Bibliographie sélective OHADA

Is it possible for the testator to mandate unilaterally that all disputes concerning the estate are to be arbitrated instead of litigated? While such a testamentary arbitration clause is an expression of the decedent’s freedom of disposition, it contradicts the beneficiaries’ right of access to a public court. In his dissertation, Jakob Gleim examines the tension between the decedent’s freedom of disposition and the rights of the beneficiaries, balancing these two positions against one another and thereby identifying the reasons and the limitations of the validity of testamentary arbitration clauses. While such clauses were rather rare in the 20th century, German courts have to deal with them more regularly nowadays. In his dissertation, Gleim explores the practical significance of testamentary arbitration clauses as well as their advantages and disadvantages. The author also addresses the questions of how far the jurisdiction of the arbitral tribunal extends and which law is to be applied in cross-border cases. The inquiry also includes insights gained from a comparative analysis of US-American law.

The future of sustainable development in Africa and for its growing population will depend on investments which might come mostly from abroad attracted by a favourable investment climate (or ecosystem). It is rather doubtful that the actual ('old') international legal framework for investment-related and investment-specific measures which does hardly create an adequate balance between the interests of all important public as well as private stakeholders would meet the requirement of today and tomorrow. But any alterations or improvements must start from the present state of things. So, this study looks at the different levels and various instruments dealing with traditional standards of investment and investor protection, e.g. BITs und TIPs, and at the activities of global, regional and sub-regional organizations (in particular EU and OHADA). Moreover, new developments at global and regional levels are discussed including trends showing a somewhat specific African approach to investment issues ('Africanization'). Finally, a very important topic, i.e. the relation between investment protection and human rights (of investors and of other people negatively affected by relevant activities), is described and assessed in more detail. A second part of the analysis will turn to elaborating on dispute settlement and enforcement issues since till today, there seems to be a sharp distinction between Investor-State- Dispute Settlement (ISDS) by way of mediation, conciliation and arbitration on the one hand and judicial redress by national courts (of home, host or third States) on the other.