriculture, Engineering & Natural Science, Department of Computing, Mathematical & Statistical Sciences, University of Namibia
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 134 – 151
https://doi.org/10.47348/JCCL/V7/i2a7

Abstract

This article evaluates the effect of the internal control environment on the quality of financial reporting in the Ministry of Health and Social Services (MOHSS) in Namibia. The Internal Control- Integrated Conceptual Framework of the Committee of Sponsoring Organizations (COSO) of the Treadway Commission was applied as the standard of measurement against the variable internal control, and the Conceptual Framework for Financial Reporting of the International Financial Reporting Standards (IFRS) was used to measure the qualitative characteristics of the financial reporting process. A mixed research method was used to evaluate the cause and effect relationship between the key variables and to measure the perceptions of the respondents on the quality of the financial report. Probability sampling techniques were used on the 269 staff members of the MOHSS, and data were analysed using both descriptive and inferential statistics, using the SPSS software programme. The validity and reliability of data were computed using Cronbach’s Alpha. The results of the study indicated that there is a positive relationship between the key variables although it is weak. Therefore, the study recommends the strengthening of governance systems to improve the safeguarding of financial resources.

The challenges of anti-competitive practices and consumer protection in Nigeria

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

The challenges of anti-competitive practices and consumer protection in Nigeria

Authors: Eric Omo Enakireru & Ogaga Wilson Ekakitie

ISSN: 2521-2575
Affiliations: Senior Lecturer, Department of Jurisprudence and International Law, College of Law, Western Delta University, Oghara, Delta State, Nigeria; Senior Lecturer, Department of Jurisprudence and International Law, College of Law, Western Delta University, Oghara, Delta State, Nigeria
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 152 – 167
https://doi.org/10.47348/JCCL/V7/i2a8

Abstract

This article critically examines the concepts and the challenges of price mechanisms, anti-competitive practices and consumer protection in Nigeria, and considers ways of promoting and protecting the interests of consumers in respect of products and services. The article evaluates and defines the concept of price mechanisms, and the concept of the consumer who needs to be protected. It discusses anticompetitive practices, such as monopolies, mergers and acquisitions, and restrictive trade practices, resale price maintenance agreements, misleading advertising, false sales and market values. It considers the protection of consumers and the legal frameworks applicable to the subject. In conclusion, the article recommends appropriate measures and a proactive, pragmatic approach to tackling the menace of false market sales and restrictive trade practices by calling on stakeholders and the government to regulate monopolies, mergers and uncompetitive business practices which are detrimental to the interests of the consumer. It calls for controls and restrictions on unfair trade practices and appropriate sanctions so that those who persistently prejudice consumers in this way are brought to book.

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.