scholarly journals PRIVATE INTERNATIONAL LAW / CONFLICT OF LAWS AND DIAMOND TRADE

Obiter ◽  
2021 ◽  
Vol 31 (2) ◽  
Author(s):  
Fikile Portia Ndlovu
Keyword(s):  
South Africa ◽  
International Trade ◽  
International Law ◽  
South African ◽  
Global Economy ◽  
Correct Identification ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Legal Context ◽  
The Relationship

Any researcher of South African diamond laws would find it inevitable that such research discusses the relationship between international diamond transactions and conflict of laws. This is particularly evident in cases where legal disputes have arisen pertaining to such transactions. This article will make reference to the terms “private international law” and “conflict of laws” interchangeably, although “conflict of laws” will be preferred for reasons of taste rather than logic. The aim of this paper is to illustrate the concept of conflict of laws in general and how it significantly impacts the manner in which courts will ultimately decide on the law to be applied in a matter possibly involving inter alia international diamond transactions. This demonstrates the consistent relevance of conflict of laws particularly in light of the global economy. The correct identification and understanding of conflict of laws’ principles can be stretched to accommodate all other areas of international trade. However, for the purposes of understanding how diamond trade is impacted by conflict of laws in South Africa, this paper will be limited to the legal context of diamond-relevant trade and the latest guidelines provided by our courts in relation to the choice of law in matters where conflict of laws has arisen. 

scholarly journals Globalisation, the Development of Constitutionalism and the Individual Employee

2017 ◽  
Vol 10 (2) ◽  
pp. 1
Author(s):  
K Calitz
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Constitutional Rights ◽  
Private International Law ◽  
Employment Contracts ◽  
Constitutional Protection ◽  
The Individual ◽  
The Right ◽  
The Relationship

Summary To establish which legal system will govern the relationship between parties involved in an international employment contract, the rules of private international law (or conflict of laws) must be applied. Each country has its own rules of private international law and each country’s courts will apply its own rules if the court is seized with a matter that involves foreign elements.  There may be conflict between the potentially applicable legal systems of countries in terms of the level of protection afforded to employees who are parties to international employment contracts. South Africa has constitutionalised the right to fair labour practices and the question is whether this right is applicable to South African employees working in other countries, or to foreigners working in South Africa who originate from countries where this right is not protected. The answer to this question is to be found in the influence of the Constitution on the rules of private international law as applied by South African courts. It is evident from recent judgments of the Labour Court that the Court will readily assume jurisdiction and will furthermore readily hold that the proper law of the contract is South African law in order to protect the constitutional rights of employees involved in international employment contracts. Had the Labour Court held that the place of performance was still the decisive connecting factor, (as previously decided in most South African cases on thisaspect) the law of the other countries involved in the international employment relationship could have left employees in a worse position than under South African law. This possibility seems to be one of the important underlying reasons for the Labour Court’s willingness to assume jurisdiction and to hold that the proper law was in fact South African law.  In the globalisation context the Labour Court has contributed to the advancement of constitutionalism by developing South Africa’s common law rules of private international law to afford constitutional protection to employees involved in international employment contracts. 

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 17 South Africa: South African Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Neels Jan L
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Comparative Approach ◽  
Private International Law ◽  
Rules And Principles ◽  
The Hague ◽  
The Republic ◽  
Contractual Obligations ◽  
Academic Authors

This chapter provides the reader with comments on the Hague Principles from the perspective of South African private international law of contract.Private international law in the Republic of South Africa is historically based on Roman–Dutch and English law, but is today influenced by domestic constitutional values, especially in the fields of international family and succession law. In the realm of the international law of obligations, the impact of the English common law is particularly strong. The notion of ‘the proper law of the contract’ is therefore widely used to indicate the law applicable to contractual obligations. The sources of private international law of contract are almost exclusively case law and the opinions of academic authors. The South African courts have always followed a comparative approach in respect of private international law, initially under the influence of an internationalist understanding of the conflict of laws. The courts would therefore certainly be entitled to refer to the Hague Principles as persuasive authority in the interpretation, supplementation, and development of the rules and principles of South African private international law.

scholarly journals CONTRACTUAL CAPACITY AND THE CONFLICT OF LAWS IN COMMON-LAW JURISDICTIONS (PART 1): THE UNITED KINGDOM

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
Eesa A Fredericks
Keyword(s):  
United Kingdom ◽  
International Law ◽  
South African ◽  
Common Law ◽  
The United States ◽  
Private International Law ◽  
Conflict Of Laws ◽  
The United Kingdom ◽  
Legal Position ◽  
The Common

This series of two articles provides a comparative overview of the position in the common-law conflict of laws in respect of the contractual capacity of natural persons. The comparative study is undertaken in order to provide guidelines for the future development of South African private international law. Reference is primarily made to case law and the opinions of academic authors. The legal position in the law of the United Kingdom, as the mother jurisdiction in Europe, is investigated in part I. Although Scotland is a mixed civil/common-law jurisdiction, the situation in that part of the United Kingdom is also discussed.Part II will deal with the rules and principles of private international law in respect of contractual capacity in Australasia (Australia and New Zealand), North America (the common-law provinces of Canada and the United States of America), Asia (India, Malaysia and Singapore) and Africa (Ghana and Nigeria). Part II also contains a comprehensive summary of the legal position in the common-law countries, followed by ideas for the reform of South African private international law in this regard.

scholarly journals DIRECT ACTIONS AGAINST INSURERS IN CROSS-BORDER TRAFFIC ACCIDENTS IN AN EUROPEANISED PRIVATE INTERNATIONAL LAW – WHAT PROTECTION FOR THE INJURED PARTIES?

2020 ◽  
Vol 36 (3-4) ◽  
pp. 137-166
Author(s):  
Klea Vyshka
Keyword(s):  
Member State ◽  
International Law ◽  
Traffic Accidents ◽  
Third Parties ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Cross Border ◽  
The Reformation ◽  
Liberal Approach ◽  
The Relationship

This article offers a discussion of the law applicable to cross-border traffic accidents, from the perspective of the protection of injured parties. The introduction of principles like direct actions against insurers by injured third parties (forum actoris), mostly because of CJEU’s liberal approach, puts into question the relationship between European private international law and national Member State rules of conflict-of-laws. This article aims to propose an answer to the question “Does the European private international law set of rules offer an adequate protection for the injured parties?” with the view of offering also a few recommendations for the reformation of the Rome II Regulation.

scholarly journals DISCUSSION ON CHARACTERISATION IN SOUTH AFRICAN PRIVATE INTERNATIONAL LAW

2011 ◽  
Author(s):  
Justin Leach
Keyword(s):  
International Law ◽  
South African ◽  
Case Law ◽  
Private International Law ◽  
Current Case ◽  
Choice Of Law ◽  
Legal Rules ◽  
The Subject ◽  
The Relationship ◽  
Domestic Law

To inform those unfamiliar to the subject, private international law is simply that branch of a country’s domestic law, which regulates the relationship between private individuals when foreign legal rules are in some way concerned. This branch generally has three subbranches: Jurisdiction (choice of court), choice of law and recognition of foreign judgments. The discipline of characterisation forms part of the choice of law sub-branch and is explained further below. This article discusses the problem of a ‘gap’ arising from the phenomenon of characterisation in South African private international law, by considering the current case law authorities on the matter as well as the criticisms (and suggested solutions) of legal academics. A general discussion of characterisation, with some alternative suggestions for dealing with the problem, is also mooted for consideration in a bid to air ideas. No short work could do justice to the problem visited here. This work seeks to show that the obsession with characterisation in the choice of law arena is perhaps ill founded and should perhaps be simplified in favour of a ‘most natural results’ approach.

The Revocation of wills in South African Private International Law

2007 ◽  
Vol 56 (3) ◽  
pp. 613-621
Author(s):  
Jan L Neels
Keyword(s):  
International Law ◽  
South African ◽  
Hague Convention ◽  
Specific Reference ◽  
Private International Law ◽  
The South ◽  
Conflict Of Laws ◽  
Marriage And Divorce ◽  
The Hague ◽  
The Hague Convention

This article deals with the revocation of wills in South African private international law with reference to other Commonwealth jurisdictions and the provisions of the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions (1961). Specific reference is made to section 3bis(1) (d) of the South African Wills Act 7 of 1953 (which is partially based on Article 2 of the Convention) and to revocation of wills by marriage and divorce.

Secular Law as the “King's Law”: Zionist Halakhah and Legal Theory

AJS Review ◽  
2019 ◽  
Vol 43 (01) ◽  
pp. 47-66
Author(s):  
Itzhak Brand
Keyword(s):  
International Law ◽  
Legal Theory ◽  
The State ◽  
Private International Law ◽  
Jewish State ◽  
Conflict Of Laws ◽  
The Third ◽  
The Relationship ◽  
State Of Israel

What is the possibility of secular law in the religious Jewish state? This article will focus this question on the attitude of Zionist halakhic decisors toward the secular law of the land when that land is the State of Israel. Are these decisors willing to recognize Israeli law as falling into the halakhic category of “the King's Law” (mishpat ha-melekh)? Halakhic literature offers various justifications for the king's authority. The first justification is philosophical and jurisprudential; the second is political; and the third is legal in nature. Various justifications for the King's Law yield different models of its force and authority, which contrast in the relationship they posit between the King's Law and Torah Law. This article examines this question from the perspective of the legal discussion of the relationship between competing systems of law (private international law and issues related to the conflict of laws).

Contractual Capacity and the Conflict of Laws in Common-Law Jurisdictions (Part 2): Australasia, North America, Asia and Africa

Obiter ◽  
2020 ◽  
Vol 41 (1) ◽  
pp. 10-44
Author(s):  
Eesa A Fredericks
Keyword(s):  
United Kingdom ◽  
North America ◽  
International Law ◽  
South African ◽  
Common Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
The United Kingdom ◽  
Legal Position ◽  
The Common

This series of two articles provides a comparative overview of the position in common-law jurisdictions on the conflict of laws in respect of the contractual capacity of natural persons. The comparative study is undertaken in order to provide guidelines for the future development of South African private international law. Reference is primarily made to case law and the opinions of academic authors. The legal position in the law of the United Kingdom, as the mother jurisdiction in Europe, was investigated in part 1.1 Although Scotland is a mixed civil/common-law jurisdiction, the situation in that part of the United Kingdom was also discussed.Part 2 deals with the rules and principles of private international law in respect of contractual capacity in Australasia (Australia and New Zealand), North America (the common-law provinces of Canada and the United States of America), Asia (India, Malaysia and Singapore) and Africa (Ghana and Nigeria). This part also contains a comprehensive summary of the legal position in the common-law countries, followed by ideas for the reform of South African private international law in this regard.

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