L'arbitrage évolue parallèlement et en accord au développement du commerce et des relations internationales s'accompagnant d'un accroissement des différends commerciaux de plus en plus complexes et spécialisés. En choisissant l'arbitrage, les parties excluent, de manière consensuelle, la compétence juridictionnelle des tribunaux étatiques. Ce droit à l'accès aux tribunaux étatiques se retrouve notamment à la Charte québécoise des droits et libertés de la personne. La validité d'une convention d'arbitrage dépend donc avant tout de la preuve de son existence et la preuve du consentement des parties s'y rattachant. La nécessité de l'écrit est donc un moyen de s'assurer du consentement des parties. La Convention de New York de 1958 énumère plusieurs de ces principes de forme. Son article 11(2), qui prévoit que la convention d'arbitrage doit être par écrit, n'est plus adapté aux réalités juridiques et commerciales d'aujourd'hui ni au développement du commerce électronique. Que peut être considéré comme un écrit afin de répondre aux exigences de l'article 1I(2)? Abordée par la CNUDCI, cette problématique quant au formalisme requis dans l'expression de la volonté des parties à se soumettre à l'arbitrage est d'une importance capitale dans la mesure des différentes interprétations qui existent à ce sujet tant au niveau du droit québécois et canadien qu'au niveau du droit international. Une réforme des dispositions législatives quant au formalisme écrit du consentement à l'arbitrage doit être mise en place et ce, soit par une réforme des dispositions législatives existantes ou par une mise à jour officielle de l'interprétation donnée aux dispositions actuelles en vigueur. / Arbitration has evolved in parallel and in accordance with the development of commerce and of international relations coming along with the rise of commercial disputes which are becoming increasingly complex and specialised. By choosing arbitration, the parties consensually exclude the jurisdiction ofState courts. This right to access State courts is protected namely in the Charter ofHuman Rights and Freedoms. The validity of an arbitration clause therefore depends above all on the proof of its existence and of the consent of the parties to that effect. The necessity of the written form becomes a mean that insures of the consent of the parties. The 1958 New York Convention enumerates several of those formal requirements. !ts section 11(2), which states that the arbitration clause has to be in written form, is not adapted to today's legal and commercial reality nor to the development of electronic commerce. What exactly is considered as ''written'' in order to respect the requirements of section 1I(2)? As addressed by UNCITRAL, the issue concerning the formalism required for the expression of the parties' intent to be subjected to arbitration is of a vital importance. Numerous interpretations exist in Canadian law as well as in International law. A reform of the existing legal provisions relating to the consent of arbitration needs to be implemented, either through a reform of the existing provisions or through an official process to update the interpretation given to the requirements that are a1ready in place. / "Mémoire présenté à la Faculté des études supérieures en vue de l'obtention du grade de LL.M. en droit option droit des affaires"

La faillite internationale est une matière complexe qui a donné lieu à un long et vif débat doctrinal entre les tenants des systèmes de la territorialité et de l'universalité. Une faillite est internationale lorsqu'elle met en présence un débiteur possédant des biens ou des créanciers dans plus d'un pays. Puisque la matière de faillite est souvent très différente d'un pays à l'autre, l'application du système de la pluralité, retenue dans la plupart des pays, soulève plusieurs problèmes particulièrement en ce qui concerne la coordination entre les diverses faillites et le manque de protection des créanciers, notamment parce qu'elle accorde des effets limités à la reconnaissance des procédures de faillite étrangères. En effet, en présence de procédures de faillite concurrentes il s'agit de répondre aux questions suivantes: quelle est la juridiction compétente pour ouvrir et organiser la faillite? Quelle est la loi applicable? Dans quels États cette faillite va-t-elle produire des effets? Dans le présent mémoire, il s'agit d'établir une comparaison entre le système canadien et le système européen en matière de faillite internationale. Le législateur canadien a récemment envisagé de modifier sa législation sur la faillite pour permettre une meilleure coopération internationale en matière de faillite internationale. Le projet canadien C-55 reprend pour l'essentiel les dispositions contenues dans la loi-type de la commission des Nations-Unis pour le droit commercial international (CNUDCI) sur «l'insolvabilité internationale». Ainsi, il permet de faciliter réellement la reconnaissance des décisions de faillite étrangères, il accorde une plus grande portée aux effets de cette reconnaissance et il prévoit une coordination des procédures multiples en établissant une «hiérarchisation» des procédures de faillite relativement semblable au système européen. Cependant, le projet canadien atteint moins bien l'objectif d'universalité que le Règlement européen 1346/2000 au niveau du traitement égalitaire entre les créanciers locaux et les créanciers étrangers. Si la loi-type offre à tous les États une utilité pratique considérable pour les nombreux cas de coopération internationale, l'harmonisation de la faillite internationale dépendra de son adoption dans les différentes législations. Bien que plusieurs pays aient inséré ce modèle dans leur législation sur la faillite, il n'est pas encore possible, à l'heure actuelle, de parler d'un droit international de la faillite. / International insolvency is a complex subject that has given rise to a long and sharp doctrinal debate between supporters of systems of territorialism and of universality. An insolvency is international where a debtor possesses goods or creditors in more than one country. Since the matter of bankruptcy is often very different from one country to another, the application of the system of plurality, which is retained in the majority of countries, raises several problems, particularly with regard to the coordination between several bankruptcies and the lack of protection of creditors, largely because plurality grants effects that are limited to the recognition of the foreign bankruptcy procedures. Indeed, in the presence of concurrent procedures of bankruptcy, the following questions must be addressed: Which is the court having jurisdiction to open and organize the bankruptcy? Which law is applicable? In which States will this bankruptcy produce effects? This thesis will establish a comparison between the Canadian system and the European system with respect to international bankruptcy. The Canadian legislator recently planned to modify its legislation on bankruptcy in order to better foster international co-operation in the realm of international bankruptcy. The Canadian Bill C-55 largely reiterates the provisions contained in the Model Law on cross border insolvency (UNCITRAL). Bill C-55 thus facilitates the recognition of foreign decisions of bankruptcy, it grants a greater scope to the effects of this recognition and it aims to coordinate multiple bankruptcy procedures by establishing a "hierarchisation" there of that is relatively similar to the European system. However, the Canadian project does not achieve the goal of universality as well as does the European regulation 1346/2000 with respect to equal treatment between local creditors and foreign creditors. If the Model Law offers all States the considerable practical utility for many incidences of international co-operation, the harmonization of international bankruptcy will depend on the adoption of the Model Law in various domestic legislations. Although several countries have inserted this model in their legislation on bankruptcy, it is not yet possible, at the present time, to speak of an international law of bankruptcy.

An increase in economic globalisation and international trade the past two decades has amounted to an increase in the number of multinational enterprises that conduct business, own assets and have debt in various jurisdictions around the world. This, coupled with the recent worldwide economic recession, has inevitably caused the increased occurrence of multinational financial default, also known as cross–border insolvency (CBI). CBI refers to the situation where insolvency proceedings are initiated in one jurisdiction with regard to a debtor’s estate and the debtor also has property, debt or both in at least one other jurisdiction. When a multinational enterprise is in financial distress, the structure of such an enterprise poses significant challenges to the question of how to address its insolvency. This is due to the fact that, although the multinational enterprise is found globally in different jurisdictions around the world, the laws addressing its liquidation are local. The possibility of restructuring the multinational enterprise or liquidating it in order the satisfy creditor claims optimally depends greatly upon the ease with which the insolvency law regimes of multiple jurisdictions can facilitate a fair and timely resolution to the financial distress of that multinational enterprise. The legal response to this problem has produced two important international instruments which were designed to address key issues associated with CBI. Firstly, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on Cross–Border Insolvency in 1997, which has been adopted by nineteen countries including the United States of America (in the form of Chapter 15 of the US Bankruptcy Code) and South Africa (in the form of the Cross–Border Insolvency Act 42 of 2000). Secondly, the European Union adopted the European Council Regulation on Insolvency Proceedings (EC Regulation) in 2000. These two instruments address the management of general default by a debtor and are aimed at providing a legal framework which seeks to enhance legal certainty, cooperation, coordination and harmonization between states in CBI matters throughout the world. After discussing the viewpoints of various writers, it seems clear that “modified universalism” is the correct approach towards CBI matters globally. This is mainly due to the fact that the main international instruments currently dealing with CBI matters are all based upon “modified universalism”. By looking at various EU and US case law it is also evident that, although there is currently still no established test for the determination of the “centre of main interest” (COMI) of a debtor–company under Chapter 15, there is a difference in the approach adopted by courts in the EU and those in the US in this regard. This dissertation further discusses the requirements for a debtor–company to possess an “establishment” for the purpose of opening foreign non–main insolvency proceedings in a jurisdiction as well as the choice–of–law considerations in CBI matters. / Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2011.

An increase in economic globalisation and international trade the past two decades has amounted to an increase in the number of multinational enterprises that conduct business, own assets and have debt in various jurisdictions around the world. This, coupled with the recent worldwide economic recession, has inevitably caused the increased occurrence of multinational financial default, also known as cross–border insolvency (CBI). CBI refers to the situation where insolvency proceedings are initiated in one jurisdiction with regard to a debtor’s estate and the debtor also has property, debt or both in at least one other jurisdiction. When a multinational enterprise is in financial distress, the structure of such an enterprise poses significant challenges to the question of how to address its insolvency. This is due to the fact that, although the multinational enterprise is found globally in different jurisdictions around the world, the laws addressing its liquidation are local. The possibility of restructuring the multinational enterprise or liquidating it in order the satisfy creditor claims optimally depends greatly upon the ease with which the insolvency law regimes of multiple jurisdictions can facilitate a fair and timely resolution to the financial distress of that multinational enterprise. The legal response to this problem has produced two important international instruments which were designed to address key issues associated with CBI. Firstly, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on Cross–Border Insolvency in 1997, which has been adopted by nineteen countries including the United States of America (in the form of Chapter 15 of the US Bankruptcy Code) and South Africa (in the form of the Cross–Border Insolvency Act 42 of 2000). Secondly, the European Union adopted the European Council Regulation on Insolvency Proceedings (EC Regulation) in 2000. These two instruments address the management of general default by a debtor and are aimed at providing a legal framework which seeks to enhance legal certainty, cooperation, coordination and harmonization between states in CBI matters throughout the world. After discussing the viewpoints of various writers, it seems clear that “modified universalism” is the correct approach towards CBI matters globally. This is mainly due to the fact that the main international instruments currently dealing with CBI matters are all based upon “modified universalism”. By looking at various EU and US case law it is also evident that, although there is currently still no established test for the determination of the “centre of main interest” (COMI) of a debtor–company under Chapter 15, there is a difference in the approach adopted by courts in the EU and those in the US in this regard. This dissertation further discusses the requirements for a debtor–company to possess an “establishment” for the purpose of opening foreign non–main insolvency proceedings in a jurisdiction as well as the choice–of–law considerations in CBI matters. / Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2011.

We begin with a short analysis of the history of Investor-State Dispute Settlement (ISDS). We then discuss the merits and demerits of the regime, such as the arguments between finality, speediness, and correctness. Following from this, historical reforms are discussed, and whether those issues have gotten worse or better since these discussions. The modern problems are discussed, leading to the explanation of the “legitimacy crisis”. As Appellate Mechanisms (AM) and Investment Court Systems (ICS) both propose multi layered systems, we argue whether ISDS must be a “one bite at the apple” system. We expand on the issues of regulatory chill, before showing the contradictions in the granting of awards. From this, a discussion is raised on the advantages of a tenured system of adjudicators, particularly in reference to their apparent bias. We delve deeper into the direct consequences of the perceived issues of ISDS, in the context of human rights, the environment, and other issues of sovereignty.As more reforms are suggested, the question of “what makes arbitration, arbitration?” is raised. From here, we may begin to suggest reforms based on which key factors are to be preserved. Firstly, we discuss current reform options, such as the Mauritius Convention. We take inspiration from existing AM, and prior discussions on the implementation of such a system across the International Centre for Settlement of Investment Disputes (ICSID) and United Nations Commission on International Trade Law (UNCITRAL) frameworks. We analyse whether these discussions have led to change by comparing trends in drafting.Thereon, we offer suggestions of reform. ICS and how this would be implemented, what it would look like structurally, and its positive and negative effects. Using the Comprehensive Economic and Trade Agreement (CETA) and other contemporary ICS reform suggestions, we gain some knowledge of what an ICS regime could and should look like, the implementation of AM previously discussed in this regime, and other. Finally, we offer a different solution to the problems, yet less pragmatic, the termination of arbitration.

1 Abstract This dissertation deals with investment protection in the European Union from several points of view. The first part deals with the history of investment protection and its main basis and grounds for current legislation and proposals for future regulation, particularly within the EU. In subsequent parts, current legislation and intra-European Union investment protection is analysed in detail, including the question of validity and applicability of Intra-EU BITs, i.e. bilateral treaties concluded between two EU Member States. The analysis is made from the perspective of EU law, as well as from the point of view of public international law. The dissertation further deals with their relationship and demonstrates contradictions between them in two crucial cases, Eureko/Achmea and Micula. Additional themes of this dissertation are the powers of the European Union regarding investment protection and the conclusion of international treaties such as CETA and TTIP. This dissertation further deals with the status, jurisdiction and functioning of the International Centre for Settlement of Investment Disputes (ICSID), demonstrating the relatively smooth and widely accepted investment dispute settlement mechanism. In this regard, the proposed EU Multilateral Investment Court project in analysed, including a...

The relationship between international investment agreements and EU law has attracted increased attention in past few years. The aim of this thesis is to bring a detailed analysis of various aspects of this complicated relationship. In attainment of this aim it proceeds in the following steps. After a short introduction (Chapter I.), Chapter II. briefly overviews typical content of bilateral investment treaties, following with a more detailed analysis of relevant EU law rules concerning foreign investment and subsequent comparison of both sets of rules. Chapter III. deals with investment agreements to be concluded by the EU, in particular with questions of external competence for foreign investment, responsibility for breaches of investment agreements concluded by the EU and the future shape of EU investment policy. The status of existing bilateral investment treaties concluded between EU member states and third countries is analyzed in Chapter IV. Chapter V. tackles various issues related to investment treaties concluded between member states (so called intra-EU BITs).

Investment Policy of the European Union - protection of foreign direct investment Abstract One of the changes brought about by the Lisbon Treaty is the explicit inclusion of foreign direct investment and its protection in the common commercial policy of the European Union. This is one of the areas of exclusive competence of the EU. The European Union has subsequently stated negotiating bilateral agreements governing, inter alia, investment issues. However, it has not been spared from controversy and negative publicity that has been accompanying especially the TTIP and the CETA. This work aims to analyse the investment policy of the EU and mutual interaction of its institutions with the Member States and third parties. After general introduction to the topic of international investment law and EU law (chapters II. and III.), it is devoted to the issue of protection of foreign investment in the internal market. Its regime is then compared with the BIT regime (chapter IV.). Attention is then focussed towards the EU's external relations in the field of investment protection. Its competence is subjected to further analysis (chapter V.) and current results of efforts of the Commission and the EU as such are also discussed (chapter VI.). It is so in the light of possible impacts of foreign investment in terms of...

Foreign investments in SADC are regulated by Annex 1 of the SADC Protocol on Finance and Investments (SADC FIP), as well as the laws of SADC Member States. At present, SADC faces the challenge that this regime for the regulation of foreign investments is unstable, unsatisfactory and unpredictable. Furthermore, the state of the rule of law in some SADC Member States is unsatisfactory. This negatively affects the security of foreign investments regulated by this regime. The main reasons for this state of affairs are briefly explained below. The regulatory regime for foreign investments in SADC is unstable, due to recent policy reviews and amendments of key regulatory instruments that have taken place. Major developments in this regard have been the suspension of the SADC Tribunal during 2010, the amendment of the SADC Tribunal Protocol during 2014 to bar natural and legal persons from access to the Tribunal, and the amendment of Annex 1 during 2016 to remove investor access to international investor-state arbitration, better known as investor-state dispute settlement (ISDS). The regulation of foreign investments in SADC has been unsatisfactory, among others because some SADC Member States have failed or neglected to harmonise their investment laws with both the 2006 and the 2016 Annex 1. Furthermore, SADC Member States such as Angola, Democratic Republic of Congo (DRC), Malawi, Mauritius, Seychelles, Eswatini, Tanzania, Zambia, and Zimbabwe have multiple Regional Economic Community (REC) memberships. This places these Member States in a position whereby they have conflicting interests and treaty obligations. Finally, the future of the regime for the regulation of foreign investments in SADC is unpredictable, due to regional integration efforts such as the recent formation of the COMESA-EAC-SADC Tripartite Free Zone (T-FTA) and the African Continental Free Trade Area (AfCFTA). The T-FTA is entitled to have its investment protocol, while the AfCFTA investment protocol will be negotiated from 2018 until 2020. These developments entail that the 2016 Annex 1 will soon be replaced by an investment protocol at either the T-FTA or AfCFTA levels, thereby ushering a new regime for the regulation of foreign investments in SADC. The unknown nature of the future regulations create uncertainty and instability among foreign investors and host states alike. This study analyses the regulation of foreign investments in terms of Annex 1 and selected laws of SADC Member States. In the end, it makes the three findings mentioned above. In order to address these findings, the study makes four recommendations. The first is that foreign investments in SADC must be regulated at African Union (AU) level, by means of an AfCFTA investment protocol (which incidentally is now the case). Secondly, investor-state disputes must be referred to the courts of a host state, optional ISDS, the African Court of Justice and Human Rights (ACJ&HR) or other agreed forum. Thirdly, an African Justice Scoreboard (AJS) must be established. The AJS will act as a gateway to determine whether an investor-state dispute shall be referred to the courts of a host state, ISDS, the ACJ&HR or other forums. Fourthly, the office of an African Investment Ombud (AIO) must be created. The AIO shall facilitate the early resolution of investor-state disputes, so as to reduce the number of disputes that may end-up in litigation or arbitration. / Mercantile Law / LL. D.

Bank demand guarantees have become an established part of international trade. Demand guarantees, standby letters of credit and commercial letters of credit are all treated as autonomous contracts whose operation will not be interfered with by courts on grounds immaterial to the guarantee or credit itself. The idea in the documentary credit transaction/demand guarantee transaction is that if the documents (where applicable) presented are in line with the terms of the credit/guarantee the bank has to pay, and if the documents do not correspond to the requirements, the bank must not pay. However, over the years a limited number of exceptions to the autonomy principle of demand guarantees and letters of credit have come to be acknowledged and accepted in practice. In certain circumstances, the autonomy of demand guarantees and letters of credit may be ignored by the bank and regard may be had to the terms and conditions of the underlying contract. The main exceptions concern fraud and illegality in the underlying contract. In this thesis a great deal of consideration has been given to fraud and illegality as possible grounds on which payment under demand guarantees and letters of credit have been attacked (and sometimes even prevented) in the English, American and South African courts. It will be shown that the prospect of success depends on the law applicable to the demand guarantee and letter of credit, and the approach a court in a specific jurisdiction takes. At present, South Africa has limited literature on demand guarantees, and the case law regarding the grounds upon which payment under a demand guarantee might be prevented is scarce and often non-existent. In South Africa one finds guidance by looking at similar South African case law dealing with commercial and standby letters of credit and applying these similar principles to demand guarantees. The courts, furthermore, find guidance by looking at how other jurisdictions, in particular the English courts, deal with these issues. Therefore, how the South African courts currently deal/should be dealing/probably will be dealing with the unfair and fraudulent calling of demand guarantees/letters of credit is discussed in this thesis. / Jurisprudence / LL.D