PER: 2007 Volume 10 No 2
http://hdl.handle.net/10394/1753
2024-03-28T20:03:41ZDemocratic elections in a global context
http://hdl.handle.net/10394/1757
Democratic elections in a global context
Tlakula, P
2007-01-01T00:00:00ZThe UNECIC: International trade in the digital era
http://hdl.handle.net/10394/1756
The UNECIC: International trade in the digital era
Eiselen, S
The use of electronic communications in international trade communications and transactions has raised some concerns about the legal validity and legal certainty of such communications. The perception that this type of communication causes legal uncertainty has caused UNCITRAL to develop a draft convention which has now been adopted by the United Nations as the Convention on the Use of Electronic Communications in International Contracts, 2005 (UNECIC). This contribution traverses the legislative history of the UNECIC, its scope and purpose as a background for an initial analysis of the provisions of the Convention. The author refers to interpretational methods and techniques developed and used for the United Nations Convention on Contracts for the International Sale of Goods, 1980 (CISG) as a possible approach to the interpretation and application of the UNECIC. The CISG is a highly successful convention and there will be an inevitable interaction between the two conventions once the UNECIC comes into operation due to the provisions of article 20 of the UNECIC. It is argued that the UNECIC will be able to draw on the experience with the CISG due to the similarity in the interpretational provisions of the two conventions. For this purpose a number of the underlying principles of the UNECIC is abstracted and discussed.
The article concludes with a brief critical exposition of the provisions of the UNECIC. The convention is very new and consequently very little analysis on it has been published to date. It is concluded that the convention represents a clear and sensible solution to the issues and perceptions of legal uncertainty raised by electronic communications in international transactions and should be widely adopted.
2007-01-01T00:00:00ZThe emerging international constitutional order: the implications of hierarchy in international law for the coherence and legitimacy of international decision-making
http://hdl.handle.net/10394/1755
The emerging international constitutional order: the implications of hierarchy in international law for the coherence and legitimacy of international decision-making
De Wet, E
The article examines the contours and implications of the emerging international constitutional order. The "constitutional" nature of this order relates to the fact that it contains certain fundamental substantive and structural norms that form a supreme legal framework for the exercise of public power. The substantive elements primarily include the value system of the international legal order, meaning norms of positive law with a strong ethical underpinning (notably human rights norms) that have acquired a special hierarchical standing vis-à-vis other international norms through state practice. The structural elements refer to the subjects of the international legal order that collectively constitute the international community (polity), as well as the mechanisms for enforcement of the international value system.
This vision of an international constitutional model is inspired by the intensification in the shift of public decision-making away from the nation state towards international actors of a regional (for example EU) or functional (for example WTO, UN) nature, and its eroding impact on the notion of a “total” constitutional order, where the fundamental substantive and structural norms that form the supreme legal framework for the exercise of public power are concentrated in the nation state. It is also inspired by the belief that such a supreme legal framework is only possible in a system where different national, regional and functional legal orders complement each other in order to form an international constitutional order.
2007-01-01T00:00:00ZGlobalisation, the development of constitutionalism and the individual employee
http://hdl.handle.net/10394/1754
Globalisation, the development of constitutionalism and the individual employee
Calitz, K
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 this
aspect) 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.
2007-01-01T00:00:00Z