This paper examines franchising regulation in Australia as a case study for the analysis of regulation based on established regulatory theory. A literature review is conducted to establish and critique the theory of regulation based on the four main areas of established theory; regulatory purpose, regulatory strategies, rulemaking and enforcement. Case study data is drawn from primary source material and academic commentary on franchising regulation and presented according to the eras of franchising regulation in Australia, moving from the first proposals for legislation in the 1970s to the prescribed mandatory Franchising Code of Conduct model adopted in 1998 and refinements made to that scheme up to 2006. An analysis is then conducted on each major aspect of Australian franchising regulation using the established theoretical principles and analytical constructs available in the literature. The study concludes that the Franchising Code of Conduct regime, as a culmination of the experience gained and study undertaken in the preceding eras, is characterised by the availability of a broad range of enforcement options from harsh deterrence-oriented measures to more gentle and cooperative compliance-oriented options constituting an effective regulatory pyramid. The effectiveness of the regime is further bolstered by the presence of a credible regulatory strategy pyramid which emphasises the real possibility of escalated intervention, coupled with skilful deployment by the Australian Competition and Consumer Commission as enforcement agency. The principal weakness of the scheme is identified as unnecessarily ambiguous drafting in some areas, which compromises the quality of the otherwise highly transparent ruleset. It is suggested that the choice of regulatory strategy, often a focus of superficial examinations of regulation, is largely irrelevant to the nature of the regulation, with other features such as enforcement strategy, legitimacy, and availability of credible sanctions proving much more important. A proposal for an analytical framework based on the established theory is developed based on the experience of applying that theory to the case study. While this outlined framework assists in broadening focus across the entire regulatory regime to encourage assessment of the component parts, a lack of cohesion and linkage amongst the components highlights a shortcoming in the development of regulatory theory and an opportunity for further research.

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.

This dissertation examines whether the regulation of the franchise sector is effective in achieving two of the stated goals of the Franchising Code of Conduct. These two goals are redressing the imbalance of power in the relationship and increasing levels of certainty for participants in the sector. Based on the ‘new learning’ in regulation, this dissertation takes an expansive approach to the concept of regulation. It considers how, in a ‘multi-layered system of governance’, the layers of regulation of the franchising sector contribute to these goals. The results of the analysis suggest that private, self-regulation through the layers of market and contract sets up a relationship where there is an imbalance of power in favour of a franchisor and uncertainty for a franchisee. The market interaction between the parties establishes these conditions, which are reinforced by the contract, in particular by the interaction of the standard form and relational qualities of the contract. A public layer of governance, direct intervention in the form of the Franchising Code of Conduct, relies largely on selfregulatory tools such as disclosure and is also ineffective in addressing the imbalance of power in the relationship and in increasing levels of certainty for franchisees. Because neither self-regulatory mechanisms nor legislative intervention achieves the stated goals of redressing imbalance of power and uncertainty in the franchise relationship, the analysis concludes that a reframing of regulation is necessary. The recommended revised regulatory program features collaborative, participative, democratic process to gather and assess good measurements that inform the identification of problems and the selection of tools appropriate to address those problems.

This paper examines franchising regulation in Australia as a case study for the analysis of regulation based on established regulatory theory. A literature review is conducted to establish and critique the theory of regulation based on the four main areas of established theory; regulatory purpose, regulatory strategies, rulemaking and enforcement. Case study data is drawn from primary source material and academic commentary on franchising regulation and presented according to the eras of franchising regulation in Australia, moving from the first proposals for legislation in the 1970s to the prescribed mandatory Franchising Code of Conduct model adopted in 1998 and refinements made to that scheme up to 2006. An analysis is then conducted on each major aspect of Australian franchising regulation using the established theoretical principles and analytical constructs available in the literature. The study concludes that the Franchising Code of Conduct regime, as a culmination of the experience gained and study undertaken in the preceding eras, is characterised by the availability of a broad range of enforcement options from harsh deterrence-oriented measures to more gentle and cooperative compliance-oriented options constituting an effective regulatory pyramid. The effectiveness of the regime is further bolstered by the presence of a credible regulatory strategy pyramid which emphasises the real possibility of escalated intervention, coupled with skilful deployment by the Australian Competition and Consumer Commission as enforcement agency. The principal weakness of the scheme is identified as unnecessarily ambiguous drafting in some areas, which compromises the quality of the otherwise highly transparent ruleset. It is suggested that the choice of regulatory strategy, often a focus of superficial examinations of regulation, is largely irrelevant to the nature of the regulation, with other features such as enforcement strategy, legitimacy, and availability of credible sanctions proving much more important. A proposal for an analytical framework based on the established theory is developed based on the experience of applying that theory to the case study. While this outlined framework assists in broadening focus across the entire regulatory regime to encourage assessment of the component parts, a lack of cohesion and linkage amongst the components highlights a shortcoming in the development of regulatory theory and an opportunity for further research.

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Many people might think that downloading music without paying for it is not a big issue. Copyright owners disagree with this kind of reasoning because to them, music is intellectual property with substantial commercial value. Copyright law is the primary form of protection for intellectual property and is based on the fundamental principle that copyright works cannot be reproduced without the express consent of the copyright owner. During the late 90’s however, new technology made it possible for millions of people to download music from the Internet without the express consent of copyright owners. The mere act of downloading songs illegally violates the exclusive right of the copyright owner to reproduce the work. It has also created problems within copyright law that was not foreseeable in the 17th century when the Statute of Anne was enacted. In law, there is always an exception to the rule and it is no different with copyright law. Although copyright owners have the exclusive right to reproduce their work, the general public has been granted exceptions to make fair dealing of copyright works for private or personal use, purposes of research, private study, criticism, review or for reporting current events in a magazine, newspaper or periodical, broadcasting or by using the work in a cinematograph film by virtue of s12 of the Copyright Act 98 of 1978. However, the list of exceptions supra may be changed and/or extended, provided that it remains in line with the international conventions and agreements that South Africa is a member to. The three-step test is inter alia provided for in Art. 9(2) of the Berne Convention1 (Paris Text of 1971) and permit exceptions to the reproduction right of the copyright owner: 1) in certain special cases; 2) that do not conflict with the normal exploitation of the work and; 3) that does not unreasonably prejudice the legitimate interests of the author/rights holder. S17 provides that certain subsections of s12 shall apply mutatis mutandis with reference to sound recordings. However, s12(1)(a) is not one of the subsections mentioned in s17 which means that fair dealing in sound recordings for purposes of research or private study, or for personal or private use is NOT permitted. Fair dealing however, is not absolute nor is it an easy doctrine to interpret. The legal interpretation and application of fair dealing has been fraught with complexity since the English courts first dealt with fair abridgement of literary works between the 17th and 18th century but this complexity has been compounded even more by new technology, especially in relation to music works. The legal uncertainty of fair dealing with regard to music works is the reason why this comparative research has been undertaken in the jurisdictions of South Africa, the United Kingdom, Australia and the United States. Hopefully it will shed more light on the doctrine and lift the veil of confusion. / Jurisprudence / LLM

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.

This paper aims at developing a model on which to base good quality franchise relationships. The franchise sector has the potential to generate wealth for the franchisee and the franchisor, create employment and be a tool of empowerment. It is also associated with relatively less risk than other forms of self-employment. However, there have been a disturbing number of failures in the sector and reported cases of abuses of franchisees by franchisors. Some franchisors have sought liquidation of franchise units in courts of law. An investigation was commissioned into the sector with the objective of uncovering problems in the quality of the relationships in the sector. The obligations of both the franchisees and franchisors were stipulated. Aspects of quality were then considered to lay a foundation upon which improvements in the relationships could be based. This was followed by a survey to find the performance gap between the quality of service that was expected from the franchisor and what the franchisees were actually receiving. Five dimensions of service quality – tangibles, reliability, responsiveness, assurance and empathy were empirically investigated. The findings of this research revealed that the quality of service of franchisors fell short in all dimensions. It is arguable that other aspects of quality are being neglected by the franchisors. It is against this backdrop that a model is proposed to improve the quality of service in the franchise relationships. The model incorporates contemporary ideas on quality. Principles of total quality management, quality function deployment, customer satisfaction and self-assessment are applied to the franchise relationship. The use of the model will contribute towards better relationships in the franchise sector.

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

The subject of my work was to describe czech trade law. I started with decription of development of existing laws and rules of trade business. In the second chapter I determined basic and conjointed terms as trade and attributes of the trade. Later I dealed with the main code, which is concerned with regulation of trade business in Czech Republic and I focussed on the trade licence. At the end of my work I reviewed and assessed current practice in this field.