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The primary purpose of the legal considerations herein is to indicate the direction of the modernization of the legality of control mechanisms in modern legal transactions. At the base of these transactions there is still the traditional, dogmatic sanction of nullity (invalidity) regulated by law (ex lege), and the legal effects of a defective legal action (contract), i.e. an action contrary to law or moral norms. In consideration of disproportionality and ineffectiveness of the nullity sanction under new conditions, jurisprudence and legislation have directed their attention to the limited judicial sanction (structured discretion) originating from the common law tradition as a proportional and flexible response to the defectiveness of legal action (contract). The statutory judicial sanction, which became the basis of the reform on the concept of illegality in common law countries, have found expression in the model rule of European private law. The Principles of European Contract Law (PECL) and the Draft Common Frame of Reference (DCFR), the latter of which revises and updates the PECL, are the primary references for the model rules of contract law in the EU. The PECL and the DCFR have affected the concept of the defective sanction of legal action (contract) in the new Civil Code, drafted by the Polish Civil Law Codification Commission.

This paper investigates the constitutionalisation of the test for statutory illegality (the test) in South African contract law, firstly through a careful evaluation of the manner in which the Constitutional Court (CC) applied the test in Cool Ideas v Hubbard, secondly through the manner in which the CC purports to constitutionalise the test in the said case, and thirdly through asking if such a method is desirable in the constitutional dispensation. It can be conceded that the approach taken by the main judgment to the application of the test in this case is more compelling than that taken by Froneman J. However, the fundamental differences in these approaches, particularly in the determination of the impact of the Constitution and its underlying values, highlight the need for an investigation into the test and the way it should operate in the constitutional dispensation. The paper begins by setting out the test and shows that it is capable of reflecting the values that underlie the Constitution (while maintaining a workable level of legal certainty) and that the test can operate in a manner that enhances the vision and goals of the Constitution. It also proposes a framework within which the various factors of the test should be weighed up, with a view to determining whether the contract under investigation is valid or invalid. Then the paper evaluates the CC's application of the test. It criticises the main judgment for its incomplete undertaking of the enquiry envisaged in sections 8(1) and (2) of the Constitution, as it took into account neither the "spirit, purport and objects" underpinning section 25(1), nor the fundamental values of the Constitution. It also criticises Froneman J's judgment for not connecting the value of fairness with the "spirit, purport and objects" underpinning section 25(1) or the broader fundamental values of the Constitution. Thereafter, it considers the manner in which the CC purports to constitutionalise the test. It points out that equity considerations apply in all matters, whether a substantive right is implicated or not, as they ensure that the "application" and "interpretation" of a statute enhance and are in line with the "objective normative value system" that is the Bill of Rights. Lastly, it considers the desirability of the CC's approach to the application of the test and its constitutionalisation. It points out that the main judgment goes to the extremes of objectivity in interpreting the relevant provisions of the Housing Consumers Protection Measures Act, 1998 (within the application of the test), while Froneman J goes to the extremes of subjectivity. In this regard, it suggests that courts can use the "balance of convenience" test to adjust their decisions to accommodate the circumstances of each case. Therefore, it concludes that the approach to constitutionalising the test lies somewhere between that of the main judgment and that of Froneman J. Keywords : Contract law; statutory illegality; constitutionalisation; Cool Ideas v Hubbard.

Among factors that might significantly diversify common and economic trading, in particular trading in real estate, pre-emption, back-in and redemption rights, as well as the right of priority in acquisition play an important role. These legal instruments, despite certain differences in their legal structures, serve a similar function. Namely, they may be utilized for the purpose of affecting the preferred ownership structure. The legislator in pursuit of the assumed ownership structure may – through the instruments of the pre-emption right, back–in right, redemption right and the right of priority in acquisition – particularly with their statutory character - restrict freedom to trade in ownership with regard to the selection of the real estate purchaser. Simultaneously, in the contracting process, the parties face a certain manner of proceeding imposed, the purpose of which is to conclude the contract on transferring real estate ownership with the partner preferred by the legislator. In certain cases, the legislator goes even further, granting the eligible party a claim under which the eligible party may demand that the party obliged shall submit an appropriate declaration of will, and in the event that the party obliged refuses – the eligible party may seek the judgment of the court replacing that declaration. Proper navigation in the field of real estate trading, in particular with regard to transactions in which the pre-emption right, back-in right, and redemption right, or the right of priority in acquisition is reserved for defined entities, requires defining the legal character of the given instrument, the manner of executing the due right by the eligible party, results of the failure of the parties to the contracting process to fulfill the obligations imposed by the act, and finally, defining whether there are means for the compulsory execution of the power guaranteed by the act and, if yes, what these means are.

The Securities Settlement Systems (SSS) in the People's Republic of China (PRC) are organized around three different types of markets, which are the bond market, the corporate securities market, and the futures market. The China Government Depositary and Clearing Corporation Limited (CCDC) is the SSS as well as the central securities depository (CSD) for bonds. The China Securities Depository and Clearing Corporation Limited (SD and C) is the central counterparty (CCP), SSS, as well as the CSD for all instruments traded on the Shanghai Stock Exchange (SSE) and Shenzhen Stock Exchange (SZSE). The four futures exchanges have their own clearing and settlement departments, which offer the function of a CCP. The CCDC, SD and C, and Shanghai Futures Exchange (SHFE), Dalian Commodities Exchange (DCE), and Zhengzhou Commodities Exchange (ZCE) operate important securities and derivatives settlement systems both, due to the large volume and value of transactions and the fact that they support key financial sector markets (interbank bond market, stock exchanges and futures). The assessment of the bonds market-CCDC system against the Recommendations for Securities Settlement Systems (RSSS) concludes that the system observes (observed or broadly observed) thirteen of the 19 recommendations, being one not applicable. The assessment of the stock exchanges-SD and C system against the RSSS concludes that the system observes (observed or broadly observed) seventeen of the 19 recommendations. The assessment of the commodities futures markets-SHFE system against the Recommendations for Central Counterparties (RCCP) concludes that the system observes (observed or broadly observed) eleven of the 15 recommendations, being one not applicable. The present document is the assessment of securities and derivatives settlement systems in the PRC based on the recommendations of the Committee on Payment and Settlement Systems (CPSS) and the International Organization of Securities Commissions (IOSCO) for RSSS and the recommendations of CPSS-IOSCO for Central Counterparties (RCCP). The paper is divided into following five parts: the first part gives general information; the second gives information and methodology used for assessment; the third part is securities and derivatives settlement systems infrastructure overview; the fourth part is main findings from the assessment with international standards; and the fifth part gives authorities' response.

Repo markets are an essential component of liquid Government debt markets, acting as a transmission belt between money and debt markets, as well as serving to conduct key functions for the efficient operation of debt markets. These include, among others, credit risk management, funding debt portfolios, playing the yield curve, and covering short positions and settlement fails. The hybrid nature of a repo between a collateralized loan and a full transfer of ownership makes it a very versatile instrument for a broad range of market participants with very different business models. However, this is at the same time the reason for its complexity. This note addresses the legal, structural, accounting, tax, regulatory and infrastructure factors that are decisive for repo market development. The legal and infrastructure factors that underpin repo markets functionality are evolving ones and may be different depending on the country. The perspective adopted in this note intends to provide a balanced account of both the conceptual issues in each topic and relevant country cases, with the objective of providing policy makers with analytical tools to address their country specific context.