School of Law (ETDs)

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Browsing School of Law (ETDs) by SDG "SDG-4: Quality education"

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    Does international commercial arbitration provide an effective remedy? as approved by postgraduate studies committee
    (University of the Witwatersrand, Johannesburg, 2022) Naidoo, Prenisha; Schlemmer, Engela C.
    The following research report aims to establish whether international commercial arbitration provides an effective remedy to international contracting parties that have elected to have any dispute that arises between them resolved by means of arbitration. The report emphasizes the practicality of international commercial arbitration by accentuating the main advantages that the procedure has to offer to international contracting parties. It also brings to light the challenges that are associated with effectuating and enforcing an international arbitral award. These challenges have the potential to affect the efficacy of the arbitral award in its entirety. The report then focuses on the role and importance of international instruments, such as the New York convention, in international commercial arbitration proceedings, particularly when it comes to the enforcement of international arbitral awards. The report further examines the fruitfulness of such international instruments as well as the benefits that are associated with South Africa being a signatory to the New York convention. The report finds that international treaties and conventions instil credence to international commercial arbitration as it ensures that an effective enforcement mechanism is available for international contracting parties. For international contracting parties, this ensures that parties are able to attain the relief set out in the arbitral award. Thus, rendering the award effective. However, there are certain inadequacies inherent in the New York convention that have surfaced over the years. These inadequacies have the potential to affect the efficacy of international arbitral awards. For instance, the New York convention bestows upon the national courts of contracting states, the ability to set aside and refuse recognition and enforcement of an arbitral award on grounds that the award is non- arbitrable or that the recognition and enforcement of the award will go against the public policy standards of that specific region. The New York convention does not define what constitutes arbitrable matters and neither does it circumscribe the limits on the public policy exception. Therefore, national courts of contracting states are free to interpret the limits of these grounds themselves. This has implications for contracting parties to an arbitration agreement as apartfrom creating uncertainty, it also affords national courts a certain degree of leverage to set aside and refuse recognition or enforcement of foreign arbitral awards on grounds that may be unbeknown to the contracting parties.
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    The need for legal reform to effectively protect the rights of queer-sexual pupils in south african public schools
    (University of the Witswatersrand, Johannesburg, 2022) Booi, S
    The South African community largely consist of marginalized and/or vulnerable groups, one of which is the queer-sexual community. This paper seeks to direct the attention of the social justice advocacy towards the children members of this groups. Within all the marginalized and vulnerable groups, children are the worst off. This study will focus on the children of the queer-sexual group, particularly, public school pupils. The ‘queer-sexual’ concept will be used to loosely mean children who are not heterosexual. Through examples of legal reforms that have proven, to an important extent, effective in protecting queer-sexual adults; and comprehensive research on how basic education schooling environment fails to offer queer-sexual pupils’ substantive equal opportunity to learn, this paper will prove the necessity of statutory intervention to achieve an effective protection of the right to equality for queer-sexual pupils in South African public schools. While the Constitution of the Republic of South Africa (hereinafter referred to as the Constitution) guarantees equal rights for everyone, it is the statutory regulations that give effect to the constitutional broad provisions. To a certain and significant extent, the amended Intestate Succession Act and Civil Union Act have given effect to the protection of adult queer-sexual identities. However, the existing children-centred statutes do not make specific provision for the recognition and protection of queer-sexual children, the result of which is lack of a legal regime that protects queer-sexual identities of children. While a society’s voluntary recognition of the existence and subsequent acceptance or tolerance of queer-sexual children is ideal, this paper will only focus on the necessity of legal mechanisms to protect the rights of minorities. Considering the efficacy of statutes such as the Employment Equity Act that fosters implementation of policies that vehemently prohibit discriminatory conduct and sexual harassment in the workplace, the obedience fostering character of the law makes the law integral to the protection of queer-sexual children