Bibliographie sélective OHADA

This article engages with the recently adopted agreement for the African Continental Free Trade Area (AfCFTA) in the area of services. While services trade had heretofore stood at the queue of African trade pacts, the AfCFTA breaks new grounds by negotiating goods and services concurrently, signalling a paradigm shift and a commitment to a deeper integration of the continent. Upon Members’ implementation of the Protocol on Trade in Services, whose aim is to establish a single market in services, the region will be the largest economic integration agreement ever concluded since the birth of the World Trade Organization (WTO). This paper sets out to analyse the provisions of the Protocol and how they contribute to achieving the objective of attaining a single market where services (alongside goods, people and capital) move unrestricted.

Until recently, doing business in developing countries, and in Sub-Saharan Africa in particular, was associated with high risk. Although each investment decision is associated with some risk, there are always obligations incumbent on host States in that regard. However, when domestic law is too obsolete to match the requirements of an evolving investment and commercial environment which it is supposed to regulate, and when its effects are unpredictable, one of the fundamental conditions for attracting investment goes missing. This eventually underscores the need for a legal reform. The phenomenon of 'globalisation' on the one hand, and the need for (developing) countries to integrate their economies into the global market, on the other hand, considerably accentuated the postulate of development through law.Against this background, some African countries, at the dawn of the 1990s, felt a need to 'modernise' their legal systems for the major part inherited from colonialism. In this vein, they entrusted a supranational organ, the OHADA, to perform that legal reform. This paper is an attempt to test the OHADA against the discourse of law as a development engine. Furthermore, this is an assessment of the extent to which OHADA, as a legal tool, could be useful in serving the purpose of regional integration and economic growth in Africa.

Domestic laws on the African continent have been considered inadequate to attract the investment needed for development and economic growth. A crucial catalyst in attracting investment on the continent is law reform. The formulation of legislation has twofold effects: firstly, it is perceived to mitigate the risks associated with doing business in Africa; secondly, it legally obligates African governments to comply with standards of protection accorded to international investors through the regulation of the business environment. The formulation of legislation is a key determinant of the quality of investment attracted to the continent. This Chapter assesses how the Organization for the Harmonization of African Business Law (OHADA) has contributed to regional integration and economic growth on the continent.

This chapter deals with the principle of direct effect as applied in European Union law and explores its suitability in the enforcement of African Union (AU) legal instruments, notably those setting up the African Continental Free Trade Area (AfCFTA). What motivates the issue of direct effect is the noted reticence of African countries to litigate trade matters between themselves despite the existence of provisions of regional trade treaties creating courts of justice which give standing to Member States. Therefore, it surveys the avenues through which natural and legal persons can uphold their rights stemming from AfCFTA treaties thus contributing to treaty interpretation and increasing security and predictability. Currently, the AfCFTA Dispute Settlement Protocol, modelled after the WTO, does not allow such a possibility, contrary to rights acquired by natural and legal persons before some African Regional Economic Communities (RECs) courts. Nevertheless, this chapter finds that carving out access of natural and legal persons to AfCFTA proceedings may not always work as intended since there are other ways to bypass these obstacles. These loopholes could be the gateway through which direct effect will develop and become a principle of AU law broadly speaking. These gaps further complement this chapter’s suggestions to explore amending the AfCFTA legal instruments, even though its dispute settlement system is yet to be tested, in order to match the standing that natural and legal persons have acquired under the RECs, which, in fine, are building blocs towards achieving the AfCFTA and, eventually, the African Economic Community.