Theses and Dissertations (Private Law)

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The link between the assumption of support between life partners and the recognition and protection of life partnerships in South Africa
(University of Pretoria, 2024-11) Louw, Anne S.; cherryl.botterill@gmail.com; Botterill, Cherryl-Lee
South African family law does not recognise a “law of life partnerships” and accords only piecemeal statutory and judicial recognition to life partnerships. While legislation to formally recognise life partnerships have been proposed, development of the law in this regard has thus far been driven almost exclusively by judicial precedent. The judiciary has adopted two different approaches as far as it relates to the role of a duty of support in recognising life partnerships and in determining whether life partners could qualify for spousal benefits. Under the first approach the courts derive a duty of support from the fact that the partners lived together with some form of permanence. The duty of support is therefore not a prerequisite for the existence of a life partnership but flows from the life partnership. Under the second approach a duty of support cannot be automatically inferred even though the partners lived together with some form of permanence. An undertaking of a duty of support between the partners is a prerequisite for the recognition and benefits of a life partnership. The legislature has proposed legislative proposals towards the recognition of life partnerships. The Domestic Partnerships Bill and the Single Marriage Statute proposed provision for the registration of life partnerships. Under the Domestic Partnerships Bill, the assumption of a duty of support is one of a number of factors for the recognition of a life partnership and therefore not required qualifying prerequisite for the recognition and protection of life partnerships. Under the Single Marriage Statute, the parties must have cohabited in a life partnership and have assumed a permanent responsibility for supporting each other. A permanent responsibility for supporting each other is made a prerequisite for recognition and protection of life partnerships. Although the mentioned proposed legislation provides for the recognition of life partnerships the legislature is advancing the Marriage Bill that provides recognition to all forms of marriage under a single Act. The Marriage Bill does not provide for life partnerships. Life partners will therefore have to rely on piecemeal recognition by the courts for the foreseeable future. The position in South Africa is compared to legislation in British Columbia in Canada and the Republic of Ireland. Both jurisdictions provide for the recognition of life partnerships. In British Columbia partners must cohabit for a specific time period in a marriage-like relationship. In Ireland an intimate and committed relationship is required with a prescribed time period and financial dependence. The jurisdictions both follow an ascription model. It is concluded that an ascription model similar to that of British Columbia would provide the most extensive protection for life partners in South Africa. The duty of support should not be a prerequisite for recognition and protection of a life partnership but rather a consequence of such a relationship.
Business-to-business data sharing : South African and European Union legal constructs
(University of Pretoria, 2024) Muller, Gustav; johann.pretorius66@gmail.com; Pretorius, Johann Andre
This dissertation reviews how the legal frameworks in South Africa and the European Union facilitate business-to-business data exchange while safeguarding information rights and how they align or differ. Chapter 1 examines how the current era commodifies personal and nonpersonal data, with Big Data notably impacting privacy norms and posing significant privacy challenges. Chapter 2 delves into the SA’s approach to using personal and non-personal information. SA has implemented the Protection of Personal Information Act, which imposes specific processing conditions for accountability and security and gives individuals rights over their data. The chapter concludes by examining the safeguarding of non-personal information and the importance of intellectual property rights. Chapter 3 analyses the similarities and differences between the Protection of Personal Information Act and the European Union’s General Data Protection Regulation. The chapter also examines the European Union's approach to protecting non-personal data, specifically their data strategy’s current legislative program. Chapter 4 assesses the sharing of business-to-business data between South Africa and the European Union. It looks into the contractual aspects of data sharing in the European Union, the role of Standard Contractual Clauses in international data transfers and the legal compliance required, especially for high-risk processing. Finally, the chapter concludes with recommendations for further research and policy changes that could enhance the efficacy of data sharing.
The implications and effect of the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act 22 of 2022, on the Trust Property Control Act 57 of 1988
(University of Pretoria, 2024-11) Van der Linde, Anton; onepearlbatshabile@yahoo.ca; Batshabile, One Pearl
The General Laws Amendment Act was promulgated as a result of efforts by South Africa to meet the recommendations by FATF and thereby to avoid being grey listed. The General Laws Amendment Act however introduced concepts (English concepts) which were foreign to the South African trust law principles. The aim of this study is to appraise the amendments introduced in the TPCA by the General Laws Amendment Act and to determine whether they are theoretically sound, practical and finally whether they achieve the aims and objectives of the Act. This study further undertook a comparative analysis with regards the concept of “beneficial owner” as applied in Namibia and Botswana and other provisions in their trust law legislation.
Patent quality and patent system in South Africa and selected foreign jurisdictions
(University of Pretoria, 2024-11) Okorie, Chijioke; u18129511@tuks.co.za; Smith, Darren Marlin
Various jurisdictions have introduced measures to ensure that exclusive rights are granted to patentees whose patents are of a high-quality and meets the theoretical justification for patent protection. This dissertation sought to determine what are the parameters and/or components of a quality patent. Thereafter, this dissertation evaluated South Africa's patent system to determine whether it grants patents that meet those parameters and/or components of patent quality. Finally, this dissertation looked at foreign jurisdictions to determine whether there were any lessons to be learned, and whether South Africa could find ways of improving its patent system to ensure the grant of higher quality patents.
Inducement as an abuse of dominance in South African Competition Law
(University of Pretoria, 2022-12-15) Van Heerden, C.M. (Corlia); kutalab@yahoo.com; Bizana, Kutala
Section 8(1)(d)(i) of the South African Competition Act 89 of 1998 prohibits a dominant firm from requiring or inducing its supplier or customer not to deal with a competitor unless there are technological, efficient or other pro-competitive gains that outweigh the anti-competitive effects of the act concerned. The key problem that competition authorities globally are facing, South Africa included is that competition, quite literally, is tantamount to inducement. Every advertising campaign or innovation is aimed at inducing customers or suppliers not to deal with competitors. The critical issue is distinguishing between well-functioning competition and malfunctioning competition. As dealt with in this dissertation, significant research has been conducted and a number of cases have been decided in South Africa to deal with this critical question. This study also considers how the issue of inducement is dealt with in the European Union (EU) and whether there is any guidance that can be taken by South Africa from the manner in which the EU approaches inducement by a dominant firm
Who speaks for girls? The conflicting voices on sexual education and reproductive health rights in the United Nations system
(University of Pretoria, 2025-02-14) Skelton, Ann, 1961- ; swartzwendyj@gmail.com; Swartz, Wendy Jean
Women and girls’ sexual and reproductive health are fundamental human rights, as enshrined in international laws and agreements and recognized by human rights’ bodies. However, despite instruments promoting the sexual and reproductive health and rights (SRHR) of women and girls and the right to comprehensive sexual education (CSE), these rights are often limited, restricted or denied. This research considers whether the differences between the Charter-driven and treaty-derived bodies within the United Nations are impeding the advancement of these rights for women and girls. The divergent logic, processes and activities of the actors within these bodies, namely the human rights experts and state representatives, are examined. Furthermore, the validity of positions adopted by states, whether political, legal, cultural or religious, are explored. The research is a qualitative study drawn from primary and secondary sources in UN agencies, international human rights law, academic research and government policies addressing SRHR and CSE. This thesis contributes to the understanding of the lack of collaboration between the human rights experts and States parties within certain UN bodies. The study concludes that whilst UN documents continue to reflect progressive recognition of these rights, challenges persist across all geopolitical regions in the understanding, realisation and implementation of these rights. The research furthermore definitively concludes that cultural or traditional practices cannot be justified should they impede on a girl’s rights in any way. As the narrative on girls’ rights is not linear, but is instead co-located within numerous other interests, the polarisation and politicisation of these issues are expected to continue.
The liability of state officials for public procurement irregularities
(University of Pretoria, 2025-01) Cornelius, Steve J.; 10319.maps@gmail.com; Baloyi, Reason Misiiwa
Abstract This research focuses on liability of the state officials with regard to the public procurement irregularities on the procurement of goods and/or services, the delimitation of such liabilities, and remedies, for non-compliance with the Constitution and certain key public procurement legislation. This research identifies certain public procurement irregularities, and discusses some of the conceptual principles of liability under the administrative law, law of delict and law of contract, for these irregularities. The research illustrates the state officials’ liabilities with regard to their wrongful conducts in the public procurement of goods and/or services, public resources, good governance, and on social-economic conditions. After reviewing the range of approaches of the public procurement legislation with regard to the state officials’ liabilities, a conclusion is that government, judiciary and the public need to come together and take a decision to hold the state officials liable for the public procurement irregularities which results from the wrongful conducts of the officials. Liabilities of the state officials for the public procurement irregularities appear to be lacking some theoretical basis because of its interconnection with the administrative law, law of contract, criminal law and law of delict, which affects the systematic implementation and enforcement of the constitutional obligations with regard to the procurement of goods or services.
The use of a single-entity closed league model in South African soccer
(University of Pretoria, 2024) Cloete, Rian; kagiso.zwane@tuks.co.za; Zwane, Kagiso
South African club football is in a state of sporting and financial instability and inequality. This state of disarray is to such an extent that the integrity of the football pyramid has been breached with clubs selling their statuses in the South African top flight, the Premier Soccer League (PSL), on the open market thus subverting the requirement of sporting merit as a determinant for promotion and relegation. This mini-dissertation seeks to explore the possibility of an alternative organisational model where rather than continuing with the pretense of a pyramid an entirely new model is implemented for top-flight clubs. This model would be a publicly owned and traded single-entity closed league model. A single-entity closed league as used by the Major League Soccer (MLS) league in the United States of America is a model where the respective clubs in the league are centrally owned by the league itself and investors invest in the league rather than investing in individual clubs. This model would necessitate forgoing the relegation and promotion system which is utilised in open leagues. A single-entity closed league allows for greater control on spending and the institution of cost-control measures such as salary caps, which can be paired with salary floors, as well as greater standardisation of infrastructure throughout the league and the strategic placement of teams in cities and metros to ensure greater commercial exploitation of the largest catchment areas. How the model complies with South African competition law will also be examined with the single economic entity doctrine being applied to the league as a means of addressing the potential allegation of the formation of this new league amounting to the formation of a cartel.
“Well-known” as in well-known trade marks : the scope of well-known marks protection in South Africa and other jurisdictions
(University of Pretoria, 2024-10) Okorie, Chijioke; u17087962@tuks.co.za; Patel, Zahra
The dissertation compares the extent of protection granted to well-known trade marks in South Africa with the legal frameworks of the European Union and the United States of America. Well-known trade marks hold significant value in the global marketplace, making their protection critical for safeguarding brand identity, consumer trust, and fair competition. This study addresses the lack of clear legislative definitions and criteria in South Africa, which may result in inconsistent protection for well-known marks, for example in relation to the term 'well-known' trade mark, and compares this approach with those in the European Union and the United States. The methodology employed is a comparative legal analysis, assessing statutory provisions, books, case law, articles and websites that influence trade mark protection across the three jurisdictions. The analysis reveals differences in how well-known trade marks are recognized and protected in the United States, South Africa and the European Union. While the European Union and United States have more defined criteria and consistent practices, South Africa's approach remains less clear, leading to potential legal uncertainties for trade mark owners. There is a pressing need for South Africa to refine its legal definition and criteria for well-known trade marks to align with international standards. This would enhance the predictability and effectiveness of trade mark protection in the country. The recommendations include adopting a non-exhaustive set of criteria similar to those used by the European Union and the United States, as well as considering the explicit inclusion of concepts such as dilution by blurring and tarnishment in South African law. The findings have significant implications for policymakers, legal practitioners, and trade mark owners, particularly in ensuring that South Africa's legal framework effectively protects well-known trade marks in a manner consistent with international best practices. Such reforms are essential for maintaining a more competitive and fair market environment while preventing monopolistic practices.
Compulsory patent licensing in South Africa : a comparative analysis
(University of Pretoria, 2024-12-02) Muwanga, Tracy; Papadopoulus, Sylvia; peijpejad@unisa.ac.za; Peÿper, Johannes Arnoldus De Villiers
This dissertation exposes misapprehensions about compulsory patent licensing and the abuse of patent rights as a possible barrier to commercialisation, founding its arguments on legislative provisions applicable to the inventor, vis-à-vis, the public interest, and entrepreneurs choosing their trade freely. The regulatory environment in the granting of compulsory patent licensing is discussed, through a local and comparative analysis. As such, the objective of this study is to investigate best practices and to introduce changes in compulsory patent licensing which are less onerous to interested persons. A study is made to determine if compulsory patent licensing can effectively regulate and remedy cases of abuse of patent rights and remove limitations to patent accessibility from a constitutional and competitive perspective. The study critiques the current South African Patents Act for being reactive rather than proactive in preventing patent abuse. It proposes a shift towards preventative measures, aligning with international standards, and offers a novel approach in the local context. It is concluded that barriers to commercialisation under compulsory patent licensing can be eliminated by shifting the burden of proof of abuse from the interested person to the patentees when a license is requested. Detailed proposals for amendments to the Patents Act are proposed to include omitted TRIPS provisions also providing for the Registrar and the Patent Examination Board to adjudicate licensing in certain instances as opposed to the Commissioner. The research suggests a novel framework for compulsory patent licensing that places human rights and anti-competitive behaviour at its core.
The development of image rights in the South African sports and entertainment industries
(University of Pretoria, 2024-06-30) Rian, Cloete; modise@sai.legal; Sefume, Modise
This study concerns itself with the study of image rights in the sports and entertainment industries. It traces the origins of image rights in the South African jurisprudence and follows the development of image rights alongside technological advancements through the years. It concludes by translating the observations on the development of image rights into recommendations that will assist in providing legal certainty.
The challenges of protecting copyright In the digital age due to digital piracy
(University of Pretoria, 2023-11-30) Papadopoulos, Sylvia; Simphiwe.Nyembe@adams.africa; Nyembe, Simphiwe
This mini dissertation examines the challenges that arise in protecting copyright in the digital age due to piracy. With the rise and emergence of new technologies and the internet, piracy has only become a prevalent problem that threatens the economic viability of creative industries, harms the reputation, integrity, and dignity of copyright owners, and discourages innovation worldwide. Piracy has caused significant issues for copyright owners by infringing upon their exclusive rights to distribute their works without permission while profiting from their creations. Due to the development of digital technology and the internet, it has become simpler for individuals to stealthily duplicate and distribute protected works, threatening the economic viability of creative industries. Piracy drastically decreases the number of legal sales of intellectual works, which costs a lot of money for authors, publishers, and other key stakeholders. It can have serious financial repercussions on both individual copyright holders and entire companies. This paper looks at several types of piracy, including peer-to-peer file sharing, streaming, and illicit downloads, and how they affect artists and businesses. Due to the works being distributed without permission, it leads to a loss of control over how the work is presented and interpreted by the public. For instance, lower-quality pirated versions of a movie or album could give people a bad impression of the overall calibre of the work, which could influence sales and the reputation of the copyright owner. If creators are not assured of protection from piracy, creators might be less inclined to develop new works. Hence, the cultural and financial importance of the creative industry may be significantly impacted. Furthermore, this study looks at the difficulties faced by the current legal and technological solutions used to prevent piracy. Due to the number of pirate websites that are available on the internet, it is evident that although legal and technological remedies have made a dent in piracy, they are still insufficient to solve the issue fully. This mini dissertation finishes with suggestions on how to strengthen copyright protection in the digital age, which includes but is not limited to better legal frameworks, stakeholder cooperation, and public awareness campaigns.
The legal framework regulating cyberbullying among children in South Africa
(University of Pretoria, 2024-05-07) Ozah, Karabo; christiebisrat@gmail.com; Bisrat Yibas, Christian
The development of information and communication technology, as well as digital media, has transformed the way society interacts. Online users are dependent on the safety and security of the internet in every sphere of life, ranging from education and work activities to entertainment and communication. Modern technology has changed the way people communicate and has introduced several new platforms for social interaction. While the digital transformation of society is welcomed, the expansion of the internet has resulted in new criminal behaviors. Children are especially vulnerable to cyber threats, and the increase of internet usage among children presents several challenges including malware infection, cyberbullying, identity theft, and cyber terrorism. Cyberbullying has become prevalent among children and has a detrimental impact on the well-being of children with far-reaching negative consequences on a child’s growth and development. The prevalence of the use of social media and access to the internet for children poses great risks, making them vulnerable to the act of cyberbullying. This study will examine the emergence of cyberbullying in South Africa and the existence of appropriate legislative frameworks that address cyberbullying. This study shall critically analyze whether legislation has been able to keep pace with advancing technology in order to provide sufficient relief to victims of cyberbullying. This study will also examine the extent to which legislative remedies provide children with protection from cyberbullying and the impact on various constitutional values, including the right to privacy, freedom of speech, and human dignity through the lens of the best interest of the child.
The Legal Effect and Implication of Deviation and Expansion of Government Procurement Contracts
(University of Pretoria, 2023) Cornelius, Steve J.; thabe40@gmail.com; Daniels, Abel Nathaniel
The objective of the study is to consider and examine factors that influence grounds and create circumstances which causes the variation clauses of procurement contract viz. deviation and expansion of procurement contract, and to critically analyse the objective and subjective factors that often precipitate organs of state so prone to flouting legislation governing public procurement.
Supervening Impossibility and the interpretation of force majeure clauses during a pandemic
(University of Pretoria, 2023) Cornelius, Steve J.; romi.comyn@gmail.com; Comyn, Romi Irene
This dissertation aims to assess and deal with the common law doctrine of supervening impossibility and the use of force majeure clauses in contracts, specifically during a pandemic such as the COVID-19 pandemic. Since the South African contract law does not consider force majeure, per se, it is necessary to fall back on the common law which regulates performance of a contract. When parties enter into a contract which does not make provisions for unforeseeable events or circumstances, they are bound by the common law doctrine of supervening impossibility. The reason for this is that the contracting parties have some protection or recourse in times of crises. It is, however, important to keep in mind the intention of the parties and thus consider a more flexible clause such as a force majeure clause which is specific to the parties’ contract and makes provisions that suit the parties needs and can avoid the termination of the contract in the event of an unforeseeable event beyond the parties’ control. This dissertation thus investigates performance of contracts in South Africa and the effectiveness of the South African common law.
The CIPC DABUS Decision and What it Means for Our Patent Laws
(University of Pretoria, 2023) Muwanga, Tracy; u16246994@tuks.co.za; Moseki, Olebogeng
The mini dissertation looks at the decision of the CIPC to approve an invention created solely by an AI system, becoming the first country in the world to do so. In light of the foregoing, the research analyses the current patent laws and whether such laws are equipped to deal with AI-generated inventions. The dissertation provide a comparative analysis of the CIPC decision to that of the United States Trademark and Patent Office (USTPO), the European Patent Office (EPO), and the United Kingdom Intellectual Property Office (UKIPO). The dissertation further argues against the conferment of legal personality on AI based on ethical considerations and its ability to differentiate between wrong and right. To conclude the dissertation recommends design rights as an alternative to patent rights.
From fair dealing to fair use : Striking a balance between competing interests in South African copyright law
(University of Pretoria, 2023) Okorie, Chijioke; mapulanemalise@gmail.com; Malise, Mapulane
The study has its motivation from the contentious South African Copyright Amendment Bill [B13-2017] that has been before Parliament for many years, and more recently, been passed by the National Council of Provinces and awaiting President’s assent. The Amendment Bill proposes, inter alia, a shift from the exception approach of ‘fair dealing’ to that of ‘fair use’ and this forms the basis of the study. Since copyright exceptions and limitations (including fair dealing and fair use) are a way in which competing interests in copyright law are sought to be harmonised, the study is concerned with whether such harmony would ensue notwithstanding the proposed shift of doctrines in South Africa. In founding its argument and addressing the core issue, the dissertation explores the idea of competing interests and its nexus with the exceptions and limitations in copyright law. Further, it engages in a comparative study to juxtapose the fair dealing and fair use provisions as employed in South Africa and other countries like the United States and Singapore. After conducting such comparative study, the dissertation analyses whether the proposed fair use is suitable for South Africa through a discussion of the international obligations, important socio-economic considerations and fundamental legal principles such as the rule of law that underpin South Africa. In conformity with its discussions, the study deems fair use, as proposed, to be unsuitable for the country. However, it does not suggest that the current fair dealing is adequate. In fact, it reveals the gaps in fair dealing through discussing the findings of the famous case of Moneyweb (Pty) Ltd v Media 24 Ltd and another [2016] 3 All SA 193 (GJ). The study shows more interest in the principles that the South African legislator followed (or ought to follow) in reforming the copyright exceptions. It establishes and analyses five principles or factors that the legislator should use as guidance when revising the exception provisions. Ultimately, it submits that a revision of the fair dealing clause may be more practicable than a reform to fair use.
Common law principles of contract viewed in the context of artificial intelligence
(University of Pretoria, 2023) Cornelius, Steve J.; u21794902@tuks.co.za; Mabasa, Khobae Clementine
Contract formation in the new age of advanced Artificial Intelligence has brought about varied world-wide legal concerns and debates. A preeminent and emerging legal concern is the legal capacity of the autonomous systems and machines that are based and function on advanced Artificial Intelligence. Further, legal debates raised questions of whether contracts that are concluded by autonomous AI-driven systems and machines should be legally recognised as valid and enforceable. The primary aim of the research is to analyse the South African common law principles of contract by determining whether the principles are relevant and applicable to contracts concluded by autonomous AI-driven systems and machines. The principles are discussed and viewed in the context of advance Artificial Intelligence. Various theories of contractual interpretation are analysed in an attempt to find the most suitable theory for the interpretation of the affected contracts. The drafting process of code-based contracts and prescribed formalities thereof are also discussed. The dissertation is concluded with guidelines and recommendation for the successful application of AI machine-based contracts.
The law applicable to contractual obligations in consumer contracts of adhesion in Ghana
(University of Pretoria, 2023) Elsabe, Schoeman; chabbyethel@gmail.com; Fiattor, Ethel
This thesis argues for the inclusion of adequate choice of law rules for consumer adhesion contracts to ensure suitable protection measures for weaker parties in Ghana. To this end, the research seeks to add to existing literature by engaging in a comparative study of the legal development of choice of law rules in the jurisdictions of the European Union (EU) and the United States of America (US/USA), with specific reference to California and China. This study will assist in developing a theoretical framework to advance the jurisprudence of choice of law rules in consumer adhesion contracts in Ghana. The research considers the choice of law rules specifically in Articles 6 and 9 of Rome 1 where special rules have been promulgated to ensure the further protection of the consumer. Rome I ensures that the parties to a consumer contract may decide on the applicable law in accordance with Article 3 of Rome I. However, there are additional provisions to ensure the consumer’s protection in the form of mandatory provisions of the law applicable in the absence of a choice of law which under Rome I is the law of the country of the consumer’s habitual residence. The Restatement (Second) as it applies in California was designated for the comparative study. Sections 187 and 188 of the Restatement (Second) grant the parties to a consumer contract autonomy to incorporate a choice of law clause in their contract indicating the choice of the law of a particular state to govern their contract thereby limiting party autonomy in consumer contracts to the substantive provisions of the law of the state of their choice. The Restatement (Second) enhances the policies that are fundamental to the state with a material interest in the contract. The Chinese choice of law rules on consumer contracts follow the position in Rome I but are not as developed as regards interpretation and application of the 2010 Conflicts Statute and terminology. The promulgation of Article 42 provides expressly that a consumer contract is governed by the law of the consumer’s habitual residence. Article 42 further provides that the consumer contract is also governed by the law of the place where the commodity or the service is provided in absence of a choice by the parties. With respect to mandatory rules and public interest, China promotes policies that are fundamental to the state by ensuring the application of their mandatory rules and public interest. The research arrives at the conclusion that Rome I is the preferred standard worth emulating when developing a theoretical framework for Ghana. The absence of a Consumer Protection Act in Ghana will lead to the application of harsh common law principles of contract law which will not ensure the protection of weaker parties. Therefore, it is suggested that Ghana establish a consumer protection act in which choice of law rules on consumer adhesion contracts must be included. In light of attaining justice, the research equally considered through a comparative lens the effects of conflicts justice as against material justice in choice of law and arrived at the conclusion that choice of law rules must strive to attain a result-oriented form of justice in deciding the applicable law in consumer adhesion contracts. Recommendations are made to the effect that a theoretical framework mirroring the development of Rome I on the special rules for consumer adhesion contracts, which are tailored to suit the specific form of consumer transactions in Ghana, is best suited to consumer adhesion contracts and the protection of weaker parties in Ghana.
Law applicable to substantive issues in international commercial arbitration : an African Perspective
(University of Pretoria, 2023) Schoeman, Elsabe; Wethmer-Lemmer, Marlene; lawrenciaoppongpeprah@gmail.com; Oppong Peprah, Lawrencia
This thesis examines the law applicable to substantive issues in international commercial arbitration from an African perspective. More specifically, the thesis examines the methods used by arbitrators to assign the applicable substantive law in the absence of the parties’ choice in Egypt, Ghana, South Africa and Côte d’Ivoire. Considering the vital role of the law applicable in determining the rights and obligations of the parties to international commercial arbitration, the thesis seeks to identify the most efficient method for assigning the applicable law in the absence of the parties’ choice. To this end, the thesis explores existing literature including scholarly works on the topic, the national and selected institutional arbitration laws in Egypt, Ghana, South Africa, Côte d’Ivoire and elsewhere, to identify the common methods and strategies used by arbitrators in the selection of the law applicable to the merits of the dispute. The thesis scrutinises these methods to provide a comprehensive evaluation of the efficiency, predictability and legitimacy of each identified method from an African perspective. Ultimately, the thesis proposes a method that can enhance predictability and legal certainty for when arbitrators must assign the applicable substantive law in African international commercial arbitration, thereby promoting the development of a conducive business environment in the region. Moreover, by establishing a consistent regulatory framework for determining the substantive law in the absence of the parties’ choice, Africa may reinforce its position in the global legal landscape by developing its own distinctive jurisprudence in international commercial arbitration.

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