Une préoccupation essentielle traverse cette thèse: l'indifférence systémique de la Loi internationale sur la propriété intellectuelle a l'égard des savoirs traditionnels autochtones. De manière générale, un écart semble d'ailleurs croissant entre l'importance des accords internationaux sur les questions d'intérêt commercial et ceux de nature sociale. Les savoirs traditionnels autochtones sur les plantes médicinales sont particulièrement désavantagés dans ce système dichotomique puisqu'ils sont non seulement à l'origine d'énormes profits commerciaux mais se trouvent aussi au cœur de multiples croyances propres à ces sociétés. L'Accord sur les aspects des droits de propriété intellectuelle qui touchent au commerce (ADPIC) de l'Organisation mondiale du commerce (OMC) a cristallisé le souci de la législation internationale à l'égard d'une protection efficace des intérêts commerciaux. Deux années auparavant, la Convention sur la diversité biologique (CDB) était signée, traduisant une préoccupation à l'égard du développement durable, et elle devenait le premier accord international à tenir compte des savoirs traditionnels autochtones. On considère souvent que ces deux accords permettent l'équilibre du développement commercial et durable, requis par l'économie internationale. Après plus ample examen, on a plutôt l'impression que l'idée d'une CDB défendant, avec succès et efficacité, la nécessité du développement durable et des savoirs traditionnels autochtones contre les pressions opposées de l'ADPIC et de l'OMC est, au mieux, simpliste. La thèse explore également la fonction de la Loi sur les brevets dans la création d’industries, notamment pharmaceutique, et la manière dont ces industries influencent la législation nationale et en particulier internationale. De même, elle traite du rôle que jouent les brevets dans l'affaiblissement et la dépossession des peuples autochtones dotés de savoirs traditionnels sur les plantes médicinales, conduisant à une situation ou ces savoirs sont marginalisés ainsi que leurs détenteurs. La thèse aborde les failles institutionnelles du système juridique international qui permet une telle situation et indique l'urgente nécessité d'examiner attentivement les inégalités économiques et sociales au Nord comme au Sud, et non seulement entre eux. Finalement, la thèse suggère que la législation internationale gagnerait à s'inspirer des diverses traditions juridiques présentes à travers le monde et, dans ce cas particulier, peut être les détenteurs des connaissances traditionnelles concernant les plantes médicinales seront mieux servi par le droit des obligations. / The underlying theme of this thesis is the systemic indifference that exists within international intellectual property law towards Indigenous traditional knowledge. In general, there appears to be a widening gap between the importance international law accords to matters of commercial interest and those of a social nature. Indigenous traditional knowledge of medicinal plants is especially disadvantaged in this dichotomous system since it is not only representative of enormous commercial profits but it is also the core of many Indigenous belief and social systems. The crystallization of international law's preoccupation with the effective protection of commercial interests came in the form of the Trade Related Intellectual Property Rights (TRIPS) agreement incorporated into the World Trade Organization (WTO). Two years previously, the Convention on Biological Diversity (CBD) was signed, reflecting international law's perceived dedication to sustainable development and became the first international treaty to address Indigenous traditional knowledge. These two pieces of international law are often seen as balancing the commercial and sustainable development needs of the international economy. Upon further examination however, one is left the impression that the idea of the CBD effectively and successfully defending the needs of sustainable development and Indigenous traditional knowledge against pressure to the contrary from TRIPS and the WTO is simplistic at best. The thesis also explore the role patent law plays in the creation of modern industries, such as the pharmaceutical industry, and how these industries are able, through the power gained via patent law, to influence national and especially international legislation. Equally, it deals with the role patents play in disempowering peoples with Indigenous traditional knowledge of medicinal plants leading to a situation where such knowledge is marginalized along with its bearers. The thesis addresses the institutional shortcomings of the international legal system that allows such a situation to exist and suggests an urgent need to closely examine the social and economic inequalities within the North and South and not just between them. Finally the thesis suggests that international law needs to be guided by the many legal traditions available worldwide and in this particular case perhaps contract law is better suited to the needs of Indigenous traditional knowledge holders.

Many analysts believe that problems in the U.S. housing market initiated the 2008–2010 global financial crisis. In this regard, the subprime mortgage crisis (SMC) shook the foundations of the financial industry by causing the failure of many iconic Wall Street investment banks and prominent depository institutions. This crisis stymied credit extension to households and businesses thus creating credit crunches and, ultimately, a global recession. This thesis specifically discusses the SMC and its components, causes, consequences and cures in relation to subprime mortgages, securitization, as well as data. In particular, the SMC has highlighted the fact that risk, credit ratings, profit and valuation as well as capital regulation are important banking considerations. With regard to risk, the thesis discusses credit (including counterparty), market (including interest rate, basis, prepayment, liquidity and price), tranching (including maturity mismatch and synthetic), operational (including house appraisal, valuation and compensation) and systemic (including maturity transformation) risks. The thesis introduces the IDIOM hypothesis that postulates that the SMC was largely caused by the intricacy and design of subprime agents, mortgage origination and securitization that led to information problems (loss, asymmetry and contagion), valuation opaqueness and ineffective risk mitigation. It also contains appropriate examples, discussions, timelines as well as appendices about the main results on the aforementioned topics. Numerous references point to the material not covered in the thesis, and indicate some avenues for further research. In the thesis, the primary subprime agents that we consider are house appraisers (HAs), mortgage brokers (MBs), mortgagors (MRs), servicers (SRs), SOR mortgage insurers (SOMIs), trustees, underwriters, credit rating agencies (CRAs), credit enhancement providers (CEPs) and monoline insurers (MLIs). Furthermore, the banks that we study are subprime interbank lenders (SILs), subprime originators (SORs), subprime dealer banks (SDBs) and their special purpose vehicles (SPVs) such as Wall Street investment banks and their special structures as well as subprime investing banks (SIBs). The main components of the SMC are MRs, the housing market, SDBs/hedge funds/money market funds/SIBs, the economy as well as the government (G) and central banks. Here, G either plays a regulatory or policymaking role. Most of the aforementioned agents and banks are assumed to be risk neutral with SOR being the exception since it can be risk (and regret) averse on occasion. The main aspects of the SMC - subprime mortgages, securitization, as well as data - that we cover in this thesis and the chapters in which they are found are outlined below. In Chapter 2, we discuss the dynamics of subprime SORs' risk and profit as well as their valuation under mortgage origination. In particular, we model subprime mortgages that are able to fully amortize, voluntarily prepay or default and construct a discrete–time model for SOR risk and profit incorporating costs of funds and mortgage insurance as well as mortgage losses. In addition, we show how high loan–to–value ratios due to declining housing prices curtailed the refinancing of subprime mortgages, while low ratios imply favorable house equity for subprime MRs. Chapter 3 investigates the securitization of subprime mortgages into structured mortgage products such as subprime residential mortgage–backed securities (RMBSs) and collateralized debt obligations (CDOs). In this regard, our discussions focus on information, risk and valuation as well as the role of capital under RMBSs and RMBS CDOs. Our research supports the view that incentives to monitor mortgages has been all but removed when changing from a traditional mortgage model to a subprime mortgage model. In the latter context, we provide formulas for IB's profit and valuation under RMBSs and RMBS CDOs. This is illustrated via several examples. Chapter 3 also explores the relationship between mortgage securitization and capital under Basel regulation and the SMC. This involves studying bank credit and capital under the Basel II paradigm where risk–weights vary. Further issues dealt with are the quantity and pricing of RMBSs, RMBS CDOs as well as capital under Basel regulation. Furthermore, we investigate subprime RMBSs and their rates with slack and holding constraints. Also, we examine the effect of SMC–induced credit rating shocks in future periods on subprime RMBSs and RMBS payout rates. A key problem is whether Basel capital regulation exacerbated the SMC. Very importantly, the thesis answers this question in the affirmative. Chapter 4 explores issues related to subprime data. In particular, we present mortgage and securitization level data and forge connections with the results presented in Chapters 2 and 3. The work presented in this thesis is based on 2 peer–reviewed chapters in books (see [99] and [104]), 2 peer–reviewed international journal articles (see [48] and [101]), and 2 peer–reviewed conference proceeding papers (see [102] and [103]). / Thesis (Ph.D. (Applied Mathematics))--North-West University, Potchefstroom Campus, 2011.

The Canada-Colombia Free Trade Agreement (CCOFTA) came into force in August 2011 amidst concerns that the provisions protecting Canadian investment in Colombia could exacerbate the precarious human rights situation. The Agreement concerning Annual Reports on Human Rights and Free Trade between Canada and Colombia was negotiated to address such concerns by enshrining the first ever human rights impact assessment (HRIA) of a free trade and investment agreement (TIA) in an internationally binding instrument. This thesis builds on a growing body of international legal scholarship that has considered the duty of home states of private investors to regulate their activity in the host state so as to prevent them from causing or contributing to human rights and environmental harm. It examines state obligations found in human rights, environmental and general principles of international law to propose that while an obligation might exist for the home state to exercise unilateral regulation of its investors, in the presence of a TIA that could cause or enable private human rights or environmental harm, investor regulation through the TIA can be seen as duty for both the home and host states. In view of the absence of such regulation in the CCOFTA, this thesis will consider if the annual HRIA mechanism is an alternative for preventing human rights and environmental harm caused or enabled by the TIA. It is submitted that while HRIAs of TIAs are a novel concept for which little international practice exists, this mechanism has the capacity to provide concrete evidence of human rights or environmental harm caused or enabled by the TIA, but only if based on a methodological model that uses existing state international human rights law obligations as indicators to measure a change in the human rights situation, draws unequivocal causal links between the investment protection provisions and human rights indicators, and allows for broad public participation, especially from the most marginalized and underrepresented groups in the host state to validate its methodology and findings. While under international law all investment-exporting states might have a duty to conduct HRIA on the effects of a proposed TIA as part of the due diligence to prevent transnational harm, the enshrinement of such assessments in an internationally binding instrument triggers a duty for the home state to, on one hand use the HRIA mechanism to prevent transnational human rights or environmental harm and, on the other hand, structure its annual assessments according to the described model in order to give effect to the duty to prevent. Broad and inclusive participation of the local affected communities from the host state in the HRIA becomes an integral component of the home state duty to prevent that can be expected to reveal any negative effects on the human rights situation from the TIA provisions, as well as the type of action required from both states parties to address them.

Many analysts believe that problems in the U.S. housing market initiated the 2008–2010 global financial crisis. In this regard, the subprime mortgage crisis (SMC) shook the foundations of the financial industry by causing the failure of many iconic Wall Street investment banks and prominent depository institutions. This crisis stymied credit extension to households and businesses thus creating credit crunches and, ultimately, a global recession. This thesis specifically discusses the SMC and its components, causes, consequences and cures in relation to subprime mortgages, securitization, as well as data. In particular, the SMC has highlighted the fact that risk, credit ratings, profit and valuation as well as capital regulation are important banking considerations. With regard to risk, the thesis discusses credit (including counterparty), market (including interest rate, basis, prepayment, liquidity and price), tranching (including maturity mismatch and synthetic), operational (including house appraisal, valuation and compensation) and systemic (including maturity transformation) risks. The thesis introduces the IDIOM hypothesis that postulates that the SMC was largely caused by the intricacy and design of subprime agents, mortgage origination and securitization that led to information problems (loss, asymmetry and contagion), valuation opaqueness and ineffective risk mitigation. It also contains appropriate examples, discussions, timelines as well as appendices about the main results on the aforementioned topics. Numerous references point to the material not covered in the thesis, and indicate some avenues for further research. In the thesis, the primary subprime agents that we consider are house appraisers (HAs), mortgage brokers (MBs), mortgagors (MRs), servicers (SRs), SOR mortgage insurers (SOMIs), trustees, underwriters, credit rating agencies (CRAs), credit enhancement providers (CEPs) and monoline insurers (MLIs). Furthermore, the banks that we study are subprime interbank lenders (SILs), subprime originators (SORs), subprime dealer banks (SDBs) and their special purpose vehicles (SPVs) such as Wall Street investment banks and their special structures as well as subprime investing banks (SIBs). The main components of the SMC are MRs, the housing market, SDBs/hedge funds/money market funds/SIBs, the economy as well as the government (G) and central banks. Here, G either plays a regulatory or policymaking role. Most of the aforementioned agents and banks are assumed to be risk neutral with SOR being the exception since it can be risk (and regret) averse on occasion. The main aspects of the SMC - subprime mortgages, securitization, as well as data - that we cover in this thesis and the chapters in which they are found are outlined below. In Chapter 2, we discuss the dynamics of subprime SORs' risk and profit as well as their valuation under mortgage origination. In particular, we model subprime mortgages that are able to fully amortize, voluntarily prepay or default and construct a discrete–time model for SOR risk and profit incorporating costs of funds and mortgage insurance as well as mortgage losses. In addition, we show how high loan–to–value ratios due to declining housing prices curtailed the refinancing of subprime mortgages, while low ratios imply favorable house equity for subprime MRs. Chapter 3 investigates the securitization of subprime mortgages into structured mortgage products such as subprime residential mortgage–backed securities (RMBSs) and collateralized debt obligations (CDOs). In this regard, our discussions focus on information, risk and valuation as well as the role of capital under RMBSs and RMBS CDOs. Our research supports the view that incentives to monitor mortgages has been all but removed when changing from a traditional mortgage model to a subprime mortgage model. In the latter context, we provide formulas for IB's profit and valuation under RMBSs and RMBS CDOs. This is illustrated via several examples. Chapter 3 also explores the relationship between mortgage securitization and capital under Basel regulation and the SMC. This involves studying bank credit and capital under the Basel II paradigm where risk–weights vary. Further issues dealt with are the quantity and pricing of RMBSs, RMBS CDOs as well as capital under Basel regulation. Furthermore, we investigate subprime RMBSs and their rates with slack and holding constraints. Also, we examine the effect of SMC–induced credit rating shocks in future periods on subprime RMBSs and RMBS payout rates. A key problem is whether Basel capital regulation exacerbated the SMC. Very importantly, the thesis answers this question in the affirmative. Chapter 4 explores issues related to subprime data. In particular, we present mortgage and securitization level data and forge connections with the results presented in Chapters 2 and 3. The work presented in this thesis is based on 2 peer–reviewed chapters in books (see [99] and [104]), 2 peer–reviewed international journal articles (see [48] and [101]), and 2 peer–reviewed conference proceeding papers (see [102] and [103]). / Thesis (Ph.D. (Applied Mathematics))--North-West University, Potchefstroom Campus, 2011.

The Convention for the Protection of Human Rights and Fundamental Freedoms drawn up in Rome on 4 November 1950, entered into force in September 1953, consolidated the minimal standarts of human rights protection which are equally binding for all democratic Europe countries. Article 6 guarantees the right to a fair trial – one of the favourable condition to realize human rights. It is the fundamental right and the guarantee of other human rights protection. The aim of the master thesis is to scrutinize the conception of the right to a fair trial under the Article 6 of the European Convention, its content and the practice of The European Court of Human Rights on this question. It is considering especially urgent questions of the Article‘s 6 application. On that ground the position of the Court is formed and the analysed regulations becomes the part of theory. The master thesis should create the basis for the further analysis of the Article 6 and promote the publication of the problem on human rights and safeguard them in Lithuania. In the Article 6 there is determined the right that everyone is entitled to a fair and public hearing within a reaonable time by an independent and impartial tribunal established by law. In the Convention sense the right to a fair trial is interpreted widely because of its significance in the democratic society. Otherwise the narrow interpretation of Article 6 would not answer the purpose. The right to a fair trial should be analysed as the whole... [to full text]

No description available.

OPSOMMING Alhoewel die trustfiguur reeds sedert die 19e Eeu in Suid-Afrika erken word, en as `n suiwer trustfiguur tipeer kan word, is die hantering van die regte van sekere trustbegunstigdes steeds in onsekerheid gehul. Die hoofrede hiervoor is die oorbeklemtoning van die wyse waarop trusts tot stand kom en die onderbeklemtoning van die unieke fidusiêre aard van die trust na oprigting daarvan. In Engeland, Skotland, Sri Lanka, Louisiana en Quebec, waar die suiwer trustfiguur ook aanwending vind, bestaan, in teenstelling met die oënskynlike regsposisie in Suid-Afrika, die moontlikheid van trustbegunstigdes sonder regte glad nie. In hierdie jurisdiksies speel die oprigtingsinstrument `n ondergeskikte rol en ontstaan die regte van trustbegunstigdes ex lege uit hoofde van die trustfiguur as `n vertrouensverhouding sui generis. Alhoewel die Suid-Afrikaanse trustreg die fidusiêre aard van die verhouding tussen trustee en trustbegunstigde erken, word die aard en omvang van die regte wat hieruit voort behoort te vloei nog nie voldoende deur die howe erken nie. Vertrouensverhoudinge waaruit regte en verpligtinge ex lege voortspruit, is bekend aan die gemenereg en word steeds hedendaags aangetref in verskeie ander vakdissiplines binne die Suid-Afrikaanse reg, waaronder die maatskappyereg. Die suiwer trustfiguur stel verder noodwendig `n vertrouensverhouding daar wat juis daarop gemik is om die regte van trustbegunstigdes te beskerm. Die standpunt word dus ingeneem dat alle trustbegunstigdes in Suid-Afrika derhalwe oor ex lege regte beskik. Daar word aan die hand gedoen dat trustbegunstigdes se regte nie uitsluitlik voortvloei uit hoofde van die tersaaklike oprigtingshandeling nie, maar dat unieke regte ontstaan as gevolg van die onderliggende fidusiêre verhouding wat tot stand kom wanneer, maar ongeag hoe, die trust opgerig word. Kortom: Die fidusiêre verhouding behoort erken te word as eie, onafhanklike bron van trustbegunstigdes se moontlike regte teen die trustee in die geval van trustbreuk. Nie net is dit `n logiese stap in die ontwikkeling van die gemenereg nie, maar sal dit ook die beskerming van trustbegunstigdes in die Suid-Afrikaanse trustreg op dieselfde voet plaas as trustbegunstigdes in die ander jurisdiksies wat nagevors is. So 'n stap sal bydra tot regsekerheid en nie tot `n wesentlike omwenteling in die Suid-Afrikaanse trustreg en -administrasie lei nie. SYNOPSIS Although the trust figure has been recognised in South Africa since the 19th century and can be characterised as a proper trust, uncertainty still prevails regarding the scope and acknowledgement of the rights of some trust beneficiaries. The main reason for this is the over-emphasis of the manner in which trusts are created, and the under-emphasis of the unique fiduciary nature of the trust once it has been established. In England, Scotland, Sri Lanka, Louisiana and Quebec where the proper trust figure is also applied, there is no possibility, contrary to the apparent legal position in South Africa, of trust beneficiaries without rights. In these jurisdictions the instrument used to create a trust plays a subordinate role and the rights of trust beneficiaries originate ex lege by virtue of the trust itself as a relationship of trust sui generis. Although South African trust law acknowledges the fiduciary nature of the relationship between trustee and trust beneficiary, the nature and extent of the rights that should emanate from this relationship are not adequately acknowledged by the courts. / Jurisprudence / L.L.D.

Cyber bullying is a growing phenomenon in schools all over the world, and it is evident that cyber bullying presents certain unique problems for schools in the regulation thereof. From the number of different definitions of cyber bullying, it is also evident that there is no clear concept of the exact nature of cyber bullying, and how it should be addressed in schools. The existing legal framework in South Africa can be used to address cyber bullying in schools, but there is no legislation or policy that is directly aimed at the regulation of cyber bullying at school level. The purpose of this research is to develop a law and policy framework for the effective regulation of cyber bullying in schools. Firstly, a literature review was conducted to determine the nature of cyber bullying and to examine how cyber bullying in American schools is regulated by law. Secondly, a literature study determined the human rights obligations with regard to protecting learners against cyber bullying, and reviewed how current South African law and policy speaks to addressing cyber bullying in schools. In order to investigate the occurrence of cyber bullying in South African schools practically, a case study was conducted at a South African school. All the resources mentioned above were used to develop an education-specific law and policy framework to address cyber bullying in South African schools effectively. This framework includes a suggested insertion in the South African Schools Act, draft Guidelines for the regulation of cyber bullying in schools, draft provisions for schools’ Codes of conduct for learners and an information brochure on cyber bullying. / Public, Constitutional and International Law / LL. D.

An important change wrought by the post-1994 South African Constitutions is the attempt to have South Africa recognised as a democratic and sovereign state in the "family of nations." The new Constitutions make extensive reference to the state's international obligations and represent an endeavour to [re]define the status of international law vis-a-vis national law. Some provisions utilise international law in the interpretation and formulation of national jurisprudence and represent an [albeit not totally successful] endeavour to attain greater harmonisation between international and national law. This is an attempt to systematize the various criticisms levelled against these provisions to date, and to highlight certain interpretational difficulties and problems that present themselves in the process. The distinction between the various terminologies and branches of international law is also taken to task. Lastly, this paper attempts to determine the extent to which international law is applied at national level under the post-1994 constitutions. / Jurisprudence / LL. M.

Developing an adjudicative institutional framework for effective social security provisioning in South Africa entails the establishment of a system that gives effect to the rights (of access) to social security and to justice. These rights are protected in the Constitution and in various international law instruments. In the Constitution, the Bill of Rights guarantees everyone the right to have access to social security, including appropriate social assistance for persons who are unable to support themselves and their dependants. It further requires the State to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to access to social security. Since a dispute resolution (adjudication) framework is an integral part of any comprehensive social security system, it is included in the constitutional obligation of the State. The establishment of a social security adjudication system is an intersection of the right of access to social security and the right of access to justice. The Constitution states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. In addition, other rights protected in the Constitution have a bearing on the realisation of the rights of access to social security and to justice. There is a close correlation between all the rights in the Bill of Rights, as they are interrelated, interdependent and mutually supporting. They must all be read together in the setting of the Constitution as a whole and their interconnectedness must be taken into account in interpreting rights; and in determining whether the State has met its obligations in terms of any one of them. These rights, which include the right to equality (section 9), the right to human dignity (section 10) and the right to just administrative action (section 33) must thus be considered in establishing a social security adjudication system. Also to be considered are other constitutional prerequisites for the establishment of a social security adjudication system, such as the limitation and enforcement of rights (sections 36 and 38 respectively); principles relating to courts and the administration of justice (Chapter 8) and basic values and principles governing public administration (Chapter 10). In establishing a social security adjudication system in South Africa, international law standards and developments in comparative systems must also be taken into account. The Constitution adopts an international law- and comparative law-friendly approach. It states that when interpreting fundamental rights, international law must be considered while foreign law may be considered (section 39). This thesis aims to develop an adjudicative and institutional framework for effective social security provisioning in South Africa that realises the rights of access to social security and to justice in the South African social security system. This is achieved by exploring the concept of access to justice, and its application in the social security adjudication system. The current social security adjudication system is evaluated against the concept of access to justice applicable in international and regional law instruments, comparable South African (non-social security) systems and comparative international jurisdictions. Principles and standards on the establishment of a social security adjudication system are distilled; and a reformed system for South Africa is proposed. / Mercantile Law / LL.D.