International Journal of Private Law (11 papers in press)
REFLECTIONS ON RECENT DEVELOPMENTS REGARDING WAGE GARNISHMENT IN SOUTH AFRICA
by Hermie Coetzee, Charlotte Van Sittert
Abstract: A wage garnishment order is an effective and widely used method to collect judgment debts where the debtor is employed in the formal sector. However, procedures whereby the orders are obtained should be carefully drafted to curb possible abuses. In South Africa, the circumstances under which such orders could be obtained led to abuse of the process in practice, with sometimes tragic consequences. Fortunately, the South African apex court confirmed the unconstitutionality of the aspects of the procedure that led to abuse of the process. Also, the Department of Justice and Correctional Services introduced an Act, which mainly seeks to amend the procedure to address abuses in the debt recovery system. This contribution reflects on these developments against the backdrop of the present socioeconomic circumstances in South Africa. Some comparative research was done which is also considered. The ultimate aim of the contribution is to determine whether South Africa has adequately transformed its wage garnishment landscape to curb abuse.
Keywords: emoluments attachment orders; garnishee orders; wage garnishment.
FINANCIAL LIBERALISATION VERSUS THE REGULATION OF CAPITAL OUTFLOWS: REFLECTIONS ON CAPITAL MOVEMENT RESTRICTIONS IN SOUTH AFRICA ON THE BACKDROP OF SOUTH AFRICAN RESERVE BANK AND ANOTHER V SHUTTLEWORTH AND ANOTHER 2015 (5) SA 146 (CC).
by Herbert Kawadza
Abstract: One of the constraints to economic development in emerging economies has to do with unavailability of capital to fund economic activities. It is not surprising therefore that most jurisdictions have come up with mechanisms that are aimed at arresting capital leakages out of their borders. Such strategies include stringent regulation of capital mobility. Much as that approach is laudable, it nonetheless conflicts with the financial liberalisation agenda that most of these countries have subscribed to. In South Africa, the recent case of South African Reserve Bank and Another v Shuttleworth and Another rekindled this debate. This article is an attempt to ride on the waves that this judgment has created so as to add to the conversation about the necessity or otherwise of regulation capital outflows within the South African context in particular and in emerging economies in general. As such this is a discussion about a conflict. A conflict between two contrasting scholarships; one advocating for the preservation of capital controls, and the other intensely agitating for capital account liberalisation.
Keywords: Capital flight; financial liberalisation; currency control; emerging economies; regulations.
THE HAGUE CONVENTION ON CHOICE OF COURT AGREEMENTS AND THE ENFORCEMENT OF FORUM-SELECTION CLAUSES IN INDIAN PRIVATE INTERNATIONAL LAW
by Saloni Khanderia
Abstract: The Hague Convention on Choice of Court Agreements (the HCCA) that came into effect on 1 October 2015, fundamentally regulates forum-selection clauses in international civil and commercial agreements and the manner in which, the courts of Contracting States shall enforce them. Although India is a Member of the Hague Conference, it is yet to sign and ratify the HCCA. In the domestic realm, matters pertaining to jurisdiction are governed in India by the Code of Civil Procedure 1908 (CPC), with there being no particular provision to regulate the enforcement of forum-selection clauses in international matters. This article rummages to find whether Indian courts correspondingly enforce forum-selection clauses in international civil and commercial agreements, so as to suspend or dismiss proceedings in circumstances where the parties have made a choice in favour of an international court. Accordingly, it demonstrates the basis on which, Indian courts would uphold exclusive choice of court agreements in international civil and commercial matters, to draw the complementarities, if any, that exist in this respect, between the HCCA and Indian private international law.
Keywords: Hague Convention on Choice of Court Agreements; Indian private international law; choice of court agreement; exclusive jurisdiction.
International Trade Law and Domestic Policy in Indonesia as Developing Countries a lesson learn from Indonesian Mining Policy
by Kristianto Halomoan
Abstract: International Trade has played important role since the end of World War II because it gives access to world markets for goods and services, which create employment opportunities, increase consumption, and encourage creativity which contribute to raise income and prosperity for many countries. Moreover, the establishment of World Trade Organization in 1994 has accelerated the growth of international trade activities. According to the WTO annual report 2014. The global economy of international trade is worth up to US$ 1 trillion per year, and generating up to 21 million jobs around the world.
The 2014 WTO annual report has shown that international trade law is one of the most important economic contributions for national wealth. Indonesian as one of developing countries also considers international trade as their important pillar to support their economic growth. However, from perspective of developing countries such as Indonesia, Indonesia needs to develop domestic policy that cover national interest which might impact Indonesian commitment to International Trade Law under WTO framework.
Recently, Indonesian has enforced its national legislation regarding the use of Indonesias Mineral Resources for Mining Company, which obligated every mining company to process added value to mineral ore before trade it into international market. Therefore, any mining company who did not comply with the requirement shall not be able to export their ore mineral. However, from Indonesian Government perspective, this policies goal is to maximize added value from mining industries which might be consider by other state as banned type of export policies. This paper try to describe the relationship between International Trade Law under WTO policy and its relation to national policy in Developing countries, especially in Indonesia. How will Indonesia balance between compliance of international trade law and the protection for national interest under its public order (Constitution mandate).
Keywords: International Trade Law; Domestic Policy; Developing Country; Natural Resources; World Trade Organization.
Special Issue on: Special Issue by Prof Monica Steffen Guise Rosina
Threats of the Internet of Things in a techno-regulated society: A New Legal Challenge of the Information Revolution
by Eduardo Magrani
Online copyright infringement, techno-cultural creations and the copyright -technology nexus
by Caroline B. Ncube
A Consumer's Case for Regulating Electronic Credit and Debit Transfers (EFTs) in South Africa
by S. Papadopoulos
Artificial reproductive technologies and international law: the role of human rights
by Ludovica Poli
Smart Cities: Technological Opportunities and Legal Challenges in Developing the Internet of Things for Public Goods
by Alexandre Pacheco Da Silva, Rodrigo Moura Karolczak
Good governance for consumer welfare and accountability in the age of digital aggregators: The case of Amazon India
by Sunita Tripathy
Regulation of Uber in Sao Paulo: from conflict to regulatory experimentation
by Rafael A. F. Zanatta, Beatriz Kira