Browsing by Author "Martin, Bernard"

Now showing 1 - 12 of 12
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    The current trends towards trade related aspects of intellectual property tights (TRIPS) compliance by the least developed countries: a Rwandian persepctive
    (University of the Western Cape, 2007) Ngoga, Eustache.; Martin, Bernard; Faculty of Law
    Many critics have questioned whether the protection of the IPRs would benefit developing countries. It was argued in this paper that developing countires have the interest in protecting IPRs as well. However, it was showed that the benefit of this protection can be realized only if there is a fair rule of the game to all players in the multilateral trading system. The general objective of this research was to examine the current status of IPRs protection and the levels of TRIPS compliance by Rwanda in the area of copyright.
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    The harmonisation of rules on the recognition and enforcement of foreign judgments in the southern African customs union
    (University of the Western Cape, 2013) Rossouw, Mandi; Martin, Bernard; NULL
    The Member States of the Southern African Customs Union (SACU) have set as their objectives, amongst others, the facilitation of cross-border movement of goods between the territories of the Member States and the promotion of the integration of Member States into the global economy through enhanced trade and investment. Different approaches to the recognition and enforcement of foreign judgments by Member States and the risk of non-enforcement may lead to legal uncertainty and increased transaction cost for prospective traders, which ultimately act as non-tariff barriers to trade in the region. Trade is critical to Southern Africa, and the ideal is that barriers to trade, of which uncertainty concerning the recognition and enforcement of foreign judgments among Member States is one, should be removed. Certainty, predictability, security of transactions, effective remedies and cost are important considerations in investment decision-making; and clear rules for allocating international jurisdiction and providing definite and expedited means of enforcing foreign judgments will facilitate intraregional as well as interregional trade. In addition to trade facilitation, a harmonised recognition and enforcement regime will consolidate economic and political integration in the SACU. An effective scheme for the mutual recognition and enforcement of civil judgments has been regarded as a feature of any economic integration initiative likely to achieve significant integration. While the harmonisation of the rules on the recognition and enforcement of foreign judgments has been given priority in other regional economic communities, in particularly the European Union, any similar effort to harmonise the rules on recognition and enforcement of Member States have been conspicuously absent in the SACU – a situation which needs to receive immediate attention. The thesis considers the approaches followed by the European Union with the Brussels Regime, the federal system of the United States of America under the ‘full faith and credit clause’; the inter-state recognition scheme under the Australia and New Zealand Trans-Tasman judicial system; as well as the convention-approach of the Latin American States. It finds that the most suitable approach for the SACU is the negotiation and adoption by all SACU Member States of a multilateral convention on the recognition and enforcement of foreign judgments, comparable to the 1971 Convention of the Hague Conference on Private International Law; the EU Brussels I Regulation and the Latin-American Montevideo Convention, as complemented by the La Paz Convention. It is imperative that a proposed convention should not merely duplicate previous efforts, but should be drafted in the light of the legal, political and socio-economic characteristics of the SACU Member States. The current legislative provisions in force in SACU Member States are compared and analysed, and the comparison and analysis form the basis of a proposal for a future instrument on recognition and enforcement of foreign judgments for the region. A recommended draft text for a proposed Convention on the Recognition and Enforcement of Foreign Judgments for the SACU is included. This draft text could form the basis for future negotiations by SACU Member States.
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    Law and justice at the dawn of the 21st century: Essays in honour of Lovell Derek Fernandez
    (University of the Western Cape, 2016) Martin, Bernard; Koen, Raymond
    Essays in honour of Lovell Derek Fernandez, Lawyer, Linguist, Mensch
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    The Nagoya protocol: a possible solution to the protection of traditional knowledge in biodiverse societies of Africa
    (University of the Western Cape, 2011) Moody, Oluwatobiloba Oluwayomi; Martin, Bernard; NULL
    There is a growing interplay of competing realities facing the international community in the general areas of innovation, technological advancement and overall economic development. The highly industrialised wealthy nations, largely located on the Northern hemisphere are on the one hand undoubtedly at the forefront in global research, technology and infrastructure development. The developing and least developed countries on the other hand are mostly situated on the Southern hemisphere. They are not as wealthy or technologically advanced as their Northern counterparts, but are naturally endowed with unique variations of plant, animal and micro-organism species occurring in natural ecosystems, as well as the traditional knowledge on how to use these unique species. This knowledge has been adjudged to be responsible for the sustainable maintenance of the earth biodiversity. Increasing exploitation of biodiversity spurred on by the competing realities identified above, has left the earth in a present state of alarm with respect to the uncontrolled loss of biodiversity. The traditional knowledge of local peoples has significantly offered leads to research institutes from the North in developing major advancements in drugs, cosmetics and agriculture. Little or no compensation has however been seen to go back to the indigenous communities and countries that provide resources, and indicate various possibilities through their traditional knowledge to the use of such resources. Efforts by some biodiversity rich countries to ddress this trend through legislation developed in accordance with the principles of the Convention on Biological Diversity have been frustrated due to the inability to enforce their domestic laws outside their borders. Theft of genetic resources and its associated traditional knowledge from such countries has therefore remained a major challenge. Against this backdrop, and on the insistence of biodiversity-rich developing countries, an international regime on access and benefit sharing was negotiated and its final text adopted in 2010. This international regime is as contained in the Nagoya Protocol. This research sets out to examine whether the Nagoya Protocol offers a final solution to the protection of traditional knowledge associated with biodiversity in biodiverse countries. It further examines the importance of domestic legislation in achieving the objectives of the Protocol. The research has been tailored to African biodiverse countries, and seeks these answers within the context of Africa.
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    The Nagoya protocol: a possible solution to the protection of traditional knowledge in biodiverse societies of Africa
    (University of the Western Cape, 2011) Moody, Oluwatobiloba Oluwayomi; Martin, Bernard; NULL
    There is a growing interplay of competing realities facing the international community in the general areas of innovation, technological advancement and overall economic development. The highly industrialised wealthy nations, largely located on the Northern hemisphere are on the one hand undoubtedly at the forefront in global research, technology and infrastructure development. The developing and least developed countries on the other hand are mostly situated on the Southern hemisphere. They are not as wealthy or technologically advanced as their Northern counterparts, but are naturally endowed with unique variations of plant, animal and micro-organism species occurring in natural ecosystems, as well as the traditional knowledge on how to use these unique species. This knowledge has been adjudged to be responsible for the sustainable maintenance of the earth biodiversity. Increasing exploitation of biodiversity spurred on by the competing realities identified above, has left the earth in a present state of alarm with respect to the uncontrolled loss of biodiversity. The traditional knowledge of local peoples has significantly offered leads to research institutes from the North in developing major advancements in drugs, cosmetics and agriculture. Little or no compensation has however been seen to go back to the indigenous communities and countries that provide resources, and indicate various possibilities through their traditional knowledge to the use of such resources. Efforts by some biodiversity rich countries to ddress this trend through legislation developed in accordance with the principles of the Convention on Biological Diversity have been frustrated due to the inability to enforce their domestic laws outside their borders. Theft of genetic resources and its associated traditional knowledge from such countries has therefore remained a major challenge. Against this backdrop, and on the insistence of biodiversity-rich developing countries, an international regime on access and benefit sharing was negotiated and its final text adopted in 2010. This international regime is as contained in the Nagoya Protocol. This research sets out to examine whether the Nagoya Protocol offers a final solution to the protection of traditional knowledge associated with biodiversity in biodiverse countries. It further examines the importance of domestic legislation in achieving the objectives of the Protocol. The research has been tailored to African biodiverse countries, and seeks these answers within the context of Africa.
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    The protection of geographical indications for agricultural products in Africa using trademarks and sui generis legislation
    (University of the Western Cape, 2014) Sheldon, Lauren Natasha; Martin, Bernard
    A geographical indication (GI) is a sign by which a product is identified as having its origin in a particular territory and as having certain qualities, characteristics and a reputation, which are associated with that origin. There is currently no uniform international mechanism of protecting GIs, however, the framework for the protection of GIs is provided by Articles 22 to 24 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Article 23.1 provides a distinct advantage for the protection of wines and spirits as compared to the general protection of Article 22 for all other products. This thesis argues that a uniform system of protection for GIs should be established internationally, and that protection would be to the advantage of developing countries. The purpose of this study is to determine the best available method (i.e. trademark legislation or sui generis legislation) for protecting GIs for agricultural products of developing countries, through analysing the international legal framework governing the protection of GIs and the methods of national protection available as applied in Ethiopia, South Africa and India. The central argument advanced is that the use of trademarks should be a stepping stone, sui generis legislation is the ideal. Sui generis (separate) legislation should be drafted to fulfil the obligations of TRIPS and to ensure the extended protection, through national legislation, of all goods within other Member States. It is highly unlikely that the TRIPS Member States will agree to the extended protection of the Article 23. Therefore, the most suitable method to achieve such protection would be for Member States to extend their national protection through sui generis legislation.
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    The protection of traditional knowledge: challenges and possibilities arising from the protection of biodiversity in South Africa
    (2011) Dountio, Ofimboudem Joelle; Martin, Bernard
    Traditional Knowledge (TK) is the long standing wisdom, teachings and practices of indigenous communities which have been passed on orally, in the majority of cases, from generation to generation. TK is expressed in the form, medicine, agriculture, understanding of the ecology, music, dance, stories, folklore, poetry, spiritual, cultural and artistic expressions, and knowledge relating to bio-diversity. This thesis focuses on plant bio-diversity, as part of TK, and the problem of bio-piracy. We attempt a definition of TK; its characteristics; possible measures that can be taken to ensure its protection; and challenges that are likely to be faced in seeking to ensure its protection, first at the global level, then with particular attention to South Africa. Some of the suggested measures include the enactment of sui generis laws to protect plant biodiversity, rather that the adaptation of the existing IP regime. Some of the challenges include unwillingness of some countries to participate in international initiatives, like the US, which is not even a signatory of the CBD, and the difficulty of identifying the persons in whom ownership of the TK should be vested when it is possessed by many communities.
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    The protection of traditional knowledge: challenges and possibilities arising from the protection of biodiversity in South Africa
    (2011) Dountio, Ofimboudem Joelle; Martin, Bernard
    Traditional Knowledge (TK) is the long standing wisdom, teachings and practices of indigenous communities which have been passed on orally, in the majority of cases, from generation to generation. TK is expressed in the form, medicine, agriculture, understanding of the ecology, music, dance, stories, folklore, poetry, spiritual, cultural and artistic expressions, and knowledge relating to bio-diversity. This thesis focuses on plant bio-diversity, as part of TK, and the problem of bio-piracy. We attempt a definition of TK; its characteristics; possible measures that can be taken to ensure its protection; and challenges that are likely to be faced in seeking to ensure its protection, first at the global level, then with particular attention to South Africa. Some of the suggested measures include the enactment of sui generis laws to protect plant biodiversity, rather that the adaptation of the existing IP regime. Some of the challenges include unwillingness of some countries to participate in international initiatives, like the US, which is not even a signatory of the CBD, and the difficulty of identifying the persons in whom ownership of the TK should be vested when it is possessed by many communities.
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    South frica’s non-ratification of the United Nations convention on Contracts for the International Sale of Goods (CISG), wisdom or folly, considering the effect of the status quo on international trade
    (University of the Western Cape, 2011) Matinyenya, Patience; Martin, Bernard; NULL
    The United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) seeks to provide a standard uniform law for international sales contracts. This research paper analyses the rationale behind South Africa’s delay in deciding whether to ratify the CISG, and its possible effect on trade with other nations. The CISG drafters hoped that uniformity would remove barriers to international sales thereby facilitating international trade. Ratification of the convention is only the beginning of uniformity; uniformity must then be extended to its application and interpretation. Not all countries have ratified the Convention yet they engage in international trade in goods: this state of affairs presents challenges since traders have to choose a national law that applies to their contract where CISG does not apply. This takes traders back to the undesirable pre-CISG era. On the other hand, those States that have ratified the convention face different challenges, the biggest one being a lack of uniformity in its interpretation. The problem of differing interpretations arises because some CISG Articles are vague leading to varied interpretations by national courts. Further, the CISG is still largely misunderstood and some traders from States that have ratified CISG exclude it from application. South Africa can only ratify an international instrument such as the CISG, after it has been tabled before Parliament, and debated upon in accordance with the Constitution. CISG’s shortcomings, particularly regarding interpretation, make it far from certain that CISG would pass the rigorous legislative process. Nonetheless, the Constitution of South Africa requires the South African courts and legislature to promote principles of international law. The paper, therefore, examines, whether the Legislature has a constitutional obligation to ratify CISG. South Africa’s membership of the WTO requires that it promote international trade by removing trade barriers. It is, therefore, vital for South Africa to be seen to be actively facilitating international trade. Even though the trade benefits which flow from ratification are not always visible in States that have ratified the CISG, there is some doubt whether South Africa can sustain its trade relations without ratifying the CISG. The paper shows that the formation of contracts under the South African common law is very similar to formation as set out under Part II of the CISG and if the CISG were to be adopted in South Africa, no major changes would be needed in this regard. International commercial principles as an alternative to the CISG still require a domestic law to govern the contract and would, therefore, leave South African traders in the same position they are in currently, where their trading relations are often governed by foreign laws. Ratifying CISG would certainly simplify contract negotiations particularly with regard to governing law provisions. Overall the advantages of ratification for South Africa far outweigh the shortcomings of the CISG, and ratification will assist in ensuring that South African traders get an opportunity to enter the international trade arena on an equal platform with traders from other nations.
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    South frica’s non-ratification of the United Nations convention on Contracts for the International Sale of Goods (CISG), wisdom or folly, considering the effect of the status quo on international trade
    (University of the Western Cape, 2011) Matinyenya, Patience; Martin, Bernard; NULL
    The United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) seeks to provide a standard uniform law for international sales contracts. This research paper analyses the rationale behind South Africa’s delay in deciding whether to ratify the CISG, and its possible effect on trade with other nations. The CISG drafters hoped that uniformity would remove barriers to international sales thereby facilitating international trade. Ratification of the convention is only the beginning of uniformity; uniformity must then be extended to its application and interpretation. Not all countries have ratified the Convention yet they engage in international trade in goods: this state of affairs presents challenges since traders have to choose a national law that applies to their contract where CISG does not apply. This takes traders back to the undesirable pre-CISG era. On the other hand, those States that have ratified the convention face different challenges, the biggest one being a lack of uniformity in its interpretation. The problem of differing interpretations arises because some CISG Articles are vague leading to varied interpretations by national courts. Further, the CISG is still largely misunderstood and some traders from States that have ratified CISG exclude it from application. South Africa can only ratify an international instrument such as the CISG, after it has been tabled before Parliament, and debated upon in accordance with the Constitution. CISG’s shortcomings, particularly regarding interpretation, make it far from certain that CISG would pass the rigorous legislative process. Nonetheless, the Constitution of South Africa requires the South African courts and legislature to promote principles of international law. The paper, therefore, examines, whether the Legislature has a constitutional obligation to ratify CISG. South Africa’s membership of the WTO requires that it promote international trade by removing trade barriers. It is, therefore, vital for South Africa to be seen to be actively facilitating international trade. Even though the trade benefits which flow from ratification are not always visible in States that have ratified the CISG, there is some doubt whether South Africa can sustain its trade relations without ratifying the CISG. The paper shows that the formation of contracts under the South African common law is very similar to formation as set out under Part II of the CISG and if the CISG were to be adopted in South Africa, no major changes would be needed in this regard. International commercial principles as an alternative to the CISG still require a domestic law to govern the contract and would, therefore, leave South African traders in the same position they are in currently, where their trading relations are often governed by foreign laws. Ratifying CISG would certainly simplify contract negotiations particularly with regard to governing law provisions. Overall the advantages of ratification for South Africa far outweigh the shortcomings of the CISG, and ratification will assist in ensuring that South African traders get an opportunity to enter the international trade arena on an equal platform with traders from other nations.