published_or_final_version / Law / Doctoral / Doctor of Philosophy

abstract / Law / Doctoral / Doctor of Philosophy

The ticket distribution industry is changing rapidly. The traditional travel distribution chain comprised airlines, travel agents, and computer reservation systems (CRSs). With the current migration of travel distribution to the Internet, the way in which these actors interact has been radically altered. / After deregulation, the airlines' dependence on travel agents and CRSs led to high commission and booking fees respectively. The Internet now offers airlines a means to directly distribute their product to the travelling public with minimal expense. The airlines are eagerly shifting as many of their distribution activities as possible to different forms of web-based distribution, hoping to bypass both travel agents and CRSs. This has allowed them to reduce the commission fees they pay to travel agents. Travel agents too are going online, competing vigorously with the airlines. The combined effect of these (r)evolutions has put the airlines firmly in charge of their own distribution system. / Any such a fundamental change in a sector of industry is bound to raise anticompetitive concerns, especially for those who stand to lose the most. These concerns are at the centre of this thesis. After their examination and evaluation, I conclude that anticompetitive concerns do indeed exist and that the regulatory or antitrust authorities have the unenviable task of preserving competition, not competitors, in a new and rapidly evolving market.

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Le droit de l’OHADA face au commerce électronique est une réflexion épistémologique sur les questions juridiques que posent les transactions électroniques au sein des pays de l’Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA). Plus précisément, cette réflexion est une prospective sur l’encadrement juridique du commerce électronique par l’OHADA à partir des expériences menées notamment en Amérique du Nord (Canada-Québec) et en Europe. Les nouvelles technologies de l’information posent en Afrique comme elles l’ont fait ailleurs des défis au droit. Plusieurs initiatives régionales et nationales ont vu le jour au cours des dernières années pour relever ces défis. Seulement, le caractère hétérogène des législations mises en place est à même d’altérer la sécurité juridique régionale tant recherchée par l’organisation. Prenant appui sur la théorie de la circulation des modèles juridiques, cette thèse propose une véritable harmonisation dans le cadre de l’OHADA. Harmonisation qui veillera à prendre en compte les « spécificités africaines » tout en faisant de la Cour commune de Justice et d’Arbitrage (CCJA) d’Abidjan la plus haute juridiction communautaire en matière de commerce électronique. / Le droit de l’OHADA face au commerce électronique (OHADA law pertaining toe-commerce) is an epistemological reflection on the legal issues raised by e-tradeconducted among members of the Organisation for the Harmonisation of Business Lawin Africa (OHADA). This forward-looking analysis of the organization’s legalframework governing e-commerce draws upon relevant experiments carried out notablyin North America (Canada-Québec) and Europe. In Africa, as elsewhere, the newinformation technologies pose certain legal challenges. During the past several years,various regional and national initiatives have addressed these challenges. However, the heterogeneous nature of the different laws implemented impairs the regional-level legalsecurity sought by OHADA. Building on legal transplant, this dissertation proposes,within the context of OHADA, a true harmonization that will ensure that “Africanspecificities” are taken into account while making the Common Court of Justice and Arbitration (CCJA) in Abidjan the highest community jurisdiction in matters of e-commerce.

M.Comm. / The influence of electronic trading on the corporate environment is researched in this study. Large amounts of money in the form of financial instruments are managed on behalf of clients on a daily basis. With the ever-changing technology, organisations are forced to reconsider their current use of technology to enable them to provide the best service to their clients. Most financial processes have done away with the unnecessary use of paper. Corporate organisations that invest large amounts of money on behalf of clients and do not utilise electronic trading systems, are putting themselves, as well as their clients, at a disadvantage. It must be stressed that although the technical requirements and systems that are necessary for electronic trading are discussed, this study concentrates more on the strategic advantages and management implications electronic trading has on the organisation. This study comes to the conclusion that electronic trading has a significant impact on the business world, and that corporate organisations should seriously consider to convert their processes accordingly, expand it and utilise it to its full potential.

The research is based on the European Directive aimed at harmonising standards for construction products. Harmonised standards remove technical barriers to trade allowing manufacturers to sell their products anywhere in the European Economic Area (EEA) provided the product complies with the standard and has affixed the CE marking. This should lead to greater competition in all EEA markets. A review of relevant literature covered three distinct areas; developments of the European Union and the Construction Products Directive (CPD), the UK construction industry and materials sector and strategic management concentrating on market barriers and entry strategies. The research combined these areas together by investigating the impact of the CPD on the UK construction product manufacturers specifically considering the strategic decisions of the UK brick industry. As there was little previous empirical research into this area, data was generated through exploratory interviews with manufacturers and bodies involved with the UK implementation of the Directive, through a self-completion postal questionnaire survey with manufacturers from six product groups and by a case study approach used to examine the UK brick industry. The research demonstrated that the Directive is having little impact to date on the strategic decisions of UK construction product manufacturers. Also, there are a disturbing number of producers that were not aware of the Directive and its possible implications. By applying previous research findings to the UK brick industry, conclusions were drawn highlighting the specific nature of this industry and identifying specific characteristics that influence its competitiveness. The Directive and the UK brick industry have never previously been examined in such a manner and areas for further research have been suggested.

Rapid advancements in communications technology and the development of the Internet into a global 'network of networks' are said to be drivers of the 'new economy'. The access to these networks have stimulated the emergence of 'cyber business' and 'electronic commerce'. In the world of cyberspace, this 'new economy' represents a channel, rich in information, choices, opportunities, entertainment, knowledge, and commerce. It has changed the manner in which society works and interacts, whilst embracing the commercial sphere. The 'net' may be seen as an instantaneously accessible global shopping mall. Thus, there is a need to understand the problems associated with this new technology. As e-commerce continues to boom, globalisation presents new challenges to governments around the world, tax policymakers and administrators with regard to the application of existing tax norms. Whether or not the Internet continues to be a driving force behind the economy depends upon the policies, regulations, and taxes imposed on this new medium. The fact that the existing tax laws were developed to deal with the trading of physical goods or the provision of services to clearly identifiable persons, and not with the border less, faceless nature of electronic commerce, tax authorities must reach an international consensus and clarity on which taxing jurisdiction may collect taxes, when businesses and individuals are transacting online. Characterisation of income is important because national and international income tax rules assign different categories of income to different jurisdictions. The concept of 'permanent establishment' is based on a physical presence, which may be more difficult to apply with the modern communication systems. Due to the increasing rate at which multinationals share central services and business development activities, the transfer pricing issue is one of determining an appropriate price or value of transactions undertaken between related parties. These issues need to be examined by, among others, the OECD. It has yet to reach definite conclusions, but drafts of its working papers, made pUblic, suggest a chief focus of the GEeD work will be to clarify transactions in cyberspace. This thesis critically examines the ability of the existing tax legislation, within the context of the Income Tax Act 58 of 1962, to the challenges posed by trading on the Internet. An examination of the impact of tax principles on e-commerce is prefaced by an analysis of international response to this subject. The basic structure of the Internet, e-commerce and its functioning is examined. These daunting challenges and the controversial sets of issues are powerfully documented in this thesis, up to and including the enactment of the Taxation Laws Amendment Act 30 of 2002, which took effect on 13 December 2002. / Thesis (LL.M.)-University of Natal, Pietermaritzburg, 2003.

The Internet has changed the world. Its impact on the global society has been enormous, redefining almost every aspect of our life. It has also added a new quality to traditional commerce that in many instances has drastically transformed the way companies and individuals trade. However, electronic commerce is not a legally safe environment, as there exists a regulatory gap that introduces uncertainty surrounding rights and obligations in cyberspace. This may result in unexpected outcomes for e-commerce participants involved in litigation.

The Internet has changed the world. Its impact on the global society has been enormous, redefining almost every aspect of our life. It has also added a new quality to traditional commerce that in many instances has drastically transformed the way companies and individuals trade. However, electronic commerce is not a legally safe environment, as there exists a regulatory gap that introduces uncertainty surrounding rights and obligations in cyberspace. This may result in unexpected outcomes for e-commerce participants involved in litigation.