Widespread cross-border securities trading have led to the internationalization of securities markets. No one seriously disputes that such securities dealings require regulation, but there is no academic consensus on the best normative approach to such regulation. The academic debate initially focused on whether regulatory competition or cooperation constitutes the better model. However, the debate seems to have evolved to adopt a hybrid model combining the virtues of these two approaches. ‘Harmonization’ constitutes the dominant hybrid model. Nevertheless, the implementation of the harmonization model has barely received any attention in the literature. The aim of this thesis is hence two-fold: first, justify why harmonization should be the preferred model for the regulation of international securities markets; and second, develop, applying an international trade regulation perspective, a regulatory framework to implement the harmonization model using the World Trade Organization and General Agreement on Trade in Services (WTO/GATS) framework.

Widespread cross-border securities trading have led to the internationalization of securities markets. No one seriously disputes that such securities dealings require regulation, but there is no academic consensus on the best normative approach to such regulation. The academic debate initially focused on whether regulatory competition or cooperation constitutes the better model. However, the debate seems to have evolved to adopt a hybrid model combining the virtues of these two approaches. ‘Harmonization’ constitutes the dominant hybrid model. Nevertheless, the implementation of the harmonization model has barely received any attention in the literature. The aim of this thesis is hence two-fold: first, justify why harmonization should be the preferred model for the regulation of international securities markets; and second, develop, applying an international trade regulation perspective, a regulatory framework to implement the harmonization model using the World Trade Organization and General Agreement on Trade in Services (WTO/GATS) framework.

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)

Esta dissertação concentra suas investigações nas contramedidas do direito internacional geral e da Organização Mundial do Comércio (OMC). No âmbito do direito internacional, estudou-se a essência política da sociedade internacional descentralizada, bem como a tendência do processo de fragmentação do direito internacional em direção a regimes mais regulados pelo direito. Além disso, investigou-se a tentativa de ampliação da normatização das contramedidas por meio do Projeto de Artigos sobre Responsabilidade Internacional do Estado de 2001. No âmbito do regime especial da OMC, analisou-se o maior adensamento jurídico das contramedidas como ponto culminante na fase de implementação das decisões no sistema de solução de controvérsias da OMC. Com base na avaliação sobre a necessidade de reforma do instituto das contramedidas da OMC, foram pesquisadas as principais propostas para sua modificação, buscando-se identificar a tentativa de redução do espaço político. A hipótese deste trabalho partiu da afirmação sobre a existência de uma tendência evolutiva no direito internacional geral e na OMC no que tange ao aumento da juridicidade do instituto das contramedidas. Entretanto, essa hipótese confirmou-se apenas parcialmente, pois a tentativa de aprimorar a regulamentação jurídica do instituto das contramedidas ocorre em meio à permanência de elementos políticos. / This thesis focused on countermeasures in general International Law and in the World Trade Organization (WTO). Regarding International Law, the thesis studied the political foundation of the decentralized international society, as well as the trend of fragmentation of International Law towards law-based regimes. Moreover, this thesis researched the attempt to regulate countermeasures through the Draft Articles on Responsibility of States for Internationally Wrongful Acts. Regarding the WTO special regime, the thesis analyzed its more law-based countermeasure as the last stage in the implementation of decisions in the WTO dispute settlement system. Based on the necessity of WTO countermeasures reform, the thesis investigated the main reform proposals, seeking to identify the attempt to reduce the political interference. The hypothesis of this research is the tendency towards a more law-based countermeasure in general International Law and in the WTO. However, this hypothesis has only been partially confirmed because political elements do not disappear despite the attempt to increase the legality of countermeasures.

O consumidor é o agente vulnerável na relação de consumo internacional. O processo de globalização se apresenta, para o consumidor, como uma globalização do consumo. A globalização do consumo se caracteriza pelo comércio e fornecimento internacional de produtos e serviços por empresários/fornecedores transnacionais/globais, utilizando marcas de renome mundial, acessíveis a todos os consumidores do planeta, e agrava a vulnerabilidade do consumidor no mercado. A proteção jurídica do consumidor internacional é uma necessidade que os sistemas jurídicos nacionais não se mostram aptos a prover adequadamente, assim como o Direito Internacional também não. A presente tese demonstra a deficiência da Ciência do Direito na proteção do consumidor no contexto da globalização; demonstra como o próprio comércio internacional é prejudicado ao não priorizar de maneira absoluta e efetiva a proteção do consumidor na OMC, bem como ao mostrar-se apático diante dos diferentes níveis de proteção proporcionada aos consumidores em cada diferente sistema jurídico nacional; demonstra, também, como a proteção do consumidor de maneira uniforme e global por um direito comum aos Estados é possível e será capaz de tornar mais eficiente economicamente o processo de globalização do consumo, ao encorajar a participação mais intensa do consumidor no mercado internacional; e propõe a construção de um novo ramo do Direito dedicado ao problema, o Direito Internacional do Consumidor (DIC), por meio da elaboração de uma Teoria do Direito Internacional do Consumidor. O Direito Internacional do Consumidor pretende ser um direito comum e universal de proteção ao consumidor, fundado em métodos, conceitos, institutos, normas e princípios jurídicos universais. O DIC dialogará com outros ramos do Direito Público e Privado, especialmente o Direito Internacional Econômico, o Direito Internacional do Comércio, o Direito Internacional Privado, o Direito Processual Civil Internacional, e o Direito do Consumidor. Pretende-se com isto atender ao ideal de promover o livre comércio internacional com respeito aos Direitos Humanos. / The consumer is the weak party in the cross-border consumer relation. The globalization process presents itself for the consumer as a globalization of consumers relations. The globalization of consumers relations is defined by international commerce and supply of products and services by transnational/global entrepreneurs/ suppliers, using global renowned brands names, available for all consumers of the planet, aggravating the consumers vulnerability in the market. The juridical international consumers protection is a necessity that has not been properly dealt with neither by the national legal systems nor by International Law. The present thesis shows the deficiency of Juridical Science to consumers protection in a globalization context; it shows how international commerce suffers harms when it does not prioritize the consumers protection in WTO, and when it has no reaction against different consumers protections levels by the distinct national legislation; it also shows, how consumers protection by a global and uniform law for all States is possible and can be more economically efficient for the process of globalization of consumers relations, because it encourages a intensive consumer participation in the international market; and proposes to build a new branch of law dedicated to the problem, the International Consumer Law (ICL), by a Theory of International Consumer Law. The International Consumer Law intends to be a general and universal law about consumers protection, based on universal methods, concepts, institutes, rules and principles. The ICL is going to dialogue with others branches of law, specially with International Economic Law, Global Trade Law, Private International Law (Conflict of Laws), Transnational Litigation Law, Consumer Protection Law and Products Liability Law. The intention of this thesis is to deal with the ideal of promoting free international trade taking into account respect for humans rights.

Esta dissertação concentra suas investigações nas contramedidas do direito internacional geral e da Organização Mundial do Comércio (OMC). No âmbito do direito internacional, estudou-se a essência política da sociedade internacional descentralizada, bem como a tendência do processo de fragmentação do direito internacional em direção a regimes mais regulados pelo direito. Além disso, investigou-se a tentativa de ampliação da normatização das contramedidas por meio do Projeto de Artigos sobre Responsabilidade Internacional do Estado de 2001. No âmbito do regime especial da OMC, analisou-se o maior adensamento jurídico das contramedidas como ponto culminante na fase de implementação das decisões no sistema de solução de controvérsias da OMC. Com base na avaliação sobre a necessidade de reforma do instituto das contramedidas da OMC, foram pesquisadas as principais propostas para sua modificação, buscando-se identificar a tentativa de redução do espaço político. A hipótese deste trabalho partiu da afirmação sobre a existência de uma tendência evolutiva no direito internacional geral e na OMC no que tange ao aumento da juridicidade do instituto das contramedidas. Entretanto, essa hipótese confirmou-se apenas parcialmente, pois a tentativa de aprimorar a regulamentação jurídica do instituto das contramedidas ocorre em meio à permanência de elementos políticos. / This thesis focused on countermeasures in general International Law and in the World Trade Organization (WTO). Regarding International Law, the thesis studied the political foundation of the decentralized international society, as well as the trend of fragmentation of International Law towards law-based regimes. Moreover, this thesis researched the attempt to regulate countermeasures through the Draft Articles on Responsibility of States for Internationally Wrongful Acts. Regarding the WTO special regime, the thesis analyzed its more law-based countermeasure as the last stage in the implementation of decisions in the WTO dispute settlement system. Based on the necessity of WTO countermeasures reform, the thesis investigated the main reform proposals, seeking to identify the attempt to reduce the political interference. The hypothesis of this research is the tendency towards a more law-based countermeasure in general International Law and in the WTO. However, this hypothesis has only been partially confirmed because political elements do not disappear despite the attempt to increase the legality of countermeasures.

"The implementation of the TRIPS Agreement, within the wider context of globalisation, has brought about a conflict between the obligation of states to promote and protect health and the achievement of economic goals pursued under the WTO regime. Since trade is the driving engine of globalisation, it is imperative that, at the very least, rules governing it do not violate human rights but rather promote them. The problem of IP and the right to health therefore lies in ensuring that the integration of economic rules and institutional operations in relation to IPRs coincide with states’ obligations to promote and protect public health. ... This study centres on the specific debate about health and IPRs in the context of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the WTO rules on IP protection. In terms of a human rights approach to the TRIPS Agreement, the ICESCR has been chosen for several reasons. First, the ICESCR specifically recognises both the right to health and the right to the protection of inventions in clearer terms than any other human rights instrument. Secondly, at least 111 of the state parties to the ICESCR are also members of the WTO including a large number of developing countries. Thirdly, if one sees the ICESCR as a vehicle for the fulfilment of the obligation to promote and protect human rights under the United Nations Organisation’s (UN) Charter, it can be argued that in line with article 103, the implementation and interpretation of TRIPS by all UN members states must take into account basic human rights. However, even with primary focus being on the ICESCR, most of the discussion on practical issues will focus on the experiences in Sub-Saharan Africa because the inequalities and problems of access to health care are most dramatically played out in this part of the world. The objective of the study is to examine the relationship between the obligation of states to progressively realise and guarantee the right to health, and the IP rules under the TRIPS Agreement. The specific objective is to examine the relationship between the exceptions under the TRIPS Agreement and the obligation to protect health and the identification of a consistent way of achieving a convergence between the implementation and interpretation of the rules of the two regimes in the area of health." -- Chapter 1 / Mini Dissertation (LLM)--University of Pretoria, 2001. / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

Performance requirements act as policy instruments for achieving broadly-defined economic and developmental objectives of States, especially industrial and technological development objectives. Many States consider that performance requirements distort trade and investment flows, negatively impact global and national welfare and disrupt investment decisions compared to business-as-usual scenarios. As a result, a number of States have committed to prohibiting performance requirements in international investment agreements (“IIAs.”). Performance requirement prohibitions (“PRPs”) are meant to eliminate trade-distorting performance requirements and performance requirements which replace investor decision-making by State decision-making. This thesis focuses on providing answers to two research questions: first, how do States prohibit performance requirements in IIAs? And second, how should PRPs in IIAs be interpreted and applied? For the first time, this thesis: proposes a comprehensive understanding of PRPs in IIAs by drawing notably on the General Agreement on Tariffs and Trade (“GATT”) Uruguay Round of negotiations and on the United States Bilateral Investment Treaty (“BIT”) Programme; develops a detailed typology and analysis of PRPs in IIAs through the identification of systematically reproduced drafting patterns; conducts the first critical and in-depth analysis of all arbitral awards which have decided claims based on PRPs in IIAs; analyses interpretation and application issues related to provisions that exempt government procurement from PRPs and to reservations that shield sensitive non-conforming measures or strategically important sectors from PRPs; and anticipates the application of most-favoured nation (“MFN”) treatment clauses to PRPs in the future. Finally, this thesis formulates proposals that can help interpret and apply existing PRPs and draft future PRPs in a more deliberate and informed way.

Der Einfluss Internationaler Organisationen reicht angesichts der Herausforderung, für globale Probleme Lösungen zu finden, mittlerweile so weit, dass sich die Frage nach den in ihnen vorhandenen Machtbegrenzungsmechanismen stellt. Doch wie kann die Macht Internationaler Organisationen kontrolliert werden, wenn das aus dem nationalen Verfassungsrecht bekannte Gewaltenteilungsprinzip nicht auf die internationale Ebene übertragen werden kann?   Die Arbeit analysiert die dazu innerhalb der Vereinten Nationen (UNO) und der Welthandelsorganisation (WTO) existierenden formalisierten Mechanismen anhand ihrer Gründungsverträge. Dabei werden drei Kategorien von Machtbegrenzungsmechanismen identifiziert: Kompetenzzuweisungen und -abgrenzungen, organinterne Mechanismen und schließlich Interaktion zwischen den Organen. Die in der Praxis bedeutsamsten Mechanismen stellen zum einen das Vetorecht im UN-Sicherheitsrat sowie der negative Konsens im Streitbeilegungsgremium der WTO dar, die zur Gruppe der organinternen Mechanismen gehören. Zum anderen besteht in der Kontrolle der Streitbeilegungs-Panel der WTO durch den Appellate Body eine wichtige Machtbegrenzung durch Interaktion.  Die Untersuchung dokumentiert das paradoxe Phänomen, dass die Mechanismen zur Begrenzung der Macht in vielen Fällen auch eine machtsteigernde Wirkung haben, indem sie die Effizienz, Akzeptanz und Legitimation der Organisation erhöhen. Die Verfasserin erklärt dies damit, dass das Augenmerk der Gründungsstaaten in der Entstehungsphase auf dem Funktionieren der Organisation als Gegengewicht zu ihren jeweiligen Mitgliedsstaaten lag. Dass Internationale Organisationen in der Zwischenzeit so stark an Einfluss gewonnen haben, dass ihre Macht nunmehr begrenzt werden sollte, ist eine neue Entwicklung, die jedoch in Zukunft deutlich an Bedeutung gewinnen wird. / In light of the challenge to find answers to global problems, the influence of international organizations nowadays goes so far that the question of existing checks and balances within these organizations arises. But how can power be controlled when the principle of separation of powers originating from national constitutional law cannot be transferred to the international stage? The purpose of this thesis is to analyze existing formalized internal mechanisms within the United Nations and the World Trade Organization on the basis of their founding treaties. The author identifies three categories of checks and balances: allowing and limiting competencies, mechanisms within the organs and finally interactions between the organs. In practice, the most important mechanisms of these organizations are on the one hand the power of veto within the UN Security Council and the negative consensus within the WTO dispute settlement body, which belong to the category of mechanisms within the organs. In addition, the control of the WTO dispute settlement panels by the Appellate Body is an important form of checks and balances through interaction. The analysis shows the paradoxical phenomenon, that checks and balances in many cases have the effect of increasing power by augmenting the efficiency, acceptance and legitimacy of the organization. The author explains this by reference to the intentions of the founding states during the developing phase to strengthen these organizations as a counterbalance to their respective member states. It is a new development that international organizations have now increased their influence so much that their power should be limited, but this will become significantly more important in the future.

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