The adoption of the twin peaks model in the regulation of South African financial markets : a comparative analysis.
- Marange, Patience https://orcid.org/ 0000-0003-4405-2702
- Authors: Marange, Patience https://orcid.org/ 0000-0003-4405-2702
- Date: 2021-09
- Subjects: Financial services industry , Financial services industry--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/21278 , vital:48175
- Description: Over two decades ago, a number of countries have changed their financial regulatory models. The growing complexity of financial products, the increasing challenge of regulating large financial conglomerates, and the repercussions of the 2008 Global Financial Crisis, amongst other factors, have made regulatory reform a key priority for many economies. A move towards the Twin Peaks model of financial regulation has been one of the trends in recent years. This model sees regulation split into two broad functions which are market conduct regulation and prudential regulation. South Africa adopted the Twin Peaks financial regulatory model in 2017 as a way of strengthening its financial regulatory model. By adopting the Twin Peaks model, South Africa has become the eighth and the first developing country to adopt the financial regulatory model. The adoption of the Twin Peaks financial regulatory model in South Africa was mainly inspired by the effects of the 2008 Global Financial Crisis. This study undertakes a comparison of the Twin Peaks model structure in South Africa with the structure of its counterparts, which are Australia, United Kingdom and the Netherlands. In doing so, the study identifies the strengths and possible weaknesses of the model in South Africa. The study discusses the extent to which the South African Twin Peaks model reflects international experience. The study traces the evolution of the financial markets and its regulation. It also delves into the main models of the regulation of financial services industry including the Twin Peaks model, which is the focus of the study. The rationale of South Africa’s adoption of the Twin Peaks model is also considered. The Twin Peaks model was introduced in South Africa through the enactment of the Financial Sector Regulatory Act. This legislation reveals that South Africa has drawn increasingly on international experience, particularly the structural design and the cooperation and collaboration of the regulators. It also reveals similarities, notable differences as well as characteristics that might be regarded as unique to South Africa. The similarities reveal that the South African Twin Peaks greatly aligns with that of its counterparts. This is exemplified through the cooperation and coordination between the regulators and the relationship between the regulators and the government amongst others. The study explores insights and lessons to South Africa which can be learnt from its counterparts like the need for effective coordination amongst the Twin Peak regulators. Thereafter, the study puts forward recommendations for reform, which can enable the effective implementation of the Twin Peaks financial regulatory architecture. , Thesis (MA) (Laws) -- University of Fort Hare, 2021
- Full Text:
- Authors: Marange, Patience https://orcid.org/ 0000-0003-4405-2702
- Date: 2021-09
- Subjects: Financial services industry , Financial services industry--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/21278 , vital:48175
- Description: Over two decades ago, a number of countries have changed their financial regulatory models. The growing complexity of financial products, the increasing challenge of regulating large financial conglomerates, and the repercussions of the 2008 Global Financial Crisis, amongst other factors, have made regulatory reform a key priority for many economies. A move towards the Twin Peaks model of financial regulation has been one of the trends in recent years. This model sees regulation split into two broad functions which are market conduct regulation and prudential regulation. South Africa adopted the Twin Peaks financial regulatory model in 2017 as a way of strengthening its financial regulatory model. By adopting the Twin Peaks model, South Africa has become the eighth and the first developing country to adopt the financial regulatory model. The adoption of the Twin Peaks financial regulatory model in South Africa was mainly inspired by the effects of the 2008 Global Financial Crisis. This study undertakes a comparison of the Twin Peaks model structure in South Africa with the structure of its counterparts, which are Australia, United Kingdom and the Netherlands. In doing so, the study identifies the strengths and possible weaknesses of the model in South Africa. The study discusses the extent to which the South African Twin Peaks model reflects international experience. The study traces the evolution of the financial markets and its regulation. It also delves into the main models of the regulation of financial services industry including the Twin Peaks model, which is the focus of the study. The rationale of South Africa’s adoption of the Twin Peaks model is also considered. The Twin Peaks model was introduced in South Africa through the enactment of the Financial Sector Regulatory Act. This legislation reveals that South Africa has drawn increasingly on international experience, particularly the structural design and the cooperation and collaboration of the regulators. It also reveals similarities, notable differences as well as characteristics that might be regarded as unique to South Africa. The similarities reveal that the South African Twin Peaks greatly aligns with that of its counterparts. This is exemplified through the cooperation and coordination between the regulators and the relationship between the regulators and the government amongst others. The study explores insights and lessons to South Africa which can be learnt from its counterparts like the need for effective coordination amongst the Twin Peak regulators. Thereafter, the study puts forward recommendations for reform, which can enable the effective implementation of the Twin Peaks financial regulatory architecture. , Thesis (MA) (Laws) -- University of Fort Hare, 2021
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Reinforcing the protection of stakeholders’ interests under the South African takeover regulation regime: a comparative assessment from a complementary regulatory perspective.
- Authors: Mudzamiri, Justice
- Date: 2021-02
- Subjects: Social responsibility of business , Stockholder wealth , Corporate governance--Law and legislation
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/20350 , vital:45658
- Description: The dominant view in company law (especially; corporate governance and finance law) is that the regulation of company takeovers (takeovers) and-/ or mergers must carefully balance two opposing notions. On one hand, the regime must be designed to enable or facilitate the initiation and successful implementation of takeovers and mergers in the interests of inter alia economic growth and technological advancement. On the other hand, such a regulatory framework ought to be sensitive to stakeholders’ interests. Various policy rationales are put forward in supporting the incidence of takeover transactions. These motivations include the need for companies to access business synergy, diversification, competitiveness, technological advancement, and broader economic development. However, takeovers may have negative implications for stakeholders. For feasibility sake, this study’s focus is limited to three stakeholder groups, namely, the target company shareholders, the target company directors, and the local communities. For the target shareholders, the takeover-related mischiefs include the possibility that the target directors may be tainted by conflicts of interest in the context of an offer, thereby making recommendations that disadvantage the shareholders. Or the possibility that the minority shareholders may be treated unfairly and unequally by the acquiring company through making a subsequent offer that is inferior to the one received by the majority holders of securities of the same class. For the board of directors, there are twin negative effects that the directors may face. On the one hand, is litigation from disgruntled stakeholders during and after takeovers and, on the other hand, is the possibility that directors often lose their offices and jobs after successful takeovers. This study also examines the possible exposure of local communities to the negative repercussions of takeovers, and these include loss of employment by locals, loss of beneficial community development, loss of community development monies due to losses in corporate taxes, loss of corporate social responsibility benefits where the merged company decides to relocate. Still, the introduction of a new company into a community after a takeover may negatively impact the environment, public health as well as expose the community to severe national security threats especially where the takeovers involve personal data storage, the internet and technology. Against the backdrop of the conceivable benefits and adverse effects surrounding takeovers this study introduces a ‘novel’ complementary regulatory perspective, as a yardstick for undertaking a comparative evaluation of the existing takeover regulation regimes of the United States of America (US) especially the state of Delaware, the United Kingdom (UK) and South Africa to answer this study’s main research question. The primary question sought to be answered is: To what extent are the provisions of the South African takeover regulation framework appropriate and adequate in protecting the stakeholders’ interests? The said complementary regulatory perspective has twin-legs designed to carefully balance two opposing philosophies: that is, on one hand, vigilant optimisation of takeover activity and on the other hand, ensuring the appropriate and adequate protection of stakeholders’ interests by pursuing stakeholder inclusivity through the concept of subordination. Notably, there are several protections under the US, the UK and South African takeover regulation regimes that are available and accessible to the three stakeholder groups identified, discussed and evaluated in this study. And through the evaluations, the related merits and weaknesses of such protections were established. Then, ultimately, several suggestions for law reform are recommended in accordance with the ethos of the complementary regulatory perspective as deliberated. , Thesis (PhD) (Law)-- University of Fort Hare, 2021
- Full Text:
- Authors: Mudzamiri, Justice
- Date: 2021-02
- Subjects: Social responsibility of business , Stockholder wealth , Corporate governance--Law and legislation
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/20350 , vital:45658
- Description: The dominant view in company law (especially; corporate governance and finance law) is that the regulation of company takeovers (takeovers) and-/ or mergers must carefully balance two opposing notions. On one hand, the regime must be designed to enable or facilitate the initiation and successful implementation of takeovers and mergers in the interests of inter alia economic growth and technological advancement. On the other hand, such a regulatory framework ought to be sensitive to stakeholders’ interests. Various policy rationales are put forward in supporting the incidence of takeover transactions. These motivations include the need for companies to access business synergy, diversification, competitiveness, technological advancement, and broader economic development. However, takeovers may have negative implications for stakeholders. For feasibility sake, this study’s focus is limited to three stakeholder groups, namely, the target company shareholders, the target company directors, and the local communities. For the target shareholders, the takeover-related mischiefs include the possibility that the target directors may be tainted by conflicts of interest in the context of an offer, thereby making recommendations that disadvantage the shareholders. Or the possibility that the minority shareholders may be treated unfairly and unequally by the acquiring company through making a subsequent offer that is inferior to the one received by the majority holders of securities of the same class. For the board of directors, there are twin negative effects that the directors may face. On the one hand, is litigation from disgruntled stakeholders during and after takeovers and, on the other hand, is the possibility that directors often lose their offices and jobs after successful takeovers. This study also examines the possible exposure of local communities to the negative repercussions of takeovers, and these include loss of employment by locals, loss of beneficial community development, loss of community development monies due to losses in corporate taxes, loss of corporate social responsibility benefits where the merged company decides to relocate. Still, the introduction of a new company into a community after a takeover may negatively impact the environment, public health as well as expose the community to severe national security threats especially where the takeovers involve personal data storage, the internet and technology. Against the backdrop of the conceivable benefits and adverse effects surrounding takeovers this study introduces a ‘novel’ complementary regulatory perspective, as a yardstick for undertaking a comparative evaluation of the existing takeover regulation regimes of the United States of America (US) especially the state of Delaware, the United Kingdom (UK) and South Africa to answer this study’s main research question. The primary question sought to be answered is: To what extent are the provisions of the South African takeover regulation framework appropriate and adequate in protecting the stakeholders’ interests? The said complementary regulatory perspective has twin-legs designed to carefully balance two opposing philosophies: that is, on one hand, vigilant optimisation of takeover activity and on the other hand, ensuring the appropriate and adequate protection of stakeholders’ interests by pursuing stakeholder inclusivity through the concept of subordination. Notably, there are several protections under the US, the UK and South African takeover regulation regimes that are available and accessible to the three stakeholder groups identified, discussed and evaluated in this study. And through the evaluations, the related merits and weaknesses of such protections were established. Then, ultimately, several suggestions for law reform are recommended in accordance with the ethos of the complementary regulatory perspective as deliberated. , Thesis (PhD) (Law)-- University of Fort Hare, 2021
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An assessment of the National Credit Act 34 of 2005 as a vehicle for expanding financial inclusion in South Africa
- Authors: Wazvaremhaka, Tinashe
- Date: 2017
- Subjects: South Africa. -- National Credit Act, 2005 Credit -- Law and legislation Financial institutions -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/9045 , vital:34221
- Description: The advancement of financial inclusion is at the top of the international development agenda for policy makers and development institutions. Empirical evidence indicates that households that participate in the mainstream financial services sector can start and grow businesses, manage risk, invest in education, save and absorb financial shocks. National Treasury recently recognised financial inclusion as a policy priority and emphasised the need to enhance it under the new twin peaks system of regulation. This study submits that a conducive legal and regulatory framework is an important key to unlocking the benefits of financial inclusion. More pointedly, it demonstrates that the National Credit Act 34 of 2005 (NCA) plays a central role in promoting financial inclusion since access to unsafe and exploitative credit can lead the poor to pay more, and thereby affecting their ability to access credit and other financial services. Although financial inclusion has been improving in South Africa, over-indebtedness remains pervasive. Access to credit has been exacerbating the financial exclusion of many historically disadvantaged and low income consumers in spite of the NCA. Therefore, this study undertakes a critical assessment of selected aspects of the NCA with a view to determining whether the Act is up to the task of expanding financial inclusion in South Africa. Arguments and suggestions have been made in this study to refine the NCA (and other related laws) such that it promotes access to safe and affordable credit for previously disadvantaged and low income population groups, encourages responsible lending and provides effective debt relief mechanisms.
- Full Text:
- Authors: Wazvaremhaka, Tinashe
- Date: 2017
- Subjects: South Africa. -- National Credit Act, 2005 Credit -- Law and legislation Financial institutions -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/9045 , vital:34221
- Description: The advancement of financial inclusion is at the top of the international development agenda for policy makers and development institutions. Empirical evidence indicates that households that participate in the mainstream financial services sector can start and grow businesses, manage risk, invest in education, save and absorb financial shocks. National Treasury recently recognised financial inclusion as a policy priority and emphasised the need to enhance it under the new twin peaks system of regulation. This study submits that a conducive legal and regulatory framework is an important key to unlocking the benefits of financial inclusion. More pointedly, it demonstrates that the National Credit Act 34 of 2005 (NCA) plays a central role in promoting financial inclusion since access to unsafe and exploitative credit can lead the poor to pay more, and thereby affecting their ability to access credit and other financial services. Although financial inclusion has been improving in South Africa, over-indebtedness remains pervasive. Access to credit has been exacerbating the financial exclusion of many historically disadvantaged and low income consumers in spite of the NCA. Therefore, this study undertakes a critical assessment of selected aspects of the NCA with a view to determining whether the Act is up to the task of expanding financial inclusion in South Africa. Arguments and suggestions have been made in this study to refine the NCA (and other related laws) such that it promotes access to safe and affordable credit for previously disadvantaged and low income population groups, encourages responsible lending and provides effective debt relief mechanisms.
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Blessing or curse? : an evaluation of the African Growth Opportunity Act
- Authors: Matenga, Lloyd
- Date: 2017
- Subjects: United States -- African Growth and Opportunity Act Tariff preferences Terms of trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/8825 , vital:33667
- Description: The core of the commercial relations between the United States (US) and Sub-Saharan African (SSA) countries is primarily based on the advancement of unilateral preferential treatment as envisaged under the African Growth and Opportunity Act (AGOA). AGOA is a bipartisan US legislation promulgated to govern the North-South agreement between the US and SSA countries. Notably, AGOA can be categorized as an exception to the Most Favored Nation (MFN) clause of the General Agreement on Tariffs and Trade (GATT) and consequently under the legal framework of the World Trade Organisation (WTO). The US through the AGOA Extension and Enhancement Act (TPEA) has prolonged the lifespan of AGOA to 2025 in consonance with AGOA and other relevant US legislation. However, there is an ongoing debate as to whether AGOA is working to the advantage or benefit of the eligible SSA countries. This is due to several problematic issues which inter alia relate to the legitimacy of the unilateral preferential treatment, the applicable Rules of Origin (RoO) and the requirement for adoption of robust intellectual property protection regimes as impediments to the enjoyment of AGOA duty and quota free benefits. This study will thus examine the pertinent legal issues underpinning the granting of unilateral preferential treatment in favour of the SSA countries under AGOA and assess the extent to which AGOA complies with or fulfills the purposes and objects of the Enabling Clause.
- Full Text:
- Authors: Matenga, Lloyd
- Date: 2017
- Subjects: United States -- African Growth and Opportunity Act Tariff preferences Terms of trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/8825 , vital:33667
- Description: The core of the commercial relations between the United States (US) and Sub-Saharan African (SSA) countries is primarily based on the advancement of unilateral preferential treatment as envisaged under the African Growth and Opportunity Act (AGOA). AGOA is a bipartisan US legislation promulgated to govern the North-South agreement between the US and SSA countries. Notably, AGOA can be categorized as an exception to the Most Favored Nation (MFN) clause of the General Agreement on Tariffs and Trade (GATT) and consequently under the legal framework of the World Trade Organisation (WTO). The US through the AGOA Extension and Enhancement Act (TPEA) has prolonged the lifespan of AGOA to 2025 in consonance with AGOA and other relevant US legislation. However, there is an ongoing debate as to whether AGOA is working to the advantage or benefit of the eligible SSA countries. This is due to several problematic issues which inter alia relate to the legitimacy of the unilateral preferential treatment, the applicable Rules of Origin (RoO) and the requirement for adoption of robust intellectual property protection regimes as impediments to the enjoyment of AGOA duty and quota free benefits. This study will thus examine the pertinent legal issues underpinning the granting of unilateral preferential treatment in favour of the SSA countries under AGOA and assess the extent to which AGOA complies with or fulfills the purposes and objects of the Enabling Clause.
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Does the directors' fiduciary duty to act in the best interests of the company undermine other stakeholders' interests? : a comparative assessment of corporate sustainability
- Authors: Hamadziripi, Friedrich
- Date: 2016
- Subjects: Corporate governance -- Law and legislation Social responsibility of business Sustainable development
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5916 , vital:29419
- Description: This study sets out to answer the question whether compliance with the directors’ fiduciary duty to act in the best interests of the company undermines other stakeholders’ interests and corporate sustainability. It adopts a comparative approach whereby the South African legal system is compared to that of the United Kingdom, Canada, and the United States of America where corporate scandals in the last two decades resulted in the collapse of some large companies. Qualitative research methods namely the critical and evaluation, comparative and legal historical approaches are employed. The adoption of the comparative and historical approach to this study makes it significant for company law literature. The study is hinged on two company law principles. The first one is that a company is a juristic and fictitious person. The second one is the separation of ownership and control of a company. To effectively understand how the directors’ fiduciary duty to act in the best interests of the company has evolved over time, a historical overview of fiduciary obligations is presented. Four different views about the origins of fiduciary obligations are examined. It is submitted that the old English case of Keech v Sandford1 and the South Sea Company Bubble are very significant to the development of fiduciary obligations and their assimilation into company law. Thereafter, a discussion on the nature and scope of the directors’ duty in question is presented. An analysis of the relationship between directors and the company and how rights and duties between the two legal subjects arise is also undertaken. It will be shown that the directors’ fiduciary duty to act in the best interests of the company is broken down into a number of mandatory rules. After outlining some selected company stakeholders, an argument is presented on who the legitimate beneficiaries of directors’ fiduciary obligations should be. Further, the study provides an explanation of the concept of ‘the best interests of a company’ before addressing the tension between the pursuit of sustainability and the best interests of the company. An important question in the context of this study is how can directors’ fiduciary obligations be enforced? Identifying that there is public and private enforcement of fiduciary obligations, this study focusses on private enforcement which mainly consists of judicial and administrative remedies. Judicial remedies especially the derivative action and oppression remedies will be examined. A greater part of the discussion will dwell heavily on whether the available remedies are relevant and/or effective in protecting various stakeholders’ interests. Due to the nature of the office of director, it can be contended that directors should not be held liable for every decision they make. As such, American courts have come up with what has come to be known as the business judgment rule. This rule protects directors from civil liability if they act in good faith, with due care, without any personal interest and within the director’s authority. It will be shown that the rule manifests or operates either as an abstention doctrine, as a standard of liability or as an immunity doctrine. As an abstention or standard of liability doctrine, the rule requires the plaintiff to rebut a presumption that directors acted in good faith in the best interests of the company. As an immunity doctrine, the rule requires the director to prove that s/he qualifies for the immunity.
- Full Text:
- Authors: Hamadziripi, Friedrich
- Date: 2016
- Subjects: Corporate governance -- Law and legislation Social responsibility of business Sustainable development
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5916 , vital:29419
- Description: This study sets out to answer the question whether compliance with the directors’ fiduciary duty to act in the best interests of the company undermines other stakeholders’ interests and corporate sustainability. It adopts a comparative approach whereby the South African legal system is compared to that of the United Kingdom, Canada, and the United States of America where corporate scandals in the last two decades resulted in the collapse of some large companies. Qualitative research methods namely the critical and evaluation, comparative and legal historical approaches are employed. The adoption of the comparative and historical approach to this study makes it significant for company law literature. The study is hinged on two company law principles. The first one is that a company is a juristic and fictitious person. The second one is the separation of ownership and control of a company. To effectively understand how the directors’ fiduciary duty to act in the best interests of the company has evolved over time, a historical overview of fiduciary obligations is presented. Four different views about the origins of fiduciary obligations are examined. It is submitted that the old English case of Keech v Sandford1 and the South Sea Company Bubble are very significant to the development of fiduciary obligations and their assimilation into company law. Thereafter, a discussion on the nature and scope of the directors’ duty in question is presented. An analysis of the relationship between directors and the company and how rights and duties between the two legal subjects arise is also undertaken. It will be shown that the directors’ fiduciary duty to act in the best interests of the company is broken down into a number of mandatory rules. After outlining some selected company stakeholders, an argument is presented on who the legitimate beneficiaries of directors’ fiduciary obligations should be. Further, the study provides an explanation of the concept of ‘the best interests of a company’ before addressing the tension between the pursuit of sustainability and the best interests of the company. An important question in the context of this study is how can directors’ fiduciary obligations be enforced? Identifying that there is public and private enforcement of fiduciary obligations, this study focusses on private enforcement which mainly consists of judicial and administrative remedies. Judicial remedies especially the derivative action and oppression remedies will be examined. A greater part of the discussion will dwell heavily on whether the available remedies are relevant and/or effective in protecting various stakeholders’ interests. Due to the nature of the office of director, it can be contended that directors should not be held liable for every decision they make. As such, American courts have come up with what has come to be known as the business judgment rule. This rule protects directors from civil liability if they act in good faith, with due care, without any personal interest and within the director’s authority. It will be shown that the rule manifests or operates either as an abstention doctrine, as a standard of liability or as an immunity doctrine. As an abstention or standard of liability doctrine, the rule requires the plaintiff to rebut a presumption that directors acted in good faith in the best interests of the company. As an immunity doctrine, the rule requires the director to prove that s/he qualifies for the immunity.
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Reconfiguring international pharmaceutical patent protection principles to combat linkage evergreening :|b'de-linking the evergreen' and proposing a solution for developing countries
- Authors: Omino, Akinyi Melissa Anne
- Date: 2016
- Subjects: Patent medicines--Developing countries Drugs--Developing countries Patent laws and legislation--Developing countries
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/11663 , vital:39094
- Description: Recent remarks made by the current South African Minister of Health describing as a plot to ‘genocide’ a leaked document allegedly authored by a group of multinational pharmaceutical companies in response to the country’s Draft IP Policy is evidence of the importance of both pharmaceutical patents and the national intellectual property policies underpinning their legislative landscape. The proliferation of linkage evergreening provisions through multilateral agreements has also recently become a trend globally. Evergreening has been described as the various ways in which pharmaceutical patent owners use the law and related regulatory processes to extend the patent term of their high profit-making pharmaceuticals. The evergreening phenomenon has also been referred to as patent evergreening, which involves the practice of obtaining multiple patents that cover different aspects of the same product. Linkage evergreening however specifically refers to the phenomenon where generics pharmaceutical manufacturers cannot receive regulatory approval or marketing authorization for developing a pharmaceutical product that is still protected by a patent. The evergreening phenomenon is achieved through Free Trade Agreements (FTAs) which require participating nations to incorporate linkage and other intellectual property provisions in their national patent systems in exchange for preferential trade terms. These agreements generally provide for stronger provisions than the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and are thus referred to as “TRIPS Plus". Not surprisingly, these “TRIPS Plus” FTAs are negotiated outside the purview of the World Trade Organization (WTO). This thesis examines the role, legality and impact of bilateral free trade agreements which include wide ranging provisions that allow the proliferation of linkage evergreening and thereby frustrate and delay generic medicines’ market entry, prolong and expand patent protections and constrain the exercise of TRIPS flexibilities intended to support access and promote public health. The free trade agreements discussed include the North American Free Trade Agreement (NAFTA), the US - Australia Free Trade Agreement (AUSFTA) and the US - Korea Free Trade Agreement (KORUSFTA). This study also examines the Economic Partnership Agreements (EPAs) in the context of access to medicines and linkage evergreening in developing countries and LDCs in Africa, with a focus on the recently concluded EU – SADC EPA and the EU-EAC EPA still under negotiation. Relevant legislation, policy documents and case law from South Africa, India, the EAC and ARIPO are also explored in this study to gauge their potential to effectively address the challenges of access to medicines and evergreening. This thesis offers a solution to evergreening through the recommendation of guidelines which show law and policy makers how to curtail linkage evergreening. More specifically, it is hoped that the said guidelines as well as the discussion and analyses presented in this thesis will assist in the development of national and regional intellectual property policies, amendment of national and regional legislative instruments as well as the negotiation of regional trade agreements aimed at securing the interests of LDCs and developing countries. It is further hoped that the recommendations made will contribute to ongoing efforts to improve access to affordable medicines in the developing world.
- Full Text:
- Authors: Omino, Akinyi Melissa Anne
- Date: 2016
- Subjects: Patent medicines--Developing countries Drugs--Developing countries Patent laws and legislation--Developing countries
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/11663 , vital:39094
- Description: Recent remarks made by the current South African Minister of Health describing as a plot to ‘genocide’ a leaked document allegedly authored by a group of multinational pharmaceutical companies in response to the country’s Draft IP Policy is evidence of the importance of both pharmaceutical patents and the national intellectual property policies underpinning their legislative landscape. The proliferation of linkage evergreening provisions through multilateral agreements has also recently become a trend globally. Evergreening has been described as the various ways in which pharmaceutical patent owners use the law and related regulatory processes to extend the patent term of their high profit-making pharmaceuticals. The evergreening phenomenon has also been referred to as patent evergreening, which involves the practice of obtaining multiple patents that cover different aspects of the same product. Linkage evergreening however specifically refers to the phenomenon where generics pharmaceutical manufacturers cannot receive regulatory approval or marketing authorization for developing a pharmaceutical product that is still protected by a patent. The evergreening phenomenon is achieved through Free Trade Agreements (FTAs) which require participating nations to incorporate linkage and other intellectual property provisions in their national patent systems in exchange for preferential trade terms. These agreements generally provide for stronger provisions than the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and are thus referred to as “TRIPS Plus". Not surprisingly, these “TRIPS Plus” FTAs are negotiated outside the purview of the World Trade Organization (WTO). This thesis examines the role, legality and impact of bilateral free trade agreements which include wide ranging provisions that allow the proliferation of linkage evergreening and thereby frustrate and delay generic medicines’ market entry, prolong and expand patent protections and constrain the exercise of TRIPS flexibilities intended to support access and promote public health. The free trade agreements discussed include the North American Free Trade Agreement (NAFTA), the US - Australia Free Trade Agreement (AUSFTA) and the US - Korea Free Trade Agreement (KORUSFTA). This study also examines the Economic Partnership Agreements (EPAs) in the context of access to medicines and linkage evergreening in developing countries and LDCs in Africa, with a focus on the recently concluded EU – SADC EPA and the EU-EAC EPA still under negotiation. Relevant legislation, policy documents and case law from South Africa, India, the EAC and ARIPO are also explored in this study to gauge their potential to effectively address the challenges of access to medicines and evergreening. This thesis offers a solution to evergreening through the recommendation of guidelines which show law and policy makers how to curtail linkage evergreening. More specifically, it is hoped that the said guidelines as well as the discussion and analyses presented in this thesis will assist in the development of national and regional intellectual property policies, amendment of national and regional legislative instruments as well as the negotiation of regional trade agreements aimed at securing the interests of LDCs and developing countries. It is further hoped that the recommendations made will contribute to ongoing efforts to improve access to affordable medicines in the developing world.
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The legal protection of foreign direct investment in the new millennium :a critical assessment with a focus on South Africa and Zimbabwe
- Authors: Chidede, Talkmore
- Date: 2016
- Subjects: Investments, Foreign -- Law and legislation Economic policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/7919 , vital:30814
- Description: The increasing investment gap and reduction in foreign aid has made several developing countries to turn to foreign investment as a mechanism to circumvent their financial constraints among other things. There is substantial empirical evidence that foreign direct investment enhances economic development, employment creation, national competitiveness and diffusion of technology from foreign firms to local firms and workers of the host states. As a result, this study firstly argues that foreign investment is much needed in South Africa and Zimbabwe to improve economic growth and development, create employment and increase their competitiveness in the global market. However, these benefits do not accrue automatically but the host states need to create an enabling environment to exploit such benefits. The legal protection of foreign investment has become a fundamental issue in both international and national law. Efforts have been and are still being made in law as well as in practice to implement national investment legal regimes which are in line with international norms or standards. This study undertakes a contemporary assessment of the legal protection of foreign investment in South Africa and Zimbabwe with a view of examining their compliance with international minimum norms, standards and/or best practices. More recently, both South Africa and Zimbabwe have crafted and implemented investment laws and related policies which are perceived to be somewhat hostile towards foreign investment. To achieve this, selected investment laws and related policies in both jurisdictions are critically analysed. This study puts forward an argument and recommendations for policy makers in both South Africa and Zimbabwe for strategic refinements of investment laws and related policies such that they become flexible, friendly and certain to foreign investors while at the same time advancing their respective national policies aimed at the economic empowerment of local citizens.
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- Authors: Chidede, Talkmore
- Date: 2016
- Subjects: Investments, Foreign -- Law and legislation Economic policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/7919 , vital:30814
- Description: The increasing investment gap and reduction in foreign aid has made several developing countries to turn to foreign investment as a mechanism to circumvent their financial constraints among other things. There is substantial empirical evidence that foreign direct investment enhances economic development, employment creation, national competitiveness and diffusion of technology from foreign firms to local firms and workers of the host states. As a result, this study firstly argues that foreign investment is much needed in South Africa and Zimbabwe to improve economic growth and development, create employment and increase their competitiveness in the global market. However, these benefits do not accrue automatically but the host states need to create an enabling environment to exploit such benefits. The legal protection of foreign investment has become a fundamental issue in both international and national law. Efforts have been and are still being made in law as well as in practice to implement national investment legal regimes which are in line with international norms or standards. This study undertakes a contemporary assessment of the legal protection of foreign investment in South Africa and Zimbabwe with a view of examining their compliance with international minimum norms, standards and/or best practices. More recently, both South Africa and Zimbabwe have crafted and implemented investment laws and related policies which are perceived to be somewhat hostile towards foreign investment. To achieve this, selected investment laws and related policies in both jurisdictions are critically analysed. This study puts forward an argument and recommendations for policy makers in both South Africa and Zimbabwe for strategic refinements of investment laws and related policies such that they become flexible, friendly and certain to foreign investors while at the same time advancing their respective national policies aimed at the economic empowerment of local citizens.
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