Thesis (MBA)--Stellenbosch University, 2006. / The African Growth and Opportunity Act (AGOA) was signed into law in May 2000 by President Clinton to allow sub-Saharan countries to export designated products duty-free into the US. AGOA is a temporary measure that is non-reciprocal and not negotiated by the participating parties. The initiative was launched to liberalise the markets of developing countries on the road to become integrated in the global economy. The initial success of AGOA was limited, with only a few countries making use of AGOA to increase their exports into the US markets. Problems encountered were high levels of protectionism from the US and the existence of technical trade barriers (including sanitary measures in agriculture) and nontariff barriers (including quotas). African countries are using shipment as the main transport for exports, and the US barred transshipment due to corruption that occurred in the past. The AGOA also made provision for 'special provisions' measures to enable AGOA eligible countries to export apparel and textile to the US. The export of apparel was very successful until the Multifibre Agreement expired in 2005, leading to relocation of apparel factories to lower cost bases. The real beneficiaries from AGOA are oil-exporting countries that make up more than 90% of total AGOA benefits. South Africa is the only country who succeeded in diversified AGOA exports. AGOA has been supplemented by AGOA II (extending the product range) and AGOA III (extending the expiry date to 2015). After the EU-SA Free Trade Agreement has been concluded in 1999, the US started with FTA negotiations with the South African Customs Union (SACU) to improve the exposure of US products to the SACU market and to decrease the trade deficit. However, the agenda of the FTA negotiations included second generation issues of intellectual property rights, trade in services, investment and government procurement. The SACU negotiators learnt some lessons from the EU-SA FTA and progress was slow. The extension of AGOA to 2015 saw a decrease in the urgency of striking a SACU-US FTA. Negotiations slowed down and the decision was made in April 2006 to conduct talks on a lower level. This breathing time can be used by the SACU negotiators to develop an aggressive offensive strategy for future negotiations, and to build competency against the efficient and offensive US negotiators. The US-SACU FTA must still be pursued to ensure that the benefits of AGOA are locked in. It will be beneficial for SACU if the different needs for all the SACU countries are addressed and the negotiations are done in incremental steps .

Thesis (MBA)--Stellenbosch University, 2007. / ENGLISH ABSTRACT: The SACU bloc, which accounts for one-half of the subcontinent's GDP, is the largest market for the US exports in SSA (Langton, January 2005). Wide differences exist among the economies of SACU - while SA has developed a significant manufacturing and industrial capacity, the other countries remain dependent on agriculture and mineral extraction. The grouping is dominated by SA, which accounts for 87% of the population, and 93% of the GDP of the customs area. SACU member states had a combined real GDP of $201bn in 2003. Services made up 65% of SA Trade in 2003 and had become a major player. In 2003, SACU was the 32nd largest trading partner of the US with two-way trade equivalent \ $7.3bn. Merchandise imports from SACU totaled $5.6bn in 2003, a 17.3% increase from 2002 and a 126% increase from 1996. They were composed of minerals such as platinum, diamonds, and titanium, textiles and apparel, vehicles, and automotive parts. Major US exports to the region include aircraft, vehicles, computers, and construction and agricultural equipment. Services trade between the US and SA has increased dramatically for both countries, with US exports increasing 154% and service imports from SA increasing by 383% respectively since 1992. The stock of US FDI in SA totaled $3.9bn in 2003 and was centered around manufacturing chemicals and services. The main economic objective of FTAs is to reduce trade barriers between member countries and liberalize trade and investment rules (Kanoute, November 2005). This improves market access which is the key to foreign export earnings and investment. But market access is a door that swings both ways, opening local markets to a flood of imports. This can undermine domestic production and employment, and thus exacerbate poverty. Some US civil society organizations have expressed concern that a SACU FTA could have negative consequences for poor Southern Africans, citing potential adjustment costs for import-competing farmers, poor enforcement of labour rights, privatization of utilities, and increased restrictions on importing generic drugs to treat HIV/AIDS (Langton, January 2005). The proposed FTA is ambitious, especially given the tight deadline and the broad range of topics on the negotiating table (Zunckel, Tralac). These include not only tariffs on goods, as is traditional in trade talks, but the wider global economic panoply of agriculture, rules of origin intellectual property, trade in services, investment, government procurement, trade remedies, labour, environmental standards and trade dispute settlement. The US gains reciprocity by gaining improved access to the SACU market than it currently enjoys under AGOA. The IP and "TRIPS plus" provisions are of particular concern to consumers (www.tralac.org.) Ongoing developments at the multilateral level bode against the advisability of entering into binding bilateral agreements with less favourable provisions on essential medicines. Foreign investment could lead to greater industrialization within SACU and competition within local industry, boosting efficiency. But safeguards and industrial policy must be utilized effectively to protect the region's developmental goals. Reliance on domestic courts as the forum of first instance (and state-to-state dispute settlements should those fail) is preferable, as it allows greater possibilities of defending the public interest of SACU citizens over investors' interests (Langton, January 2005). Reaching consensus on negotiating strategy in SACU is no easy feat. Formal negotiations began in June 2003, but talks have made little progress over the past years. The interests of the five different countries, at differing stages of development, have to be reconciled (Draper. 2004). No doubt SA, with its diverse array of interests relative to its BLNS partners in the customs union, will drive this. SACU negotiators, in common with those in many developing countries, have great difficulty in understanding, let alone mobilizing, their services sectors. Hence they have adopted a defensive posture, favouring liberalization only in those (few) sub-sectors that are well understood. SACU has formally accepted an offer made by the US to progress a so-called trade and investment cooperation agreement (TICA). Prior negotiation will be needed among SACU countries, who clearly have an interest in coordinating its negotiation with other US bilateral negotiating partners (Whalley & Leith, December 2003).

Doctorat en sciences sociales, politiques et économiques / info:eu-repo/semantics/nonPublished

The analysis of non-discrimination under Article III of GATT has shown weakness or flaws throughout more than fifty years. The language used by GATT/WTO panels and the Appellate Body in interpreting the two prongs of non-discrimination in the national treatment clause, namely, likeness and protection, lagged behind economic reality. The critical legal analysis carried out in here reveals, to some extent, this while offering a clearer and sounder analysis to non-discrimination based more on market analysis and its economic indicators. / Doctorat en droit / info:eu-repo/semantics/nonPublished

Thesis (MA)--University of Stellenbosch, 2002. / ENGLISH ABSTRACT: In October 1999 South Africa and the European Union (EU) signed a free trade agreement, the Trade Development and Co-operation Agreement (TDCA), which came into effect on 1 January 2000. The TDCA was developed to enhance bilateral trade, economic-, political- and social cooperation and consists of three components - the creation of a Free Trade Area between South-Africa and the EU, EU financial aid to South Africa through the European Programme for Reconstruction and Development (EPRD), and project aid. However, the EU, in an effort to secure the best possible deal for itself, often behave in its own interests (through the manipulation of the Wine and Spirits Agreement) during the negotiations for the TDCA. The goal of this study was to establish what exactly trademarks are, and what implications the EU's protection of intellectual property rights on wine and spirits trademarks will have on i) the South African wine industry, ii) whether South Africa could have exercised another option, iii) whether this action has created a precedent with which the EU can, in future, again force South Africa or any of its other developing trade partners to make concessions, and iv) who gains the most from the TDCA. The concludes that the EU, through the manipulation of the Wine and Spirits Agreement, left South Africa with no choice by to concede the use of the contested trademarks - something that has already taken its toll on the South African wine industry - in order to save the TDCA. This action created a precedent that the EU will, in future, again be in a position to threaten developing countries with the termination of an agreement should they fail to comply with its demands. Finally, the conclusion is made that even though the TDCA was created to assist South Africa with its reintegration into the world market, it will ultimately be the EU that benefits most from the agreement. / AFRIKAANSE OPSOMMING: Suid-Afrika en die Europese Unie (EU) het in Oktober 1999 In vryehandelsooreenkoms, die Trade Development and Co-operation Agreement (TDCA) onderteken, wat op 1 Januarie 2000 in werking getree het. Die TDCA is ontwerp om bilaterale handel-, ekonomiese-, politieke- en sosiale samewerking te bevorder en bestaan uit drie komponente, naamlik die skep van 'n vryehandelgebied tussen die EU en Suid-Afrika; finansiele steun deur die EU aan Suid-Afrika onder die European Programme for Reconstruction and Development (EPRD) en projekhulp. Die EU het egter dikwels in eiebelang opgetree (deur middel van die manipulasie van die Wyn- en Spiritus Ooreenkoms) tydens die onderhandelingsproses in 'n poging om die beste moontlike ooreenkoms vir homself te beding. Die doel van hierdie studie was om te bepaal wat presies handelsmerke is, en watter implikasies die EU se beskerming van intellektuele eiendomsregte aangaande wyn- en spiritushandelsmerke op i) die Suid-Afrikaanse wynbedryf sal he, ii) of Suid-Afrika 'n ander opsie kon uitoefen, iii) of hierdie aksie In presedent geskep het waarmee die EU Suid-Afrika of enige van sy ander ontwikkelende handelsvennote in die toekoms weer sal kan dwing om toegewings te maak, en iv) wie die meeste baat vind by die TDCA. Die studie het tot die gevolgtrekking gekom dat die EU deur die manipulasie van die Wyn- en Spiritus Ooreenkoms aan Suid-Afrika geen keuse gegee het nie as om die gebruik van die betwiste handelsmerke op te se - iets wat reeds die Suid-Afrikaanse wynbedryf geknou het - in 'n poging om die TDCA te behou. Hierdie optrede skep 'n presedent dat die EU voortaan in onderhandelings met ander ontwikkelende state weer kan dreig om die hele ooreenkoms te verongeluk indien daar nie aan sy eise voldoen word nie. In die laaste instansie is daar tot die gevolgtrekking gekom dat, alhoewel die TDCA daarop gemik was om Suid-Afrika te help met sy herintegrasie tot die wereldmark, dit uiteindelik die EU is wat die meeste daarby gaan baat.

At the dawn of democratic rule in the period 1994–1998, South Africa concluded 15 bilateral investment treaties (BITs), mostly with European nations. Some of these treaties were concluded before the Constitution of 1996. The country has since concluded a total of 47 BITs, with the majority not in effect as they were not ratified per the required constitutional processes. The policy decision to enter into BITs was taken by the African National Congress (ANC) government, led by the late former state president Nelson Mandela. The BITs were seen as an important guarantee to attract foreign investment into the country. The aim was to provide added assurance that foreign investments were safe in a democratic South Africa after many years of international isolation and sanctions. The conventional wisdom at the time was that BITs would increase foreign investor appetite to invest and the country would experience rising levels of foreign direct investment (FDI) as a result. This would facilitate economic growth and the transition of the country into the global economy. South Africa concluded BITs with seven of the top ten investor countries. In October 2013 the South African government cancelled a number of BITs with these European countries invested in South Africa. These countries – namely Belgium, Luxembourg, Spain, Switzerland, Germany and the Netherlands – complained of lack of consultation by the South Africans. On 1 November 2013 the Minister of Trade and Industry published, in Government Gazette No 36995, the Promotion and Protection of Investment Bill (PPIB or Investments Bill) as the proposed primary legislative instrument for the protection of foreign investments. This created much uncertainty among many European nations as well as in the United States of America (US), who were concerned about the motivation for cancelling bilateral treaties in favour of domestic legislation. BITs had been a part of the policy instruments regulating foreign investments in the country for over 20 years. Globally these treaties have been used to regulate foreign investments in a number of areas, and to provide protection to investments such as full protection and security, guaranteed pre-establishment rights, ease of repatriation of funds, most-favoured nation, fair and equitable treatment, national treatment and efficient dispute settlement mechanisms, among other provisions. In most cases international arbitration via the International Centre for the Settlement of Investment Disputes (ICSID) and other international arbitral mediums has been a standard provision in the treaties. This has allowed foreign investors to bypass host countries’ legal systems. The latter is believed to be a significant inducement for foreign investors, guaranteeing that should a dispute arise, or if an expropriation occurs, the investor could institute an international arbitral process against the host government. International arbitration is preferred by foreign investors for the reason that, in some cases, domestic courts may lack independence from the state, and may make partial rulings that do not protect investors. Furthermore, international arbitration processes are more efficient and produce rulings faster than domestic courts, which are usually burdened with bureaucratic procedures and limited resources. In cases where delay exacerbates injury, prompt resolution of disputes is preferable. This study evaluates the Investments Bill and the rationale applied by the government of South Africa to cancel BITs with major trade and investment partners in favour of this legislation. The thesis focuses on the Investments Bill, in light of the objective provided by the Department of Trade and Industry (DTI) for its enactment to law. The Investments Bill is subjected to a constitutional analysis to determine its compliance therewith. Comparisons are also made between the Investments Bill provisions and the prevailing international law principles on foreign investments. The Investments Bill is then critically evaluated against emerging trends on FDI regulation on the African continent to determine its congruence or lack thereof with best practice recommendations at regional economic community (REC) and African Union (AU) level. The thesis concludes with a set of policy recommendations to the DTI on how to improve South African policies related to the regulation of foreign investments taking into account the national imperative as well as Southern African Development Community (SADC) and other broader African continental objectives of harmonisation of FDI regulation, including the Tripartite Free Trade Area (FTA) implementation. The timing of this thesis is significant for South Africa. It adds to various deliberations that are taking place as the Investments Bill is set to makes its way through the legislative approval processes in 2015. The Bill has been met with opposition from some segments of society. Others have expressed support – including several state departments, the ANC, the South African Communist Party (SACP) and other political formations. The summary of findings contained in the thesis will be presented to the DTI to influence policy directions of the state in terms of foreign investment regulations. Should the Bill be enacted, the Minister of Trade and Industry is required to promulgate the dispute resolution mechanism that will govern investment disputes. The findings of this study will be important to the determination of how such dispute resolution mechanisms may function. Furthermore, in 2010 Cabinet instructed the DTI to develop a model new-generation BIT Template to be utilised by South Africa, should a compelling reason arise to enter into bilateral agreements. The research results will assist policy-makers to develop policies that are consistent with and align with the overarching Africa strategy that has been heavily promoted by South Africa. The country faces a number of challenges, particularly those related to low economic growth, high levels of poverty, unemployment and record levels of inequality. The gap between the rich and poor, in terms of the Gini coefficient, was 0,67 based on the World Bank Development Research Group Report of 2010. It is reported as one of the highest in the world and is believed to have worsened since the dawn of democracy. / Public, Constitutional and International Law / LL. D. (Public, Constitutional and International Law)

Foreign investments in SADC are regulated by Annex 1 of the SADC Protocol on Finance and Investments (SADC FIP), as well as the laws of SADC Member States. At present, SADC faces the challenge that this regime for the regulation of foreign investments is unstable, unsatisfactory and unpredictable. Furthermore, the state of the rule of law in some SADC Member States is unsatisfactory. This negatively affects the security of foreign investments regulated by this regime. The main reasons for this state of affairs are briefly explained below. The regulatory regime for foreign investments in SADC is unstable, due to recent policy reviews and amendments of key regulatory instruments that have taken place. Major developments in this regard have been the suspension of the SADC Tribunal during 2010, the amendment of the SADC Tribunal Protocol during 2014 to bar natural and legal persons from access to the Tribunal, and the amendment of Annex 1 during 2016 to remove investor access to international investor-state arbitration, better known as investor-state dispute settlement (ISDS). The regulation of foreign investments in SADC has been unsatisfactory, among others because some SADC Member States have failed or neglected to harmonise their investment laws with both the 2006 and the 2016 Annex 1. Furthermore, SADC Member States such as Angola, Democratic Republic of Congo (DRC), Malawi, Mauritius, Seychelles, Eswatini, Tanzania, Zambia, and Zimbabwe have multiple Regional Economic Community (REC) memberships. This places these Member States in a position whereby they have conflicting interests and treaty obligations. Finally, the future of the regime for the regulation of foreign investments in SADC is unpredictable, due to regional integration efforts such as the recent formation of the COMESA-EAC-SADC Tripartite Free Zone (T-FTA) and the African Continental Free Trade Area (AfCFTA). The T-FTA is entitled to have its investment protocol, while the AfCFTA investment protocol will be negotiated from 2018 until 2020. These developments entail that the 2016 Annex 1 will soon be replaced by an investment protocol at either the T-FTA or AfCFTA levels, thereby ushering a new regime for the regulation of foreign investments in SADC. The unknown nature of the future regulations create uncertainty and instability among foreign investors and host states alike. This study analyses the regulation of foreign investments in terms of Annex 1 and selected laws of SADC Member States. In the end, it makes the three findings mentioned above. In order to address these findings, the study makes four recommendations. The first is that foreign investments in SADC must be regulated at African Union (AU) level, by means of an AfCFTA investment protocol (which incidentally is now the case). Secondly, investor-state disputes must be referred to the courts of a host state, optional ISDS, the African Court of Justice and Human Rights (ACJ&HR) or other agreed forum. Thirdly, an African Justice Scoreboard (AJS) must be established. The AJS will act as a gateway to determine whether an investor-state dispute shall be referred to the courts of a host state, ISDS, the ACJ&HR or other forums. Fourthly, the office of an African Investment Ombud (AIO) must be created. The AIO shall facilitate the early resolution of investor-state disputes, so as to reduce the number of disputes that may end-up in litigation or arbitration. / Mercantile Law / LL. D.