scholarly journals ASPECTS OF THE REGULATION OF CROSS-BORDER INSOLVENCY IN SOUTH AFRICA

Obiter ◽  
2018 ◽  
Vol 39 (1) ◽  
Author(s):  
Howard Chitimira
Keyword(s):  
South Africa ◽  
Comparative Analysis ◽  
Future Prospects ◽  
Cross Border ◽  
The Cross ◽  
Overview Analysis ◽  
Insolvency Proceedings ◽  
International Instruments

This article analyses the regulation of cross-border insolvency under the Cross-Border Insolvency Act 42 of 20001 in order to examine the adequacy of such regulation as regards to the enforcement of insolvency proceedings in South Africa and other relevant jurisdictions. To this end, the paper provides an overview analysis of the regulation and/or enforcement of insolvency proceedings under the Cross-Border Insolvency Act. Moreover, where possible, the paper also provides a comparative analysis of selected aspects of the regulation and/or enforcement of insolvency proceedings under the Cross-Border Insolvency Act and those that are provided under the Insolvency Act 24 of 1936 and other related international instruments. This is done to expose the challenges and future prospects of the regulatory and enforcement framework under the Cross-Border Insolvency Act in South Africa.

The Sentence is Only the Beginning: Hiccups in the Cross-Border Execution of Judgments in the Euregion Meuse-Rhine

2021 ◽  
Vol 29 (3-4) ◽  
pp. 189-217
Author(s):  
Johannes Keiler ◽  
André Klip
Keyword(s):  
Comparative Analysis ◽  
Criminal Justice ◽  
The Netherlands ◽  
Member States ◽  
Cross Border ◽  
Criminal Justice Systems ◽  
Alternative Measures ◽  
The Cross ◽  
Preliminary Phase ◽  
Country Specific

Abstract The cross-border execution of judgments remains difficult in practice for European Member States. This article seeks to analyze why this may be the case with regard to four different modalities of sentences: (1) prison sentences and other measures involving deprivation of liberty, (2) conditional sentences and alternative measures, (3) financial penalties and (4) confiscation orders. Based on a comparative analysis, this article investigates the problems at stake regarding the cross-border execution of judgements in Belgium, Germany and the Netherlands and identifies possible causes and explanations for these. The analysis shows that impediments to cooperation may inter alia stem from differences in national law and diverging national sentencing practices and cultures and may furthermore be related to a lack of possibilities for cooperation in the preliminary phase of a transfer. Moreover, some obstacles to cooperation may be country-specific and self-made, due to specific choices and approaches of national criminal justice systems.

scholarly journals Children's Rights to Mother-Tongue Education in a Multilingual World: A Comparative Analysis between South Africa and Germany

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Chrizell Stoop (Chürr)
Keyword(s):  
South Africa ◽  
Comparative Analysis ◽  
High Performance ◽  
Mother Tongue ◽  
Language Policies ◽  
Crucial Importance ◽  
Education Systems ◽  
Mother Tongue Education ◽  
International Instruments ◽  
South Africa And Germany

The importance of the mother tongue, and, more specifically, of mother-tongue education, is recognised globally. Use of the mother tongue is regarded as one of the most effective ways of acting and performing cognitively, socially and communally. The aim of this article is to encourage and promote the implementation and realisation of mother-tongue education through certain school/education models in order to achieve equality and liberation and to increase the incidence of high-performance education systems in a multilingual world. A comparative analysis of South Africa and Germany will also be undertaken with regard to language policies and the mother-tongue education situation in these countries' school systems. Several other aspects such as the choice of language as a fundamental right, the importance of international instruments, as well as some lessons to be learnt for both South Africa and Germany in respect of mother-tongue education, will be discussed. It will be concluded that, despite the existence of a multilingual world, the crucial importance of the use of the mother tongue and mother-tongue education should not be underestimated and/or ignored.

The Effect of the Regulation on Cross-Border Security and Quasi-Security

2016 ◽  
Author(s):  
Stuart Isaacs ◽  
Felicity Toube ◽  
Nick Segal ◽  
Jennifer Marshall
Keyword(s):  
Border Security ◽  
Cross Border ◽  
The Cross ◽  
Insolvency Proceedings ◽  
The Impact ◽  
Secured Creditors

This chapter examines the impact of insolvency proceedings recognized by the Regulation on the rights of secured creditors, particularly the rights of such creditors to enforce their security and participate in the relevant insolvency proceedings. It also considers the impact of the Regulation on banks which hold security/quasi-security, addressing in particular the cross-frontier security rights of banks which hold security over the assets of companies or persons who enter into insolvency proceedings regulated by the Regulation, and the effect of those insolvency proceedings on the banks’ security interests. The chapter identifies those Articles of the Regulation which are particularly relevant to the position of a bank as a secured creditor, addresses the interpretation of those provisions (including the identification of difficult points of construction), and considers the practical aspects and the issues which are likely to face banks seeking to enforce security following the Regulation coming into force.

scholarly journals Transnational mobility, strong states and contested sovereignty: Learning from the China–Taiwan context

2017 ◽  
Vol 26 (4) ◽  
pp. 459-479 ◽  
Author(s):  
Lara Momesso ◽  
Chun-Yi Lee
Keyword(s):  
Comparative Analysis ◽  
Taiwan Strait ◽  
Nation State ◽  
Migrant Communities ◽  
Cross Border ◽  
Transnational Mobility ◽  
Economic Exchanges ◽  
State Actors ◽  
The Cross ◽  
The Taiwan Strait

Mobility across the Taiwan Strait has intensified since the border was opened in 1987. The cross-border social, cultural and economic exchanges, however, have remained closely embedded in the nationalistic logic specific to cross-Strait relations. Employing a state-centered approach and building on a comparative analysis of the interaction between Beijing and two groups of cross-Strait migrants (mainland spouses in Taiwan, and Taiwanese investors in China), this paper examines the various ways in which a state may still exert influence over migrant communities in a context of increased mobility and exchanges. This paper argues that the nation-state may still shape migrants’ experiences, particularly when sending and receiving governments have unresolved disputes. Under these conditions, state actors may use migrant communities to achieve their nationalistic goals.

scholarly journals The Debtor’s Property Selling in the Cross-Border Insolvency Proceedings

2016 ◽  
Vol 13 (1) ◽  
pp. 76-87
Author(s):  
Daiga Sproge
Keyword(s):  
Real Estate ◽  
Comparative Method ◽  
The European Union ◽  
Insolvency Proceeding ◽  
The Real ◽  
The Real Estate ◽  
Cross Border ◽  
The Cross ◽  
Insolvency Proceedings ◽  
Descriptive Method

Abstract The title of this research is “The debtor’s property selling in the cross-border insolvency proceedings”. The insolvency proceeding gets the cross-border status also in case, if a debtor is an owner of the property outside of the main interests’ centre, namely, in another country. Therefore, there are many problematic cases when insolvency administrator (also called insolvency practitioner) defines the real estate in this other country and has to make a decision concerning the methods of selling the real estate in accordance with the law of the Member State in which territory the insolvency proceedings have been started. At the same time, the administrator shall provide that the property is sold in particular with regard to procedures for the realization of assets defined in the legislation of that country, where such real estate has been located. The article’s aim is to give a view of the features of the sale of the property in the insolvency proceedings and to define the possible lack and improvements in the cross-border insolvency concerning the selling of a debtor’s property. The European Parliament and the Council of the European Union has adopted Regulation (EU) 2015/848 of 20 May 2015 on Insolvency proceedings, which shall apply from 26 June 2017, with some exceptions Despite the regulation of the cross-border insolvency has been improved, the procedure of the property disposal is still incomplete in the cross-border insolvency proceedings. Within the study the following research methods are applied: the analytical method, comparative method, sociological method and descriptive method. The predicted value of the research is theoretical and also practical. The research should be useful for the insolvency proceedings administrators, the companies and the banks, other experts involved in the cross-border insolvency proceedings, as well as for students to improve their theoretical knowledge about the cross-border insolvency.

Assessment of International Instruments

2018 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
Decision Making ◽  
International Law ◽  
Financial Institutions ◽  
Customary International Law ◽  
Cross Border ◽  
Normative Framework ◽  
Enterprise Groups ◽  
The Cross ◽  
Model Law ◽  
International Instruments

This chapter assesses the key international instruments for cross-border insolvency, primarily the Model Law on Cross-Border Insolvency (the MLCBI), and the related cross-border aspects of insolvency addressed in the Insolvency Standard. It also tentatively analyses the developments of additional instruments regarding enterprise groups and the enforcement of insolvency-related judgments. It considers how the MLCBI and complementary instruments fit into the normative framework proposed in the book. It asks to what extent the instruments follow modified universalism norms, thus contributing to the crystallization and development of customary international law (CIL). It also assesses: the choice of instrument; whether there are any issues with the design of the instruments taking into account the bounds on decision-making; and whether the instruments support the required levels of targeted harmonization to incentivize compliance. This chapter also assesses the specific instruments and measures that attempt to address the cross-border insolvency of multinational financial institutions (MFIs), particularly the Key Attributes, supporting principles, and contractual solutions.

scholarly journals Cross-border Migration in the Southern African Development Community (SADC): Benefits, Problems and Future prospects

2018 ◽  
Vol 8 (4) ◽  
pp. 42-56
Author(s):  
Victor H. Mlambo
Keyword(s):  
South Africa ◽  
Home Country ◽  
Developing Nations ◽  
Regional Economic Growth ◽  
Future Prospects ◽  
Skills Transfer ◽  
Cross Border ◽  
Job Opportunities ◽  
Standards Of Living ◽  
To Come

With rapid globalization sweeping through the globe, the movement of people throughout the world has increased significantly over the last 20 years. Motivated by the thrill of earning better salaries and living in countries characterised by better standards of living, people have travelled long distances in search of such opportunities. Undoubtedly, the economic buoyancy of countries like South Africa and Botswana has attracted thousands of migrants from the SADC who are seeking job opportunities, further straining government resources and impeding the effective functioning of border immigration services. The unequal rate of economic development in the region has further created an increasing gap between fast-developing and slow developing nations, hence the unequal rate of migration. Skills transfer and collaborations have been the major benefits of cross border-migration for SADC, although crime and xenophobia have also been identified as problems associated with cross-border migration in Southern Africa. The flow of remittances from South Africa has played a crucial role in fighting poverty and hunger in the migrant’s home country and contributed significantly to government finances. However, the absence of a regionally accepted policy aimed at regulating migration means that illegal cross-border migration will carry on being a problem in the region and unfortunately the absence of policies aiming at spurring collective regional economic growth means illegal cross-border migration will increase in the years to come.

scholarly journals OVERVIEW OF THE MARKET ABUSE REGULATION UNDER THE FINANCIAL MARKETS ACT 19 OF 2012

Obiter ◽  
2014 ◽  
Vol 35 (2) ◽  
Author(s):  
Howard Chitimira
Keyword(s):  
South Africa ◽  
Comparative Analysis ◽  
Financial Markets ◽  
Insider Trading ◽  
Market Manipulation ◽  
Market Abuse ◽  
Overview Analysis

This paper analyses the regulation of market abuse under the Financial Markets Act 19 of 2012 in order to investigate the adequacy of such regulation as regards to the combating of market-abuse practices in South Africa. To this end, the paper provides an overview analysis of the market abuse (insider trading and market manipulation) offences as well as the penalties and other anti-market abuse-enforcement approaches that are employed under the Financial Markets Act 19 of 2012 in a bid to provide a revamped and adequate anti-market abuse regulatory and -enforcement framework in South Africa. Moreover, where possible, the paper also provides a comparative analysis of these offences, penalties and other anti-market abuse-enforcement approaches and those that were provided under the Securities Services Act 36 of 2004. This is done to examine whether the anti-market abuse regulatory and -enforcement framework that was re-introduced under the Financial Markets Act 19 of 2012 has now adequately resolved the flaws and gaps that were associated with a similar framework under the former Act.

scholarly journals Overlapping International Instruments for Enforcement of Insolvency Judgments: Undermining or Strengthening Universalism?

2021 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Cross Border ◽  
Normative Framework ◽  
New Instrument ◽  
Enterprise Groups ◽  
Model Law ◽  
Insolvency Proceedings ◽  
International Instruments

AbstractIn recent years modified universalism has emerged as the normative framework for governing international insolvency. Yet, divergences from the norm, specifically regarding the enforcement of insolvency judgments, have also been apparent when the main global instrument for cross-border insolvency has been interpreted too narrowly as not providing the grounds for enforcing judgments emanating from main insolvency proceedings. This drawback cannot be overcome using general private international law instruments as they exclude insolvency from their scope. Thus, a new instrument—a model law on insolvency judgments—has been developed. The article analyses the model law on insolvency judgments against the backdrop of the existing cross-border insolvency regime. Specifically, the article asks whether overlaps and inconsistencies between the international instruments can undermine universalism. The finding is mixed. It is shown that the model law on insolvency judgments does add vigour to the cross-border insolvency system where the requirement to enforce and the way to seek enforcement of insolvency judgments is explicit and clear. The instrument should, therefore, be adopted widely. At the same time, ambiguities concerning refusal grounds based on proper jurisdiction and inconsistencies with the wider regime could undermine the system. Consequently, the article considers different ways of implementing the model law and using it in future cases, with the aim of maximizing its potential, including in view of further developments concerning enterprise groups and choice of law.

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