Masters Degrees (Mercantile Law)
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- ItemThe carbon border adjustment mechanism as an alternative to free allocation of certificates in the European Emissions Trading System. An analysis based on the WTO non-discrimination principle(Stellenbosch : Stellenbosch University, 2023-12) Baake, Arvid Luca; Ruppel, Oliver Christian, 1969-; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH ABSTRACT: This research paper examines the European Union´s Carbon Border Adjustment Mechanism (CBAM) and its compatibility with the non-discrimination principle under WTO law. With the CBAM, the European Union (EU) wants to promote decarbonisation in countries outside the EU and reduce the risk of carbon leakage. Carbon leakage describes the migration of industry to countries with less stringent climate regulations than, for example, the EU under the European Emissions Trading System (EU ETS). Before analysing the CBAM and WTO law, the paper shows the weaknesses of free allocation of certificates from an economic and legal perspective. The free allocation was the European Union's previous measure to avoid carbon leakage risk. The following analysis of WTO law focuses first on the Most-Favoured-Nation (MFN) principle before concentrating on the National Treatment (NT) principle. Subsequently, potential exceptions under the GATT are examined. Ultimately, it is argued for the applicability of the exceptions Art. XX (b) and (g) GATT, which neutralises the violation of the principle of non-discrimination that has been established before. The research concludes with remarks on the relationship between EU and WTO law and a possible export rebate under the CBAM.
- ItemCritical analysis of the institutional framework governing the agreement establishing the African Continental Free Trade Area(Stellenbosch : Stellenbosch University, 2023-12) Lehlongwa, Thulane Charlo; Ruppel, Oliver Christian, 1969-; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH ABSTRACT : The African Continental Free Trade Area as a flagship project of Agenda 2063 represents renewed attempts by the African Union to drive the continent closer to its economic integration ambitions, which can be formally traced back to the adoption of the African Declaration on Cooperation, Development, and Economic Independence, and later the Treaty Establishing the African Economic Community. Building on these frameworks, the AfCFTA seeks to, amongst others, advance intra-African trade by creating a single market for goods and services facilitated by the movement of persons, promoting sustainable and inclusive socio-economic growth, creating a liberalised market for goods and services, and promoting industrial development. Central to the attainment of the objectives of the AfCFTA is a well-functioning and effective institutional framework at a continental, regional, and national level all well-integrated to facilitate and oversee its implementation. The strengthening of regional and continental institutions to effectively lead and drive Africa’s transformation agenda has also been recognised by Agenda 2063 as a key enabler to this end. The demise of previous African integration efforts has mainly been attributed to the weakness of regional and continental organs to be able to effectively oversee and administer the implementation of continental programmes by the countries. This thesis appraises the institutional framework established to oversee the implementation, administration, facilitation, and monitoring of the AfCFTA, and this is considered against the broader African Union institutional framework and the regional economic communities. Although vastly different, the thesis further considers the experience and best practices from the European Union regional integration model to draw lessons and with a view to reforming and integrating African continental and regional bodies to be able to effectively oversee key initiatives including the AfCFTA. Finally, the thesis considers some of the work already initiated by the AU to review and reconfigure the extant continental bodies and then recommends some key interventions to reinforce and better integrate the institutional framework of the AfCFTA with the existing continental and regional frameworks.
- ItemBalancing mining and the environment : South Africa’s legal framework concerning pollution caused by mining, with examples from the West Rand and Emalahleni.(Stellenbosch : Stellenbosch University, 2023-03) Knutton, Keeley Marie; Ruppel, Oliver Christian, 1969-; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH ABSTRACT: Environmental law is a continually growing sphere of law, both locally and internationally. The increase in the importance and presence of environmental law in South Africa, and on a global scale, is as a result of the impacts that human activities have on the environment. These environmental impacts caused by human activities have resulted in there being an escalation in the need to conserve and protect the environment. Section 24 of the Bill of Rights of the Constitution of South Africa incorporates the principle of environmental protection and sustainable development into the constitutional law of South Africa, and generally recognises the fundamental importance of the environment, whilst the National Environmental Management Act 107 of 1998 and the environmental legislation and measures that have followed its adoption address this right as well as various elements of environmental protection, conservation and mitigation. This research focuses on the environmental elements of water and air, which are both vastly impacted on and polluted by the mining industry.
- ItemHolding multinational corporations liable for their transnational environmental harms : a search for global liability(Stellenbosch : Stellenbosch University, 2023-03) Roxburgh, Craig; Stevens, Richard; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH SUMMARY : For several decades, environmentalists have raised the alarm regarding the impending environmental catastrophe that results from the Anthropocene. Much attention has been given to the role that States play in contributing to ecological damage being wrought upon the Earth. However, we have only looked at the environmental destruction perpetrated by multinational companies (“MNCs”) in the past decade. Natural disasters like the Deepwater Horizon explosion have placed MNCs' dangerous impact on the environment in sharp relief. At the same time, revelations in the Carbon Majors Report and global litigation quantify the damage MNCs cause to the environment. Multinational companies (“MNCs), as a result of globalisation and trade liberalisation, are powerful entities within the global economy. Despite their size, MNCs remain primarily unregulated in international human rights law. Debates regarding who bears the duty for human rights intersect with a battle of political will between the Global North and Global South for developing binding human rights duties for MNCs. As a result, they can commit environmental harm, especially in the Global South, with relative impunity due to a lack of effective liability mechanisms. The doctrine of separate legal personality creates specific issues for holding MNCs liable for environmental harms in the Global South. Domestic courts in home States struggle to exercise jurisdiction over the environmental harms MNCs commit. In contrast, systemic barriers in host States create situations where victims are unable to seek redress within their State. To address these concerns, this thesis proposes a global liability regime founded on the principle of integrated regulation. This regime will utilise regulation at the institutional, national and international levels to enforce the environmental obligations of MNCs, rooted in the right to a healthy environment. This gives rise to multiple intersection human rights obligations which will regulate the behaviour of MNCs. This thesis recognises that such a framework requires a drastic reform in how the law and companies are conceptualised. However, such a reform would have wide-reaching implications for vindicating human rights violations.
- ItemDeveloping a framework for mediating farm evictions and security of tenure related disputes in South Africa(Stellenbosch : Stellenbosch University, 2022-03) Roode, Nikita; Stander, Nikita; Broodryk, Theo; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH ABSTRACT: This dissertation is concerned with the lack of a proper framework regulating the mediation of farm evictions and security of tenure related disputes in South Africa. The Land Reform (Labour Tenants) Act, 3 of 1996 (‘the LTA’) and the Extension of Security of Tenure Act, 62 of 1997 (‘ESTA’) were enacted on 22 March 1996 and 4 February 1997, respectively, to specifically provide for the protection of the rights of residence of occupiers residing on agricultural land. Although these statutes contain occasional references to mediation, they do not provide a proper framework for the mediation of farm evictions and security of tenure related disputes. The uncertainty caused by the absence of a proper framework that regulates the mediation of farm evictions and security of tenure related disputes, legislative or otherwise, results in mediation being underutilised and ultimately has the effect that our courts continue to be inundated with evictions and security of tenure related applications. This is because it is unclear, for example, when disputes in terms of ESTA and the LTA may be referred to mediation; what the procedure is that should be followed during the mediation process; who bears responsibility for payment of the mediator’s costs; how the mediator should report on the outcome of the mediation; what the relevant mediation timelines are; and so forth. Farm eviction disputes usually involve poor, vulnerable and marginalised persons who stand to be left homeless and destitute by an eviction order. It is therefore vital that a clear and concise mediation framework be developed to facilitate the resolution of farm evictions and security of tenure related disputes without the parties necessarily having to resort to costly and time-consuming litigation. Ultimately, the purpose of the dissertation is to assist in developing a framework regulating the mandatory mediation of disputes instituted in terms of ESTA and the LTA. This will be achieved by comparing and analysing the legal position regarding the mediation of farm evictions and security of tenure related disputes in South Africa, including the mediation provisions and rules applicable in South African Magistrates’ Courts and High Court divisions, and the legal position applicable to mediation in the United States, Ontario, and Australia.