Bibliographie sélective OHADA

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With trade taking place continuously on a daily basis, its often-reported success gives the impression that all participants involved are to a certain extent somewhat successful too. This dissertation draws attention to the discrepancies that have often gone unnoticed throughout the decades and the effects that have arisen as a result. South Africa’s (SA) and the United States of America’s (US) trade relationship through the African Growth and Opportunity Act (AGOA) is the focus of this study, with this relationship being analysed from as far back as history has been recorded to the modern day. Least developed countries (LDCs) are an integral part of this study because most trade-related activities involve them, and they contain most of the world’s natural resources, but most importantly they also make up a large portion of the world’s population. It's baffling to see that where these factors are present, there's also inequality. Seemingly, there are efforts that deal specifically with the challenges faced by developing countries, but what is concerning is these solutions are formulated by developed countries which created them and continue to perpetuate them. The approach adopted was mostly that of contrasting events that have involved trade over the decades and a discussion of how these events have shaped international, political and trade relations, that is, the existing status quo. Examples include the two World Wars; oppressive regimes such as apartheid; and the formation of global institutions ranging from the International Trade Organization (ITO) to the General Agreement on Tariffs and Trade (GATT), and the World Trade Organization (WTO). The first three chapters contain an introduction, a background focus on development and the history of relations between South Africa and the United States of America. The last two chapters contain a discussion on AGOA as well as findings and recommendations that can be implemented to assist with this issue. What this dissertation was aiming to establish was the perpetual involvement of developed countries in the affairs of developing countries. This is illustrated through the renegotiation of the AGOA in 2015, where SA had to accept ultimatums set for it by the US. This dissertation further shows that such tactics are nothing new when the US is involved, as is evidenced by its involvement in major global events that have shaped the course of history. This approach is not only harmful but also stagnates development, as developing countries must adhere to agreements that sometimes are not to their benefit. The findings indicate a contradictory pattern: when solutions to challenges faced by developing countries are presented, they translate instead into a further stronghold over developing countries because of past atrocities such as colonisation and apartheid. What appears throughout the dissertation are the ever-present structures that are intended to perform functions supposed to be for the improved good of developing countries, but which result in those countries facing never-ending challenges, some of which are self-inflicted through alliances such as the AGOA with developed countries.

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The right to health and the right to development are intertwined socio-economic rights that affect the well being and growth of a country’s populace. Most developing and least developed countries face challenges in ensuring access to essential medicines vis a vis the realisation of the right to health and full potential of development. Patents, provided for under the TRIPS Agreement are partly to blame for the lack of access to essential medicines as they account for the excessive pricing of medicines. Zimbabwe being a developing country currently facing dire economic and political challenges but being obliged under the International and Regional Human Rights Conventions it subscribed to, has to ensure the progressive realisation of the right to health and development. However, as a member of the TRIPS Agreement, there are limitations to the country’s ability to ensure access to medicines and healthcare for developmental purposes. This thesis has outlined the problematic provisions of the TRIPS Agreement and Zimbabwe’s attempt to use the flexibilities provided to its advantage. Zimbabwe has only put into use the flexibility of compulsory licensing and parallel importation to a limited extent; hence the recommendation that even though the country has domesticated the Agreement to its advantage, the country needs to explore other flexibilities comprehensively and promote the realisation of the rights to health and development.

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Development is understood to be an economic process that aims at a constant improvement of the well-being of all individuals who have the right to participate and benefits from the fruits of development. Development is also a right that requires a progressive realisation by governments, international communities and private sectors to the satisfaction of all individuals. A progressive realisation of this right requires a vibrant economy, which can be acquired through International trade and Foreign Direct Investment (FDI). It is in this context that this thesis has attempted to discuss the influence of FDI and International trade on development. The discussion was initiated by focusing on the history of the multilateral trade system (MTS) by looking at various Ministerial rounds of both the General Agreement on Tariffs and Trade (GATT) and the World Trade Organisation (WTO). In this discussion the thesis found that, whilst there are various multilateral political frameworks regulating trade, FDI is subject to regional and domestic political frameworks. The thesis also discussed development in relation to the millennium development goals (MGDs). It was established the goal eight of the MDGs requires the integration of poor countries into the MTS so that they can be able to exploit their comparative advantage. This goal influenced the launching of the Doha Development Agenda (DDA) at the Doha round in 2001. However, the thesis also established that conclusion of the DDA has been progressing at a slow pace. Therefore it has not yielded substantial results for poor countries. The failure to conclude the DDA has led to an increase of Regional Trade Agreements (RTAs), which some scholars view as a supplement of multilateral trade integration. However, the SADC region has not been able to conclude their integration objectives due to the fact that many member states belong to other RTAs. In the case of FDI the thesis established that FDI is accompanied by a wide range of resources for host countries, which can be utilised for enhancing development. However, it was also established that the SADC has not been able to attract lucrative FDI due to a wide range of factors that impede FDI. On this finding, a case study was employed on four countries in the region, namely Angola, Botswana, South Africa and Zimbabwe.

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Abstract Legal harmonisation is an integral aspect of regional integration and the desire to promote regional and sub-regional economic integration in Africa is exemplified by the establishment of the African Continental Free Trade Area (AfCFTA) in 2018. The 2012 decision of the AU to create the CFTA by 2017 was reiterated in Aspiration two of Agenda 2063. The legal harmonisation of non-tariff barriers has been a vital instrument in the achievement of EU economic integration and the Organisation for the Harmonisation of Business Laws in Africa (OHADA). The study seeks to critically examine the theoretical and conceptual underpinnings of regional integration and legal harmonisation of non-tariff barriers by the AU and RECs. It also analyses the current political, economic, and legal reinforcements to regionalism in Africa and practices needed to advance intra-regional trade within the framework of Agenda 2063. This was done by evaluating the key legal frameworks of the AU (the Abuja Treaty, the Constitutive Act of AU, 2007 Protocol on relations between AU and RECs and Agenda 2063) with the aim of identifying best practices, gaps and impediments pertinent to strengthening Agenda 2063 CFTA. At the end of the study, the abilities of three selected RECs (SADC, COMESA and EAC) were assessed to drive home the AfCFTA. This was done by identifying flaws in existing treaties of RECs, while advancing a model of legal harmonisation of NTBs between them. It was found out that the AU and RECs have not vigorously considered the significance of legal harmonisation in their integration agendas. This resulted in the lack of unambiguous and concrete provisions for the legal harmonisation of NTBs in their guiding policies. Where some attempts are evident, such as in the EAC, they have been implemented unsatisfactorily with lack of a compliance mechanism. This study contended that if legal barriers to free trade are not eliminated, even if all other barriers were to be removed, the effective realisation of the AfCFTA would still be hindered. Hence, this study recommends the principles of direct applicability and direct effects of regional laws to addressing the legal harmonisation challenge underscored. Iqoqa Ukuvumelanisa okusemthethweni kwezithiyo ezingakhokhiswa intela kuyisici esibalulekile sokudidiyelwa kwesifunda kanye nesifiso sokugqugquzela ukuhlanganiswa komnotho wesifunda kanye nesifunda esincane e-Afrikha sibonakala ngokusungulwa kweNdawo Yezwekazi Lase-Afrikha Yokuhweba Ngokukhululekile (i-AfCFTA) ngowezi-2018. Isinqumo sowezi-2012 se-AU sokwakha i-CFTA ngowezi-2017 saphindwa Esifisweni Sesibili soHlelo- 2063. I-CFTA iphinde ibe wuhlelo olubalulekile oHlelweni-2063 futhi impumelelo yayo ibalulekile. Ucwaningo luhlose ukuhlola ngokujulile izisekelo zethiyori nezomqondo zokuhlanganiswa kwesifunda kanye nokuvunyelaniswa kwezomthetho kwezithiyo ezingakhokhisi yi-AU kanye nama-REC. Iphinde ihlaziye ukuqiniswa kwamanje kwezepolitiki, ezomnotho, kanye nezomthetho kuzwelonke e-Afrikha kanye nezinqubo ezidingekayo ukuze kuthuthukiswe ukuhwebelana kwangaphakathi kwesifunda ngaphakathi kohlaka loHlelo-2063. Lokhu kwenziwa ngokuhlola izinhlaka zomthetho ezibalulekile ze-AU (iSivumelwano sase-Abuja, UMthetho-sisekelo we-AU, 2007 Protocol on relationship between AU and RECs and Agenda 2063) ngenhloso yokuhlonza izindlela ezingcono kakhulu, amagebe kanye nezithiyo ezihambisana nokuqinisa uHlelo-2063 CFTA. Ekupheleni kocwaningo, amakhono ama-REC amathathu akhethiwe (i-SADC, i-COMESA kanye ne-EAC) ahlolwa ukuze aqhubekisele phambili i-AfCFTA. Lokhu kwenziwa ngokuhlonza amaphutha ezivumelwaneni ezikhona zama-RECs, ngenkathi kuthuthukiswa imodeli yokuvumelana okusemthethweni kwama-NTB phakathi kwawo. Kwatholakala ukuthi osopolitiki base-Afrikha abazange bayicabange indlela eqinile yokuhlanganisa umnotho wesifunda, nakuba indlela enjalo yaphakanyiswa abasunguli besifunda sase-Afrikha. I-AU kanye nama-REC awazange acabangele ngamandla ukubaluleka kokuvumelana kwezomthetho ezinhlelweni zawo zokuhlanganisa. Lokhu kuholele ekuntulekeni kwezinhlinzeko ezicacile nezibambekayo zokuvumelana ngokusemthethweni kwama-NTB kuzinqubomgomo eziqondisayo. Lolu cwaningo lwagomela ngokuthi uma izithiyo ezingokomthetho zokuhwebelana ngokukhululeka zingaqedwa, ngisho noma zonke ezinye izithiyo zizosuswa, ukufezeka ngempumelelo kwe-AfCFTA kusazothikamezwa. Ngaphakathi kwalokhu kwangemuva, lolu cwaningo luncoma izimiso zokusebenziseka okuqondile kanye nemiphumela eqondile yemithetho yesifunda ukuze kubhekwane nenselele yokuvumelana kwezomthetho egcizelelwe.