L’étude du sort des exceptions environnementales et sanitaires à l’OMC permet de mettre en lumière l’équilibre qu’assurent les organes de règlement des différends entre les valeurs commerciales et non-commerciales. Ces exceptions sont pourtant vouées à une ineffectivité systémique au sein du droit de l’OMC. Les organes de règlement des différends fonctionnent comme des régulateurs exclusivement portés par et pour les intérêts commerciaux. En refusant d’infléchir les principes du libre-échange au nom des exceptions inscrites dans les textes, ils appliquent un droit rigide, vecteur d’insécurité environnementale, sanitaire et alimentaire. Une première approche linéaire de la jurisprudence révèle que les organes de règlement des différends cultivent l’apparence d’une régulation équilibrée dans ces domaines. Cet équilibre de façade est néanmoins contredit par une recherche approfondie sur le véritable sort réservé aux exceptions environnementales et sanitaires. La présente étude démontre que les organes de règlement des différends ont en réalité interprété ces exceptions de manière tellement restrictive qu’elles en sont devenues ineffectives. Une seconde approche, plus transversale, révèle que la rigidité du multilatéralisme commercial est ancrée jusque dans les mécanismes juridiques et techniques du droit de l’OMC. Ainsi en va-t-il du droit de la preuve et de la reconnaissance des normes externes au droit de l’OMC qui neutralisent les exceptions environnementales et sanitaires. Pourtant, ces verrous actuels représentent les clefs potentielles de demain, à même de relever les défis contemporains. / The use of the environmental and sanitary exceptions’ study highlights the balance between commercial and non-commercial values provided by the WTO’s dispute settlement organs. Yet, these exceptions turn out to be mere decoys, since they are doomed to ineffectiveness in the WTO’s law. The dispute settlement organs appear to be exclusively motivated by and for commercial interests. By refusing to inflect the free trade’s principles on behalf of the textual exceptions, they turn WTO in a rigid law, vector of environmental, sanitary and alimentary insecurity. A first linear perspective shows that the dispute settlement organs claim to ensure a balanced regulatory activity in these areas. Nevertheless, a deeper study of what happens to the environmental and sanitary exceptions contradicts this apparent balance. As a matter of fact, the dispute settlement organs have adopted such a restrictiv interpretation of these exceptions, that they have become ineffective. A second cross perspective shows that the rigidity of the comercial multilateralism is deeply rooted into the technical juridical mechanisms of the dispute settlement. Such is the case of the rules on proof and the recognition of external norms: these locks in the present could be keys in the future that would enable the WTO’s law to meet the contemporary challenges.

Magister Legum - LLM / The main aim of the research was to determine the viability of retaliation as a trade remedy under the Dispute Settlement Understanding. It was to establish whether retaliation as a remedy is beneficial to the entire WTO membership and system. The specific objectives were: to examine the feasibility of damages as an alternative remedy to retaliation; to determine whether there is a need to revise the Dispute Settlement Understanding, for it to adopt a more development friendly approach to dispute resolution; to make recommendations regarding the improvement of the Dispute Settlement Understanding. / South Africa

Magister Legum - LLM / Aims of the research paper is to examine the legal framework  of implemantation and enforcement of DSB recommendations and rulings and to investigate the trend of non-compliance with BSD recommendations and rulings where complianant  is a developing country. / South Africa

Magister Legum - LLM / The objective of this study was to examine and review the main features and works of the arbitration and conciliation working group of UNCITRAL while demonstrating their impact on international trade. / South Africa

No description available.

The purpose of this study was to compare the dispute resolution systems of Botswana and South Africa. As far as the South Africa dispute resolution system is concerned extensive literature on the system was carried out to describe its functioning. As for the Botswana dispute resolution system there was not much written about it in the literature, so in order to find out more about this system semi-structured interviews with labour relations experts which include mediators, arbitrators, lecturers, labour lawyers, trade unionists, employers and government officials held. The framework of comparison was developed to compare the elements of dispute resolution systems against each other and secondly to compare each system against the criteria of performance to the system. The two labour relations systems were compared in terms of elements of the system and the performance of the two systems. In the comparisons of the elements of the systems it was found out that in both systems the nature of disputes was collective and individual disputes both of which can be referred to the initial process of mediation or conciliation. However, in Botswana collective disputes can only be referred to arbitration if they remain unresolved in mediation while in South Africa only collective disputes on essential services go to arbitration while others lead to a strike or lockout if unresolved at conciliation. As for coverage both systems have incorporated public service sector employees in the systems after being excluded from the system for a very long time. The only difference is that in Botswana the Police force is not included while in South Africa they are included in the system. Differences in the avenues of disputes in the two countries were noted, in Botswana the rights/individual disputes go to either arbitration or Industrial Court if unresolved at mediation, inter-est/collective disputes can only go to arbitration while in South Africa the route of disputes is specified in the legislation. As for the human resources of the two countries it was found that the South African system has more qualified, trained and sufficiently experienced staff than the Botswana system. As for the processes it was found that for South Africa the initial process is conciliation while in Botswana it is mediation but these two processes were similar in many ways, from mediation/conciliation the next step in both systems is arbitration and just like the conciliation/mediation, arbitration in both countries was found to be similar except that in South Africa it is a public hearing. The two systems were also compared in terms of their performances and the research has established that between the two systems the South African system proved to be more superior on three of the criteria; efficiency, accessibility and legitimacy than the Botswana system. Therefore, the research proposes a number of recommendations for Botswana to implement namely; establishment of a legislated mixed process of mediation-arbitration, making the dispute resolution system independent from government, recruitment of high qualified and experienced staff for mediation and arbitration, accreditation to private agencies, effective case management system and proper routing of disputes.

Effective, efficient and expeditious resolution of labour disputes plays a crucial role in terms of the realization of one of the primary objectives of the Labour Relations Act (hereinafter referred to as “the Act”) which is the achievement of labour peace. Although there is no proper definition of a dispute offered by the Act, there are several elements raised by authors within the labour relations and labour law fields which constitute a dispute. Two types of disputes are discussed, namely disputes of right (emanating from entitlement) and disputes of interest (based on demands not provided for, and these are also known as disputes based on matters of mutual interests). Labour relations in South Africa has a history that is tarnished by segregation and dualism, where there was a system of labour relations and labour statutes for all races (except for Africans). The first statute dealing somewhat comprehensive with labour disputes, the Industrial Conciliation Act, did not apply to Africans. This situation (exclusion of Africans) prevailed until the early 1980’s. Therefore, although the apartheid system was legislated in 1948, its segregation practices based on race existed long before 1948 and also extended to the workplaces. The turning point in the labour relations arena in South Africa was the appointment of the Wiehahn Commission. As a result of the recommendations by this Commission, African Workers were for the first time included in labour legislation. So, of great interest is the fact that African Workers attained labour rights before the demise of the apartheid system. The birth of the Act with its dispute resolution fora like the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”), Bargaining Councils, Labour Court and the Labour Appeal Court, revolutionized dispute resolution in the country. However, there are some challenges that have emerged even within the new system. Prior to 1993, labour relations in the public service, simply just did not exist. This was mainly due to the fact that the public service was excluded from mainstream legal framework governing labour relations. The State was very much in control of what was happening with regards to employment relations in the public service. There were some structures developed for engagement with the State like the Public Service Commission (PSC) which was politicized to push the agenda of apartheid, Public Servants Association (PSA) for White Public Servants, Public Service Union (PSU) for Indian Public Servants and Public Service League for Coloured Public Servants. There was no structure established for African Public Servants though. Nevertheless, these established structures were useless. One of the recommendations of the Wiehahn Commission was the inclusion of public servants within the mainstream labour relations framework and this was never pursued by the then government. It took the wave of strikes in the early 1990’s for the Act to be extended to the public service. Even with the inclusion of public service within the scope of the Act, there are still challenges pertinent to the public service. Central to these challenges is the problem of fragmentation in terms of approach regarding dispute resolution and the fact that there are too many pieces of legislation dealing with dispute resolution. This situation has also resulted in a jurisdictional debacle within the public service. Also, there is a huge challenge in terms of dealing with abscondments / desertion within the public service. In terms of the way forward, there is an initiative to streamline the public service. In this regard, there is a Draft Single Public Service Bill and also the Public Service Amendment Bill.

The creation of a binding adjudication system under the Dispute Settlement Understanding ("DSU") is one of the major successes of the WTO. However, while the Dispute Settlement Body ("DSB") has experienced a high level of compliance with its rulings, there have been enough failures to raise concerns about compliance with WTO rulings. This in turn endangers the long term viability and legitimacy of the WTO as a decision-making body. This thesis explores the possibility of more effective integration of arbitration as a means of dealing with a small number of problematic cases where compliance with a ruling is doubtful. It considers arbitration as an alternative to what has effectively become an institutionalized litigation system involving panels and the Appellate Body, and as an adjunct to the diplomatic resolution of disputes, particularly for policy driven cases where compliance with WTO rulings is more doubtful. While proposals for the use of arbitration made during the Uruguay Round of negotiations leading to the creation o f the WTO have been realized in the provisions of the DSU, arbitration has never been effectively tested as a true alternative. Further, arbitration as an alternative to the litigation system has been almost entirely ignored in the context of the current debate over reform of the WTO dispute settlement system. After over a decade of WTO decision making, it is now an opportune point to consider meaningful institutional reform that more fully incorporates arbitration as an alternative form of dispute settlement at the WTO in politically difficult cases, and that builds on the existing but underused arbitration provision in Article 25 of the DSU. This thesis challenges the predominant bias towards the litigation system involving panels and the Appellate Body as a one-size-fits-all solution. It explores the potential role of arbitration, in the context of compliance theories, a historical review of the negotiations during the Uruguay Round, and an analysis of the shortcomings of the current DSU that contribute to the problems of non-compliance. / Law, Peter A. Allard School of / Graduate

Metaphors have long shaped the way pure translation studies describe and justify the translation phenomenon by discovering and consolidating underlying principles. Ultimately, by means of metaphor, something that dwells on the interaction of two seemingly distinct things, translation theorists have obtained a better understanding of the category of translation. Human beings are gregarious, and disputes are inevitable in every society, ancient or modern, primitive or civilized. In fact, conflict is one iron law of life that mankind has had to improvise ways of resolving, from such formal ones as litigation to private ones such as self-help. We may not be able to eliminate dispute altogether, but we can, however, resolve it through creative and civilized means. Translation can be approached in a similar context, except it concerns a metaphorical dispute between cultures and/or languages—and probably on a more intangible and subtle platform. Disparate cultures, religions and languages in a clash can be brought closer to each other with skillful translation, and hence, translation is a variation of dispute resolution. That never went totally unnoticed. Over the years, countless translation metaphors have been constructed and exploited with very different results, which indicates how interdisciplinary a subject translation studies really is. Yet, apparently, translation is most often metaphorized as mediation and negotiation but rarely as arbitration or litigation, and one cannot but wonder whether this happened out of sheer coincidence or because of some misunderstanding. Thus, much as I appreciate what theorists have accomplished with translation metaphors, in regard to didactics and heuristics, my primitive observation is that translation theorists and practitioners have never made full use of metaphorization in that they might have had an incomplete idea of dispute resolution theory in general. After all, a metaphor is, ideally, meant to facilitate active learning and full integration of new knowledge, but there still remains a missing piece that is part and parcel of our metaphorization of translation. Specifically, translators have always embraced the amicable terms of negotiation and mediation, distancing themselves from non-mainstream ones such as arbitration and litigation. To that end, in my thesis, I will explore and examine translation through slightly renewed lenses, demonstrating how and why our metaphor schema and mapping should originate in dispute resolution, and why litigation, and perhaps even arbitration as dispute resolution mechanisms, would serve as good a metaphor—if not a better one—for translation. It is my resolute belief that the translator is more qualified as a judge, a respectable professional vested with immense judicial power, than as a mediator, who is but a third-party neutral facilitating dialogue between two disputants. Only in this way can metaphors do translation theory a great service by furnishing it with a renewed and objective description of translation.

LL.D. / The sea plays a pivotal role in the political, economical and social function of individual states and the international community as a whole. The need for the proper management of the sea and its natural resources has become more important than ever before to ensure the continued existence of mankind. The law of the sea, traditionally, rests mainly on two pillars, namely the principle that the sea is res communes and the principle of the freedom of the sea. Because the sea covers seventy percent of the surface of the earth it is, in particular, an area where conflict between states occur. The peaceful settlement of international disputes is therefore of vital importance to maintain and strengthen peace amongst nations. The 1982 United Nations Convention on the Law of the Sea, which only came into force on 16 November 1994, is an evolutionary international instrument that can aptly be described as a constitution for all uses of the sea. The convention created a sustained normative framework with new rights and obligations through the establishment of the common heritage of mankind, the exclusive economic zone and archipelago states. Provision is also made for the inclusion of new international organisations such as the International Seabed Authority, the Commission on the Limits of the Continental Shelf and the International Tribunal for the Law of the Sea.Because the 1982 Convention demarcates the borders of the various maritime zones, which falls within the sovereignty and jurisdiction of states, it contributes in the effort to balance the competing rights of the freedom of the sea, on the one hand, and the sovereign rights and jurisdiction of 601 coastal states, on the other hand, that included claims to territorial waters, the continental shelf, and the establishment of the common heritage of mankind and the exclusive economic zone. The convention also contains comprehensive rules for the settlement of disputes emanating from the various uses of the sea. The most significant feature of the dispute settlement procedures of the convention is the compulsory dispute settlement mechanisms. Every party that ratified the convention is subject to dispute settlement in terms of part XV without the need for the parties to subject themselves to dispute settlement whenever a dispute arises. The traditional means of dispute settlement as envisaged by article 33(1) of the Charter of the United Nations is confirmed in section 1, and is integrated into the compulsory dispute settlement procedures of section 2 of part XV. The parties, however, may not resort to compulsory dispute settlement unless and until they have exhausted the traditional means of dispute resolution. Compulsory dispute resolution is therefore subservient to the traditional means of dispute settlement.