LL. M. (International Commercial Law) / Please refer to full text to view abstract

LL.M. (International Commercial Law) / Legal judgements against unsuccessful defendants are handed down around the world on a daily basis, but their enforcement can become a complicated matter when the enforcement of the judgement must occur outside the territorial boundaries of the state from which it emanates. The purpose of this paper is to determine the enforceability of judgements of the European courts whereby the jurisdiction of the court was determined in terms of Brussels I. This paper begins with an in-depth discussion of the principles of recognition and enforcement of foreign judgements and the purpose it serves within the context of private international law. The second chapter discusses recognition and enforcement of foreign judgements in South Africa. The requirements and the criteria necessary to fulfil such requirements will be discussed under this heading. The third chapter considers the various grounds of jurisdiction available to the plaintiff in approaching a court of a European Union State. Each ground will be followed by a discussion on the enforceability of a judgement, founded on such a ground of jurisdiction, in terms of the South African principles of recognition and enforcements of foreign judgements and whether the requirements discussed in the preceding chapter have been met. Chapter 4 provides concluding remarks relating to the matters discussed in the body of this paper.

The thesis investigates the extent to which cross-border taking of evidence in civil and com-mercial matters in relation to Switzerland, South Africa, Botswana, Namibia, Nigeria, and Uganda is allowed. Such evidence-taking is not only governed by the domestic law of the state seeking evidence abroad and that of the state where the relevant means of proof are located, but also by public international law, and more specifically by the concept of sovereignty. The ad-missibility of the cross-border taking of evidence under public international law depends on whether or not evidence-gathering in civil litigation is regarded as a judicial act, which violates sovereignty when performed on foreign territory, or as a purely private act. In the first case, the evidentiary material has to be obtained through channels of international judicial assistance. Such assistance can either be rendered based on the basis of an international treaty, or through courtoisie internationale. No international judicial assistance is necessary in cases of a so-called “transfer of foreign evidence”, provided no compulsion is applied which infringes the sovereignty of the foreign state. The thesis analyses the taking of evidence abroad based on the Hague Evidence Convention, and the Hague Procedure Convention. It further expounds how evidence located in Switzer-land, Botswana, Namibia, Nigeria, and Uganda can be obtained for the benefit of civil proceed-ings pending abroad in the absence of any relevant international treaty. The thesis also exam-ines under what conditions a litigant in civil proceedings in the aforementioned countries may request evidence to be taken on foreign soil. The position of cross-border taking of evidence in civil and commercial matters in the said countries is assessed, and suggestions are made on how such status quo may be improved. The thesis makes an attempt to establish the basic prin-ciples for a convention on evidence-taking in civil and commercial matters between South Af-rica, Botswana, Namibia, Nigeria, and Uganda. The development of such principles, however, is only possible once the similarities and differences in the procedure for the taking of evidence and the means of proof in the relevant laws of the aforesaid countries have been identified. / Public, Constitutional, & International / LL.D.

The diploma thesis is focused on alternative dispute resolution (ADR) in business relationships. The goal of thesis is to determine the term of alternative dispute resolution and to compare different approaches to regulation of mini-trial and mediation. The first part of thesis presents the term ADR and identifies its key characteristics. It points out the advantages and disadvantages of ADR and introduces institutions which concern with ADR. The attention is also aimed on arbitration and its relation to ADR. The second part of thesis deals with mini-trial. The description of its features is based on comparison of model rules provided by institutions which concern with ADR. The third part of thesis is focused on the most expanded method of ADR -- mediation. The attention is aimed at regulation trend within the European Union, legislation in the Czech Republic and Mediation Act Proposal. Closing part compares regulation of mini-trial and mediation and points out some of the debatable provisions of the Mediation Act Proposal.

The thesis investigates the extent to which cross-border taking of evidence in civil and com-mercial matters in relation to Switzerland, South Africa, Botswana, Namibia, Nigeria, and Uganda is allowed. Such evidence-taking is not only governed by the domestic law of the state seeking evidence abroad and that of the state where the relevant means of proof are located, but also by public international law, and more specifically by the concept of sovereignty. The ad-missibility of the cross-border taking of evidence under public international law depends on whether or not evidence-gathering in civil litigation is regarded as a judicial act, which violates sovereignty when performed on foreign territory, or as a purely private act. In the first case, the evidentiary material has to be obtained through channels of international judicial assistance. Such assistance can either be rendered based on the basis of an international treaty, or through courtoisie internationale. No international judicial assistance is necessary in cases of a so-called “transfer of foreign evidence”, provided no compulsion is applied which infringes the sovereignty of the foreign state. The thesis analyses the taking of evidence abroad based on the Hague Evidence Convention, and the Hague Procedure Convention. It further expounds how evidence located in Switzer-land, Botswana, Namibia, Nigeria, and Uganda can be obtained for the benefit of civil proceed-ings pending abroad in the absence of any relevant international treaty. The thesis also exam-ines under what conditions a litigant in civil proceedings in the aforementioned countries may request evidence to be taken on foreign soil. The position of cross-border taking of evidence in civil and commercial matters in the said countries is assessed, and suggestions are made on how such status quo may be improved. The thesis makes an attempt to establish the basic prin-ciples for a convention on evidence-taking in civil and commercial matters between South Af-rica, Botswana, Namibia, Nigeria, and Uganda. The development of such principles, however, is only possible once the similarities and differences in the procedure for the taking of evidence and the means of proof in the relevant laws of the aforesaid countries have been identified. / Public, Constitutional, and International / LL.D.

LL.M. (International Commercial Law) / This essay seeks to look at the role of express submission to jurisdictjon under the Brussels I Regulation,lthe Brussels I (recast) Regulation2 and the Hague Convention on Choice of Court Agreements.3 The express submission to jurisdiction under the three instruments mentioned in the previous sentence refers to the situation in which parties to an international commercial contract include in their contract a court of their choice to govern any disputes that may arise between them. This designated court may or may not be situated in a country that is a member of the three instruments mentioned above. The purpose of this thesis is to determine what will occur when the court chosen is from a country that is not a member of either of the three instruments mentioned. We will first look at express submission and the role it plays in determining which court has jurisdiction. This section on express submission will provide the definition of express submission in the context of a contract which incorporates a choice-of-forum agreement between the parties who are engaged in an international commercial transaction. The thesis will view the role of submission in a common-law and civil-law country in light of express submission by contract. Finally, a distinction will be made between an exclusive and non-exclusive jurisdiction clause. A brief discussion ofthe Brussels Convention4 (The Convention) will be provided in order to present the fact that the Convention only applies when a choice-of-forum agreement in a contract has assoned thejurisdiction to a court of a country which is a member of the Convention. The Convention would not apply when a choice-of-forum agreement in a contract has assigned jurisdiction to the court of a country which is not a member to the Convention. ln order to determine whether the position has changed since the enactment of the Brussels I Regulation (Regulation) with regard to choice-of-forum agreements that designate jurisdiction to the court of a country in a nonmember state of the Regulation, provisions relating to express submission clauses will be discussed. A further discussion will be provided to ascertain whether the enactment of the Council Regulation (EC) No 4412001 of 22 December 2000 on jurisdiction and the recognition and enforcement ofjudgments in civil and commercial matters.

The EU jurisdictional scheme, known as the “Brussels Regime”, confers competence to national courts to adjudicate over international matters. The main rule in Article 4(1) of the Brussels Ibis Regulation sets out that the defendant should generally be sued in the courts of the Member State where he is domiciled. For certain subject matters, the scheme allows the action to be brought elsewhere. The raison d’être is to provide an adequate counterbalance to the one-sided rule of Article 4(1). Articles 7(1) and (2) enable the claimant to launch the suit, “in matters relating to a contract”, at the court of the Member State where the contractual obligation was to be fulfilled, and, in “matters relating to tort”, in the courts for the place where the harmful event occurred. Whether to invoke Article 7 is entirely the claimant’s choice, but the final decision on its interpretation is vested in the Court. Thereby, the manner in which the Court views the provisions will effectively decide the extent of the claimant’s choice to invoke so-called special jurisdiction. It also means that greater emphasis on special jurisdiction will reduce the importance of the main rule in Article 4. Conversely, if the Court were to interpret Article 7 narrowly, its intended effect within the system would be denied. In both cases, the balance between Articles 4 and 7 has been upset. In the former case, the claimant is favoured because of the increased possibilities to choose the forum for the dispute, while in the latter case, the defendant is favoured because he retains the advantage of litigating in his home turf. The starting point for this essay is this very idea of a purported balance between litigants’ interests in EU cross-border litigation. The thesis analyses whether the Court’s case-law on general vis-à-vis special jurisdiction has transitioned from being generally defendant-friendly to claimant-friendly. It is argued that already from the first judgments rendered on the original Brussels Convention in 1976, increasingly more disputes have been launched at special fora, which has amounted to a claimant-friendly scheme. It is also argued that this development has been at the expense of the defendant. Greater choice for the claimant means in turn that the defendant’s ability to foresee before what courts he may be sued has been largely impaired. The thesis highlights how this imbalance is the result of inherent challenges in the Brussels Regime, particularly in relation to how the relevant connecting factors are designated. It is proposed that the unwanted effects of the Court’s practice as well as the shortcomings of the scheme itself are to be considered in the Commission’s evaluationof the Brussels Ibis Regulation, which is presently in the works.