Magister Legum - LLM / The global financial crisis resulted in a corporate collapse in different parts of the world. The global financial crisis was caused by poor governance. Consequently many countries, including South Africa, began to place more emphasis on good governance. The framework and guidelines for the development of good governance in South African company law was published by the Department of Trade of Trade and Industry (hereafter DTI) in a document referred to as The South African Company Law for the 21st Century: Guidelines for Corporate Law Reform (hereafter the DTI Policy Document) published by the DTI. The DTI Policy Document recognised the need for a regulatory framework within which enterprises operate to promote growth, employment, innovation, stability, good governance, confidence and international competitiveness. In order to further develop governance, the effectiveness of directors’ standards as well as the liability of directors was also said to have developed. Prior to the development of South African corporate law, liability of directors was to a large extent governed by the common law and the King Codes, despite the existence of the Companies Act 61 of 1973 (as amended). As of the 1st of May 2011, corporate law in South Africa appears to have dramatically changed the duties and liabilities of directors. The 1st of May 2011 marked the implementation of Companies Act 71 of 2008 (hereafter the Act). The Act is written in plain language in an attempt to make it more accessible and align it with international trends. The Act has also theoretically changed the roles and duties of directors as well as the liability that they may face in that it potentially changes the existing common law and alters policies and philosophies of corporate law in general. The Act partially codifies the common law and introduces the business judgement rule to South Africa. The business judgment rule will draw a balance between the directors’ ability to steer a company and the shareholders' right to hold directors accountable for their decisions. It is perceived as a mechanism that can be used to balance the tension between these opposing rights.

The need for regulation of the credit rating agencies (CRAs) arose due to their role in the subprime mortgage crisis. The CRAs awarded risky securities '3-A' investment grade status and then failed to downgrade them quickly enough when circumstances changed which led to investors suffering substantial losses. The causes identified by the regulators for the gatekeeper failure were conflicts of interest (as the issuers of these securities pay for the ratings); lack of competition (as the Big Three CRAs have dominated the market share); and lack of CRA regulation. The regulators, both in the US and EU, have tried to address these problems by introducing soft law self-regulation in accordance with the International Organisation of Securities Commissions Code and hard law statutory regulation such as that found in the "Reform Act" and "Dodd-Frank Act" in the US and similar provisions in the EU. This thesis examines these provisions in detail by using a doctrinal black-letter law method to assess the success of the regulators in redressing the problems identified. It also examines the US case law regulation relating to the legal liability of CRAs. The findings are that the US First Amendment protection, exclusion clauses and case law, all lack a deterrent effect on the actions of CRAs. As CRAs have escaped substantial damages, investors are left uncompensated for their losses. The thesis concludes that the issues of conflicts of interest and an anti-competitive environment persist. This thesis recommends the introduction of liability for the CRAs based on the Australian Bathurst case and which should be put in a statutory footing, including the requirements that are needed for making exclusion clauses effective. Rotation of CRAs for every three years would minimise the conflicts of interest. Regulators should require CRAs to purchase professional indemnity insurance, if available, to compensate investors.

This study investigates the knowledge that legal practitioners use to solve authentic practical legal problems in naturalistic settings. The study examines the declarative and procedural knowledge that practitioners use in that context and whether experienced practitioners use knowledge organised in encapsulated and script form (Boshuizen & Schmidt, 1992; Schmidt, Norman, & Boshuizen, 1990) to enable ‘expert’ performance. The purpose of the study is to provide an empirically-based understanding of the knowledge used in solving real-life practical legal problems, for the information of the providers of practical legal training in Australia and other common law countries. The providers of that training use assumptions about that knowledge and how it is acquired, which do not always rest on coherent theoretical or empirically-derived foundations. The study uses the lawyering literature to identify the knowledge such literature considers is required to solve practical legal problems in lawyer and client interview settings. The study also examines the assumptions about the nature of that knowledge, and how it is acquired, which are apparent in the approaches of the providers of practical legal training. The limitations of those assumptions are identified from a cognitive perspective. The study examines cognitive conceptions of the knowledge used in problem solving in particular fields and how that knowledge becomes proceduralised and organised into structures called chunks and schemas. A particular examination is made of cognitive theories developed in the field of medical problem solving, which use the concepts of ‘encapsulations’ and ‘illness scripts’ to explain ‘expert’ performance in diagnosing disease in clinical settings. This analysis is used to synthesise the prediction that experienced legal practitioners may develop and use structures similar to encapsulations and illness scripts in problem solving. This prediction is based on the similarities between the way medical practitioners and legal practitioners are educated and trained, and are taught to solve problems using a hypotheticodeductive method (or a domain variant in the case of law), and on the similarities between clinical settings and lawyer and client interview settings. The study also examines theories that explain human problem solving by reference to a metaphorical ‘problem space’, and synthesises the prediction that practical legal problem solving can be explained by a problem space theory that was developed to accommodate complex, ill-defined problems. That theory uses the concepts of a problem zone to reflect the ill-defined nature of the problem as presented to the problem solver, a search and construction zone to reflect the phenomenon that the problem solver will have to construct operators to use to solve the problem, and a satisficing zone to reflect the phenomenon that there will be no single unambiguous solution to the problem (Middleton, 1998). The study uses the lawyering literature to identify the characteristics of practical legal problems in a lawyer and client interview setting. The cognitive literature is used to identify the cognitive conceptions that correspond to those characteristics. It is argued that these problems are complex, ill-defined problems that have to be found by the problem solver using weak problem solving strategies such as problem decomposition, attribute identification and means-ends analysis (Simon, 1973; Dillon, 1982; Newell, 1980). Based on these predictions two research questions are developed as follows: How do legal practitioners find and construct practical legal problems? Are there differences in the knowledge that experienced legal practitioners use and that which novice practitioners use? Do those differences reflect differences in the individual practitioner’s underlying knowledge and how that knowledge is organised? These questions are investigated in four case studies. Two of these studies involve experienced legal practitioners and two involve novices. These studies reveal that all the subjects used similar general problem solving strategies to find and construct problems. The subjects all constructed a series of problems rather than one large problem. The subjects did not all find and construct the same problems and some subjects’ constructions of problems changed as new information came to light. Most subjects did not finish the construction of problems at the interview. The processes that the subjects use to construct problems can be explained by Middleton’s (1998) problem space model, although this study suggests that model needs to be modified to accommodate the on-going emergent character of practical legal problems as they occur in lawyer and client interview settings. The investigation revealed qualitative differences between the problem attributes and moves that the experienced subjects identified and those that the novices identified. In summary, the experienced subjects identified attributes and moves that were more detailed, more directly related to the ‘facts’ and more concrete than those that the novices identified. Both the experienced subjects and the novices appeared to rely on recognition (Newell & Simon, 1972) to identify problem attributes and moves rather than on any apparent step-by-step legal analysis and reasoning process. This study suggests that the superior performance of the experienced subjects may be explained by their use of knowledge in encapsulated and script form, as predicted. The study discusses the implications of its findings for practical legal training courses as a need to provide students with general problem solving knowledge, provide them with the knowledge that they will need to recognise problems in specific areas of practice, to help them start to develop knowledge in encapsulated and script form, and to develop an understanding of the limits of institutional training in developing professional expertise.

No description available.

No description available.

Zugl.: Trier, Univ., Diss., 2001/02 u.d.T.: Becker, Rainer: Die fiducie des neuen Code civil von Québec

Thesis (Ph. D.)--University of Hong Kong, 1997. / Includes bibliographical references (leaf 405-424).

Master-Arbeit Univ. St. Gallen, 2009.

Master-Arbeit Univ. St. Gallen, 2009.

Proefschrift. / Met lit. opg., reg. - Met samenvatting in het Nederlands.