An analysis of the countervailing measures used to address the anti-competitive effects of Government subsidies in the African Continental Free Trade Area
- Authors: Matsimbi, Rhulani Shaun
- Date: 2021-04
- Subjects: Subsidies -- Law and legislation -- Africa , Agreement on Subsidies and Countervailing Measures (1994 April 15) , Trade regulation -- Africa , World Trade Organization , Antitrust law -- Africa , Restraint of trade -- Africa , African Continental Free Trade (AfCFTA) Agreement
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/178330 , vital:42930
- Description: Government subsidies are becoming more prevalent on the African continent. Subsidies allow the government to intervene in markets to incentivise more investment into nascent and struggling industries by improving the efficiency of firms in such industries. As such, subsidies form an essential part of some African countries’ industrialisation policies. However, the use of subsidies faces a challenge because of the prohibition contained in the World Trade Organisation’s (WTO) Agreement on Subsidies and Countervailing Measures (SCM Agreement). The SCM Agreement prohibits the granting of subsidies that are contingent on export performance or the use of domestic over imported content. While African countries have not faced challenges in the WTO for their use of these subsidies, this may change with the operation of the African Continental Free Trade (AfCFTA) Agreement. This is because the AfCFTA Agreement localises the WTO’s rules on subsidisation. This study critically examines the provisions in the AfCFTA Guidelines on the Implementation of Trade Remedies that regulate the use of export subsidies and subsidies contingent on the use of domestic content. It discusses how the absolute prohibition of these subsidies in the AfCFTA Agreement is not the most effective way to regulate their anti-competitive effects in the African continent. Specifically, this study discusses the role that competition policy might play in ensuring that export subsidies and local content subsidies are regulated in a manner that suits Africa’s context. Ultimately, this study concludes and recommends that the AfCFTA must develop unique rules to regulate subsidies in a way that caters to the needs of the continent. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-04
- Authors: Matsimbi, Rhulani Shaun
- Date: 2021-04
- Subjects: Subsidies -- Law and legislation -- Africa , Agreement on Subsidies and Countervailing Measures (1994 April 15) , Trade regulation -- Africa , World Trade Organization , Antitrust law -- Africa , Restraint of trade -- Africa , African Continental Free Trade (AfCFTA) Agreement
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/178330 , vital:42930
- Description: Government subsidies are becoming more prevalent on the African continent. Subsidies allow the government to intervene in markets to incentivise more investment into nascent and struggling industries by improving the efficiency of firms in such industries. As such, subsidies form an essential part of some African countries’ industrialisation policies. However, the use of subsidies faces a challenge because of the prohibition contained in the World Trade Organisation’s (WTO) Agreement on Subsidies and Countervailing Measures (SCM Agreement). The SCM Agreement prohibits the granting of subsidies that are contingent on export performance or the use of domestic over imported content. While African countries have not faced challenges in the WTO for their use of these subsidies, this may change with the operation of the African Continental Free Trade (AfCFTA) Agreement. This is because the AfCFTA Agreement localises the WTO’s rules on subsidisation. This study critically examines the provisions in the AfCFTA Guidelines on the Implementation of Trade Remedies that regulate the use of export subsidies and subsidies contingent on the use of domestic content. It discusses how the absolute prohibition of these subsidies in the AfCFTA Agreement is not the most effective way to regulate their anti-competitive effects in the African continent. Specifically, this study discusses the role that competition policy might play in ensuring that export subsidies and local content subsidies are regulated in a manner that suits Africa’s context. Ultimately, this study concludes and recommends that the AfCFTA must develop unique rules to regulate subsidies in a way that caters to the needs of the continent. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-04
Making Sense of Barkhuizen 2 : An Investigation into the Public Policy Defence of ‘Unfair Enforcement’ in South African Law, with Reference to the Law on Covenants in Restraint of Trade
- Authors: Moroeng, Tsukudu Kenyatta
- Date: 2021-04
- Subjects: Restraint of trade -- South Africa , Public policy (Law) -- South Africa , Contracts (Roman-Dutch law) , Customary law -- South Africa , Barkhuizen v Napier
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/177147 , vital:42794
- Description: This thesis investigates the application of the public policy test for determining the enforceability of a valid contractual clause established in Barkhuizen v Napier. After analysing the historical development of the application of the doctrine of public policy, the study examines the conceptualisation and application of the public policy test in the leading cases in South Africa. The study then provides an analysis of the recent judgment of Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others, which outlined the current legal position on the proper constitutional approach to the judicial enforcement of valid contractual clauses. The study argues that, although the Constitutional Court in Beadica provided some clarity on what public policy is in modern South African law, it did not, from a practical point of view, set out the method that should be used to adjudicate such cases. The study thereafter suggests that, to address this issue, our courts should consider developing a methodological approach to measuring public policy in unfair enforcement cases. To support this proposition, the study examines the law on determining the enforcement of restraint of trade agreements. It is argued that, within that context, the courts have formulated a methodological approach in the form of a list of standard questions that a judge should ask when determining the enforceability of a restraint clause. The thesis then closes with a case study, using guidelines established from the approach in restraint cases, to illustrate how the proposed guideline may be formulated, and how it could be applied in general unfair enforcement cases. The thesis argues that a practical guide of this nature would serve as a useful tool for judges to use when faced with a claim relating to the unfair enforcement of a valid clause other than a restraint clause, and would thus ensure consistency in contractual enforcement analysis in South Africa. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-04
- Authors: Moroeng, Tsukudu Kenyatta
- Date: 2021-04
- Subjects: Restraint of trade -- South Africa , Public policy (Law) -- South Africa , Contracts (Roman-Dutch law) , Customary law -- South Africa , Barkhuizen v Napier
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/177147 , vital:42794
- Description: This thesis investigates the application of the public policy test for determining the enforceability of a valid contractual clause established in Barkhuizen v Napier. After analysing the historical development of the application of the doctrine of public policy, the study examines the conceptualisation and application of the public policy test in the leading cases in South Africa. The study then provides an analysis of the recent judgment of Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others, which outlined the current legal position on the proper constitutional approach to the judicial enforcement of valid contractual clauses. The study argues that, although the Constitutional Court in Beadica provided some clarity on what public policy is in modern South African law, it did not, from a practical point of view, set out the method that should be used to adjudicate such cases. The study thereafter suggests that, to address this issue, our courts should consider developing a methodological approach to measuring public policy in unfair enforcement cases. To support this proposition, the study examines the law on determining the enforcement of restraint of trade agreements. It is argued that, within that context, the courts have formulated a methodological approach in the form of a list of standard questions that a judge should ask when determining the enforceability of a restraint clause. The thesis then closes with a case study, using guidelines established from the approach in restraint cases, to illustrate how the proposed guideline may be formulated, and how it could be applied in general unfair enforcement cases. The thesis argues that a practical guide of this nature would serve as a useful tool for judges to use when faced with a claim relating to the unfair enforcement of a valid clause other than a restraint clause, and would thus ensure consistency in contractual enforcement analysis in South Africa. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-04
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