Les opérateurs économiques sont confrontés à un fort accroissement de la concurrence combiné à des préoccupations sociales et environnementales désormais devenues indispensables. De ce constat, il semble que la performance qu’elle soit de type économique, social ou environnemental, soit devenue une valeur intrinsèque qui s’intègre ponctuellement à des obligations, ou engendre des obligations. Elle sera parfois extérieure au contrat et imposée par le droit lui-même. En ce sens, le législateur impose que la rémunération de certains dirigeants de sociétés soit obligatoirement indexée sur des critères de performances. Mais la performance sera parfois interne au contrat et constituera un élément essentiel pour ce dernier. Ces manifestations traduisent un mouvement d’ensemble rendant nécessaire la construction d’une réflexion juridique sur la performance, prisme de lecture devenu inévitable et particulièrement crucial. En dépit de l’attrait de la quête de performance, le droit est à la recherche d’un point d’équilibre de nature à permettre un développement économique dans les meilleures conditions, adossé au respect de l’environnement, naturel, humain, voire sociétal. C’est dans cette perspective que la dynamique de cette étude est construite. Elle appréhende la performance comme le fait d’atteindre un objectif, avec des moyens et des méthodes efficientes, tout en limitant les pertes financières et les effets néfastes. La performance est la nouvelle clé de lecture de la vie en société, et le droit des affaires s’impose à cet égard comme l’un des premiers relais / Economic operators are facing a sharp increase in competition combined with social and environmental concerns that have become of the essence. From this observation, it seems that the performance, be it economic, social or environmental, has become an value that is part of obligations, or creates itself obligations. It will sometimes be outside the contract and imposed by the law itself. In this sense, the legislator requires that the remuneration of certain companies executives is compulsorily indexed on performance criteria. But the performance will sometimes be internal to the contract and will be an essential element for the latter. These events reflect an overall movement making it necessary to construct a legal dissertation on performance, a new reading prism that has become inevitable and particularly crucial. Despite the attractiveness of the quest for performance, the law is seeking a point of balance likely to allow economic development in the best conditions, backed by respect for the environment, natural, human, even societal. It is in this perspective that the dynamics of this study is built. It understands performance as achieving a goal, with efficient means and methods, while limiting financial losses and adverse effects. Performance is the new key to reading life in society, and business law is one of the first relays

Includes bibliographical references. / The essential purpose of this study is to assess the effect of action by the State, both legislative and judicial, on the value and utilisation of land and buildings; it does not set out to provide a general statement on the principles of land economics. The boundaries of the subject matter have been established by problems arising in the professional practice of a property economist in South Africa, rather than on any a priori basis. The title "Economic and Legal Aspects of Real Estate with particular reference to South Africa", may imply a broader examination than has in fact been made. At the outset therefore it must be stated that there are other matters which might well have been embraced by such a title, but which were not objectives of this study - for example the policy of successive governments towards the utilisation of land by Non-Whites.

This paper utilizes a short-term event study to analyze the stock price reaction of domestic and foreign M&A target firms to the 2014, 2015, and 2016 Treasury regulatory announcements aimed at restricting corporate tax inversions. The results suggest that domestic M&A target firms experience insignificant abnormal returns as a result of the Treasury overlooking tax-favored acquisitions by foreign acquirers of domestic target firms with significant locked out earnings. Meanwhile, foreign M&A target firms experience insignificant abnormal returns associated with the ineffective 2014 and 2015 Treasury regulations and experience significant abnormal returns associated with the highly effective 2016 Treasury regulations. This paper contributes to the existing debate on corporate inversions by highlighting the common techniques used to escape the United States’ tax jurisdiction, as well as shedding light on a hidden inversion alternative that has been largely overlooked by the Treasury’s regulatory actions.

This dissertation will examine the current state of our common law in relation to its treatment of exemption clauses in contracts, and will focus on recent developments which may augur greater scope and a new approach to be taken in future for South African courts to ensure fairness and the promotion of substantive justice for contracting parties faced with such provisions. Whilst it is acknowledged that exemption clauses are considered to be an integral part of most contracts and are used to facilitate the efficient running of businesses, their continued use in standard form contracts have been viewed with judicial suspicion and scrutiny as the inherent nature of these clauses have the potential to operate unfairly against a contracting party by excluding their rights of recourse which they would have otherwise had at common law. Public policy has always been a benchmark against which potentially unfair contracts terms have been measured however, the advent of the Constitution has brought about a new meaning to be prescribed to public policy as the Constitutional Court has declared that it is now deeply rooted and informed by constitutional values of dignity, equality, freedom and more recently ubuntu which is to infuse the common law principles of contract. Despite these developments, the new meaning of public policy and the apparent elevation of the spirit of ubuntu as an overarching and founding constitutional value has not been fully utilised by courts in a manner which can effectively address these potentially unfair, one-sided and abusive exemption clauses by declaring them to be contrary to public policy. Notwithstanding legislative acknowledgement and the subsequent enactment of the Consumer Protection Act 2008 which has brought about greater regulation of unfair and unconscionable contract terms, it is argued that the testing of potentially unfair and abusive exemption clauses against the dictates of public policy and ubuntu in a constitutional context may provide the South African courts with a new approach to pursue greater substantive justice in respect of these notoriously problematic clauses. / Thesis (M.A.)-University of KwaZulu-Natal, Durban, 2012.

No abstract available. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.

Regulatory bodies must function properly in order for their duties to be performed. The performance of the regulatory body impacts the entire insolvency system. Academics have noted that the Master does not meet the standards of what is expected of an insolvency regulator. The Constitution requires that the power of the state be defined and regulated by the law to ensure the protection of the interests of society. State regulation must comply with the underlying values of the Constitution which also includes the protection of the interests of society. The state has a constitutional duty to protect societal interests, ensure that justice is promoted and ensure that just administrative action is achieved. The Master also has the requisite duty to protect societal interests. Academics have found that the objectives and outcomes of the regulation of insolvency law are still not in line with the Constitution and the values and principles it enshrines. Criticisms of the Master’s office include the lack of resources and institutional capacity, the lack of sufficient investigative powers and insufficient guidelines for the Master when applying their administrative discretion when appointing provisional insolvency practitioners. The lack of regulation of insolvency practitioners in South Africa has also been criticised which has a negative impact on the performance of the insolvency industry. Academics have proposed suggestions to reform the regulation of insolvency law in South Africa. However, none of these suggested proposals have been implemented as yet. The most recent development is the draft policy on the regulation of insolvency practitioners that has been submitted to NEDLAC in 2012. The policy aims to provide guidelines relating to the appointment of provisional insolvency practitioners. The policy also includes a code of conduct which insolvency practitioners must adhere to in order to be appointed as a provisional insolvency practitioner. The policy has the potential to provide sufficient guidelines to the Master when appointing insolvency practitioners. The precise guidelines in the policy reflect the need for transformation of the industry and the need for administratively fair decision making. Thus, the provisions of the proposed policy will be effective in countering the criticisms and transforming the insolvency industry and profession. Foreign jurisdictions have also encountered the problem of lack of regulation of insolvency practitioners. To circumvent this problem some foreign jurisdictions have made the recent development of adopting (or considered adopting) self-regulation or co-regulation of insolvency practitioners. In comparison to South Africa, they have made more progress towards improving the regulation of insolvency practitioners. The result of this is that South Africa is out of step with foreign jurisdictions. It is imperative that South Africa adopts reform initiatives to strengthen the regulation of insolvency law. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2014.

Self-driving cars are here. Once an advanced technology that seemed futuristic, they are now closer than most believe. Many of the largest automobile manufacturers are working on autonomous vehicle technology of their own. Perhaps most well-known, though, are the cars being developed by Tesla and Google. Both companies have well-developed prototypes of fully autonomous vehicles, meaning they require no human input or supervision, and Tesla has promised widespread, consumer availability of this technology in the next one to two years. Along with the availability of this technology to the public and transportation companies like Uber and Lyft, comes a need to establish a regulatory environment. Regulators need to contemplate a new, yet complex, technology with far-reaching implications and determine how best to regulate necessary components. In this paper, I plan to explicate and analyze the ethical impact of the proliferation of self-driving cars that regulators should consider when determining how they ought to regulate. I will do this by first clarifying any technical terms one might need to be familiar with as well as discussing some of the requisite considerations. Then, I plan to explore a some of the pitfalls regulators might be subject to as they navigate the associated complex issues. Finally, I will explain and analyze the likely benefits and potential risks resulting from roadways filled with autonomous vehicles.

Opération courante dans la vie des affaires, la restructuration est généralement traitée à travers des questions nombreuses et éparses dans différentes branches du droit. La thèse propose une approche globale afin qu’émerge une conception renouvelée de la restructuration en droit des affaires. L’étude a mis en lumière la nécessité de déconstruire et reconstruire la notion. La déconstruction se justifie par l’insuffisance des conceptions actuelles face au domaine de recherche choisi et à la diversification des outils de restructuration, ainsi que par la nécessité d’exclure définitivement un critère de définition fréquent mais inadéquat, les conséquences. La reconstruction a permis la mise en lumière des critères de la notion. Au sein des critères matériels, la notion de structure a été renouvelée pour mettre en évidence sa réalité plurielle et ses critères communs de caractérisation. La décision de restructurer et la modification induite par l’opération ont aussi été redéfinis ou précisés. Un critère fonctionnel y a été ajouté, la rationalisation de l’entreprise, mettant en lumière son nécessaire dynamisme dans un environnement en constant mouvement. Guidée par la recherche de réalisme, une notion renouvelée de la restructuration a alors été proposée. L’étude du régime juridique a ensuite mis en exergue, au-delà de son éclatement, un socle commun à travers deux standards : la transparence et la responsabilité sociale. Leur existence a pu être démontrée, et la question de leur application traitée. Si des progrès doivent encore être réalisés, l’évolution du droit semble favoriser la promotion de l’éthique et de l’humanisation au sein de ce régime juridique et du droit des affaires. / Restructuring is a routine part of business life and is generally dealt with through numerous and scattered questions in different branches of law. The thesis proposes a global approach so that a new conception of restructuring in business law emerges. The study highlighted the need to deconstruct and reconstruct the notion. The deconstruction is justified by the inadequacy of current concepts in relation to the chosen field of research and the diversification of restructuring tools, as well as by the need to definitively exclude a frequent but inadequate definition criterion, the consequences. The reconstruction made it possible to highlight the criteria of the concept. Within the material criteria, the notion of structure has been renewed to highlight its plural reality and its common characterization criteria. The decision to restructure and the change induced by the operation have also been redefined or clarified. A functional criterion has been added, the rationalization of the company, highlighting its necessary dynamism in a constantly changing environment. Guided by the search for realism, a renewed notion of restructuring was then proposed. The study of the legal regime then highlighted, beyond its fragmentation, a common basis through two standards: transparency and social responsibility. Their existence has been demonstrated, and the question of their application addressed. While further progress is still to be made, legal developments seem to promote the promotion of ethics and humanization within this legal regime and business law.

A atividade exercida pelos administradores de sociedades anônimas envolve a prática de uma série de atos de gestão não previamente ou exaustivamente definidos, estando sujeita, portanto, a uma margem de discricionariedade. Apesar das limitações impostas pela Lei e pelos Estatutos Sociais, ao administrador caberá, cotidianamente, escolher uma alternativa, dentre muitas possíveis, para cada negócio realizado pela companhia. A proposta deste trabalho é estudar a influência da regulação jurídica sobre as escolhas que são tomadas pelos administradores, mais precisamente o chamado dever de diligência, estudando, deste modo, como a escolha de determinados padrões de conduta pela regulação jurídica pode determinar a relação dos administradores com o risco empresarial e afetar a atividade econômica de um país. O estudo é conduzido em grande parte com a utilização da metodologia da análise econômica do direito, tendo em vista as frutíferas contribuições que as ferramentas de microeconomia podem trazer para construção de análises sobre os comportamentos de agentes econômicos. / The activity rendered by managers ahead of corporations contemplate series of acts not previously or thoroughly defined, being subjected, therefore, to a discretionary margin. Nonetheless all limits imposed by Law and by the company by-laws, a manager, every day, still should choose one alternative amongst many possible, for each company business. The purpose of this work is to study the influence of legal regulation over the choices made by company managers, more precisely about the duty of care, studying, in this sense, how certain behavioral patterns imposed by legal regulation can determine the relationship of company managers with business risks and, hence, affect economic activities in a country. The study is grounded in the methodology proposed by Law & Economics, considering all prolific contributions received by the microeconomic tools for the construction behavioral analysis of economical agents.

This paper examines the effect of Business Tax to Value-Added Tax Reform (B2V Reform) of 2016 on the tax burden and research and development activities of High and New Technology Enterprises (HNTEs) in China. The initial hypothesis is that the B2V reform decreases tax burdens and encourages R&D activities of HNTEs. After analyzing the data from the Shanghai Stock Exchange High and New Technology Enterprise Index, however, it is found that the Reform does not significantly affect either the tax burdens or the R&D activities. Subsequent research reveals several explanations for the discrepancy, including firms’ labor-heavy capital structures for which labor costs do not qualify for value-added tax deductions as well as the issue of unused tax deductions from fixed asset purchases. This study informs policy makers how to revise and improve the reform to benefit high-tech companies with labor-intensive capital structures and others with significant upfront investment costs.