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O Attribution — You Must Give Appropriate Credit, Provide a Link to the License, and Indicate If Changes Were Made COPYRIGHT AND CITATION CONSIDERATIONS FOR THIS THESIS/ DISSERTATION o Attribution — You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use. o NonCommercial — You may not use the material for commercial purposes. o ShareAlike — If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original. How to cite this thesis Surname, Initial(s). (2012). Title of the thesis or dissertation (Doctoral Thesis / Master’s Dissertation). Johannesburg: University of Johannesburg. Available from: http://hdl.handle.net/102000/0002 (Accessed: 22 August 2017). Faculty of Law _________________________________________________ Canadian and South African Private International Law of Contract - a comparative Study by YVONNE DLIWAYO Minor LL.M. Dissertation Submitted in partial fulfillment of the requirements for the degree of Magister Legum MASTERS OF LAW (LLM) In INTERNATIONAL COMMERCIAL LAW University of Johannesburg SUPERVISOR: PROF EA FREDERICKS [10278 Words] January 2019 1 TABLE OF CONTENTS TABLE OF CONTENTS........................................................................................................ II CHAPTER 1 INTRODUCTION ............................................................................................... 1 CHAPTER 2 CANADIAN PRIVATE INTERNATIONAL LAW OF CONTRACT .............. 3 1. Introduction ..................................................................................................................... 3 1.1 Party Autonomy and Express choice of law ................................................................... 4 1.2 Ancillary aspects of party autonomy: Dépeçage ............................................................ 5 1.3 Implied Choice of Law .................................................................................................. 5 1.4 Limitations to Party Autonomy...................................................................................... 6 2. Absence of a Choice of Law ............................................................................................... 6 3. Scope of the proper law .................................................................................................. 8 3.1 Formal Validity .............................................................................................................. 8 3.2 Capacity ......................................................................................................................... 9 4. Conclusion .................................................................................................................... 10 CHAPTER 3 SOUTH AFRICAN PRIVATE INTERNATIONAL LAW OF CONTRACT . 11 1. Introduction ................................................................................................................... 11 1.1 Party autonomy and Express choice of law ................................................................. 11 1.2 Ancillary Aspects of Party autonomy: Dépeçage ........................................................ 12 1.3 Tacit Choice of Law ..................................................................................................... 13 1.4 Limitations to party Autonomy .................................................................................... 14 2. Absence of a Choice of Law ......................................................................................... 15 3. Scope of the proper law ................................................................................................ 17 3.1 Formal Validity ............................................................................................................ 17 3.2 Capacity ....................................................................................................................... 18 4. Conclusion .................................................................................................................... 20 CHAPTER 4 COMPARATIVE ANALYSIS .......................................................................... 21 1. Introduction ................................................................................................................... 21 II 2. Party autonomy and express choice .............................................................................. 21 2.1 Dépeçage ...................................................................................................................... 21 2.2 Limitations of Party Autonomy ................................................................................... 22 2.3 Tacit Choice of Law ..................................................................................................... 23 3 Determination of the Proper Law .................................................................................. 23 4. Scope of the proper law ................................................................................................ 24 4.1 Formal Validity ............................................................................................................ 24 4.2 Capacity ....................................................................................................................... 24 5. Interim Conclusion ........................................................................................................ 25 CHAPTER 5 RECOMMENDATIONS AND CONCLUSION .............................................. 26 BIBLIOGRAPHY .................................................................................................................. IV III CHAPTER 1 INTRODUCTION South Africa and Canada share a sentimental history and commercial relationship at present. Histor- ically, in the 1980s, Canada was seen at the forefront of establishing a multi-ethnic, multi-racial and democratic society in South Africa. According to Hogg, Canada has contributed significantly in the development of policy and the legal framework in South Africa, particularly in the drafting of the South African Bill of Rights.1 Commercially, South Africa, as one of the leading economies in Africa, is said to be the prime destination for Canadian goods and services.2 Statistics indicate that in 2017 alone, two-way merchandise trade between the two states was a total of $1.27 billion, consisting of exports and imports.3 Furthermore, it is submitted that Canada as one of the major investors in South Africa, focuses on several sectors including the mining and mineral industry.4 Currently, trade and investment between Canada and South Africa is facilitated by a memorandum of understanding on cooperation in mining and mineral development and a double taxation agreement.5 If the question of “what governs an international contract?” had to be asked, the immediate answer in both legal systems would be “the proper law of the contract”. This is because both Canadian (except for the province of Quebec) and South African private international law of contract is governed by the English common-law. Hence, the objective of this dissertation is to investigate the private inter- national law of contract rules of common-law Canada and South Africa, to establish compatibility or non-compatibility thereof. The purpose of this comparative analysis is to investigate whether both legal systems are on the right track, whether there are possible lessons that the two can learn from each other or whether a different legislative approach should be taken into consideration. It must be 1 Hogg “Canadian law in the Constitutional Court of South Africa” 1998 SAPR/PL 1 2. The author submits that “the Canadian Charter of Rights is the closest in its language and structure to the South African Bill of Rights. It is also submitted that “Canadian and South African experts worked closely together in drafting South Africa’s first demo- cratic constitution. 2 See Newspaper article by Geoffrey York - The Globe and Mail (23-06-2014) where the Minister of international trade of Canada at the time, Mr Ed Fast, was quoted saying South Africa “remains the linchpin of Canada’s economic strategy on the African continent”. 3 High Commission of Canada in South Africa https://www.canadainternational.gc.ca/southafricafriquedusud/bilateral relations_bilaterales/canada_southafrica-afrique-du-sud.aspx?lang=eng (30 -08-2018). 4 Other sectors include, transportation, hospitality, information and communication, as well as food processing and instrumentation sectors; n 3 above. 5 The then Minister of mineral resources Adv. Ngoako Ramathlodi was quoted stating: “The signing (of the memoran- dum of understanding) represents South Africa’s commitment to global partnerships in development and serves to further encourage more Canadian and South African companies operating throughout the mining and minerals value chain to deepen the special relationship we have established over the years and formalized today.” See Mining Review Africa, https://www.miningreview.com/sa-government-signs-mou-with-canada-on-mining-and-mineral-develop- ment (11/12/2018). 1 noted that not all aspects of the private international law of contract will be dealt with. This disserta- tion limits itself to the proper law rule, and two topics that fall outside the scope of the rule. Thus, express choice of law, tacit/implied choice and objectively determined law, formal validity and con- tractual capacity. Canada and South Africa have been chosen because
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