Bibliographie sélective OHADA

Where the parties to an international contract fail to specify the choice of law, a forum selection agreement is one of the most, if not the most, significant factors to consider in implying the choice of law in many international, supranational, regional instruments, and national jurisdictions. However, it is an ill-defined, notoriously complex, and hotly debated issue as to the weight that should be attached to a forum selection agreement in implying the choice of law. Hence, this article is devoted to discussing this topic from a comparative perspective, in order to propose a guide to global uniform criteria. To achieve this, the article covers all relevant international, regional, and supranational instruments, and selected legal systems in Africa, Asia, Australasia, Europe, the Middle East, and North and South America. The legal systems compared include those from the global North and global South, including common law, civil law, and mixed legal systems. The article’s core proposal is that an exclusive forum selection agreement should be a key factor in implying the choice of law. However, except in such cases as where a forum is chosen on a neutral basis, there should be a general requirement of corroboration with at least one other factor of significance. The aim of the proposal is to contribute to greater uniformity, predictability, and certainty in the global community in this field of law.

The area of responsibility of the sea freight carrier is to determine the scope of liability over time for damage to the goods and is reflected in the search for the beginning and end of its liability; as well as the determination of the damage which triggers the carrier's obligation to compensate for the losses, damage, delay and determine the persons responsible for the damages for which the recipient or beneficiary of the goods has the right to recourse.

It is trite that environmental challenges remain one of the major global concerns and no doubt of great impact on human existence and wellbeing. This impact is a result of human activities on the natural ecosystem. This article examines the legal framework by the Nigerian state in regulating the activities of the multinational investors in the oil and gas industry in the Niger Delta region of the country. It discusses the international, regional, and national legal framework in the protection of environment and environmental rights of the host community and foreign direct investment rights. The author demonstrates the imbalance in the protection of environmental and foreign direct investment rights from which suggestions are made towards correcting this injustice as caused by the existing legal framework.

The success of commercial arbitration law and practice is achieved as a result of several factors. The purpose of the study was to investigate whether efficacy of commercial arbitration, law and practice in Lesotho is hindered by the legal framework which does not conform to the United Nations Commission Trade Law on International Commercial Arbitration, UNCITRAL Model Law. Examining such other factors as support of the courts and government, the study specifically investigated the impact of lack of education about commercial arbitration for the business community and unregulated arbitrators on the efficacy of the commercial arbitration, law and practice in Lesotho. With the use of the desk reviews and interviews as data collection methods for this study, the evidence obtained has revealed that efficacy of the commercial arbitration, law and practice in Lesotho is hampered by the law which is outdated and inconsistent with the UNCITRAL Model law. As such, support for the mechanism by the courts has been found to be at stake or adversely affected. Lack of support from the government and that of awareness campaigns about the mechanism for the business community have also been noted for constraining the efficacy of the commercial arbitration, law and practice in the country. Further noticeable from the findings include limited commitment from the legal profession and unregulated arbitrators, both of which could have significantly obstructed the mechanism. The study thus concludes that there is an urgent need for law reforms and concerted commitment from the relevant stakeholders to help towards achieving efficacy of the commercial arbitration, law and practice in Lesotho.

The paper aims to review the relation between Corporate Governance, Risk Management and Performance. We reviewed these variables and develop a Theoretical and Analytics framework. First introduction (study background, Problem Statement, Research Objectives and research questions). Second literature review (A) financial performance such as ROA, ROE, EPS and Tobin’s Q, (B) Corporate Governance as Board of Directors, Board Composition, CEO Duality and Board Size (C) Risk Management. Third, we discussed Underpinning Theories such as, Agency Theory and Institutional Theory. Fourth, we developed a Theoretical Framework where we illustrated (A) Corporate Governance and Financial Performance, (B) Risk Management and Financial Performance (C) Compliance with Accounting Standards and Financial Performance. Finally, we developed a comprehensive reviewing based on above variables.

This study aims to understand the accounting effects of the Corona pandemic in more depth and clarity, where the study explores the accounting choices during the pandemic period and the impact of the firm's strategic orientation and its social responsibility performance on those choices. Using data from non-financial Saudi companies, the accounting choices divided into aggressive accounting strategy and conservative accounting strategy, and regression models used to examine the study hypotheses. The results of the study provide a clearer and in-depth vision about the nature of accounting practices during the pandemic and indicated that business strategy affects accounting choices, while corporate social responsibility does not affect. The results can imply useful information for the market regulators that help them in controlling and stabilizing the market, as well as for professional accounting organizations to help them issue guidelines for accounting work during crises.

The procedure of liquidation of assets can be closed for the extinction of liabilities or for insufficient assets. The court may then, at the request of any interested person or ex officio, at any time during the proceedings and after a report by the official receiver, close the proceedings. In case of insufficiency of assets, the business disappears and, perhaps, the hope of any payment to creditors as well. For a long time, it was accepted that the closure for lack of assets allows creditors to resume individual proceedings against the debtor, especially if the latter returns to better circumstances. This traditional solution has been abandoned. According to OHADA Uniform Act on the organisation of collective procedures for the settlement of liabilities, revised on 10 December 2015, closure for insufficiency of assets no longer automatically gives creditors the right to take individual action. Thus, when a liquidation leads to a shortage of assets, the satisfaction of creditors remains uncertain. The objective of this study is to show that despite this reform, the protection of creditors’ rights has not changed significantly in the event of insufficient assets. Indeed, any possible recourse to the recovery of their claims remains paralysed by certain measures that infringe their rights. The infringements can be described as severe or moderate depending on the case.

International investment law is facing a legitimacy crisis, in which to tackle, substantial efforts are being made in structural and procedural areas. The first step to overcoming this crisis is identifying the roots of it. The lack of a dynamic balance between public and private interests is one of the main factors creating this legitimacy crisis in this legal system.[1] This paper focuses on the changes in the investment arbitration jurisprudence to create this balance. The findings of this paper can explain one of the convergence points of international trade and investment law. Such a claim is based on the evolution of international trade law in facing a similar legitimacy issue and the structural-procedural approach of this legal system in balancing public and private interests as an ultimate solution to the crisis.[2] From this perspective, one of the major factors in creating a legitimacy crisis in both legal systems is the dominance of the paradigm for preference of private interests; and one of the convergence points of international trade and investment law has been to replace it by accepting the paradigm of creating a dynamic balance between competing goals.[3] This paper examines this convergence in arbitral jurisprudence.IntroductionIn recent years, the legitimacy crisis of the regime of international investment law and, as a result, the investor-state dispute settlement system has been one of the most important and controversial topics in the academic environment and the practice of states consequently, serious efforts in various fields to tackle this crisis have begun. According to this paper, choosing an arbitration mechanism modeled on international commercial arbitration to resolve disputes between host states and foreign investors can be evaluated as a wrong and hasty action that, regardless of its factors and contexts, has changed the nature and function of this system over time.[4] It should be noted that the main factor in such consequences is how this dispute resolution system is used which, contrary to the accepted model, always puts the host states in a "respondent" position in possible future disputes and, as a result, disrupts the balance expected in any international dispute settlement system. On this basis, the confrontation of the host state's sovereign competence in ensuring public interests with the foreign investors’ ability to challenge this competence is brought into the spotlight: currently, within the regime of international investment law, host states have only responsibilities and obligations in contrast to extensive and exclusive rights and privileges recognized for foreign investors, and this can be considered as the most important factor disturbing the said balance. The main issue in this field is to analyze the role of the investment arbitral tribunals in creating such a balance. In this regard, the authors, by focusing on the nature of investment treaties, and the relations between the parties in investment disputes and with emphasis on the general legal regime governing international investment, consider creating a dynamic balance between public and private interests to be the key to solving the crisis. They emphasize that; As long as the rights and obligations of the parties to the dispute are based on imbalanced grounds, the change in nature of the disputes and the function of the system -as the main roots of this legitimacy crisis - will remain. In this remark, it is very important to focus on the two-sided nature (public-private) of the relationships established in the framework of investment treaties. The relationship between the host state and the foreign investor is created within the framework of investment treaties and in light of fundamental differences from purely private relationships in international commercial arbitration.[5] Note that any dispute arising from this relationship is affected by its inherently public nature governed by public international law.[6] Thus, a purely private attitude towards these relations does not seem viable. As Ian Brownlie has stated in the case of SME v. the Czech Republic, it can lead to ignoring some of the basic elements of the relevant investment treaty.[7] In other words, the right and duty of the host state in protecting and promoting public interests is a fundamental part of this relationship, and any indulgence of it leads to a serious disruption of the mentioned balance through which the system's legitimacy will be the first victim.It is clear that the main task of any dispute resolution system is to create such a balance, and on this basis, and compared to the WTO dispute resolution system, the role of the investment tribunals in this process is discussed. This jurisprudential convergence is in line with the goal of strengthening the legitimacy of the international investment law system as a whole.Based on the above, the first part of this paper focuses on the process of establishing the ISDS in international investment law and its characteristics, the factors of the crisis of legitimacy are analyzed with an analytical approach, while also explaining the nature of investment treaties and explaining the general legal regime governing international investment. Furthermore, the lack of a dynamic balance between public and private interests is emphasized as the main cause of the crisis. In the second part, while comparing the two legal systems of international trade and investment with a similar crisis of legitimacy, we will examine the interaction of investment arbitration with the WTO's jurisprudence in facing this crisis through a case study of several investment arbitral awards. [1]. David Gaukrodger, “The Balance between Investor Protection and the Right to Regulate in Investment Treaties: A Scooping Paperˮ, OECD Working Paper on International Investment 2017/02, at 4.[2]. Nicholas DiMascio & Joost Pauwelyn, “Non-Discrimination in Trade and Investment Treaties: Worlds apart or Two Sides of the Same Coin?”, AJIL, Vol. 102, No.1, (2008), at 89.[3]. Jurgen Kurtz and Sungioon Cho, “Convergence and Divergence in International Economic Law and Politics”, EJIL, Vol. 20, No. 1, (2018), at 187.[4]. Benedict Kingsbury & Stephan W. Schill, “Public Law Concepts to Balance Investor's Rights with State Regulatory Actions in the Public Interest - The Concept of Proportionalityˮ, In Schill Stephan W., International Investment Law and Comparative Public Law (UK: Oxford University Press, 2010) at 76. [5]. Crina Baltag, “Reforming The ISDS System: In Search of a Balanced Approach?ˮ, Contemporary Asia Arbitration Journal, Vol. 22, No. 2, (2019), at 285.[6]. Ibid.[7]. Andreas Kulick, “Sneaking Through Backdoor – Reflections on Public Interest in International Investment Arbitrationˮ, Arbitration International, Vol. 29, No. 3, (2013), at 438.

The position of international arbitration awards which is different from national arbitration awards and district court decisions causes differences in the rights and obligations of the parties to arbitral awards, especially those relating to legal remedies against awards. The formulation of the problem in this study is how are the rights and obligations of the parties to international arbitral awards in Indonesia. The research method used in this article is legal research using primary and secondary legal materials. The results of the study state that the rights possessed by the parties to international arbitral awards in Indonesia are related to legal remedies against decisions, namely corrections to these international arbitral awards. The corrections to the decisions here are not only limited to administrative corrections but also corrections related to the principal international arbitral awards made before the request for execution was registered at the Central Jakarta District Court. While the obligations of the parties to international arbitral awards are to carry out international arbitral awards in good faith.

Labour immigration has been on the rise and has had policy implications for public leaders of relatively stable Southern African Development Corporation (SADC) countries. In this paper, the status of populism and labour immigration in Botswana and South Africa was explored. The primary sources of labour immigration are Zimbabwe and Mozambique. Economic disparities and the disintegration of the socio-economic conditions of the neighbouring countries have been major antecedents for the labour movements of the masses. The study utilised a qualitative method and comparative case study design. The study found that populist movements have much influence on the termination of employment of foreign nationals in Botswana and South Africa as shown by their anti-immigrant attitudes, market protectionism, and close-the-borders protests. As these measures have become inefficient over the years, policies and proposals are recommended in response.

Since the earlier indirect Corporate Social Responsibility (CSR) provisions failed to hold investors responsible for human rights abuses, the recent hardening process of direct CSR clauses has resulted in incorporating CSR clauses under sections or chapters entitled “investors obligations” and tying CSR obligations to binding human rights and environmental prohibitions, as well as to human rights obligations established by the host state's legislation. This paper provides a non-exhaustive analysis of recent developments in treaty practice based on research primarily sourced from investment agreements concluded between 2012 and 2021, doctrinal input, and normative analysis. As shown in this paper the hardening process has not yet been completed, and reformations are necessary. Specifically, new investment agreements should enshrine investor human rights obligations as legally binding obligations, consider violations of these CSR obligations as part of investment disputes and provide direct remedies to victims. This study contributes to the literature on the international responsibility of TNCs with regard to human rights by examining the process of hardening up the CSR obligations within investment agreements as an approach that could lead to effective human rights protection.

This introduction provides the reader with a general characterization of the 39 Mixed Arbitral Tribunals (MATs) created by the 1919-1923 peace treaties to address disputes between private persons and between private persons and states as a result of the First World War. Noting that the rich literature published on the MATs was followed by near-silence after 1945, it mentions the numerous questions that they still raise today, before explaining how the various contributions to the book edited by the authors address them.

EU’s competence over FDI: European technological sovereignty. Definition, origins, and scope of EU foreign investment law. EU competence over foreign direct investments. European technological sovereignty. Regulation 452/2019–screening mechanisms in national legislation with a focus of the Italian regime. Structure of regulation 452/2019. Implementation in national legislation. The screening regulation as a tool to enforce technological sovereignty. EU technological sovereignty in practice. First and second annual report on the screening of foreign direct investments into the Union. A first appraisal of the problematic interplay between FDIs and technological sovereignty.

Groups of companies are a complex corporate structure, whose regulation can be problematic, especially when it comes to liability. Indeed, liability within corporate groups draws forth a series of issues principally due to the principles of separate corporate personality and limited liability. In the context of limited liability, which is based on the notion of separate legal personality, the main issue waxes the protection of the creditors, in particular the creditors of the subsidiaries. One can find three regulatory templates for handling corporate groups and their liability: policing via general company and/or civil law (such as the English model); policing via special group legislation (such as the German model); and policing via branches of law such as insolvency law, antitrust law, and contract law, among others (which is the case in numerous jurisdictions, either coupled with the first or the second model). Lifting the corporate veil has come as an answer to corporate separateness, by permitting to ignore the shareholders’ limited liability and hold them personally liable for the debts of their companies in specific circumstances. However, one can hardly find cases in which the corporate veil has been successfully lifted, due to many factors. Other important questions that are posed in the scope of corporate groups liability are the parent company’s liability for the payment of its daughter companies’ debts when insolvency strikes and other respects, besides the matter of group liability. Furthermore, liability is as well a key player in terms of tort law, and corporate social responsibility has therefore found a place in the sun in the present climate.

This study analyzes intellectual property rights disputes between PSGlow and MSGlow in terms of Law no. 20 of 2016 concerning Trademarks and Geographical Indications (analysis of case decision number: 2/pdt.sus.HKI/Merek/2022/pn.niaga Sby) which aims to explain and analyze the basic considerations of Surabaya Commercial Court judges in accepting lawsuits, explaining and analyzing how is the legal protection of trademarks that have been registered based on Law No. 20 of 2016 concerning Trademarks and Geographical Indications, explaining and analyzing whether there is an element of passing off between PS Glow and MS Glow based on Case Decision Number: 2/Pdt.Sus.HKI /Merek/2022/PN. Niaga Sby.The legal materials in this research are primary, secondary, and tertiary legal materials using normative research methods.The basis for consideration is that a lawsuit was filed from PS Glow for the use of the brand without rights against MS Glow. and legal protection for brands that have been registered under Law no. 20 of 2016 concerning Marks and Geographical Indications, namely that the penalties that will be imposed on these counterfeiters can be in the form of imprisonment, imprisonment and fines, as referred to in articles 100 to 102 of Law No. 20 of 2016 concerning Marks and Geographical Indications. and between PS Glow and MS Glow there is no element of passing off based on Case Decision Number: 2/Pdt.Sus.HKI/Merek/2022/PN.Niaga Sby, because the MS Glow brand registers its brand in HAKI in class 32 with the classification of powdered drinks and PS Glow registered their brand on Intellectual Property Rights in class 3 with a cosmetic classification.

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.

This study investigates the impact and importance of the legal regulation of trade union recognition and associated challenges in South Africa. It evaluates the current regulation of trade union recognition, including legislation and judicial attitudes apparent from the interpretation, application, and enforcement of such legislation, to ascertain its continued appropriateness in the current South African industrial relations environment. The study considers the policy choices of both voluntarism and majoritarianism underlying the Labour Relations Act 66 of 1995 (“LRA”) and the “workplace” constituency to which it applies as factors that might be contributing to challenges experienced in the current regulation of collective bargaining in South Africa. It evaluates the current model of trade union recognition and representativeness as it applies to the acquisition by trade unions of organisational rights, collective bargaining rights and trade union recognition for purposes of retrenchment consultation. It recognises that the specific model chosen to regulate the representative status of trade unions has a significant effect on the ability of trade unions to organise and conclude collective agreements and, as such, on the distributive effects of such agreements in the labour market and broader society. The study commences with an historical overview of the regulation of trade union recognition under the 1956 LRA and thereafter considers the 1995 LRA as a product of criticism against the 1956 LRA. Specific issues considered, largely based on the analysis of the relevant decisions by the Constitutional Court, include the following: the impact of Constitutional Court jurisprudence relating to trade union recognition on the process of collective bargaining and on the legal regulation of the right to strike; the role of representativeness and its link with the workplace as the constituency for recognition and acquisition of organisational rights; the often winner-takes-all effect of the current model on collective bargaining as a major cause of labour unrest; the reactive role the legislature has played over the past, almost three decades to address challenges; the extent to which intervention should take place to safeguard the institution of collective bargaining from being undermined as well as the regulation of collective agreements as the product of collective bargaining and as the primary source of terms and conditions of employment. The comparative review of Canadian law focuses on a number of issues selected specifically for their potential to provide insights into how the weaknesses in South African regulation may be remedied. This includes insights into the accommodation of special or significant minority interests and how to address recognition in the context of multi-location employers. The thesis concludes with remarks on the insights gained from the Canadian model and the 1956 LRA. Where appropriate, suggestions are made on the way forward for South Africa as to the appropriate regulation of trade union recognition and representativeness.