Rights, duties and remedies under the United Nations Convention on Contracts for the International Sale of Goods: an investigation into the CISG's compatibility with South African law
- Authors: Oosthuizen, Beverley-Claire
- Date: 2009
- Subjects: United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3691 , http://hdl.handle.net/10962/d1003206 , United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Description: This thesis analyses the compatibility of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the South African law of sale. An initial examination of the historical development of the CISG reveals its ambitions of becoming the primary source of law governing international contracts of sale. The goal of this research is to determine whether South Africa should ratify the CISG. The CISG has been ratified by most of the leading trading States in the world. In order to gain a better understanding of the advantages and disadvantages of ratification, a comparative study has been undertaken. The stance taken toward the CISG by the United Kingdom and Germany has been examined. The United Kingdom has staunchly avoided ratifying the CISG, despite having agreed thereto a number of years ago. Germany however has taken a different approach and has welcomed the CISG. The experiences of these foreign States serve as a useful guide when assessing the specific challenges that exist in South Africa concerning the adoption of the CISG. The most important aspect of this study is the direct comparison between the legal provisions housed in the CISG and their counterparts under South African law. A careful investigation has been conducted into the rights, duties, and remedies under the CISG. This investigation is followed by an examination of the corresponding rights, duties, and remedies under the South African domestic law of sale. It is evident from these explorations that the rights and duties under the CISG strongly resemble those under South African law. The direct comparison revealed however that certain remedies found in the CISG do not have a counterpart under South African law. Despite this discrepancy, there are no legal principles in the CISG that are completely unknown in South African law. While certain remedies housed in the CISG cannot be found in an identical form under South African law, sufficiently similar legal principles can be found, which frequently lead to the same results as those under the CISG. This study is concluded with a recommendation concerning South Africa’s adoption of the CISG.
- Full Text:
- Date Issued: 2009
- Authors: Oosthuizen, Beverley-Claire
- Date: 2009
- Subjects: United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3691 , http://hdl.handle.net/10962/d1003206 , United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Description: This thesis analyses the compatibility of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the South African law of sale. An initial examination of the historical development of the CISG reveals its ambitions of becoming the primary source of law governing international contracts of sale. The goal of this research is to determine whether South Africa should ratify the CISG. The CISG has been ratified by most of the leading trading States in the world. In order to gain a better understanding of the advantages and disadvantages of ratification, a comparative study has been undertaken. The stance taken toward the CISG by the United Kingdom and Germany has been examined. The United Kingdom has staunchly avoided ratifying the CISG, despite having agreed thereto a number of years ago. Germany however has taken a different approach and has welcomed the CISG. The experiences of these foreign States serve as a useful guide when assessing the specific challenges that exist in South Africa concerning the adoption of the CISG. The most important aspect of this study is the direct comparison between the legal provisions housed in the CISG and their counterparts under South African law. A careful investigation has been conducted into the rights, duties, and remedies under the CISG. This investigation is followed by an examination of the corresponding rights, duties, and remedies under the South African domestic law of sale. It is evident from these explorations that the rights and duties under the CISG strongly resemble those under South African law. The direct comparison revealed however that certain remedies found in the CISG do not have a counterpart under South African law. Despite this discrepancy, there are no legal principles in the CISG that are completely unknown in South African law. While certain remedies housed in the CISG cannot be found in an identical form under South African law, sufficiently similar legal principles can be found, which frequently lead to the same results as those under the CISG. This study is concluded with a recommendation concerning South Africa’s adoption of the CISG.
- Full Text:
- Date Issued: 2009
South Africa and the International Criminal Court: investigating the link between complimentarity and implementation
- Authors: Kulundu, Kenneth Wanyama
- Date: 2006
- Subjects: International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3679 , http://hdl.handle.net/10962/d1003194 , International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Description: Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.
- Full Text:
- Date Issued: 2006
- Authors: Kulundu, Kenneth Wanyama
- Date: 2006
- Subjects: International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3679 , http://hdl.handle.net/10962/d1003194 , International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Description: Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.
- Full Text:
- Date Issued: 2006
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