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The passing of risk in the United Nations Convention on Contracts for the International Sale of Goods (CISG)

- Coetzee, Jeané

Authors: Coetzee, Jeané
Date: 2013-11-20
Subjects: United Nations Convention on Contracts for the International Sale of Goods (1980) , Risk management - Law and legislation , Liability (Law)
Type: Thesis
Identifier: uj:7771 , http://hdl.handle.net/10210/8660
Description: LL.M. (International Commercial Law) , The passing of risk in the United Nations Convention on Contracts for the International Sale of Goods (CISG) is being regulated by Chapter IV, Articles 66-70. These provisions will regulate the passing of risk between the contracting parties unless they have chosen to deviate from it by way of Article 6 of the CISG. Article 6 provides that: “The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.” The most important purpose of Articles 66-70 is to determine who will bear the risk when the goods are lost or damaged due to an accidental event. “Risk” is not specifically defined in the CISG. The accidental loss in this case means that neither the seller, nor the buyer can be held responsible for the loss that occurred. Accidental loss in this context may also include acts of third parties.
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The liability of corporate groups

- Mukhovha, Itumeleng Lindelani

Authors: Mukhovha, Itumeleng Lindelani
Date: 2016
Subjects: Corporation law , Liability (Law)
Language: English
Type: Masters (Thesis)
Identifier: http://hdl.handle.net/10210/87981 , uj:19653
Description: Abstract: Groups of companies have become a reality in our modern day economy. Companies often organise themselves into groups with the view of allocating capital in a manner that reduces the risks particular assets are exposed to, i.e risk diversification. Despite the fact that companies in a group often have their affairs and functions aligned, courts have developed the time-honoured principles of separate legal personality in deciding that each company in a corporate group is a separate legal entity with a separate legal personality together with rights, obligations, duties and liabilities distinct from those of the other group members. It is evident from the consideration of different jurisprudence that the courts' readiness to pierce the corporate veil varies quite considerably depending on the facts of each case; and as such it is difficult to categorise the principles premised on finitely determinable standards. , LL.M. (Commercial Law)
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Liability for gross human rights violations: from criminal to civil remedies

- Bachmann, Sascha-Dominik Oliver Vladimir

Authors: Bachmann, Sascha-Dominik Oliver Vladimir
Date: 2009-01-08T13:05:46Z
Subjects: Human rights , Criminal liability , Liability (Law) , Actions and defenses
Type: Thesis
Identifier: uj:14762 , http://hdl.handle.net/10210/1841
Description: LL.D. , The starting point of this research is the observation that the protection of human rights and the prevention of human rights atrocities can only take place through a universal system of different means of accountability which create enough deterrence for the future state or individual offender. This research consists of four parts: Part A explores and outlines the different existing ways and means of traditional human rights protection under the international and regional human rights regimes. It focuses on the aspect of victim protection from human rights violations through protective means available under the different human rights regimes. Part A concludes that the existing means and ways of protecting human rights are by far not sufficient to ensure the compliance of states with the existing provisions on human rights protection and that the protection of human rights remains an unfinished chapter of international law. Parts B and C analyze the evolving approach to hold states and individuals directly accountable for gross human rights violations, via the means of criminal and/or civil responsibility. Part B explores the possibilities of human rights protection by the means of criminal prosecution. It outlines the development of the concept of criminal responsibility from the days of Nuremberg to the present International Criminal Court in The Hague. The main focus is on domestic criminal procedures as a supplement and possibly alternative to international prosecution. This part concludes with the observation that the present mechanisms and means available under the existing international and domestic jurisdictions fail to establish individual criminal accountability at the necessary global scale and therefore fail to deter the commission of future genocide. Part C explains the necessity to establish an international system of civil liability for human rights atrocities as a supplement and (even) alternative to the existing mechanisms of accountability. The present possibilities for the individual victim to obtain financial redress for his suffering under international law are outlined and discussed. The further option of asserting civil legal action for human rights violations under domestic jurisdictions is scrutinized and evaluated with a special focus on the USA as the state which has so far the strongest adjudication of human rights claims. This part concludes with the finding that the individual victim of human rights violations still lacks the necessary forum with the respective judicial means to hold the perpetrator financially liable for his human rights violations. Part D introduces a draft Statute on a (future) Convention on Individual Civil Liability for Human Rights Atrocities as a supplement for the existing ways of human rights protection. Each provision of the draft statute is evaluated in the context of already existing legal instruments, jurisprudence and, if available, examples of customary usage. The draft’s overall aim is the establishment of a working system of civil liability for the individual and corporate human rights perpetrator for a selection of egregious human rights atrocities qualifying as so-called international or transnational human rights torts. This research concludes with the finding that only a combination of the existing ways and means of human rights protection, the consequent application of the existing provisions and finally their further development can safeguard the protection of human rights at a global scale.
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Self-regulation of securities markets : the legal status of rules and the mechanisms of enforcement

- Kleitman, Yaniv

Authors: Kleitman, Yaniv
Date: 2013-11-20
Subjects: Stock exchanges - Law and legislation , JSE Securities Exchange South Africa , Liability (Law)
Type: Thesis
Identifier: uj:7765 , http://hdl.handle.net/10210/8654
Description: LL.M. (Commercial Law) , Against the background of the revision that is currently under way in respect of South African securities law, the purpose of this dissertation is to explore the following aspects pertaining to the JSE Limited Listings Requirements: • The legal nature of the JSE Limited Listings Requirements. The law in South Africa appears to be settled that they constitute a contract between the listed entity and the exchange, but with certain public law implications in the context of judicial review. • The consequences that follow from classifying the JSE Limited Listings Requirements’ legal effect and nature. An aspect which will be explored in this regard is the validity of transactions or contracts that are in contravention of the JSE Limited Listings Requirements. It is suggested that, based on common law principles, such transactions will not be void by the mere fact of such contravention. • Standing and enforcement in respect of the JSE Limited Listings Requirements. Who is entitled to bring an action to enforce the JSE Limited Listings Requirements (for instance, to launch a court application requesting an interdict against conduct that contravenes such rules)? Are investors or other members of the public entitled to do so? Are there civil actions available to investors to sue issuer companies and others for losses sustained as a result of breaching the JSE Limited Listings Requirements? This discussion forms the primary focus of this dissertation. In South Africa, these matters are not dealt with statutorily and therefore it is suggested that at present the ordinary common law principles of delict and contract would have to be applied. • Whether the Financial Markets Bill proposes to change or add anything with regard to the current position in South African law in relation to private actionability and effects on contravening transactions. In its form as at the date of this dissertation, the bill does not address these issues. This dissertation contains a comparison with the position in Australia, the United Kingdom and the United States of America. In all the aforesaid jurisdictions the listing rules of a securities exchange are essentially in the nature of a contract. In Australia, however, the listing rules have such extensive legislative backing (in comparison to the other countries) that the aforegoing statement may be somewhat oversimplifying the position in that jurisdiction. In Australia, the relevant securities legislation provides statutory backing to the listing rules such that a breach of the listing rules is, indirectly, a breach of statute. This is coupled with numerous instances of specific statutory civil liability for breaches of the listing rules of the Australian Securities Exchange. Locus standi is conferred on any “aggrieved person” to bring an action to enforce the listing rules – a position unique in its extensiveness. There is also express provision in the relevant legislation for the consequences and implications for transactions that contravene the listing rules. In this regard the position is that no transaction is void merely by reason of such breach, but regulations made under the relevant statute may provide otherwise in respect of specific rules. In the United Kingdom the relevant legislation provides for civil liability in the case of breaches of certain rules which are administered by the Financial Services Authority (the listing rules of an exchange are administered by the said authority), but the listing rules are excluded from the civil liability provisions. This has been interpreted in a recent case in that jurisdiction as an indication that the legislature’s intention is that there is no private action available to investors for breaches of the listing rules, at least not in terms of statute. There is also express provision in the relevant legislation for the consequences and implications for transactions that contravene the listing rules, the position being that such transactions are not void by that mere fact. In the United States there is no express statutory provision for civil liability. The law in this regard has developed extensively through the cases there since the 1940s. Initially the courts were quite liberal in allowing private causes of action, adopting the approach that if a listing rule was established for the purpose and intention of protecting investors then it follows that there is a private cause of action available to investors for breaches of that rule. However, from the 1970s onwards the courts started adopting a more conservative approach, pursuant to fears around the “floodgates” being opened. Currently the (conservative) test in the United States is whether, having regard to the specific listing rule and its place in the regulatory environment, it is clearly the intention of the legislature that there is a private cause of action available. As with Australia and the United Kingdom, there is express statutory provision for the consequences and implications for contravening transactions. The provision states that such transactions are void as against the innocent party. This has been interpreted by the courts as meaning that such transactions are unenforceable by the guilty party but are not void ab initio. It is concluded and recommended in this dissertation that, as there has not been any substantial judicial development in this field as yet in South Africa, greater statutory regulation is perhaps desirable. This may promote certainty and accessibility in relation to South African securities law.
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Legal implications of information security governance

- Etsebeth, Verine

Authors: Etsebeth, Verine
Date: 2009-01-08T13:04:36Z
Subjects: Computer security , Data protection , Liability (Law) , Information technology management , Computer network security , Business enterprises
Type: Thesis
Identifier: uj:14757 , http://hdl.handle.net/10210/1837
Description: LL.M. , Organisations are being placed under increased pressure by means of new laws, regulations and standards, to ensure that adequate information security exists within the organisation. The King II report introduced corporate South Africa to the concept of information security in 2002. In the same year the Electronic Communications and Transactions Act 25 of 2002 addressed certain technical information security issues such as digital signatures, authentication, and cryptography. Therefor, South Africa is increasingly focussing its attention on information security. This trend is in line with the approach taken by the rest of the international community, who are giving serious consideration to information security and the governance thereof. As organisations are waking up to the benefits offered by the digital world, information security governance is emerging as a business issue pivotal within the e-commerce environment. Most organisations make use of electronic communications systems such as e-mail, faxes, and the world-wide-web when performing their day-to-day business activities. However, all electronic transactions and communications inevitably involve information being used in one form or another. It may therefor be observed that information permeates every aspect of the business world. Consequently, the need exists to have information security governance in place to ensure that information security prevails. However, questions relating to: which organisation must deploy information security governance, why the organisation should concern itself with this discipline, how the organisation should go about implementing information security governance, and what consequences will ensue if the organisation fails to comply with this discipline, are in dispute. Uncertainty surrounding the answers to these questions contribute to the reluctance and skepticism with which this discipline is approached. This dissertation evolves around the legal implications of information security governance by establishing who is responsible for ensuring compliance with this discipline, illustrating the value to be derived from information security governance, the methodology of applying information security governance, and liability for non-compliance with this discipline, ultimately providing the reader with certainty and clarity regarding the above mentioned questions, while simultaneously enabling the reader to gain a better understanding and appreciation for the discipline information security governance. The discussion hereafter provides those who should be concerned with information security governance with practical, pragmatic advice and recommendations on: (i) The legal obligation to apply information security; (ii) Liability for failed information security; (iii) Guidelines on how to implement information security; and (iv) A due diligence assessment model against which those responsible for the governance and management of the organisation may benchmark their information security efforts.
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