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

Business judgment rule to directors against personal liability for breaches of some of their duties

by | May 22, 2022 | JCCL, JCCL V7 I1

Business judgment rule to directors against personal liability for breaches of some of their duties

Author: Xolisa Beja

ISSN: 2521-2575
Affiliations: LLM candidate, University of Witwatersrand
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 1, 2021, p. 1 – 35
https://doi.org/10.47348/JCCL/V7/i1a1

Abstract

This article examines the extent to which s 76(4)(a) of the Companies Act 71 of 2008 protects directors against personal liability for breaches of their duties to act in the company’s best interests, with due care, skill and diligence. The essential substantive elements of s 76(4)(a) create (as a minimum) a business judgment rule. Generally, that rule provides a director with a defence against liability for a breach of his duty of care, skill and diligence if, when he acted (or omitted to act), he did so reasonably, honestly, with no self-interest and in the interests of the company. In analysing s 76(4)(a) as an embodiment of features of a traditional business judgment rule, this article briefly discusses how a similar rule in Australia is drafted and applied in practice by their courts. The article concludes that s 76(4) (a) creates protection for directors that is more than the protection that is provided by a traditional business judgment rule. This conclusion is based on the extensive nature and scope of authority and powers which s 66(1) of the Act grants to directors. In the same breath, however, s 76(4)(a) manages to make directors appropriately accountable to the company’s stakeholders, in keeping with some of the fundamental objectives and purposes of the Act.

Guarding against retirement funds’ arbitrary discretion when allocating death benefits: The urgent need for statutory guidelines

by | May 22, 2022 | JCCL, JCCL V7 I1

Guarding against retirement funds’ arbitrary discretion when allocating death benefits: The urgent need for statutory guidelines

Author: Motseotsile Clement Marumoagae

ISSN: 2521-2575
Affiliations: Associate Professor, School of Law, University of the Witwatersrand and Visiting Associate Professor, Faculty of Law, National University of Lesotho
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 1, 2021, p. 36 – 62
https://doi.org/10.47348/JCCL/V7/i1a2

Abstract

This article discusses the enormous power enjoyed by retirement funds’ boards to implement or reject deceased members’ clearly expressed wishes in their nomination forms or wills when distributing their death benefits. It demonstrates that boards are vested with wide discretion to apportion death benefits which, at times, is difficult to justify. Further, this leads boards to make incorrect allocations of death benefits by paying some beneficiaries less than others, completely excluding some from the distribution or allocating the entire benefit to one beneficiary. It argues that apart from requiring boards to honestly, rationally and reasonably allocate death benefits in line with the material facts placed before them, there is a need for legislative guidance that can effectively guide discretion exercised by boards of retirement funds when allocating death benefits.

Tax obligation and state legitimacy: A critique of the disconnect between state demands and people’s desiderata

by | May 22, 2022 | JCCL, JCCL V7 I1

Tax obligation and state legitimacy: A critique of the disconnect between state demands and people’s desiderata

Author: Kareem Adedokun

ISSN: 2521-2575
Affiliations: Associate Professor, Department of Business and Private Law, Kwara State University, Malete, Kwara, Nigeria
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 1, 2021, p. 63 – 79
https://doi.org/10.47348/JCCL/V7/i1a3

Abstract

The payment of taxes is one of the obligations recognised under any civil rule system. This informs why Nigeria, in its practice of constitutional democracy, emphasises prompt payment of tax as a basic duty of citizens to foster development, economic growth, and building. There is a fiscal contract through which citizens accept and comply with taxes in exchange for government’s effective services, the rule of law and accountability. It is a mutually beneficial process whereby citizens will receive improved governance while the government receives larger, more predictable, and more easily collected tax revenues. However, there is an obvious reversal of the fundamental obligations of the government, resulting in the sharp contrast between the state demands and people’s needs. This work, using doctrinal and survey sampling methods, critically examines the accountability and responsiveness of the government in its fiscal contract with the people, by embarking on a review of the correlation between the government’s obligations of good governance and the citizens’ civic duties of prompt payment of taxes. The review finds that the Nigerian tax system does not have a positive effect on nation-building as there is an apparent infrastructural deficit that impugns the taxpayers’ and investors’ confidence in the integrity of the tax system. Besides, there is no state machinery for an effective inclusive tax dialogue. Consequently, the initiation of the process of constructive engagements with the government is suggested to achieve an inclusive tax bargain which it is hoped will usher in a regime of responsive governance for sustainable development.