Bibliographie sélective OHADA

This thesis analyses current South African copyright law to ascertain the proper interpretation and application of the fair dealing provisions contained in the Copyright Act 98 of 1978. Copyright law ensures that authors’ works are not used without their consent, which they can grant subject to compensation or conditions attached to the use. Fair dealing exceptions allow the general public to use copyright works for certain purposes without the copyright owner’s consent and without paying compensation. These provisions are intended to balance copyright owners’ interests with the interest that members of the public have in using copyright works for socially beneficial purposes. These provisions typically allow the use of a copyright work for the purposes of research or private study, personal or private use, criticism and review, and news reporting. Unfortunately there is no South African case law concerning the fair dealing provisions, and the application of these exceptions remains unclear. This study aims to clarify the extent of application of the fair dealing exceptions to copyright infringement so that courts may be more willing to consider foreign and international law and in doing so develop South African intellectual property law. The social and economic policy considerations underlying the fair dealing exceptions are considered to determine their function. International conventions relating to copyright and neighbouring rights are examined, specifically the provisions allowing exceptions to copyright. The legislation and case law of Australia and the United Kingdom are analysed to determine the proper interpretation and application of these statutory defences. This knowledge is then used to inform South African law. The Copyright Act 98 of 1978 does not contain a fair dealing exception for parody and satire. Australian legislation does contain such an exception, and it is analysed in that context. An exception for parody is proposed for South African law, and the need for and application of this provision is considered. The constitutionality of the proposed exception is evaluated in terms of its impact on the constitutional property rights of copyright owners.

L’objectif de cette recherche est de démontrer que les décisions arbitrales de la Chambre de commerce internationale peuvent être considérées comme une source potentielle de droit au Canada. Il existe actuellement une incertitude quant au droit matériel utilisé en arbitrage international pour résoudre les différends commerciaux. Bien que l’utilisation de la lex mercatoria pour résoudre un litige soit une option, elle se heurte à de nombreuses incertitudes terminologiques et conceptuelles. L’utilisation d’une approche méthodologique de la lex mercatoria permettrait une classification de ses sources en deux branches: (1) le droit statutaire international et (2) le stare decisis des tribunaux d’arbitrage commercial international. Une telle approche méthodologique conférerait plus de certitude quant à l’application d’un droit uniforme. De plus, elle faciliterait l’étude de l’interlégalité entre les règles de la lex mercatoria et le droit matériel interne. Plus particulièrement, elle permet de comparer les similitudes et les différences des règles du droit matériel entre les décisions arbitrales internationales, le droit statutaire international et les juridictions canadiennes de common law et de droit civil. Cette comparaison rend possible une évaluation de l’influence potentielle des décisions arbitrales de la Chambre de commerce internationale sur le droit matériel canadien et si cette influence est plus importante en droit civil ou en common law.

The home of a debtor has never enjoyed specific statutory protection against forced sale in the individual debt enforcement and insolvency procedures in South Africa. In Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others (2005 (2) SA 140 (CC)) and Gundwana v Steko Development CC and Others (2011 (3) SA 608 (CC)), the Constitutional Court recognised that in the individual debt enforcement process execution against a debtor's home, even where it has been mortgaged in favour of a creditor, may constitute an unjustifiable infringement of the right to have access to adequate housing, provided by section 26 of the Constitution. The effect of these decisions is that, in every case in which a creditor seeks to execute against a person's home, a court must consider "all the relevant circumstances" to determine whether execution is justifiable, in terms of section 36 of the Constitution. The absence of a properly constructed framework, incorporating clear substantive and procedural requirements, within which these recently established principles must be applied, has led to divergent approaches in the courts and a lack of clarity regarding circumstances in which execution against a debtor's home will be permitted. Further, courts have not considered the impact of section 26 and other rights on the position where a debtor's home is realised by the trustee of an insolvent estate in terms of the Insolvency Act 24 of 1936. This has given rise to a number of unanswered questions as well as to a lack of predictability that potentially hold adverse consequences for bond finance, commerce, and the economy generally. The need to balance the competing interests emphasises the necessity for a coherent contextual framework within which forced sale of a debtor's home may occur. This thesis examines issues surrounding forced sale of a debtor's home in South Africa. It compares the position in other legal systems and suggests mechanisms and an appropriate method, or process, for inclusion in statutory provisions to regulate the forced sale of a debtor's home in both the individual debt enforcement and insolvency procedures in South Africa.

This study aims to investigate the different ways in which the position of people with disabilities can be addressed. Antidiscrimination legislation can play a very important role. Efforts to create equal opportunities must, however, not be limited to legislative initiatives and policy declarations. There is an urgent need for education and training of this minority group. 7 Systematic efforts to heighten public awareness of civil rights and in particular the recognition of the rights of the disabled community are imperative. This study aims to bring home the truth that "disability rights are an idea and ideal whose time has come. ,, When addressing the issue of disability discrimination (or for that matter any kind of discrimination) several principles need to be addressed, the most important being the following: The meaning of the concept of "equality" needs to be established. The fact that all people are equal, does not necessarily mean that all people must be treated the same. When speaking about disability discrimination one must know who forms part of the protected class. For that reason the first issue that must be addressed is the definition of "disability": This leads to the next question, namely which individuals should be protected by anti-discrimination laws and should they benefit from affirmative action measures? What is meant by the term "discrimination"? Is it at all permissible to distinguish between groups of people and, if so, when and which standards are to be applied? What role can anti-discrimination legislation fulfil in the struggle for equality? When dealing with anti-discrimination legislation, what is required in order to prove discrimination and what remedies must be available to an aggrieved party? Normally, in case of criminal action proof is required beyond reasonable doubt and in case of civil action on the balance of probabilities. 10 Civil action offers more effective remedies, but should it be punitive in nature (by awarding damages to the aggrieved party) or non-punitive (by putting the aggrieved party in his/her "rightful place")? What sort of enforcement mechanism is needed? Is it a task for the ordinary tribunals or rather a special body created for that purpose? What defences should be available to an employer accused of discriminatory practices? Who should benefit from enforcement? Only the individual victim or all members of that group? Is anti-discrimination legislation sufficient or is something in addition called for? If positive measures are required, what form must these measures take? This study will address these questions specifically with relation to people with disabilities.The "equality principle" will first be studied. Thereafter the concept of "disability" will be defined. There is a movement away from a medical model of disability towards a social model that takes account of the disabling effects of attitudes and structural barriers on the position of disabled people. Then the concept of "discrimination" will be addressed. Discrimination has many different forms and can take place in different contexts In the following chapter possible solutions to the problem of disability discrimination will be raised. Thereafter follows an important comparative analysis of different jurisdictions on international, supra-national and national level. Different jurisdictions have reached different stages in addressing this problem. The factual analysis of each jurisdiction will include the existence of any anti-discrimination legislative measures, the scope of the protected class, applicable employment provisions, defences available to employers, and the success achieved in addressing the problem. The contentious issue of affirmative action measures will also be addressed. By drawing inferences from the comparative study, suggestions will be made for future developments in South Africa. The conclusion is reached that it is imperative for South Africa to draft disability anti-discrimination legislation that takes account of the needs of this minority group. Legislative initiatives, however, are not enough and must be supported by various programmes aimed at the disabled themselves and the community that they live in. Only then can human rights become a reality also for people with disabilities.

The purpose of this research is to explore the need for, and the legal implications of, harmonising labour laws in the Southern African Development Community (SADC). Chapter One highlights a number of factors that call for the harmonisation of labour laws in the SADC region and discusses some of the reasons why labour laws are not well developed in the region. The influence of globalisation on labour standards in southern Africa and the influence of regionalism on the harmonisation of labour laws are discussed at length. The inference that could be drawn from this discussion is that for a regionalisation process in southern Africa to be successful, there is an urgent need to harmonise the region’s labour law system. This thesis confirms that Southern Africa has many lessons to learn from the regional harmonisation of labour law in the European Economic Community and the current European Union. The implementation of international labour standards in southern Africa is investigated. The main areas examined include (1) freedom of association, (2) collective bargaining, (3) forced labour and (4) discrimination. The findings of this investigation show that there is no uniformity in the implementation of International Labour Organisation (ILO) standards in the SADC region and, therefore, it is recommended labour law should be harmonised in terms of ILO standards. In respect of the benefits to be derived from the harmonisation process, an empirical investigation was conducted in the SADC region and the following is recommended: the harmonisation of labour law in the SADC region will help with the implementation of ILO standards, protection of workers against the economic power of employers in the workplace and maintaining similar benefits for migrants in the region.

MENA law codes are a well-crafted blend of civil and Islamic law in which civil law principles do not contravene with Islamic provisions. They were originally based on Sanhuri’s codes to varying degrees. Yet, common law principles derived either from English common law or Islamic customary usages are unidentified and thus ignored. Here, this lacuna is rectified through a comparative analysis of the primary data (eg, cases, statutes and arbitral award decisions), adding common law and uncodified Islamic custom to MENA law codes. The purpose of this comparative analysis is to allow common legal principles found at civil, common and Islamic law to be distilled in the service of creating a new harmonised international commercial arbitration law code (HICALC) or uniform Arab arbitration law (UAAL) for adoption in the MENA.1 These principles already form part or all of the legal systems in the MENA. They can be readily assimilated into a harmonised or uniform code. Would this new harmonised code lead to higher arbitral award enforcement in the MENA? According to the evidence the answer is yes. The author understands that at the present time the HICALC articles are ambitious and as such they are a beginning point and can initially be taken as a harmonised international commercial arbitration common rule (HICACR). A brief overview of the history of harmonisation is given. An assessment of the status of the laws and traditions of the MENA was carried out. A comparative analysis of the relevant differences and similarities of the case study countries (Egypt and the United Arab Emirates) was carried out to show the gaps in the laws and areas requiring reform. An analysis of enforcement of arbitral awards was carried out. The unique problems that ICA and IIA encounter in the MENA as derived from an analysis of cases and the laws therein are expounded in consideration of matters pertaining to enforcement. A comparative analysis of universal principles which must be included in a new code, including custom, was carried out. An analysis of the unique features and unique needs of the MENA was carried out in order to inform the Draft Article Provisions. An analysis of important international legal instruments dealing specifically with international arbitration and the gaps therein is given. The draft articles for a HICALC or uniform Arab arbitration law were derived as a result of these multiple layers of analysis. The matters of compétence de la compétence, expropriation, interest, public policy and sovereign immunity are highlighted as the most important areas requiring urgent reform. The results of this research are suggested Draft Article Provisions for a model Harmonised International Commercial Arbitration Law Code (HICALC) or a uniform Arab arbitration law. Future drafters may refer to and revise these articles for implementation. The synthesis of theory and practice addresses doctrinal matters that arise in international investment arbitrations and international commercial arbitration, with a focus on investor–State arbitrations. This synthesis provides a new theoretical conception of the jurisprudence of international arbitration, particularly in regard to the matters of res iudicata, precedent and expansion of arbitral tribunal powers and jurisdiction.

In recent decades, regional efforts have been made to reform and harmonize the rules governing international arbitration. These efforts have resulted in the adoption of regional instruments governing commercial arbitration in specific areas. This paper analyzes the arbitration regimes created at a regional level in Africa and America, and particularly focuses on arbitral institutions that were created within the Organization for Harmonization of Business Law in Africa (OHADA) and within the Organization of American States (OAS). The objective of the paper is to identify any advantages provided by either regime, which can help improve regional and international commercial arbitration.

This paper examines the current dynamics of regulatory reforms in Africa and its implication on the continent. It analyses the highly political struggle for regulatory dominance of business law in Africa and how this interacts with the preferences and power of select international actors. It illustrates that the struggle between Francophone and Anglo-Saxon sections of society for OHADA to reflect their ideological stance is having a negative effect on the harmonisation process.

Meeste Afrikastate is klein en het nie die vermoë om effektief aan prosesse van die Wêreldhandelsorganisasie deel te neem nie. Hierdie onvermoë, saam met ander faktore, is die hoofrede vir die voortgesette marginalisering van die kontinent in die globale ekonomie en handel. Ten einde effektief aan genoemde prosesse deel te neem en in die voordele van die geglobaliseerde wêreld te deel, moet Afrikastate integreer. Regionalisme of integrasie is nie ’n doel op sigself nie maar is nodig vir die ekonomiese groei van Afrikastate. Dit skep groter markte vir handel en belegging en is ’n aansporing tot groter effektiwiteit, produktiwiteit en mededingendheid. In die lig hiervan stel die artikel drie kernargumente. Die eerste is dat regionalisme voordele bied wat Afrikastate kan ontgin ten einde marginalisering op globale vlak te oorkom. Die tweede argument is dat, terwyl die Suider-Afrikaanse Ontwikkelingsgemeenskap (SAOG) poog om besigheidsreg te harmoniseer, die Organisation for the Harmonisation of Business Law in Africa (OHADA) (Organisation pour l’Harmonisation en Afrique du Droit des Affaires) as voorbeeld kan dien aangesien dit reeds die grondslag gelê het vir die harmonisering van besigheidsreg in Afrika. Die derde argument is dat die SAOG-tribunaal verbeter moet word ten einde ’n meer regionale regsraamwerk binne die SAOG daar te stel. In hierdie verband belig die artikel sommige voordele van regionalisme in Afrika, die lesse wat die SAOG by OHADA kan leer, die voordele van ’n geharmoniseerde besigheidsreg teen die agtergrond van die OHADA-ondervinding en die moontlike wyses waarop die SAOGtribunaal verbeter kan word.

The thesis examines the comprehensive relationship between all aspects of financial liberalisation and economic growth in three countries from the Economic Community of West African States (ECOWAS). Employing ARDL bounds test approach and real GDP per capita as growth indicator; the thesis finds support in favour of the McKinnon-Shaw hypothesis but also finds that the increases in the subsequent savings and investments have not been transmitted into economic growth in two of the studied countries. Moreover, the thesis also finds that stock market developments have negligible or negative impact on economic growth in two of the selected countries. The thesis concludes that in most cases, it is not financial liberalisation polices that affect economic growth in the selected ECOWAS countries, but rather increase in the productivity of labour, increase in the credit to the private sector, increase in foreign direct investments, increase in the capital stock and increase in government expenditure contrary to expectations. Interestingly, the thesis also finds that export has only negative effect on economic growth in all the selected ECOWAS countries. The thesis therefore, recommends that long-term export diversification programmes be implemented in the ECOWAS regions whilst further investigation is carried on the issue.

Examines the approach of Ghana's Alternative Dispute Resolution Act 2010 to the question of arbitrability. Reflects on the concept of arbitrability under international law, the relevant trends emerging from case law, and the approach adopted by the Ghanaian High Court in Attorney General v Balkan Energy LLC. Reviews the Act's arbitrability exemptions, their implications for international arbitration in Ghana, the potential jurisdictional challenges under the legislation and how its provisions could be amended to increase its conformity with international trends on arbitrability.

This thesis investigates the influence of board structure and ownership concentration on the level and value relevance of intellectual capital disclosure. This thesis is motivated by the limited post-IFRSs (International Financial Reporting Standards) adoption intellectual capital disclosure studies carried out in a less stringent regulatory environment of New Zealand, and limited research addressing the determinants of the level and value relevance of intellectual capital disclosure. Based on an application of agency theory, cost-benefit theory and value relevance approach, this thesis argues that firm-specific factors are expected to have a significant impact on the level and value relevance of intellectual capital disclosure. Within the agency theory, board structure and ownership concentration mitigate agency costs by enhancing the monitoring function of the board over managers’ opportunistic behaviour, which consequently influence the level of intellectual capital disclosure. In addition, as New Zealand has less tough rules in relation to board structure and ownership concentration, it is expected that these relationships will be more easily identified in the New Zealand context. Second, as most of the intellectual capital disclosure is voluntary, this disclosure is subject to a firm’s cost-benefit analysis. Cost-benefit theory suggests that a firm should not fully disclose its information unless the benefits outweigh the costs of the disclosure. Therefore, the level of intellectual capital disclosure is also influenced by the factors that determine the costs and benefits of the disclosure. Finally, this thesis adopts the value relevance approach to measure the quality of the disclosure. It is expected that the factorsassociated with the level of the disclosure also influence the value relevance of the intellectual capital disclosure. This thesis is based on a sample of 155 firms listed on the New Zealand Exchange covering a total of 519 firm-years over the period between 1 January 2008 and 31 August 2011. A self-developed disclosure index and multiple regression analysis are employed to test the hypothesised relationships. Overall, the results indicate that the average level of intellectual capital disclosed by New Zealand listed firms is low and the human capital component is the most frequently disclosed intellectual capital component. The results provide strong evidence that board structure characteristics, including board size and independence, have a significant positive impact on the level of intellectual capital disclosure. There is strong evidence for a non-linear relationship between ownership concentration and the level of intellectual capital disclosure, which is robust to various types of intellectual capital (i.e. human, relational and structural capital). The results show marginal evidence that board gender diversity has a positive impact on the level of intellectual capital disclosure. In terms of the value relevance of intellectual capital disclosure, only board size has a positive impact on the value relevance of the intellectual capital disclosure. In the individual component analysis, board independence is found to have a significant positive impact on the value relevance of the human and relational capital disclosures. This thesis provides the most recent evidence on the influence of board structure and ownership concentration on the level and value relevance of intellectual capital disclosure in a less stringent regulatory environment of New Zealand. These findings have important implications to regulators, and assist information users in the interpretation of the voluntary intellectual capital disclosure.

This dissertation suggests a new theory of lex mercatoria that takes into account the complex and spontaneous order of international commerce. Since the emphasis is put on the nature of this order, the concept of lex mercatoria is examined as an ex post governance mechanism resolving contractual disputes with a view to maintaining and restoring the order of international commerce, without focusing on the traditional distinction of the doctrine between national and non-national legal rules applicable to the substance of such disputes in explaining the concept. The aim is to reflect lex mercatoria’s subtle effect on the practice of international arbitration, and to provide an explanation of lex mercatoria as a solution to the problems of the institution of international arbitration in terms of uncertainty and unpredictability of awards, rather than representing it as a factor aggravating those problems. Lex mercatoria is defined as the law of adjudication of the disputes arising from international commercial contracts on the basis of a few substantive and procedural principles, under which the reasonable expectations of the parties to a particular contract become the single source of their contractual rights, obligations and risk allocations. The argument is that lex mercatoria can be applied to both the choice of law analyses and the substance of the disputes in international arbitration. In choice of law analyses, lex mercatoria addresses specific difficulties relating to the conflict of laws through a principled decision making, such as the applicable conflict rules, and the interpretation of the parties’ intentions as to the applicable substantive rules. In its substantive application, lex mercatoria deals with, either as lex contractus or as lex fori, the interpretation, supplementation and correction of the contract as well as the applicable national laws in accordance with the basic principles, on which the order of international commerce rests.

This dissertation suggests a new theory of lex mercatoria that takes into account the complex and spontaneous order of international commerce. Since the emphasis is put on the nature of this order, the concept of lex mercatoria is examined as an ex post governance mechanism resolving contractual disputes with a view to maintaining and restoring the order of international commerce, without focusing on the traditional distinction of the doctrine between national and non-national legal rules applicable to the substance of such disputes in explaining the concept. The aim is to reflect lex mercatoria’s subtle effect on the practice of international arbitration, and to provide an explanation of lex mercatoria as a solution to the problems of the institution of international arbitration in terms of uncertainty and unpredictability of awards, rather than representing it as a factor aggravating those problems. Lex mercatoria is defined as the law of adjudication of the disputes arising from international commercial contracts on the basis of a few substantive and procedural principles, under which the reasonable expectations of the parties to a particular contract become the single source of their contractual rights, obligations and risk allocations. The argument is that lex mercatoria can be applied to both the choice of law analyses and the substance of the disputes in international arbitration. In choice of law analyses, lex mercatoria addresses specific difficulties relating to the conflict of laws through a principled decision making, such as the applicable conflict rules, and the interpretation of the parties’ intentions as to the applicable substantive rules. In its substantive application, lex mercatoria deals with, either as lex contractus or as lex fori, the interpretation, supplementation and correction of the contract as well as the applicable national laws in accordance with the basic principles, on which the order of international commerce rests.

Countries enter into double tax agreements with the economic objective of preventing double taxation of cross-border transactions. To achieve this objective, the contracting states agree reciprocally to restrict their substantive tax law. That is, a major policy of double tax agreements is to reduce double taxation of residents of states that are parties to the agreement. Residents of third states sometimes contrive to obtain treaty benefits typically by interposing a person or a conduit entity in one of the contracting states. In order to ensure that a resident of a contracting state who claims treaty benefits is entitled to them in substance, double tax agreements should be interpreted according to their substantive economic effect. Generally, double tax agreements follow the pattern of the OECD Model Tax Convention. The OECD Model Convention addresses the double taxation of dividends, interest and royalties, commonly collectively known as "passive income", in Articles 10, 11 and 12 respectively. These provisions usually operate by reducing withholding tax imposed by a source state on passive income that flows from the source state to a resident state. In order to prevent a resident of a third state from obtaining a source state withholding tax reduction by interposing a person or a conduit entity in the resident state, the OECD Model Convention requires the immediate recipient of passive income to be the "beneficial owner" of that income. That is, the OECD Model Convention requires the immediate recipient to be an owner in a substantive economic sense. Courts and commentators have difficulty in interpreting and applying the concept of beneficial ownership to conduit entities that are corporations, commonly referred to as "conduit companies". They have attributed the cause of the difficulty to the absence of a definition of the term "beneficial owner" in the OECD Model Convention. This thesis argues that the difficulty in applying the beneficial ownership concept to conduit companies has arisen not because of the absence of the meaning of the concept, but because logically and from an economic perspective the concept cannot be applied to companies in general, not to conduit companies in particular. The beneficial ownership test was meant to be a test of economic substance. From an economic perspective, the benefit or the burden of a contract entered by a company is economically enjoyed or borne by its shareholders. That is, in substance a company cannot be considered as owning income beneficially. From this consideration, it follows that conduit companies can never be considered entitled to treaty benefits. Nevertheless, the OECD Model Convention applies the beneficial ownership test to conduit companies pursuant to an assumption that at least in some cases conduit companies can be the beneficial owners of passive income. The Model Convention's assumption is based on the legal perspective that courts conventionally adopt. According to this legal perspective, companies hold income beneficially because they exist as separate legal entities from their shareholders. Courts find themselves battling these opposing perspectives when applying the beneficial ownership test to conduit companies. In order to make income tax law work efficiently, courts that are obliged to determine whether to honour claims to treaty benefits made by conduit companies have preferred to employ the legal perspective. Courts have justified this approach by adopting surrogate tests for the actual beneficial ownership test. Most of the surrogate tests do not relate to the concept of ownership at all. This thesis categorises the surrogate tests as "substantive business activity" and "dominion". By analysing reported cases, the thesis identifies deficiencies in these tests. One of the proposed outcomes of the thesis is to suggest an alternative approach for deciding conduit company cases. The thesis suggests that courts should consider an arrangement as a whole and investigate reasons for the existence of an immediate recipient of passive income in the specific corporate structure. The thesis also recommends amendments in the official commentary on Articles 10, 11 and 12 of the OECD Model convention in order to address the conceptual shortcomings inherent in those Articles.

The capital markets are expected to play a pivotal role in the attainment of Kenya's development blueprint 'vision 2030.' It is, therefore, essential that obstacles to the attainment of a fair and efficient market are examined and rooted out. This study investigates the limitations of the Capital Markets Act in combating insider trading. It also examines whether reforms would promote a fair and efficient capital market. The study makes use of existing literature as well as decided cases to investigate the inadequacies in the formulation of and provisions for inside information, material pricesensitive information, publication of information, possession of information and disclosure of information in the Capital Markets Act. This literature draws out key learnings from other jurisdictions and analyses how legislation in developed economies treats challenges to the enforcement of insider trading laws. The doctrinal analysis is triangulated with results of a survey of practical experiences of legal practitioners in applying the Capital Markets Act. The findings affirm the existence of conceptual difficulties in determining the elements of the crime of insider trading. As a consequence, it is concluded that the present formulation of insider trading law is inadequate. The study, therefore, makes suggestions for reforms to the provisions on insider trading in the Capital Markets Act.

The thesis covers one of the investment standards of international investment law, namely the full protection and security standard. In Part I, the study is introduced in terms of structure and substance. Chapter 1 provides a description of the scope of the research topic and a definition of its terms and structure. Chapter 2 covers the historical development of the full protection and security standard. Part II deals with three fundamental issues concerning the standard: sources, interpretation and content. Chapter 3 contains a discussion dealing with the various sources of the standard. Each source will be studied independently. Chapter 4 will address general issues with regard to interpretation, such as to what extent the Vienna Convention on the Law of Treaties influences the process of interpretation. Chapter 5 deals with the content of the standard of full protection and security, including conceptual issues relating to the substantive elements of which the standard consists. Moreover, the chapter will ask questions as to which underlying issues are needed to explore when a due diligence assessment is made in order to determine whether a state has fulfilled its obligations to provide protection and security. Part III deals with issues relating to the violations of the standard. In Chapter 6, the violations of the standard and their many manifestations will be analyzed. The chapter will address whether certain fact-based scenarios can be established in which the standard is most commonly violated. Finally, Chapter 7 contains a summary of findings.