International Journal of Private Law (14 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: The establishment of the World Trade Organization in 1994 has accelerated the growth of international trade activities, which is worth up to US$1 trillion per year according to the WTO Annual Report 2014. Indonesia, as one of the developing countries, also considers international trade as their important pillar to support economic growth. However, the challenge is to balance national interest and Indonesian commitment to international trade law under the WTO framework into Indonesian legal policy. This challenge was shown in the newest Indonesian Mining Policy in 2009, which obligated every mining company to strive added value for their mineral ore. As a consequence, mining industries in Indonesia will no longer be able to export their mineral ore. From the Indonesian Governments perspective, the objective of these policies is to maximise added value from mining industries which might be considered by other states as a restriction type of export policies.
Keywords: international trade law; domestic policy; developing country; natural resources; World Trade Organization; WTO.
Leading international best regulatory principles in responsible lending policy: Lessons for Namibia
by Ndatega Victoria Asheela, Stefan Renke, Melanie Roestoff
Abstract: The economic downturn following the 2008 global financial crisis has inter alia invoked a movement towards responsible lending practices in order to protect credit consumers from irresponsible lending and over-indebtedness. In Namibian consumer credit law, inasmuch as debt prevention measures are contained in three pieces of legislation, there are still no responsible lending measures in place. This article provides an overview of the current and emerging international regulatory measures intended to promote responsible lending policy. It begins by tracing the development of consumer credit policies from truth-in-lending to responsible lending responses. It then provides a broad survey of the efforts aimed at promoting responsible lending policy with the aim of determining current trends and guidelines for devising a responsible lending regime and formulates leading international best principles for a modern and effective responsible lending regime. It is submitted that these leading international best principles can be useful lessons to Namibia and other developing countries alike in improving their national consumer credit law policies.
Keywords: Irresponsible lending; consumer over-indebtedness; responsible lending policy; pre-agreement assessments; consumer protection.
An appraisal of the property settlement provisions under the Nigerian Matrimonial Causes Act: Lessons from Australia
by Chinedu Justin Efe
Abstract: This article reflects on the property settlement provisions under section 72 of the Nigerian Matrimonial Causes Act No 18 of 1970 Cap M7 Laws of the Federation of Nigeria, 2004. Noting that the said section was adapted from section 86 of the repealed Australian Matrimonial Causes Act No 104 of 1959 (Cth), it makes a comparative analysis of both provisions. It makes a finding that there exists a difference in the interpretation and application of the property settlement provisions in both countries. It notes that in Australia, under the repealed Act and the extant law (the Family Law Act No 59 of 1975 (Cth)), there has been a change in emphasis from making property settlement orders only within the purview of spousal maintenance orders to the alteration of property rights. In contrast, Nigerian courts have shown that besides settling property on a spouse as a means of making maintenance orders, they are not empowered to alter the property interests of spouses by way of making a redistribution order. In this light, the article calls for a rethink of the law in Nigeria so as to reflect the true proprietary relationship of spouses on marriage breakdown.
Keywords: maintenance; marriage; property interest; property right; property settlement; settlement; transfer.
The consequences of contractual incapacity in private international law
by Eesa Fredericks
Abstract: In this article the issue of which legal system should govern the consequences of contractual incapacity is addressed, for instance, that a contract is void, voidable or unenforceable (or that it is valid only after ratification) and that restitution has to be made. Most legal systems do not specifically identify an applicable law in this regard. Exceptions are the position in Germany and Oregon and under a proposal for a Puerto Rican codification. Taking policy considerations, national models and related provisions in regional, supranational and international instruments into consideration, the author submits that the consequences of contractual incapacity should be governed by the putative objective proper law of the contract.
Keywords: Private international law; The conflicts of law; Contractual capacity; Contractual incapacity; Proper law of the contract; Putative objective proper law of the contract; lex domicilii; lex loci contractus; lex patriae; law of habitual residence; the Lizardi rule.
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