The application of anti-dumping and countervailing measures has always been controversial, particularly, as they do not address the issue of the level of local value added in the production process. Are these measures simply industry assistance measures under another guise, or are they to protect the 'fair trade' framework to further the opportunity for free trade? All the indications are that these measures reflect the former option. However, the global political climate as represented through the GATT and now the WTO Agreements is to tolerate the imposition of both anti-dumping and countervailing measures provided they are applied according to the provisions of the Agreements. It is becoming increasingly more difficult for any nation state to abolish the right of their 'guest' industries to obtain anti-dumping or countervailing relief, given the economic power of multinational industries operating within their boundaries. The practical issue is for each nation state to use these measures in a way which is of least detriment to their economy. Gruen in 1986 reviewed the application of the then Customs Tariff (Anti-Dumping) Act 1975, and found that there needed to be a tightening-up of the injury test applied to anti-dumping cases. It is recommended that Gruen's tougher injury standards be implemented forthwith. He also recommended a continuing role for the Industry Commission as the appeal body for a review of the facts, and for there to be a continuing assessment of the effects of the measures imposed. The government, however, created an Anti-Dumping Authority attached to the then Department of Industry Technology and Commerce (DITAC), whose member and officers came from that department. The principal function of this body was to review the preliminary decisions of Customs, and to recommend the imposition of duties or acceptance of an undertaking to the Minister. There was no provision for an independent review of facts. One of the results of the increased complexity of the existing process and consequently the law, is a large increase in litigation before the Federal Court. There is a need to simplify the administrative structure and the provisions of the domestic law. The latter should be accomplished by the incorporation of the provisions of the WTO Agreements directly into domestic law. The espoused policy objectives of the government have not been met. The application of anti-dumping and countervailing measures favour import competing industries, and are against countries from which imports are growing. Korea and China have been singled out, with these countries showing the highest incidence of import weighted of anti-dumping measures. They also happen to be countries with which Australia has a trade surplus, a policy factor which is neglected by the administering authorities. There is a need to redress this imbalance. Predation identified by the government as a reason for taking anti-dumping action, has been shown not to be a reason for the application of anti-dumping duties in Australia. As a small country, Australia should take advantage of the use of the WTO dispute settlement process in settling anti-dumping and countervailing disputes. Consultations should commence at the earliest possible stage in inquiries, with the view to the settlement of the dispute by trade negotiation so that the outcome can be beneficial to both parties. This may, for example, allow for the specialisation in production between the two Members. WTO dispute settlement is seen as a positive approach to dispute settlement, whereas the use of the domestic courts tends to elevate the dispute between the parties. The Department of Foreign Affairs and Trade needs to take a leadership role in settling all anti-dumping and countervailing actions through the WTO dispute settlement process, with a view to a positive outcome for both Members. Placing an anti-dumping import tax on intermediate products entering Australia is counter-productive, as it increases the cost of inputs to downstream users. Temporary relief should be given by way of production subsidy, if the matter cannot be resolved through WTO trade consultations.

This thesis examines the regulation of regionalism by the WTO and the formation and operation of regional trade agreements by developing countries. In particular, this work focuses on regional integration in Eastern and Southern Africa. The aim of the thesis is to assess the effectiveness of the relevant legal regimes and determine ways in which they can be made more effective, both in terms of their impact on state conduct and in terms of their impact on the economic welfare of the states concerned. The thesis argues that, with regard to the WTO legal regime, the exemption from the application of Article XXIV, GATT 1994 given to developing countries by the Enabling Clause has contributed to the lack of effectiveness of the WTO regime. For developing countries, on the other hand, the Enabling Clause has deprived them of the legal discipline required to establish effective free trade areas and customs unions. This latter argument is examined through a case study of the Common Market for Eastern and Southern Africa (COMESA). The thesis contends that for COMESA countries to engage in meaningful trade liberalisation, and to participate fully in the WTO, acceptance of greater legal discipline is critical. Such legal discipline can be obtained through compliance with Article XXIV.

LL.M. (Corporate Law) / Jurisdictions employ several legal methods to regulate loans made by shareholders to companies. This dissertation explores the legal mechanisms employed by Germany, the United States, the United Kingdom as well as Australia that align to the recommendations of the United Nations Commission on International Trade Law (UNCITRAL) in respect of shareholder loans and seeks to answer the question whether South Africa should adopt similar mechanisms. German law complies fully with the UNCITRAL recommendations by providing for the automatic subordination of shareholder claims in respect of loans as well as the avoidance of repayments and security interests made and registered within a certain period of the commencement of insolvency proceedings. German law also contains avoidance provisions specific to transactions between the debtor and a shareholder that cause detriment to a third-party creditor and general avoidance provisions which provide for certain presumptions to apply in the case of transactions concluded between the company and a shareholder. In the United States the doctrine of equitable subordination is legislated and applies in the event that the debtor is thinly-capitalised and mismanaged and legislative provision is made for the avoidance of preference transactions concluded between a creditor and a debtor, which provide for a longer avoidance period in the case of a transaction concluded with a shareholder. In addition to full legislative compliance with the UNCITRAL recommendation relating to shareholder transactions, the wide powers given to the courts to uphold bankruptcy legislation is codified and led to the development of the doctrine of recharacterization, which entails shareholder loans being treated as equity contributions in certain circumstances. The United Kingdom does not contain legal provisions relating to the subordination of shareholder claims and thus does not comply fully with the UNCITRAL recommendations relating to shareholder loans. However, it does provide specifically for a longer avoidance period in respect of preference transactions involving shareholders and certain presumptions to be applied in the case of transactions concluded between the debtor company and a shareholder.

In Europe of the Middle Ages, there existed an autonomous regime of truly private international business law based upon the customs and usages of merchants, the Law Merchant, administered in lay tribunals. The courts and legislators usurped the jurisdiction of the lay tribunals, and subverted the Law Merchant to municipal law. Arbitration was similarly subverted to municipal courts and strict legal controls. The courts continued to guard their jurisdiction jealously into the 20th century, when nations came to realize the inadequacy of national legal systems for international business problems, and the desire of business to escape parochial legal concerns and municipal courts. Canada adopted the New York Convention and UNCITRAL Model Law in 1986, which maximize party and arbitral autonomy and restrict court interference with arbitration. These new laws would permit the resurrection of an autonomous regime of international commercial dispute settlement largely divorced from national law and court controls, if the courts cooperate. This thesis is the first comprehensive, up-to-date study (of which I am aware) of Canadian case law on arbitration in the context of the history of autonomous commercial dispute resolution from the its zenith in the Middle Ages through its nadir, to its present attempted resurrection. This thesis shows that the courts of Canada continue to guard their jurisdiction jealously, finding the means in old notions and precedents to justify their refusal to cede jurisdiction to arbitrators. The courts have ignored the policies underlying the new laws, have failed to apply international precedents and standards, and have continued to apply notions and precedents from an era hostile to arbitration. / Law, Peter A. Allard School of / Graduate

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This thesis examines the law on international commercial arbitration in England, Japan and Russia with a view to identify those areas for which harmonisation is of the greatest practical importance. This study is a timely one, since the Arbitration Act 1996 came into effect on 1st January 1997 in England. In Japan, the Committee of Arbitration formed by Japanese experts on arbitration prepared the Draft Text of the Law of Arbitration in 1989, and preparation for amendment based on the UNCITRAL Model Law is under way. In Russia, the Law on International Commercial Arbitration was established based on the UNCITRAL Model Law on 7th July 1993. A comparative study is made of the rules of international private law relating to arbitration, especially issues on international jurisdiction. Despite of recent development of unification of law on arbitration such as the 1958 New York Convention and the UNCITRAL Model Law, there are few rules in this area. This study goes some way towards filling this gap in the legal framework. The classification of an arbitration agreement and its influences upon international private law and law on arbitration are also considered. The issue of classification has been argued by many commentators usually to attempt to clarify the general characteristics of arbitration. However, it is the classification of an arbitration agreement that has practical significance. The classification of an arbitration agreement affects, directly or indirectly, not only the international private law but also law on arbitration. Its effects extend to the law applicable to an arbitration agreement, the law applicable to the capacity of a person to enter into an arbitration agreement, the principle of separability of an arbitration agreement, assignment of an arbitration agreement, the principle of Kompetentz-Kompetentz, and the stay of court proceedings on the basis of the existence of an arbitration agreement. Finally, this comparative study is used as a basis to put forward models for harmonisation in the interpretation of law on arbitration.

The liability of the carrier in international carriage of goods is a classical issue, which is well known, but still actual. The increasing intensity of international trade has impact on the demand for the transport services. Different rules in different legal systems constitute a hindrance for a proper functioning of international transport services. Nowadays, this problem is well solved by the international conventions containing certain rules, regarding contract of carriage in international transport of goods. However, these conventions govern the contract of carriage only in particular mode of transport which is the reason why it is necessary to describe the liability of the carrier in all these particular modes of transport. The starting point of this thesis is to describe the applicable sets of rules, which can govern the contract of carriage in international transport. Today, the relation among these sets of rules can appear be genuinely complicated. The most crucial point seems to solve the problem of relation between the conventions containing certain rules regarding contract of carriage and the legislation of the EU. In the EU, the most important sets of rules are Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to...

Economic globalization, the liberalization of markets, and the opening of once closed societies have all heralded the remarkable emergence of the current system of investment treaty arbitration. The current system, however, has attracted significant criticism and calls for reform. This thesis reviews the historical employment of arbitration in international society and the circumstances that lead to the emergence of the current system of investor-state dispute settlement. Following this, two recent proposals for reform of the current system are outlined: the creation of an international court of investment and the implementation of appellate mechanisms for investment treaty arbitration. The thesis concludes by offering an assessment of these proposals and argues for the rejection of the proposal to replace the current system with an international investment court, but offers a cautious endorsement of appellate mechanisms. / Graduate

Bill C-55 proposes amendments to the Canadian Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act tailored on the procedural framework contemplated by the UNCITRAL Model Law on Cross-Border Insolvency. This thesis demonstrates that implementation of these amendments will bring Canadian insolvency law into closer---but by no means complete---alignment with the doctrine of modified universalism reflected in the Model Law. To this end, the thesis undertakes an analysis of the different theoretical approaches to cross-border insolvency, shows the importance of instrument choice in determining the level of global harmonization attained, and reviews recent projects of harmonization. This is followed by a close comparative analysis of the extent of compliance of the provisions of Bill C-55 with the Model Law, an analysis that demonstrates the shortcomings of model laws and, somewhat paradoxically, their important role and function in eventually bringing about global legal harmonization.

In the last decade, parties to arbitration agreements have attempted to broaden the scope of judicial review of arbitral awards by contract, beyond the boundaries established in international and domestic arbitration statutes. This thesis analyzes this contractual expansion of judicial review from an international perspective. To this end, the standard of judicial review under the most important international instruments pertaining to commercial arbitration is examined: the New York Convention and the UNCITRAL Model Law on International Commercial Arbitration. The study then addresses the question as to whether provisions for heightened judicial review of arbitral awards would be enforceable under the legislation of three major players in commercial arbitration: England, France and the United States. An analysis of the legitimacy of agreements that provide for expanded judicial review under the New York Convention and UNCITRAL Model Law follows. The thesis concludes with an assessment of the impact the mentioned clauses would represent for the institution of arbitration and its advantages.