Mercantile Law

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Browsing Mercantile Law by Advisor "Snyman-van Deventer, E."

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    Dumping and antidumping regulations with specific reference to the legal framework in South Africa and China
    (University of the Free State, 2006-05) Tao, Meng; Snyman-van Deventer, E.
    From 1904 the world’s first antidumping law was enacted by Canada, South Africa followed in 1914, the GATT in 1947, and China in 1994. Over time, antidumping law has become a potent weapon in most countries of the world. South Africa and China, as member states of the WTO, increasingly participate in international trade and must remain aware of their legal right in respect of antidumping law. The purpose of this study is to identify and analyse some problematic issues of antidumping regulations, with specific reference to the legal framework in South Africa and China. With this purpose in mind, firstly, the background information and a brief history of the development of antidumping legislations by the international community, South Africa and China are discussed. Then, the issues of antidumping substantive law (including normal value, export price, dumping margin, injury, and domestic industry), especially with the problem of a nonmarket economy country and captive production, price undertaking, price undertaking reviews, and anticircumvention are analysed. In order to come to a clear understanding of the problems and solutions, the antidumping laws of the U.S., the E.U., South Africa and China are compared. This study resulted in the following conclusions: • The provision for a nonmarket economy country in the South African Antidumping Regulation is not adequate. China has no stipulation about this problem. • Both South African and Chinese antidumping regulations have no captive production provisions. The E.U. model is recommended. • With respect to price undertaking, the South African Anti- dumping Regulation followed the stipulations of the WTO. The Chinese Antidumping Statute is only superficially compliant with the WTO Antidumping Agreement. • The South African Antidumping Regulation leaves a gap with regard to price undertaking reviews. China has definite provisions on it. • With respect to anticircumvention, both countries’ antidump- ing regulations are not adequate, especially for China. Recommendations are made with regard to South African and China’s antidumping laws. This research is hoped to contribute to the improvement of the legal framework of antidumping regulations in South Africa and China.
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    The relevance of business ethics in defining the role of internal company stakeholders
    (University of the Free State, 2014-06) van Wyk, Riche; Snyman-van Deventer, E.
    English: Over the past 22 years, corporate governance internationally has revealed the following core ethical principles, namely transparency, fairness, accountability and responsibility. King lll, the latest code in South Africa, emphasises the importance of these factors and ethical leadership within a company. The root of ethical behaviour within the company lies in the notion that the company must please society instead of just being a moneymaking machine. Companies should focus more on the triple bottom line approach, namely profit, social and environmental issues. The ethicality of behaviour lies in the balance struck by a person or an organisation between these three bottom lines. A good balance of these bottom lines will result in behaviour being deemed as ethical. The company should draft a code of conduct to aid employees, as the internal stakeholders, in the promotion and maintenance of ethical behaviour. This code of conduct is the “ethical constitution” of a company. Directors have the main obligation to maintain ethical behaviour. King lll refers to directors as being the “ethical leaders” of a company. They must act ethically in all their relations with stakeholders, put the company and stakeholder needs before their own and establish the company as a socially responsible corporate citizen. Companies must comply with the notions of Corporate Social Responsibility and Corporate Social Investment in order to maintain its reputability in society. It must benefit the community as a whole and be a philanthropic being, by granting sponsorships, making donations and investing in society. The importance of ethics in the business world is two-fold: firstly, it has a positive motivation to earn the respect of the society within which the company operates and, secondly, it has a negative motivation in that ethical behaviour will combat fraud and other economic crimes with which our country is associated. It is recommended in this study that all employees should be informed of the role they play in ethics maintenance and management. It is also recommended that a separate ethics committee be established apart from the social and ethics committee to assist the company in more complex ethical issues, such as drafting codes of conduct and steering employees in the right direction.
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    Special and differential treatment under the WTO with specific reference to the application of the Agreement on Agriculture
    (University of the Free State, 2005-06) Monyakane, ’Mampolokeng ’Mathuso Mary-Elizabeth; Snyman-van Deventer, E.
    When engaged in multilateral trade discourse developing countries have to take heed of involved principles and the general impact of the enforcement of such principles to their economic trade background. The principle of special and differential treatment is one of the principles that directly affect this category of states. It is therefore essential to know its proper interpretation and the ensued implementation. There is also the need for both the developed and developing countries alike to take special and differential treatment seriously in order to achieve indiscriminately the best system suitable for fair-trade practices.
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    Die vertrouensverpligtinge van ondernemingsreddingspraktisyns: ’n regsvergelykende studie
    (University of the Free State, 2015-07) Jacobs, Lezelle Marianne; Henning, J.; Snyman-van Deventer, E.
    English: When the Companies Act 71 of 2008 came into effect it brought about a new era of corporate rescue for South African companies. Chapter 6 of the Act provides for a new corporate rescue scheme, known as business rescue. Business rescue replaces the previous South African rescue model, judicial management, contained in the Companies Act 61 of 1973. The key role player in the rescue scheme is, however, the business rescue practitioner. The practitioner is afforded with extensive powers and rights. He takes over control of the management of the company and the duty to rescue the company rests on his shoulders. It is, however, possible that the purposes of chapter 6 to protect the interests of all stakeholders can be frustrated through the incompetence, partiality and carelessness of the practitioner. The practitioner is placed in a position of confidence with a number of stakeholders including the company, shareholders, employees and creditors of the company. Section 140(3)(b) of the Act states that the practitioner has the responsibilities, duties and liabilities of a director of the company for the duration of the rescue proceedings. The responsibilities, duties and liabilities of directors are set out in sections 75, 76 and 77. These sections contain the quasi-codified fiduciary duties of directors and therefore make them applicable to the practitioner. The practitioner is therefore a fiduciary. There is, however, uncertainty regarding the legal position of the practitioner as fiduciary. For this reason it was necessary to establish the nature and extent of these duties. This study examined the practitioner’s duty to act with good faith as well as his duty to act with care and skill. In conclusion it is found that the practitioner is in a unique position and that his fiduciary duties are sui generis in nature. He owes his fiduciary duties to all the affected persons according to a ranking. It became clear that the protection of these parties’ interest will involve a careful balancing of interests. The study culminates in a code of conduct for South African business rescue practitioners. The code of conduct could act as a compass when the practitioner is confronted with a difficult ethical decision or dilemma.
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    The world trade organisation general agreement on trade in services: deregulating trade in Banking servlces in developing countries
    (University of the Free State, 2013-01) Acho Kum, Victorine Sirri; Snyman-van Deventer, E.
    English: This thesis has investigated the deregulation of trade in Banking Services in developing countries. It has investigated the deregulation of trade in banking services by an analysis of trade in banking services under the European Union, the United States of America, China and South Africa. The objective was to analyse the liberation process that has taken place in these countries and evaluate it in the context of negotiations on multilateral liberalisation of banking services within the World Trade Organisation framework. In particular, has the path adopted by these countries represented the best case of successful extensive deregulation in the banking services industries of developing countries? It is worth understanding whether this route could represent a blueprint for opening up markets in developing countries. Hence the sequence of deregulation and problems faced by these countries in deregulating their markets are here studied in order to provide insight in the areas that are likely to be most difficult to open internationally and are expected to lift impediments to multilateral negotiations. The thesis cover the traditional services provided by banks, such as acceptance of money transmission services. The thesis also focus on the principles for regulating the liberalisation provision of trade in banking services because of the unique character of such services and because, despite the increasing liberalisation of trade in banking services, national regulatory systems still differ substantially. Attempts made by the Basel Committee with its Core Principles for effective banking regulation and supervision was discussed to see whether or not this attempt has assisted toward ensuring that all banks are supervised according to common principles. It has been established that harmonisation of prudential and supervisory regulations are warranted where entry is restricted by differences among national regulations. However this should be done without preventing the host state from retaining the right to regulate foreign banks' activities in the host state only to the extent that such regulation is necessary for the protection of public interest. The host state may also intervene in those matters expressly reserve to it, notably liquidity, monetary and advertising. Lastly, an in-depth examination of the World Trade Organisation legal text was done in an attempt to extract the legal principle relevant to the deregulation of trade in banking services in developing countries. It was attempted to determine the most common issues between host countries and home countries, and to compare it. Their usual plea is for international harmonisation of national regulatory regimes, so as to coordinate their efforts, create a level playing field, and prevents a competitive race to the bottom among national regulators that ultimately harm the participants in these markets and the reluctance of the World Trade Organisation to prevent this.