When and why can parties escape from a contract on the ground that the price is unfair? This question is considered in a comparative and historical perspective in English and French law. The general rule in both systems is that the parties are free to determine the price and they are then bound by their contract. One well known exception in French law, which derives from Roman law, is Article 1674 of the Code civil which allows a vendor to rescind a contract for the sale of land if the price agreed in the contract is less than five-twelfths of the fair price. It is generally thought that there are no analogous rules in English law. However, the law on this subject is in fact considerably more complex and more colourful than this simple contrast would suggest. Numerous rules on unfair prices in contracts were created in French law by the legislature and the courts since the promulgation of the Code civil in 1804. In English law, courts intervened in contracts on the ground of an unfair price in a few instances in the nineteenth century. However, only the rule on unfair prices in salvage contracts has survived until today. In both systems, the policies of preserving family wealth, protecting weak parties and giving special treatment to certain parties for economic, political, social or cultural reasons underpin these rules. There are two principal conclusions. First, freedom of contract is much less extensive in French law than in English law. This is evident in the numerous rules on unfair prices in contracts in French law and in the primacy of the remedy of altering the price rather than rescission. Secondly, while in theory, French courts play a much less significant role than English courts in the development of law, the creation and abolition of certain rules on unfair prices in contracts by French courts shows that judicial creativity in French law can be much less constrained in practice than in English law.

Thesis (LLD)--Stellenbosch University, 2013. / Bibliography / ENGLISH ABSTRACT: Arbitration as a mode of dispute settlement has been growing steadily all over the world. The momentum for commercial arbitration in particular was provided by the 1985 UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”). Legislation based on the Model Law has been enacted in many countries. The arbitration laws of three of these countries, Kenya, Nigeria and Zimbabwe, are selected for consideration in this dissertation because of their common origins, similar statutes, similar problems, shared experiences, and their regional distribution. As the writer’s arbitration practice is based in Kenya, that jurisdiction is the primary, albeit not the only, source and foundation for this work, the focal point of reference and the citations from the law and practice incorporated in this research. The work consists of three chapters. Chapter one is a brief introduction and an overview of arbitration. This is followed by the statement of the research question, the justification for the research, methodology and the structure and content of the dissertation. Chapter two describes the legal and contextual framework for the investigation of the research questions in the selected jurisdictions of Kenya, Nigeria and Zimbabwe. Customary Law arbitration is included as a significant feature of African arbitration law. The UNCITRAL Model Law, the Arbitration Act, 1995 (Kenya), the Arbitration and Conciliation Act, 1988 (Nigeria), the Arbitration Act, 1996 (Zimbabwe), the Arbitration Act, 1996 (England), and the South African Draft Arbitration Bill are all used as legislative or statutory points of reference in the discussion of the research questions. Chapter 3 contains the main focus of the dissertation in which six recurrent arbitration problems in Kenya are discussed in the context of domestic arbitration. The research investigates (i) the illusiveness of consent as the basis for consensual arbitration (ii) jurisdictional challenges (iii) the procedural powers of the arbitral tribunal (iv) the disruptive effect of adjournments and postponements on the arbitral process (v) constraints on the granting of interim relief and (vi) the enforcement of the arbitral award. Original, creative and innovative proposals in response to these problems include: the express legislative recognition of the manifestation of consent in both the verbal and written forms of the arbitration agreement, the use of the constructive dispute resolution technique, statutory recognition of customary law arbitration, the use of an expedited arbitration procedure, the award of exemplary and punitive damages in arbitration, a code of sanctions to facilitate the arbitration process, and a simplified method of enforcement and execution of the arbitral award. The dissertation concludes with reflections on the future of arbitration in Africa, and the need for modernization and harmonization of arbitration laws for peaceful resolution of disputes and serious conflicts across Africa. The aim of this study is best illustrated by a short story: In the early nineties there was a man, untrained in any known discipline, who strutted court corridors, trade centres and market places, carrying a placard advertising himself to lawyers, traders and marketers as “An Arbitrator and Private Judge”. He attracted business, charged a handsome percentage fee on the value of the claim, was duly paid, until officialdom caught up with him and put paid to his burgeoning career as “Arbitrator-Judge”. But the reckless enthusiasm spawned by his wit and imagination, and the idiosyncratic practices in dispute resolution persisted and are manifest in Kenyan arbitration culture today. The need to remove bad practices, avoidable impediments, and inefficiency in the arbitration culture of Kenya in order to make its procedures and processes more efficacious, is the heart of this study. / AFRIKAANSE OPSOMMING: Arbitrasie as ‘n wyse van geskilbeslegting is wêreldwyd aan die toeneem. Die 1985 UNCITRAL Modelwetgewing insake Internasionale Kommersiële Arbitrasie het die momentum hiervoor gebied. Talle lande het vervolgens gereageer deur wetgewing geskoei op hierdie model te promulgeer. Die arbitrasiereg van drie lande, tewete Kenia, Nigerië en Zimbabwe, is vir doeleindes van hierdie proefskrif gekies op die basis van gemeenskaplike geskiedenis, soortgelyke wetgewing, soortgelyke probleme, gedeelde ervaringe en regionale verspreiding. Aangesien die skrywer se arbitrasie-praktyk in Kenia gebaseer is, word hierdie jurisdiksie as die primêre, alhoewel nie die enigste, bron en basis vir die navorsing gebruik. Die werk beslaan drie hoofstukke. Hoofstuk een verskaf ‘n kort inleiding tot en oorsig van die reg rakende arbitrasie. Dit word gevolg deur die navorsingsvraag, die rasionaal vir die navorsing, metodiek en die struktuur en inhoud van die proefskrif. Hoofstuk twee bied die regs- en kontekstuele raamwerk vir die ondersoek in die gekose jurisdiksies, nl. Kenia, Nigerië en Zimbabwe. ‘n Bespreking van gewoonteregtelike arbitrasie word ingesluit, aangesien dit ‘n belangrike deel van Arbitrasiereg in Afrika uitmaak. Die UNCITRAL Modelwetgewing, die Wet op Arbitrasie 1995 (Kenia), die Wet op Abitrasie en Konsiliasie 1988 (Nigerië), die Wet op Arbitrasie 1996 (Zimbabwe), die Wet op Arbitrasie 1996 (Engeland) en die Suid-Afrikaanse Konsepwet op Arbitrasie word gebruik as die statutêre basis vir die bespreking van die navorsingsvrae. Hoofstuk 3 handel met die hooffokus van die proefskrif. Ses probleme wat telkemale opduik in die konteks van plaaslike arbitrasies in Kenia, en wat as die navorsingsvrae geïdentifiseer is, word vervolgens bespreek. Hierdie probleme is (i) die ontwykendheid van toestemming as basis vir arbitrasie deur ooreenkoms; (ii) jurisdiksionêre uitdagings; (iii) die proseduele magte van ‘n arbitrasie tribunaal; (iv) die onderbrekende effek van verdagings en uitstelle van arbitrasie-verhore; (v) beperkinge op die verlening van tussentydse regshulp, en (vi) afdwinging en uitvoering van die arbitrasie-toekenning. Oorspronklike, kreatiewe en innoverende voorstelle as antwoord op hierdie probleme sluit in: die uitdruklike statutêre erkenning van toestemming tot arbitrasie in beide mondelinge en geskrewe vorms; die gebruik van konstruktiewe dispuutoplossingstegnieke; statutêre erkenning van gewoonteregtelike arbitrasies; die gebruik van ‘n versnelde arbitrasie-prosedure; die verlening van skadevergoeding in die vorm van ‘n strafbedrag; ‘n kode van sanksies om die arbitrasie proses te fasiliteer; en ‘n vereenvoudigde wyse waarop arbitrasie-toekennings afgedwing en uitgevoer kan word. Die proefskrif sluit af deur die toekoms van arbitrasie in Afrika te bespreek, asook die behoefte aan modernisering en harmonisering van arbitrasiereg ten einde geskille dwarsoor Afrika op ‘n vreedsame wyse te kan besleg.

The thesis answers the following research question: what is the extent of the influence of international law on the construction and application of corporate codes of conduct, what factors determine this influence and through which processes does it occur? The thesis uses a mix of methods: a content analysis study, used to measure the extent to which codes of conduct incorporate international labour standards and the degree to which they have changed over time in this respect; legal research on whether corporations can be liable for violating their codes and how this risk factors in the drafting of codes; and case studies of fifteen retailer corporations, which examine how their codes were created and how they are being applied. The study's findings show there is an influence of international law on the construction and, to a far smaller degree, on the application of codes. The creation and application of codes is a politicised and contested process and codes are based on international law principally due to the pressure exerted by trade unions and NGOs, but also due to reputational risk, commercial pressure and mimicry by corporations. This influence has been selective, with corporations applying provisions in their codes that protect the rights carrying the biggest reputational risks. These findings show the flaws in the current international framework for corporate accountability, which is based on self-regulation through codes and audits. They also raise issue of whether changes, such as a binding international treaty or the creation of more collaborative and inclusive programmes to oversee the application of codes, may be required in order to ensure wider respect for labour rights of workers.

LL.D. / Powers are granted to local authorities in South Africa by way of the specification of each power in the empowering legislation. The possibility has been mooted to change this way of empowerment to a specification of powers, combined with an additional general grant of powers to the effect that local authorities be authorized to do anything which may be required in order to perform their functions. Such a general form of authorization is in accordance with the situation in France and other continental systems as well as the majority of the federal states comprising the United States of America...

For several years, the literature has discussed whether a country’s particular economic circumstances should be taken into account in competition law and policy design. This thesis discusses whether economic growth should be considered as the guiding principle for Latin American Emerging Economies’ competition law and policy design. It specifically explains why having economic growth as competition policy’s guiding principle makes a difference in choosing superior rules and standards, among the large range of efficient rules. In order to explain how economic growth as a guiding principle has an impact on competition policy design, this thesis studies whether the analysis and application of the prohibitions and standards of abuse of dominance in emerging Latin American economies are appropriate, and why, having regard to economic growth, a different approach might be justified. To engage in the study of such questions this thesis centres on the regulation of dominance and the law governing abuse of dominance, in particular on predatory pricing and excessive pricing. After a careful analysis of such institutions, an optimal rule for the regulation of pricing abuses in these emerging economies is proposed. Similarly, having regard to economic growth as the policy’s guiding principle, the mainstream standards on excessive pricing and price predation are evaluated and a different approach is found to be justified. It is concluded that economic growth should be the principle guiding Latin American emerging economies’ competition law and policy design and it is demonstrated that this will grant these economies policy soundness and identity.

The impressive growth of antidiscrimination law in liberal democracies in the past few decades belies the inadequacy of the normative bases on which it has been sought to be justified. Popular ideals such as rationality, equality and dignity have been unsuccessful in providing a coherent liberal framework for the fundamental aspects of the practice of antidiscrimination law. In this thesis, I have argued that a unified normative framework comprising autonomy and dignity-as-autonomy does a markedly better job of justifying the most fundamental aspects of these laws. The ideal of personal autonomy is understood here as a principle that seeks to guarantee an adequate range of valuable options to individuals. Dignity-as-autonomy is understood to be an expressive norm, which forbids certain persons from expressing contempt for the autonomy of another. These ideals have different forms: autonomy is a non-action-regarding principle, while dignity-as-autonomy is action-regarding. They are also distinct substantively: it is often possible to violate one of them without affecting the other. When these ideals make incompatible demands, I argue that those made by autonomy should prevail. Mandating positive action and reasonable accommodation on the one hand, and prohibiting indirect discrimination and harassment on the other, are essential features of a model of antidiscrimination law based on this framework. Further, under this framework, antidiscrimination law is not vulnerable to objections such as ‘levelling down’ and responds well to claims of discrimination on ‘intersectional grounds’. Furthermore, it is not essential to find an ‘appropriate comparator’ in order to prove discrimination. This model also explains when, and under what conditions, can some forms of discrimination be ‘justified’. Finally, on an autonomy-based model, antidiscrimination law is only one of several complementary tools that should be employed to protect and promote personal autonomy.

This thesis looks into the law and policy implications of law-making within the EU in pursuit of the internal market, while protecting other interests such as those of consumers. The discussion concentrates in the field of services addressed to consumers and more specifically in harmonising at EU level the national liability rules governing their defective supply. This case study is developed on the following strands. Firstly, the withdrawal of the European Commission’s ‘Proposal for a Council Directive on the liability of suppliers of services’ [COM (90) 482 final] is examined from the following aspects: a) the political reactions which have preceded its withdrawal, b) its compliance with the constitutional principles governing the legislative process at EU level and c) the assessment of the substantive regime which it purported to establish. Secondly, having regard to a) the aftermath of the Proposal’s failure, b) the evolution of the constitutional debate concerning the existence, the nature and the exercise of EU competence to set harmonised rules and c) the law-making standards which the Union’s Institutions have set to self-restrict their regulatory power, the perspective of harmonising the liability of suppliers of services to consumers is further explored. Drawing on this case-study, this thesis examines the limits to EU law- making activity which are imposed by primary European law and also considers the policy standards which the EU has set for itself in engaging in its law-making commitments. This examination allows in turn the pursuit of broader reflections I about the law and policy factors which become crucial and deserve particular attention by the EU lawmaker when harmonising national rules governing market transactions – such as the liability for the supply of defective services – with a view to attaining and managing the internal market along with protecting other interests recognised at EU level, such as those of consumers.

This thesis explores the roles played by implied constitutional principles in fundamental rights cases in the common law jurisdictions of Canada, Australia, the Commonwealth Caribbean, and the United Kingdom. The two principles selected for this research are the separation of powers and the rule of law, both of which are relied upon in courts in common law states. The thesis examines the types of cases in which such principles are used, the possible reasons for the appeal of these principles, and the functions that they play in fundamental rights adjudication. The thesis begins with a brief discussion of the applications of the rule of law and the separation of powers, outlining the content of these principles as applied by the courts. However, the bulk of the analysis throughout the thesis is concerned with a thematic study of the functions played by the principles. It is argued that the principles are used as interpretative aids, as independent grounds for invalidating legislation, and as gateways to comparative legal analysis. The thesis ends by showing the necessary preliminary work that must be undertaken in order to engage in a thorough normative analysis of the use of implied principles in rights adjudication. Throughout the thesis, several themes are identified as key to our understanding of the functions played by implied principles in the cases discussed. One such theme is legitimization, specifically the role the principles play in the attempt to legitimize arguments, state institutions (particularly the courts), and the state itself. The theme of institutional self-protection also arises; it is evident in the use of principles to protect the jurisdictional sphere of the courts. The analysis of the operation of implied constitutional principles also highlights the legacy of Empire and the deployment of traditional principles to signal the maintenance of democratic traditions and institutions.

Le droit français des procédures collectives a connu pas mal de modifications ces dernières années. La profession d’administrateur judiciaire pour sa part, n'a également pas cessé d’évoluer avec des succès et des échecs qui ont attiré notre attention. Il s’agit d'examiner cette évolution pour la modernisation de la profession dans le contexte actuel de la mondialisation. En droit chinois il n’existait pas une vraie loi sur les procédures collectives au sens strict avant la publication de la nouvelle loi du 27 août 2006 sur la faillite d’entreprises. Par rapport à l’ancienne loi de 1986, la nouvelle loi adoptée après 12 ans d’élaboration, est venue apporter des changements importants et constitue un effort majeur pour constituer un système juridique correspondant au développement vers une économie de marché. Parmi de nouveaux régimes établis par la nouvelle loi 2006, nous notons que la mise en place du régime d’administrateur de faillite est un des plus remarquables. Toutefois étant un régime établi dans le droit de la faillite, qui lui- même est apparu assez récemment, le dispositif ne peut que fournir un cadre juridique pour l’administrateur de faillite. Pour autant, la recherche sur l’administrateur de faillite, s’investissant d’un rôle très important, dans les procédures collectives chinoises est sans aucun doute un sujet nécessaire et urgent. Espérant pouvoir faire progresser le régime chinois d’administrateur judiciaire vers une profession libérale juridique en s'inspirant de l’expérience française, nous traitons successivement la nature juridique de l’administrateur judiciaire du point de vue historique et de droit positif, les conditions d’accès aux fonctions d’administrateur judiciaire, ainsi que sa rémunération, ses fonctions, et sa responsabilité en droit français et en droit chinois. / In the last years, the French and Chinese Bankruptcy law has been quite changed. So has the profession of « Judicial administrators » (administrateurs judiciaires), with more or less success. Both the successes and failures of these changements have drawn our attention. Our scope is to analyse the evolution of this profession in the perspective of its modernisation in the today's context of a global economy. There was no specific Chinese Bankruptcy law until the publication of the new law of August 27th 2006 on Enterprise Bankruptcy. The new law which has been prepared for 12 years has brought some remarkable improvements to the existing law of 1986 and has been a major effort to build up a complete legal system in line with the modern open market economy. One of the most remarkable features of the new 2006 law has been the implementation of the « Judicial administrators » profession. Nevertheless, the « Judicial administrators » profession, who was established within the Bankruptcy Law, which has itself been defined quite recently, must only be considered but as an initial framework for the profession. Yet, as the « Judicial administrators » plays an important role in the Bankruptcy Law, making research on this subject appears to be both necessary and urgent. Our hope is to help transforming the « Judicial administrators » profession into a « liberal profession », similarly to their equivalents in the French system. We therefore analyse successively the juridical nature of the profession, from an historical point of view and in the perspective of the « effective law » (droit positif), the access conditions to this profession, its remuneration, the involved functions and responsibilities in both the French and Chinese law.

strana 259 Unjustified Enrichment in the Comparative Perspective Abstract The aim of the thesis is the legal research of important results concerning unjustified en- richment that have been attained in foreign jurisprudence and judicial opinions, especially within the German legal family, and their comparative application to all provisions of the New Czech Civil Code ("NCC") regulating unjustified enrichment, including their rela- tion to other parts of civil law. The thesis thus draws extensively from Austrian and Ger- man jurisprudence and case law, from the Draft Common Frame of Reference, from Swiss law and from comparative literature; further legal orders are also mentioned and a refined translation of relevant foreign provisions is included in the appendix. The thesis does not include a mere description, but rather follows the interests of Czech law and aims to make a contribution to Czech jurisprudence and application the of law. Accord- ingly, the thesis is also founded on complete research of the Czech Supreme Court case law made in and after 2010. The thesis comes to a number of conclusions (summarized in the itemized resumé) which may be deemed for original from the point of view of the Czech legal discourse. These conclusions corroborate the hypothesis that the Czech law of unjustified...