Masters Degrees (Mercantile Law)

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    The 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.
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    Balancing 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.
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    Holding 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.
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    Developing 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.
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    A critical analysis of the legality of racial quotas as a tool for transformation in South African professional sport
    (Stellenbosch : Stellenbosch University, 2021-03) Horne, Keenan; Louw, Andre M.; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.
    ENGLISH ABSTRACT: South Africa is a country steeped in sport, which is an important part of the culture of large parts of the population. The new political dispensation in South Africa that came into existence in 1994 recognized the inequalities that had negatively affected South Africans in sport and in other areas of their lives, over the span of many years. It prompted government to introduce affirmative action measures in sport as in other areas of the lives of South Africans. After 26 years these affirmative action measures that have been implemented in sport still remain a challenge for sports governing bodies, and are still controversial. This dissertation aims to delve deeper into these affirmative action measures and, specifically, to critically analyze the legality of racial quotas in professional sport in South Africa as a tool to accelerate transformation. The dissertation will focus on the fact that sport provides an atypical context for the application of affirmative action, but one that is still subject to laws. It will be shown that professional athletes in South Africa qualify as employees under labour legislation, and are consequently protected by the same rules as more traditional employees. This raises an interesting question for legal analysis. South African labour legislation expressly prohibits the use of racial quotas in the application of affirmative action. Despite this, South African sporting codes have for a number of years employed racial quotas for the composition of representative teams (examples of which will be mentioned and examined). Because of the applicable constitutional and legislative framework for the application of affirmative action, the dissertation analyses the use of racial quotas through evaluation of the jurisprudence on affirmative action outside the sporting context in South Africa, in order to draw conclusions regarding the lawfulness of the use of such quotas in sport. There is a relative dearth of case law specifically on the issue of racial quotas. As a result, a comparative analysis is undertaken in respect of the United States of America, a jurisdiction which has grappled with the legitimacy of racial quotas for much longer than South Africa, and which has developed legal precedent on the issue.The dissertation also deals with the concept of ‘representivity’ within the context of the transformation of South African sport. This is a term that has become synonymous iii with transformation, both in sport and in society more generally. The dissertation focuses on the concept of ‘equitable representation’, which is the express objective of affirmative action under the Employment Equity Act. Equitable representation, ostensibly, means to pursue the achievement of a level of representation in workplaces which mirrors the national or regional racial demographic profile of the population. In the context of professional sports teams, when affirmative action measures are applied the aim is therefore to select a team which is representative of the racial demographic profile of the South African population. The dissertation investigates this concept and its role in transformation in South Africa, as well as its legitimacy in the context of professional sport. Apart from the above-mentioned analysis of domestic law, the dissertation also examines the legitimacy of the application of racial quotas in the broader context of international sports governance. It considers the legitimacy of transformation measures as applied by South African sports governing bodies within the parameters of the relevant rules, principles and regulations of international sports governing bodies. This analysis highlights the anomalous nature of racial quotas in professional sport, both in the domestic and international contexts. South African sports governing bodies are contractually obliged to govern their respective sporting codes in a manner that complies with the rules of international bodies, and the dissertation also focuses on the potential danger of pushback from international sports governing bodies against domestic transformation measures which flout international rules. Finally, the dissertation investigates potential justification for racial quotas in professional sport in South Africa. It briefly evaluates the role that sport plays as a tool for nation-building and reconciliation, and then considers whether racial quotas could be justified as a means to remove inequalities and to create equal opportunities for all races in professional sport.