Equivalent Provisions Research Articles

A Critical and Comparative Analysis of Delegation and Reliance by Company Directors under the South African Companies Act 71 of 2008

Delegation by directors and reliance on third parties is an important practical issue. Directors unlawfully delegating their powers or relying on third parties could face serious consequences, such as liability for breach of fiduciary duties, or even disqualification from acting as directors. Uncertainty over when a director may appropriately delegate to or rely on others could foster an overcautious approach to managing the company’s affairs and impede the company’s decision-making processes. This article critically analyses the principles of directors’ delegation and reliance on third parties under the South African Companies Act 71 of 2008. It contends that these principles lack clarity and are ambiguous. It compares these principles to the equivalent provisions of the Revised Model Business Corporations Act 1984 of the United States of America and the Corporations Act 2001 of Australia and makes recommendations to clarify and improve the law relating to delegation and reliance by company directors.

New legislation to promote paediatric studies for new cancer medicines

Although few clinical trials or targeted therapies have historically been available for paediatric cancers, legislative efforts have sought to incentivise the study of new cancer medicines in children. Under the Research to Accelerate Cures and Equity for Children (RACE) Act, the US Food and Drug Administration (FDA) was, from August, 2020, authorised to require paediatric studies for new medicines indicated for adult cancers if the molecular targets are relevant to the growth or progression of a paediatric cancer. In June, 2022, the US House of Representatives passed legislation modifying the RACE Act to allow specific types of combination studies, with equivalent provisions included in the Senate version (the Give Kids a Chance Act of 2022).

CRIME OF PERJURY (TPC ART. 275)

Hukuk davalarında taraf yemini, mahkemeyi bağlayıcı kesin bir delil niteliğinde olduğundan, yemin üzerine gerçek dışı beyanda bulunulması, mahkemenin yemine konu maddi vakıayı doğru tespit ederek adil bir karar vermesini ve dolayısıyla adil yargılama vazifesini yerine getirmesini tehlikeye sokabilmekte, bu durum aynı zamanda toplumun adliyeye olan güvenini sarsmakta ve bireylerin hak kaybına uğramalarına yol açabilmektedir. Adli yargılamanın sağlıklı bir şekilde işlemesi ve toplumun buna olan güvenin korunması ile devletin asli görevleri arasında yer alan adaletin tesisi amaçlarıyla kanun koyucu gerek 765 sayılı mülga Türk Ceza Kanunu’nun 287. maddesi gerekse yürürlükte olan 5237 sayılı Türk Ceza Kanunu’nun 275. maddesinde bir hukuk davasının taraflarınca gerçekleştirilen yalan yere yemin eylemini yaptırım altına almıştır. Bu çalışmada, Türk Ceza Kanunu’nun 275. maddesinde düzenlenen yalan yere yemin suçu, Alman, Avusturya ve İsviçre Ceza Kanunlarında yer alan muadil hükümlerle karşılaştırılarak konuya ilişkin öğreti görüşleri ve yargı kararları doğrultusunda incelenmiştir.

Similar, yet different: The Work-life Balance Directive and the expanding frontiers of EU non-discrimination law

The 2019 Work-life Balance Directive prohibits discrimination when workers exercise the rights contained in the Directive, which include rights to take leave for reasons related to caring responsibilities and the right to request flexible working arrangements for caring purposes. This article explores the relationship between the Work-life Balance Directive and EU non-discrimination law. It analyses the provisions of the Directive related to non-discrimination and compares these to equivalent provisions found elsewhere in EU non-discrimination law. It argues that the Work-life Balance Directive should be regarded as forming a new branch of EU non-discrimination law. Such a characterization will be important for its interpretation by the Court of Justice. This is also significant for our understanding of how EU non-discrimination law is evolving.

THE RIGHT TO LEGAL REPRESENTATION AT STATE EXPENSE FOR CHILDREN IN CARE AND CONTACT DISPUTES – A DISCUSSION OF THE SOUTH AFRICAN LEGAL POSITION WITH LESSONS FROM AUSTRALIA

The article discusses the right of children to legal representation at state expense in family disputes in South Africa as provided for in section 10 of the Children’s Act 38 of 2005 and section 28(2)(h) of the Constitution. Certain aspects are highlighted: the applicant applying for legal representation; the requirements for an appointee; the appointment criteria; duties and responsibilities of the appointee as well as the funding for such appointment. The South African legal principles are compared with the equivalent Australian provisions relating to the Independent Children’s Lawyer. The article concludes with some recommendations for lacunae identified in the South African system in light of the Australian experience.

A Comparative Discussion of the Judicial Disqualification of Directors under the South African Companies Act

AbstractSection 162 of the South African Companies Act 71 of 2008 empowers courts to declare directors delinquent and hence to disqualify them from office. This article compares the judicial disqualification of directors under this section with the equivalent provisions in the United Kingdom, Australia and the United States of America, which have all influenced the South African act. The article compares the classes of persons who have locus standi to apply to court to disqualify a director from holding office, as well as the grounds for the judicial disqualification of a director, the duration of the disqualification, the application of a prescription period and the discretion conferred on courts to disqualify directors from office. It contends that, in empowering courts to disqualify directors from holding office, section 162 of the South African Companies Act goes too far in certain respects.

The Prospective (Ir)Relevance of Section 3 of the Human Rights Act: A Comparative Perspective

Abstract This article suggests that the power conferred on United Kingdom courts by section 3(1) of the Human Rights Act 1998 (UKHRA) is legitimate as a matter of the interpretation of that provision. It sets out a contextual approach to the interpretation of section 3(1) consistent with general principles of statutory interpretation. This differs from most analyses of this provision, whether comparative or jurisdiction-specific, which tend to use constitutional theory as the framework for analysis. The article adopts a comparative perspective, applying the same approach to section 6 of the New Zealand Bill of Rights Act 1990 (NZBORA). It concludes that the approach of New Zealand courts to section 6 is also correct as a matter of the interpretation of that provision. The different approaches of United Kingdom and New Zealand courts to these equivalent provisions is explained by a number of important differences between the UKHRA and NZBORA; including especially the context in which each statute falls to be interpreted. Some implications of this analysis for the development of the principle of legality in the United Kingdom in the event of repeal of section 3(1) of the UKHRA are briefly identified.

Putting the Fox in Charge? Political Parties and the GDPR: An Irish Perspective

In the wake of Cambridge Analytica, the use of personal data by political parties has been subject to increased scrutiny. Given the specific policy challenges which such use poses, this article examines the conditions for the lawful processing of personal data under the General Data Protection Regulation (GDPR), as it applies to political parties. It identifies the extensive flexibilities afforded by the GDPR to Member States and argues that granular Member State analysis is required if the GDPR regime is to be meaningfully evaluated in this context. Using Ireland as a detailed case study and referencing the equivalent provisions of the UK Data Protection Act 2018 (DPA UK) for comparison, the article examines the different ways in which these Member States responded to the flexibility afforded by the GDPR. Based on this, the article argues that closer engagement with the issue of political parties by the European Data Protection Board is needed in order to provide a more fine-grained response which bridges the space between the ‘one size fits all’ approach in the GDPR and the wide-ranging discretion of the flexibilities afforded to Member States. GDPR, political parties, lawful processing, freedom of expression, public interest, European Data Protection Board

Russia—Measures Concerning Traffic in Transit

This dispute, brought by Ukraine against Russia, provides the first discussion in a World Trade Organization (WTO) Panel or Appellate Body Report of the security exception in Article XXI of the General Agreement on Tariffs and Trade 1994 (GATT). Unusually for a WTO dispute, the Panel (chaired by former WTO Appellate Body Member Georges Abi-Saab) found that Russia had not acted inconsistently with any of the claimed obligations under the GATT or Russia's Accession Protocol. Central to that conclusion was the Panel's understanding of the GATT security exception and the circumstances surrounding the imposition of the challenged measures, which related to trade in transit by road and rail through Russian territory. The Panel found that, since 2014, an emergency in international relations existed between Russia and Ukraine within the meaning of GATT Article XXI(b)(iii) and that the challenged measures fell within this exception. If the exception had not applied, according to the Panel, Ukraine would have established a prima facie case of violation of the provisions on freedom of transit in GATT Article V:2 and equivalent provisions in Russia's Accession Protocol. The decision, which neither party chose to appeal, has significant implications for other disputes in which the security exception has been invoked.

The Suspension and Setting Aside of Delinquency and Probation Orders under the Companies Act 71 of 2008

A significant innovation of the Companies Act 71 of 2008 is contained in section 162. This provision empowers a court to declare a director delinquent or under probation on various grounds. The effect of a delinquency order is that a person is disqualified from being a director of a company, while being placed under probation means that he or she may not serve as a director except to the extent permitted by the order. A delinquency order may be unconditional and subsist for the director's lifetime, or it may be conditional and be effective for seven years or longer, as determined by the court. A probation order generally subsists for a period not exceeding five years, and may be subject to such conditions as the court considers appropriate. The harsh effects of these orders are alleviated by section 162(11) of the Companies Act. Under this provision, a delinquent director may apply to court after three years have elapsed, to suspend the delinquency order and to substitute it with a probation order, with or without conditions. A person who was placed under a probation order may apply to court after two years for the probation order to be set aside. This article examines the procedure under section 162(11) of the Companies Act for the suspension and setting aside of delinquency and probation orders. The factors that a court must take into account in exercising its discretion whether or not to grant the application, as set out in section 162(12) of the Companies Act, are also examined. This article draws on relevant jurisprudence as decided on the equivalent provisions in the corporate legislation in the United Kingdom and Australia. The method of interpretation used in these jurisdictions provides useful guidance on how best to apply and interpret sections 162(11) and (12) of the Companies Act. Recommendations are made regarding the proper approach to interpreting, applying and enhancing sections 162(11) and (12) of the Companies Act.

The Impact of International Humanitarian Law on the Principle of Systemic Integration

The present article explores the impact of international humanitarian law (IHL) on the consolidation and development of the principle of systemic integration. The analysis relies on the jurisprudence of those international judicial and quasi-judicial bodies that have used IHL for interpretive guidance when applying human rights law in armed conflict. Whereas much attention has been paid to the substantive outcome of the interplay between these two bodies of law, too little consideration has been devoted to the role of systemic integration within this context. Human rights bodies and the International Court of Justice resort to this principle in three ways, namely by means of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), through equivalent provisions included in certain human rights treaties, or implicitly. In that regard, systemic integration is employed either to reinforce the application of human rights law by way of IHL, or to avoid norm conflict between diverging norms, especially in relation to the use of force and detention. The article identifies the kinds of impact that IHL has or may have with regard to the consolidation of the principle of systemic integration within the interpretive principles codified in the VCLT and in terms of the modification of some of its constitutive elements. It also aims to demonstrate that systemic integration, rather than lex specialis, is the principle of interpretation most pertinent to the interaction between IHL and human rights law.

Delinquent Directors under the Companies Act 71 of 2008: Gihwala v Grancy Property Limited 2016 ZASCA 35

The Companies Act 71 of 2008 has introduced into our company law an innovative provision which permits a wide range of persons to apply to court to declare a director delinquent. This provision is contained in section 162 of the Companies Act 71 of 2008. The effect of an order of delinquency is that a person is disqualified for a specified period from being a director of a company. In Gihwala v Grancy Property Limited [2016] ZASCA 35 the Supreme Court of Appeal was faced with some important questions surrounding the declaration of delinquency of a director. It was contended by the appellants that section 162(5)(c) of the Companies Act 71 of 2008 is unconstitutional on the grounds that it was retrospective in its application, and that there was no discretion vested in a court to refuse to make a delinquency order or to moderate the period of such order to less than seven years. It was further contended that section 162(5)(c) of the Companies Act 71 of 2008 infringed the constitutional right to dignity, the right to choose a trade, occupation or profession and the right of access to courts. In assessing these contentions, the SCA addressed and clarified some important questions surrounding the declaration of delinquency of a director. This note discusses and analyses the judgment of the SCA. It points out some anomalies in section 162 of the Companies Act 71 of 2008. This note contends that, in assessing the rationality of section 162(5) of the Companies Act 71 of 2008, the SCA ought to have considered the equivalent provisions in leading foreign jurisdictions that have influenced our Act, particularly since section 5(2) of the Companies Act 71 of 2008 permits a court where appropriate to consider foreign law in interpreting the Act. Further, this note analyses the test applied by courts in determining whether the offences set out in section 162(5) of the Companies Act 71 of 2008 have been committed, and argues that the courts ought to make more effective use of their power to impose ancillary conditions to declarations of delinquency. 

S.62 LPA 1925: restating the case for reform

PurposeThe purpose of this paper is to explore how S.62 LPA 1925 and its equivalent provisions in other jurisdictions have been interpreted as having the capacity to create new easements. It is intended to identify that the theoretical justification for this interpretation can be viewed as flawed, and that its practical implications are unsatisfactory. It intends to restate the need for reform and to challenge arguments that this interpretation is correct and justified.Design/methodology/approachThis paper examines and analyses the origins of the principle that S.62 LPA 1925 can create new legal rights, consider similar provisions from other jurisdictions, examine recent attempts to justify the creative effect of the section and offer observations on proposals for reform.FindingsIt is found that the ability of S.62 LPA 1925 to create legal easements from precarious rights has been replicated in many jurisdictions, has been widely criticised as both incorrect in principle and problematic in practice and has been the subject of well-reasoned and workable proposals for reform for more than 40 years.Originality/valueFrom both theoretical and property practitioner perspectives, this paper highlights the lack of justification for the principle that S.62 LPA can create easements from precarious rights, challenges the arguments for retaining the principle and offers practical proposals drawn from several jurisdictions as to how the section and its equivalent provisions abroad could be reformed.

Delinquent Directors under the Companies Act 71 of 2008: Gihwala v Grancy Property Limited 2016 ZASCA 35

The Companies Act 71 of 2008 has introduced into our company law an innovative provision which permits a wide range of persons to apply to court to declare a director delinquent. This provision is contained in section 162 of the Companies Act 71 of 2008. The effect of an order of delinquency is that a person is disqualified for a specified period from being a director of a company. In Gihwala v Grancy Property Limited [2016] ZASCA 35 the Supreme Court of Appeal was faced with some important questions surrounding the declaration of delinquency of a director. It was contended by the appellants that section 162(5)(c) of the Companies Act 71 of 2008 is unconstitutional on the grounds that it was retrospective in its application, and that there was no discretion vested in a court to refuse to make a delinquency order or to moderate the period of such order to less than seven years. It was further contended that section 162(5)(c) of the Companies Act 71 of 2008 infringed the constitutional right to dignity, the right to choose a trade, occupation or profession and the right of access to courts. In assessing these contentions, the SCA addressed and clarified some important questions surrounding the declaration of delinquency of a director. This note discusses and analyses the judgment of the SCA. It points out some anomalies in section 162 of the Companies Act 71 of 2008. This note contends that, in assessing the rationality of section 162(5) of the Companies Act 71 of 2008, the SCA ought to have considered the equivalent provisions in leading foreign jurisdictions that have influenced our Act, particularly since section 5(2) of the Companies Act 71 of 2008 permits a court where appropriate to consider foreign law in interpreting the Act. Further, this note analyses the test applied by courts in determining whether the offences set out in section 162(5) of the Companies Act 71 of 2008 have been committed, and argues that the courts ought to make more effective use of their power to impose ancillary conditions to declarations of delinquency.

Should Professionals in Employment Constitute ‘Undertakings’? Identifying ‘False-Employed’

This article argues for the recognition of some professionals in employment as ‘undertakings’ on the grounds that they are ‘false employed’—a term inspired by Dutch Orchestra which regarded some self-employed musicians as ‘false self-employed’ who lost their status as ‘undertaking’. It teases out the potential parameters of this category by drawing on labour law research and suggests that it extends beyond the liberal professionals to include professionals employed in, for example, financial services and IT. Adopting this approach would secure the applicability of Art 101TFEU (and, presumably, equivalent provisions of national competition law in some Member States) to anti-competitive decisions of professional associations whose membership includes many employees.

DEFINING THE LIMITS OF THE “OPPRESSION REMEDY” IN THE WAKE OF SECTION 163 OF THE COMPANIES ACT 71 OF 2008 Grancy Properties Limited v Manala [2013] 3 All SA 111 (SCA)

The case of Grancy Properties Limited v Manala ([2013] 3 All SA 111 (SCA))was an appeal from the ruling of the Western Cape High Court involving the interpretation and application of section 163 of the Companies Act 71 of 2008. The section allows a shareholder or director of a company to lodge an application for relief in instances of conduct that is oppressive or unfairly prejudicial, or which unfairly disregards the interests of the applicant. The main question for determination by the Supreme Court of Appeal was whether the appellant was entitled to relief in terms of section 163 (2)(f)(i), based on the facts presented in the court below. The significance of section 163 lies in the changes it brings to the “oppression remedy” (this is the common expression used to refer to the remedy provided for in s 163), including widening the scope of the remedy, expanding the discretion given to the courts in issuing an order and making the content of the remedy clearer relative to previous equivalent provisions. The primary question under consideration in this note is whether the section goes far enough in providing protection to minority shareholders and others affected by corporate conduct. The note also examines the overall impact of section 163 and offers suggestions for possible future improvements.

The enforcement of foreign arbitral awards in Australia against non-signatories to the arbitration agreement

A party that obtains an award in an overseas-seated arbitration may seek enforcement by an Australian court under the International Arbitration Act 1974 (Cth). However, Australian case law is somewhat inconsistent in terms of judicial support for arbitration and there is a perception that Australian courts have inadequately fulfilled Australia’s obligations under the New York Convention by interpreting the arbitral law in an interventionist rather than supportive way. There is particular uncertainty surrounding the enforcement of foreign awards against non-signatories to the arbitration agreement. Much of this uncertainty stems from linguistic differences between the enforcement provisions of the International Arbitration Act and the equivalent provisions in other prominent jurisdictions. This article compares the recent practice of Australian courts regarding the enforcement of foreign arbitral awards against non-signatories to the arbitration agreement with the theoretical framework set out in the New York Convention and with the decisions of courts in England, Singapore and Hong Kong. It argues that amendments to the International Arbitration Act are required to bring Australia’s enforcement provisions into line with international practice and Australia’s obligations under the New York Convention. Australian International Arbitration Act (1974) English Arbitration Act (1996) Singapore International Arbitration Act (as amended in 2012) Hong Kong Arbitration Ordinance (2014) (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), arts III, IV, V IMC Aviation Solutions Pty Ltd v Altain Khuder LLC, Victorian Court of Appeal (Australia) (2011) Dampskibsselskabet Norden A/S v Beach Building & Civil Group Pty Ltd, Federal Court of Australia (2012) Dardana Ltd v Yukos Oil Co, English Court of Appeal (2002) Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan, UK Supreme Court (2011) Aloe Vera of America Inc v Asianic Food (S) Pte Ltd and Another, High Court of Singapore (2006) Paklito Investment Ltd v Klockner East Asia Ltd, Supreme Court of Hong Kong (1993) Hebei Import & Export Corp v Polytek Engineering Co Ltd, Court of Final Appeal of the Hong Kong Special Administrative Region (1999)

The Development of Charity: Jurisprudential Lessons from History

This article describes the ancient legal practices, codified in Biblical law and later rabbinical commentary, to protect the needy. The ancient Hebrews were the first civilization to establish a charitable framework for the caretaking of the populace. The Hebrews developed a complex and comprehensive system of charity to protect the needy and vulnerable. These anti-poverty measures, including regulation of agriculture, loans, working conditions, and customs for sharing at feasts, were a significant development in the jurisprudence of charity. The article begins with a brief history of ancient civilizations, providing context for the development of charity by exploring the living conditions of the poor. The second half of the article provides a searching analysis of the rabbinic jurisprudence that established the jurisprudence of charity. This ancient jurisprudence is the root of the American modern philanthropic idea of charitable giving exemplified by modern equivalent provisions in the United States Tax Code.However, the author normatively concludes that American law has in recent times deviated from these practices to the detriment of modern charitable jurisprudence. A return to the wisdom of ancient jurisprudence will improve the effectiveness of modern charity and philanthropy.

Bribery Act 2010: implications for regulated firms

PurposeThe UK responded with Bribery Act 2010 (BA 2010) after various international criticisms. The purpose of this article is to review its implications for UK regulated firms and foreign equivalents.Design/methodology/approachThe approach adopted is qualitative relying on primary and secondary data analysis. The paper will analyse recent enforcement cases to guide the interpretations of the legal impact of the statute.FindingsThe study suggests five key findings. First, contrary to criticisms, BA 2010 is not without teeth. Second, the UK's position is not particularly unique as the USA and other European jurisdictions have broadly equivalent provisions. Third, BA 2010 contrary to criticisms does not use a one‐size fits all approach as allowance is provided for the use of common‐sense and proportionate approach. Fourth, significant numbers of regulated firms do not appear to implement comprehensive anti‐bribery systems. Fifth, there are some key differences with the better known US Foreign Corrrupt Practices Act (FCPA).Practical implicationsThe analysis suggests that regulated firms and others affected by BA 2010 would need to take a more serious view of its legal consequences and respond with more robust anti‐bribery procedures and systems.Originality/valueContrary to the earlier alluded criticisms, the terms in the statute are to a large extent clear and accessible. The study reinforces the argument that current regulated‐firms' anti‐bribery procedures are not entirely satisfactory prompting the suggestion for improvements.

Archiving Our Culture in a Digital Environment: Copyright Law and Digitisation Practices in Cultural Heritage Institutions

This report presents the findings from interviews conducted with 26 employees involved in different aspects of the digitisation projects at seven New Zealand cultural heritage institutions (CHIs). The research project focused on copyright law and the digitisation of CHIs’ collections. The digitisation of Māori cultural heritage adds another dimension to the activities of New Zealand CHIs, and this area was also explored in the interviews. The objectives of CHIs are to protect, preserve, and facilitate accessibility to cultural entities in the interests of research and education, and the general public interest in cultural matters. In line with overseas practice, New Zealand’s CHIs make use of digital technologies to achieve their objectives. However, many items in CHIs’ collections are protected by copyright. To make a copy of such items without the consent of the copyright owner is an infringement of copyright. Nevertheless, for various reasons including those that are linked to copyright law itself, as well as practical matters such as inadequate resourcing for CHIs to trace absent copyright owners, and a lack of metadata relating to some items in CHIs’ collections, most digitisation projects in CHIs proceed without the consent of copyright owners. Indeed, there is very little understanding within CHIs of the complexities of copyright law and how it relates to the practices of digitisation of their collections. In essence, the permitted exceptions in the Copyright Act 1994 (“the Copyright Act”) which are intended to support the preservation and archiving of cultural heritage (“the archiving exceptions”) are, similarly to equivalent provisions in overseas copyright legislation, unsuitable in a digital environment. For example, the archiving exceptions permit a single digital copy of an item to be made, whereas digitisation inevitably results in multiple copies. In addition, it is unclear whether the archiving exceptions apply to CHIs that are museums. In part, this gap between practice and law appears to exist because the broader purposes of digitisation of CHI collections were misconceived by the legislators. This research found that CHIs digitise their collections because they wish to provide accessibility to a more widespread audience. Conversely, the archiving exceptions have been drafted with a view that the main purpose of digitisation is similar to that of analogue reproduction; that is, to preserve a copy of an item in a collection that is in danger of deterioration. Another reason for the inadequacy of the archiving exceptions is that, as for all permitted exceptions in national copyright laws, these provisions are required to comply with each of the “three step test” provisions in Article 13 of the Agreement of Trade-Related Aspects of Intellectual Property Rights (“the TRIPS Agreement”). Part 8 of this report suggests that the three step test requirement can be satisfied while nevertheless providing more appropriate exceptions for CHIs. While CHIs’ practices in the area of digitisation of Māori cultural heritage appear, on the whole, to be robust this report proposes that to provide certainty a new provision to regulate this activity should be inserted into the Copyright Act. The report concludes by recommending further amendments to the Copyright Act to address the current gap between practice and the law that has been revealed by the research.