Contractual Restrictions on the Freedom of Trade: Prof PJ Sutherland (First semester)

The phenomenon of contractual limitations on the freedom of trade will be approached from a historical and comparative perspective. The manifestations of such arrangements and the circumstances under which they will be unenforceable will be considered in detail. The consequences of a finding that such an agreement is unreasonable will be considered, as well as issues such as severance, interpretation and remedies. The policy considerations relevant to the legal regulations of restraint agreements will be considered and issues relating to control of monopolies and the delictual implications of unlawful competition will also be considered.

Labour Law under the Constitution: Prof OC Dupper and Mr C Garbers (First semester)
This module covers the impact of the constitutional dispensation on South African Labour Law. Chapter 2 of the 1996 Constitution (Bill of Rights) contains several provisions that specifically regulate labour relations. Of these the most important is section 23, entitled “Labour relations.” However, many other provisions contained in Chapter 2 will also have an impact on labour law. Some of these include the right to equality (section 9); the right to privacy (section 14); the right of assembly, demonstration, picket and petition (section 17); the right to freely choose a trade, occupation and profession (section 22); and the right to social security and social assistance (section 27). The first few seminars will set the stage with a discussion of the pros and cons of the constitutionalisation of labour rights and an overview of the impact of the South African constitution on labour law. The seminars that follow will be concerned with some of the specific provisions in our Bill of Rights that may potentially impact on labour law. In this regard it has to be noted that internationally (and particularly in South Africa), constitutional principles have continued to have practical significance, not only in terms of direct reliance on such principles but also through the way in which the principles influence the interpretation of labour statutes. Even though the focus will be on South Africa, the course will be approached from an international and comparative perspective. Knowledge of South African labour law is not required. However, some background in labour law will be an advantage.

Employment Discrimination: Prof OC Dupper, Mr C Garbers (Second semester)

This module focuses on the emerging field of employment equity in South Africa. The Labour Relations Act of 1995 (LRA) and the Employment Equity Act of 1998 (EEA) prohibit discrimination against employees and extend that protection to applicants for work. The EEA also makes provision for the implementation of affirmative action measures to redress the disadvantages in employment experienced by black people, women, and the disabled. The course will be divided into two parts: The first part will concentrate on the prohibition of discrimination. Issues such as the meaning of discrimination, the structure of a discrimination claim, the difference between direct and indirect discrimination, justification and proof and evidence will be examined. Attention will also be paid to some of the typical areas of application, such as pregnancy, sexual harassment and equal pay claims. In the second part of the course, affirmative action will come under the spotlight. South Africa's Constitution breaks ranks with many legislative provisions elsewhere in the world by making explicit provision for affirmative action policies. In this regard, it is asserted that the South African Constitution embraces a substantive or asymmetrical - rather than a formal or symmetrical notion of equality. In order to give effect to the Constitution, the EEA places an obligation on 'designated employers' to implement affirmative action measures to redress the disadvantages in employment experienced by black people, women and people with disabilities. Against this background, we will examine critically the response of the South African judiciary and arbitrators to challenges launched against affirmative action practices and policies, and evaluate the principles that have crystallised against the framework of the constitutional commitment to substantive equality. Even though the focus will be on South Africa, the course will be approached from an international and comparative perspective.

International Commercial Arbitration: Prof DW Butler (First semester)

This module course focuses on the law and practice of international commercial arbitration, with specific reference to disputes involving South African, SADC and European parties. It includes the UNCITRAL Model Law on International Commercial Arbitration, which is to be adopted by South Africa; the role of national courts in the international arbitration process; the evaluation of international arbitral institutions and their rules (particularly the ICC and LCIA); choice of law in the context of international arbitration; arbitrability; the drafting of an international arbitration clause or submission agreement; the appointment of the arbitral tribunal; competence/competence; a consideration of cost-effective arbitral procedures; interim measures; the award, including the challenge, recognition and enforcement thereof; ICSID arbitrations; and current issues in international commercial arbitration (eg confidentiality and consolidation).

Note: A prior knowledge of domestic arbitration law and practice is not a prerequisite for this course.

International Business Transactions A: Ms J Coetzee (convenor) and Prof S Eiselen (Unisa) (First Semester)

This module deals with international sales law and related issues. The following topics are dealt with: the structure of the international sales transaction and its context; salient features and problems requiring legal regulation; the documentary nature of the transaction; trade terms (with special emphasis on the ICC’s Incoterms 2000); the role of private international law; the evolving international law; the need for a uniform law of international sale, and the agencies involved therein; an overview of the structure and general characteristics of the Vienna Convention for the International Sale of Goods, 1980 (CISG); factors relevant to the decision of a state to accede to the convention; criteria governing the application of the convention; the formation of contracts of sale under the CISG; the substantive sales law under the CISG including the duties and remedies of the parties, remedial provisions common to the parties, exemption from liability, and the passing of risk; evaluation of the CISG with reference to the needs and concerns of international trade and the extent to which it succeeds in striking a balance between divergent principles of the important legal families of the world.

Note: Due to a change in the team of presenters the course content may change slightly will not be fundamentally different.

International Business Transactions B: Prof CF Hugo (Second Semester)

This module deals with the instruments of payment and guarantee encountered in international business transactions. The following issues are addressed: problems and risks relating to payment in international business; different payment mechanisms with the emphasis on documentary collections and documentary credits and their regulatory frameworks (the ICC’s Uniform Rules for Collections (URC) and Uniform Customs and Practice for Documentary Credits (UCP) and its addendum the eUCP, as well as Article 5 of the American Uniform Commercial Code; independent guarantees and standby letters of credit and their regulatory frameworks (the United Nations Convention on Independent Guarantees and Standby Letters of Credit, the ICC’s International Standby Practices 98 (ISP98), the ICC’s Uniform Rules for Demand Guarantees (URDG)); the relationships between the different parties in abstract payment and guarantee relationships; the documents and their presentation with special emphasis on the doctrine of strict compliance; the principle of independence of the different relationships and the exceptions to this principle; the frustration of payment especially in the context of fraud (by injunctions and attachments); discounting arrangements including forfeiting.

Note 1: International Business Transactions A is not a prerequisite for International Business Transactions B.
Note 2: Students who wish to register for the programme in International Trade Law must enrol for International Business Transactions A, International Business Transactions B and International Commercial Arbitration (Department of Mercantile Law), as well as one of the following two modules: Fiscal Implications of International Trade (Department of Mercantile Law) and Public Law Aspects of International Trade (Department of Public Law).
Note 3: Students who prefer to enrol for only one of the International Business Transactions modules are free to do so. Such students can also focus their studies largely on international trade law by combining the International Business Transactions module of their choice with other modules relating to international trade. However, such students must register for the general LLM by course work programme.

Competition Law: Mr PW Kloppers (convenor), Proff WJ Pretorius (former special advisor to the SA Competition Commission), MG Erasmus, PJ Sutherland and Ms N Theron (First semester)

This module is an introduction to competition law, competition economics, structural issues (mergers), and issues of conduct in the market. It covers the following: competition economics; the application of the Competition Act; extraterritoriality and the effects doctrine; mergers and joint ventures including horizontal, vertical and conglomerate mergers; sections 12 - 16 of the Act; Australian merger guidelines and vertical and horizontal restraints as well as abuse of dominant position.
The agreement as a basis for vertical and horizontal restraints; horizontal restraints including the development of the rule of reason in the USA, section 81(1) and 81(3) of the Treaty of Rome and section 4 of the Competition Act; vertical restraints including minimal resale price maintenance, inter-brand and intra-brand competition, territorial and customer restraints, exclusive distribution, selective distribution and intellectual property aspects consisting of franchising, copyright and patents; price discrimination; abuse of dominance including section 82 of the Treaty of Rome, monopolisation in the USA and section 8 of the Competition Act; other selected items including rules of the Competition Commission, rules of the tribunal, remedies in terms of the Competition Act and related aspects.

Fiscal Implications of International Trade: Mr PG Oosthuizen (convenor) and several experts in International Tax (Second semester)

Fiscal implications of international trade, including double taxation agreements; taxation of non-residents; businesses with foreign branches; transfer pricing, thin capitalisation and similar techniques; exchange control; foreign exchange gains and losses; export incentives; certain aspects of customs and excise; effect on other taxes (eg VAT); possible future developments in South African law.

Note: A prior knowledge of South African tax law is recommended.

Advanced Company Law: Prof A van Wyk (convenor), Prof PJ Sutherland and Mr PW Kloppers (Second semester)

English common law rules and doctrines as applied in South African Company law; the common law rules of agency as adapted and changed in our law; different types of authority, namely express, implied, ostensible and usual authority; recent developments in English, Australian and New Zealand Company law; limited liability and the protection of creditors; lifting of the corporate veil; section 424 and personal liability of directors; the fiduciary duties of directors and the legal basis of this duty; corporate governance and ratification; current issues in South African company law.

Intellectual Property Law: Mr R de Villiers (First semester)

The law of intellectual property including the protection of intellectual property by way of copyright, trade mark, patent and design right is examined. The course compares and contrasts South African intellectual property law as contained in the relevant legislation with international developments, focusing particularly on the law as it has developed in Europe (and more specifically the United Kingdom) and to a lesser extent also on the law of the United States of America, in the light of the relevant international and regional treaties. This is done by way of brief introduction to the appropriate basic legal principles in each area followed by discussion of specific topical issues arising in that area and possible approaches to the resolution of such issues.

Note: Some prior knowledge of the basic principles of intellectual property law is recommended.

Information Technology Law: Mr R de Villiers (Second semester)

The law relating to and legal issues arising from the use of electronic communications and computer systems is examined. Specific focus will be placed on the legal issues arising from the development, acquisition and use of computer programs and databases (and particularly intellectual property and liability aspects thereof), data protection and privacy, computer crimes and evidence, the interception and monitoring of electronic mail and internet usage, the law of telecommunications and electronic commerce and the use of the internet to conduct business. In light of the international nature of the material, the course not only focuses on South African law, but compares and contrasts international trends, including the approaches taken in Europe (with particular focus on the United Kingdom) and the United States of America.

Note: A prior knowledge of the principles of intellectual property law (specifically as pertaining to copyright) is recommended.