Bibliographie sélective OHADA

Competition law and intellectual property law share the objective of incentivising innovation. However, this objective is achieved in different ways, which, at times, can create tension between the two areas of law. It is imperative that this tension at the interface of competition law and intellectual property law is resolved in a manner that encourages innovation. Issues regarding the licensing of intellectual property, Standard Essential Patents, pay-for-delay agreements and no-challenge clauses are instances where the tension between competition law and intellectual property law is especially prevalent. These instances will be discussed in detail, and what is learnt from how the European Union and Australia handles it, will be applied to South Africa. The European Union, Australia and South Africa have different ways of dealing with situations where the exercise of intellectual property rights has an effect on competition. The European Union has block exemptions, which contains “safe havens” for conduct in specific circumstances. The block exemptions are often accompanied by guidelines, providing firms and individuals with greater detail in order to self-assess their compliance with the exemption. Australia has authorisation, notification and class exemption procedures. Firms can apply to the Australian Competition and Consumer Commission to authorise conduct that might potentially breach the Competition and Consumer Act 2010. Exemptions may also be granted more broadly by the Australian Competition and Consumer Commission in terms of the class exemption procedures. In South Africa, the law concerning the interface between competition law and intellectual property is still in its infancy, and a lot can be learned from jurisdictions like the European Union and Australia regarding the most efficient way to handle this tension. Currently, the Competition Act 89 of 1998 in South Africa contains Section 10(4), the intellectual property exemption clause. A firm can apply to the Competition Commission for an intellectual property exemption from the application of Chapter 2 of the Competition Act “to an agreement or practice, or a category of agreements or practices” which pertains to the exercise of intellectual property rights. However, it is submitted that Section 10(4), by itself, is not the most efficient mechanism to resolve the tension that arises at the interface of competition law and intellectual property law in a way that incentivises innovation. It is proposed that the exemption provision can be made more effective if it is properly applied in conjunction with class exemptions and guidelines.

ENGLISH ABSTRACT :This dissertation assesses the regulation of takeovers and mergers and the institutions created to enforce the law, from a comparative perspective. It uses South Africa as its point of departure and takes the laws of Delaware in the United States, the United Kingdom and Australia into account. The dissertation indicates that numerous takeover provisions in South Africa are poorly formulated, making them difficult to interpret and apply. Accordingly, the dissertation recommends amendment and improvement of certain Takeover Provisions. Special emphasis is placed on the mandatory offer requirement. The dissertation critically and comparatively analyses this requirement and especially its impacts on the market for corporate control, efficient usage of capital, corporate governance and (in South Africa) Broad Based Black Economic Empowerment. It appears from the literature explored that the mandatory offer requirement originated from the Perlman case in the United States as an expression of the equal opportunity rule. According to the equal opportunity rule, the controlling stake of a company is enriched with a premium of control, which must be shared with other shareholders when there is a change of the controlling shareholder. Shareholders must be given an equal opportunity to share in this control premium. Hence, a mandatory offer must be made to the remaining shareholders of the company by the new controlling shareholder at a price at which control was bought. Perlman case was decided in the United States of America during 1955. It is contended in the dissertation, that the mandatory offer requirement in section 123 of the Companies Act 71 of 2008 (“the Act”), can ultimately be traced back to this case. Researchers have criticised the mandatory offer requirement in a number of respects. It has been pointed out that the rationale for the decision in the Perlman case was not clear and applied in limited circumstances. Other scholars point out that the case was not a final decider on the sharing of the control premium due to later judicial pronouncements that differed with that case. Despite these commentaries, it appears that the case became a basis for imposing and enforcing this most debated rule in takeover and merger law. The dissertation concludes that the sharing of a premium of control, as envisaged by the mandatory offer requirement, is not enforced in the state of Delaware. It further concludes that in the UK, the mandatory offer rule forms the cornerstone of enforcement of the equal opportunity rule, but that widely dispersed shareholding ameliorates it negative consequences in that jurisdiction. The dissertation favours the Australian approach. That jurisdiction does not require a mandatory offer similar to that in section 123 of the Act, but, Australian Takeover Provisions, unlike their South African equivalent, have been tailor-made for Australian market conditions. The dissertation accordingly concludes that the mandatory offer requirement in section 123 of the Act in its current form is not appropriate for South Africa.