Bibliographie sélective OHADA

Please refer to full text to view abstract. <br>LL.M. (Commercial Law)

Please refer to full text to view abstract. <br>LL.M. (International Commercial Law)

This study unveils that the creation of companies in Cameroon is been regulated by the OHADA[1], law under the Uniform Act on Commercial Companies and Economic Interest Groups (UACCEIG) which says, every company must have its own Articles of Association [2]. The Articles of Association is a document that contains the internal regulation for the management of the company’s affairs. [3] The articles of association are the contracts between the shareholders and the company and among the shareholders themselves. [4] The questions raised are what are the requirements common in the Articles of Association of all companies under OHADA Law? What effect do the AOA has? The study adopted an analytical approach which has led to the finding that the AOA under OHADA, is similar to the MOA [5] in most English speaking countries, but a major difference in that UACCEIG has limited the life span of the company to 99years while under English company law, a company goes on for an indefinite period. [6] The life span of the company should not be limited due to the principle of perpetual succession. The UACC seem to have concurred with some aspects of the Common Law, making the UACC an applaudable law reform.

In this essay, we describe the overlapping phenomena of new legal hubs (NLHs), international commercial courts, and arbitral courts. We survey their impact on the law and geopolitics of international commercial dispute resolution, identifying key issues these new dispute resolution institutions raise. While the rise of international commercial courts spans authoritarian and liberal states, Western and Asian states, common law and civil law traditions, it also highlights and builds upon regional differences. We question the assumption that the establishment of new courts is always consistent with an increase in the rule of law, particularly in non-democratic states. We close with thoughts about the potential influence and future role of these institutions. Some of the procedural innovations discussed here may lead to shifts in international commercial dispute resolution for years to come, but the question of whether there is sufficient demand for these new institutions lingers.

With the pandemic caused by the novel coronavirus SARS-CoV-2 raging around the world, many countries’ economies are at a crucial juncture. The COVID-19 external shock to the economy has the potential to affect corporate governance profoundly. This Article explores its possible impact on comparative corporate governance. For an economy to operate successfully, a society must first find a politically sustainable social equilibrium. In many countries, historical crises—such as the Great Depression and World War II—have resulted in a reconfiguration of corporate governance institutions that set the course for generations. While it is not yet clear whether COVID-19 will have a similar effect, it is possible that it will change patterns of what kind of firms are -from an evolutionary perspective- likely to survive, and which ones are not. We argue that to some extent, it will accelerate ongoing trends, whereas in other areas it put corporations on an entirely new course. We observe three trends, namely the need for resilience, a growth of nationalist policies in corporate law, and an increasing orientation toward “stakeholder” interests. First, firms will have to become resilient to the crisis and consequently long-term oriented. Corporations that are not operating merely on an arm’s length capital market basis but are integrated into a network, generated by core shareholders, state ownership, or bank lending may be more likely to survive. In addition, firms are beginning to interact with their workforce differently in their attempts to maintain what could be called “healthy human capital.” Second, we are likely to see a resurgence of nationalism in corporate governance to ensure that foreign ownership and interconnected supply chains do not put national security at risk. Third, the existing critiques of inequality but also climate change awareness will accelerate the trend toward a broadening of corporate purpose toward “stakeholderism” and public policy issues. As in the past years, institutional investors acting as “universal owners” will play a role in shaping this trend.

This book comprises 19 papers published in the Special Issue entitled “Corporate Finance”, focused on capital structure (Kedzior et al., 2020; Ntoung et al., 2020; Vintilă et al., 2019), dividend policy (Dragotă and Delcea, 2019; Pinto and Rastogi, 2019) and open-market share repurchase announcements (Ding et al., 2020), risk management (Chen et al., 2020; Nguyen Thanh, 2019; Štefko et al., 2020), financial reporting (Fossung et al., 2020), corporate brand and innovation (Barros et al., 2020; Błach et al., 2020), and corporate governance (Aluchna and Kuszewski, 2020; Dragotă et al.,2020; Gruszczyński, 2020; Kjærland et al., 2020; Koji et al., 2020; Lukason and Camacho-Miñano, 2020; Rashid Khan et al., 2020). It covers a broad range of companies worldwide (Cameroon, China, Estonia, India, Japan, Norway, Poland, Romania, Slovakia, Spain, United States, Vietnam), as well as various industries (heat supply, high-tech, manufacturing).

On 15 March 2020 the President of the Republic of South Africa announced a nationwide lockdown. The unpredicted pandemic dictated that extraordinary measures be put in place, which resulted in the country coming to a total standstill. Consequently, there was an alarming decline in economic activities and therefore government had to introduce measures to mitigate the impact of COVID-19 on employers and workers... <br>LL.M. (Commercial Law)

No abstract available.

A “global” civil procedure has emerged and found its way into debates over procedural reform in both international and domestic arenas. Global civil procedure includes the procedural rules, practices, and social understandings that govern transnational litigation and arbitration. A global civil procedure norm is a norm adopted across courts or arbitration providers with the purpose of making that jurisdiction or provider more competitive in attracting transnational litigation or arbitration. Global civil procedure norms are at stake in multiple present trends and debates, including model laws in commercial arbitration, the procedure of international tribunals, the debate over investment dispute resolution, the rise of courts oriented towards international litigation, and sprawling litigation spanning multiple jurisdictions and fora. On a surface level, the values reflected in global civil procedure seem to be roughly the same across jurisdictions. A common language has emerged around competition for litigation business and procedure values such as efficiency, certainty, and impartiality. Yet different legal systems do not necessarily agree on the purpose of various shared elements of global civil procedure. For democracies, for instance, the purpose of procedural reforms might be to facilitate access to justice. Other countries may favor the same reforms because they facilitate top-down administrative control of judges. Surface agreement can submerge divergent logics that may ultimately lead to very different applications of harmonized rules. This Article begins by introducing the concept of global civil procedure, who uses it, and how. Next, it considers several examples of the phenomenon including conflicts of interest rules for adjudicators, aggrega tion, and discovery or disclosure rules. Finally, it considers the limits of global civil procedure. Although the rhetoric of procedural competition can be heard across systems, procedural values do not necessarily translate both in terms of enduring divisions between legal traditions and in terms of applications by current political regimes.

This work aims to find a practical solution to the problem that exists between intra-EU Bilateral Investment Treaties (BITs) and European Union (EU) law over conflict of jurisdiction issues. Currently, there is a problem as the EU Commission has rendered intra-EU BITs incompatible with EU law. This work argues that the current conflict of jurisdictional problems within investment agreements can be overcome by the creation of an EU investment court. The reliance on this court for the resolution of this conflict, as opposed to private law mechanisms, is important as it is the way forward in handling the conflict of jurisdiction issue at its best. This work argues that an EU investment court will be a panacea to the current problems concerning the conflict of jurisdiction. These problems will be presented through a positivist method where the law is analysed in its current form, highlighting its current weaknesses and resolving these weaknesses by proposing recommendations for such a court through a comparative examination of other international courts that fulfil a similar dispute resolution function, namely the Organisation for the Harmonisation of Business Law in Africa (OHADA) and the Unified Patent Court (UPC) and the World Trade Organisation (WTO). The purpose of this work is manifold. The work will provide an analytical examination of the relationship between EU law and international obligations within intra-EU BITs. It will further explore and assess the viability of a range of alternative solutions to intra EU BITs enforcement within the EU. It will additionally examine the operation of the OHADA, the UPC and the WTO to inform the proposal of an EU investment court. This is important as the outcome of these examinations will support the argument made in this thesis. It will also impact dispute resolution beyond academia by providing a practical solution to alleviate the current challenges with intra-EU BITs. The recommendations thus can inform changes for lex ferenda.

This contribution considers the legislative regulation of the job security (which boils down to preservation of employment) of employees in case of financial distress of a company. It juxtaposes the legislative regulation of four interrelated processes a company may engage in where it finds itself in financial distress, namely a voluntary internal restructuring (especially retrenchment), the transfer of the business or part of the business, business rescue and winding up. The legislative endeavour to preserve the job security of employees in all these processes is described and analysed. The discussion shows that room exists for companies to circumvent this protection and, to the extent that the protection does apply, that it remains difficult for employees to ultimately challenge the substance of decisions negatively affecting their job security. The main protection for employees in all these processes is procedural in nature and to be found in their rights to be informed of and consulted prior to decisions negatively affecting them. In this regard, business rescue is the most employee-friendly process. Participation in this process by employees, however, requires a fine balance as it may be self-defeating and lead to winding up and the permanent loss of jobs.

No abstract available.

It is no secret that there has been an increase in international trade in recent decades. Natural and juristic persons have taken it upon themselves to trade both domestically and internationally. As international trade increases so too do the conclusion of international commercial contracts. When individuals enter into an international contract, one particularly important issue, and one that should be foremost in the minds of the contracting parties, is which legal system will govern their agreement? Therefore, a significant factor to any international commercial contract is whether the parties have the freedom to choose the law applicable to their agreement and to choose the court that will adjudicate upon their contractual disputes, and if so, to what extent may the parties exercise their freedom of choice?... <br>LL.M. (International Commercial Law)

Circular labour migration is steadily gaining prominence the world over, primarily due to the benefits it offers to the migrants, to the sending country, and to the receiving country – the so-called "triple-win" benefits. In order to enhance the benefits of circular labour migration, both the International Labour Organisation and the International Organisation for Migration recommend that adequate instruments of governance should be utilised. From the outset, this thesis recognises bilateral labour arrangements as the ideal instruments for enhancing the potential benefits that circular labour migration offers to the stakeholders involved in the process. As far as could be established, there has been no comprehensive research that seeks to provide insights on how the selected countries in the Southern Africa Development Community (South Africa, Lesotho and Zimbabwe) could optimise the benefits of circular labour migration for all stakeholders, primarily through the use of bilateral labour arrangements. The need for these insights in Southern Africa is pertinent due to the absence of a contemporary and clear framework regulating circular labour migration in the region. Based on the foregoing, this thesis advances the proposition that the guidelines provided by international law and standards of labour migration, and the best practices in Spain and New Zealand, can provide significant insights on how South Africa, Lesotho and Zimbabwe can enhance the regulation of circular labour migration to provide optimised benefits for all stakeholders. Proceeding from the above premise, this thesis makes a number of findings. These include the affirmation that bilateral labour arrangements are indeed the key regulatory instruments for promoting the triple-win benefits that circular labour migration offers; that circular labour migration, if managed well, plays an instrumental role in development in both the sending countries and the receiving countries; and that three key areas should be addressed in bilateral labour arrangements in order to effectively promote triple-win benefits. The three key areas that need to be addressed in bilateral labour arrangements in order to enhance the benefits for all stakeholders are linking migration with development, migration governance, and the protection of the rights of migrant workers. This thesis outlines the various principles that are necessary to give effect to these three key areas. This thesis finds that, based on the guidelines provided by international law and standards, it is essential that bilateral labour arrangements, at the minimum, incorporate provisions that facilitate skills training, the return and reintegration of migrants, the transfer of remittances, and the promotion of human resources development. In this regard, this study finds that the bilateral labour arrangements between South Africa and its neighbours, Lesotho and Zimbabwe, fall short of the guidelines provided by international law and standards on labour migration and by the best practices in New Zealand and Spain. The original contribution of this study lies in it being the first study to comprehensively explore the legal measures that South Africa, Lesotho and Zimbabwe could utilise to optimise the regulation of circular labour migration to South Africa as the main receiving country in SADC. This study makes recommendations on how the labour migration legal framework between the three countries can be improved, based on lessons learned from international law and standards on labour migration and best practices from selected countries.

Responsible investment (RI) is the investment strategy that incorporates environmental, social and governance (ESG) factors into the investment decision-making process (Hebb, Hawley, Hoepner, Neher, & Wood, 2015). RI has shifted from what was considered a niche market to become one of the fastest-growing areas of finance in many parts of the world (PRI, 2019b). However, a closer look at the development of RI and adoption rates in countries and regions reveals that RI is not commonly practised in sub-Sahara Africa (except for South Africa). This study explores the critical challenges for RI development in the retirement benefits sector of Kenya and, by engaging with a variety of key stakeholders, proposes how to overcome the identified challenges. It contributes to the literature on challenges for RI in a developing country by offering an in-depth case study of the retirement benefits sector.My study employs qualitative methods to collect and analyse data collected from semi-structured interviews with 22 participants (asset managers, regulators and capital market experts, and a council member of the Association of Retirement Benefits Schemes of Kenya) as well as a collection of published documents by government agencies in Kenya. Also, I analysed 10 annual reports to assess the kind of ESG information that is disclosed by listed companies. My study explores, in particular, how actors in the retirement benefits sector conceptualise RI. It identifies the leading ESG factors in Kenya and draws on the business-case approach to RI to explore whether the participants consider those factors as material risk factors that present both risks and opportunities to the investment decision-making process. Further, my study identifies the specific barriers for RI development and proposes how to overcome them. The findings show that participants define RI using several terminologies. This is consistent with the existing literature. My study finds that all participants consider corporate governance as a material risk factor that can impact the financial returns of a portfolio. However, most of the asset managers do not think that the environmental and social factors can present material risk factors to their investment decision-making process. Although over a third of the asset managers recognise that the environmental and social issues in Kenya present business opportunities to retirement benefits schemes, there is a shortage of well-structured assets in those areas. Further, this study identifies five specific barriers for RI development: diversification challenges; a lack of ESG data; a lack of demand/incentives; short-termism; and the demand for high financial returns and a lack of awareness and expert knowledge of RI practices. My study recommends that the National Treasury of Kenya develops RI policy for the entire finance sector. In addition, the findings support a recommendation for the Capital Markets Authority and the Retirement Benefits Authority to embark on capacity building programmes to educate the actors in the finance sector on RI strategies and to create awareness of the impact of ESG on financial returns in the long run.

This thesis identifies the circumstances under which corporate governance regulation can help gain traction to minimise systemic risk. Systemic risk is the risk that local losses spread through the financial system and badly affect the financial system and the real economy. Excessive risk-taking by financial institutions can contribute to such systemic risk. Prudential regulation and supervision of financial institutions leave corporate decision-makers with room for discretion to increase or decrease systemic risk. The incentives of these decision-makers are not necessarily aligned with minimising systemic risk. The thesis shows that this problem exists across different business models. More specifically, it identifies perverse incentives in the case of systemically important banks, CCPs, mutual funds, and hedge funds. The need for corporate governance regulation therefore lies in the inherent incompleteness of prudential regulation and supervision. Corporate governance regulation can help fill this gap by regulating the environment within which choices are made within these types of institutions. The analysis has three steps. First, it characterises the systemic importance of financial-sector activities carried on outside the context of ‘banks’. The governance literature so far has focused on the ‘systemic externalities’ created by banks. However, our analysis shows that other non-bank SIFIs generate similar systemic externalities with socially harmful consequences. These systemic externalities are not considered by SIFIs when taking business decisions. In a second step, the thesis shows that prudential regulation and supervision are incomplete and leave room for governance regulation to fill in the gaps. The final step shows that a corporate governance framework focused solely on the interests of shareholders will have negative consequences for systemic stability. Given such divergence between the decision-makers’ and society’s interests, corporate governance regulation can complement the traditional prudential framework.

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.

It has been over a decade since the Companies Act 71 of 2008 introduced business rescue proceedings which provided for the rescue of financially distressed companies. This procedure replaced the then statutory procedure of judicial management under Companies Act 61 of 1973. The business rescue proceedings begin with the general moratorium or stay on legal proceedings against the company or its property. This has a consequence that any claims against the company may only be enforced with the consent of the business rescue practitioner or the leave of the court. However, the courts continue to grapple with the interpretation, effect, and application of the key elements of business rescue provisions while always striving to accord respect to the legislative intention of business rescue as set out in section 7(k) of the Companies Act 71 of 2008. After a decade since its introduction, it is an opportune time to ascertain whether the business rescue proceedings is an effective corporate rescue procedure suitable to the modern-day demands of the South African economy. The research analyses the effect and the consequences of the moratorium on the rights of property owners. The moratorium has the effect that companies are given temporary immunity to actions brought by creditors which would have been due and enforceable. In this regard, the property leased by the property owner remains occupied by the company during business rescue proceedings as the property owner is barred by the moratorium to institute legal proceedings against the company. Further, when the repossession of the property is not possible and the rental due or installment is not payable by the company, the business rescue proceedings encroaches on the right of the property owners. The purpose of the research is to highlight the effect of the moratorium on the lease agreement between the company and property owners and the possible protection of the property owners’ rights. The study includes a critical analysis of judicial decisions on the moratorium, together with a discussion of the legal position in comparable foreign jurisdictions. In my conclusion, based on the findings, the business rescue is not free from imperfection. Therefore, I recommended that the legislature amend some parts of Chapter 6 of the Companies Act 71 of 2008.

The main rationale of prudential bank regulation and supervision of banks has traditionally been to ensure the safety and soundness of banks and protection of depositors. However, best practice standards in bank supervision acknowledge that it is impossible to completely prevent bank failures. Therefore, it is crucial to have regulatory measures in place to deal with banks that fail. Banks are core players in the financial system as the intermediaries between savers and users of capital. In addition, banks provide critical services to consumers, small and medium-sized businesses, large corporate entities and governments who rely on them to conduct their daily business, both at domestic and international level. Banks also fulfil a sui generis role that sets them apart from other financial institutions that are role players in the financial system because, inter alia, they hold “highly” liquid liabilities in the form of deposits that are repayable on demand; they extend long-term loans that may be difficult to sell or borrow against on short notice; they are the back-up source of liquidity to all other institutions (financial and non-financial); and, are also the transmission belt for monetary policy. Unlike other players in the financial system, banks are vulnerable to loss of public confidence and to liquidity risk. Liquidity risk being the risk that a bank will not have sufficient cash to meet short term obligations and the fact that a "run on the bank" by depositors can result in devastating liquidity drainage. Because banks play a special role in the economy and their failure may have a significant impact on financial stability, they need a special approach when they become insolvent or are likely to become insolvent. The 2008 Global Financial Crisis (“GFC”) demonstrated the importance of special resolution regimes for banks; and the need to balance the interests of shareholders, creditors and depositors, while promoting financial stability objectives. Given the critical role of banks in the economy the need is clear for a special resolution regime for banks that provides a legal framework for regulators that avails to them a suite of resolution tools which they can apply to resolve the bank in an orderly manner; to rescue those parts of the bank that may still be viable and to liquidate those parts that are not whilst avoiding a drain on public funds. In order to deal with bank failures in Zimbabwe, the Banking Act [Chapter 24:20] has provided for the mechanism of curatorship since 2000, as a rescue measure aimed at restoring failing banks to economic viability. Curatorship has over the years been applied with mixed success; consequently, Zimbabwe has undertaken a number of reforms which include the enactment of the Troubled Financial Institutions (Resolution) Act in 2005; and the introduction of the problem bank regime via the Banking Amendment Act of 2015. Throughout these reforms, Zimbabwe has elected to retain curatorship, which was once a standalone process in banking legislation to enable bank rescue; and assimilated it into a broader bank resolution framework. This study seeks to determine whether Zimbabwe’s resolution regime requires to be strengthened and if so, to recommend reforms that will align the resolution regime in Zimbabwe with international best practice. For such purpose it will draw upon the Financial Stability Board’s Key Attributes of Effective Resolution Regime as international best practice benchmark. It will further also consider guidance yielded by a comparative study of the resolution regimes in the United Kingdom and South Africa.