Bibliographie sélective OHADA

This chapter deals with the principle of direct effect as applied in European Union law and explores its suitability in the enforcement of African Union (AU) legal instruments, notably those setting up the African Continental Free Trade Area (AfCFTA). What motivates the issue of direct effect is the noted reticence of African countries to litigate trade matters between themselves despite the existence of provisions of regional trade treaties creating courts of justice which give standing to Member States. Therefore, it surveys the avenues through which natural and legal persons can uphold their rights stemming from AfCFTA treaties thus contributing to treaty interpretation and increasing security and predictability. Currently, the AfCFTA Dispute Settlement Protocol, modelled after the WTO, does not allow such a possibility, contrary to rights acquired by natural and legal persons before some African Regional Economic Communities (RECs) courts. Nevertheless, this chapter finds that carving out access of natural and legal persons to AfCFTA proceedings may not always work as intended since there are other ways to bypass these obstacles. These loopholes could be the gateway through which direct effect will develop and become a principle of AU law broadly speaking. These gaps further complement this chapter’s suggestions to explore amending the AfCFTA legal instruments, even though its dispute settlement system is yet to be tested, in order to match the standing that natural and legal persons have acquired under the RECs, which, in fine, are building blocs towards achieving the AfCFTA and, eventually, the African Economic Community.

In the more recent decades, international investment law (“iil”) and arbitration have been going through a process of recalibration prompted by both the intensification of cross-border capital flows and the States’ growing concerns over the potential restraints iil may impose upon the pursuit of public interests. The present contribution will pay attention to a specific feature that can be observed within these developments, i.e. the role played by soft law in investment arbitration and, more generally, under iil, also with a view to assessing the impact on the formation of binding international law of instruments formally devoid of normative force within the international legal order. After an introduction (Section 1), the contribution is articulated into four sections. Section 2 will first define the field of investigation. The case law of investment tribunals and the treaty practice under the more recent iia s will be then explored as to the reliance on soft law instruments for the purposes of settling procedural (Section 3) and substantive issues (Section 4). Some final remarks will close (Section 5).

Recently, commercial activities in the state of Cameroon are evolving and there is an inflow of investors from within the OHADA Zone and other regions of the world to Cameroon. This has led to the proliferation of commercial contracts such as concession contracts, production sharing agreements, risk contracts between the Republic of Cameroon and foreign investors, or contracts between individuals of foreign countries as well as with Cameroonian nationals. Commonly, contracts may be breached and disagreements surface among the contracting parties. The difficulties pose is in the manner to settle such disagreements in a friendly manner to maintain the relationship between the parties and to enables the contracting parties to resolve the disputes more cost-effectively and increase business efficiency in Cameroon. However, the state of Cameroon has a favorable attitude towards bilateral and multilateral investment treaties to guarantee protection to investors in the territory. This elucidates the reason why the government of Cameroon has enacted laws and ratified regional and international treaties, aimed at safeguarding a smooth atmosphere for investors and other commercial traders particularly in the domain of arbitration to help in resolving disputes in case of any disagreement among contracting parties. This article will present the authorities involved in arbitration with the experience regarding the application of the various law and institutions concerned with the arbitration. This will also help contracting parties or investors to understand the legal mechanisms in the settlement of disputes through arbitration in Cameroon.

This thesis addresses two aspects of financial constraints focusing, firstly, on the impact of financial constraints on firm performance and, secondly, on the impact of dual-class share structure on financial constraints. The first issue has been addressed in a large number of research studies, but the results are mixed. This study, therefore, conducts a meta-analysis of those earlier studies to provide a summary view of the results which, in contrast to narrative reviews of the empirical literature, provides an objective overview. The second issue examines the impact of dual-class share structures on financial constraints. The period of the global financial crisis is used to test the impact of the state of the economy on that relationship. To examine the impact of financial constraints on firm performance, 26 empirical studies with 189 effect sizes representing listed firms have been analysed. The study finds that overall there is a positive relationship between financial constraints and firm performance. The study also shows that the set of market-based measures of firm performance has a significant negative impact on the relationship, compared with the set of accounting-based measures. In terms of the financial constraints measure, the set of external financial constraints measures have a positive and highly significant impact on the relationship. The meta-regression analysis suggests that the choice of measure, regional difference, journal quality and publication status all have a significant impact on the relationship, and explain the variation in the association. To examine the impact of dual-class share structures on financial constraints the study analyses a sample of non-financial US firms over the period 2002-2018. Share structure is measured by the existence of a dual-class structure and also by excess voting rights and the proximity of the superior class shareholders in such structures. The study also shows that if financial constraints are measured by the WW index, irrespective of how dual-class share structure is measured, it increases the level of financial constraints. Similar results are obtained where financial constraints are measured by the KZ and SA indexes, except where dual-class share structure is measured by the proximity of superior class shareholders. The study also finds that if financial constraints are measured by the WW index, dual-class had a reduced impact during the period of the global financial crisis, thus, providing support for the propping theory. However, if financial constraint is measured by the SA index, dual-class share structure appears to have an increased impact during the GFC years. Among the additional tests, the HM index has been used as a measure of financial constraints, and the findings show that the impact of dual-class structures on financial constraints appears to be driven by their effect on debt constraints. The study also shows that firm age moderates the impact of dual-class share structures if financial constraints are measured by the WW index. The KZ, WW, and SA indexes are based on firm characteristics and, therefore, the study also tests for an impact of dual-class structures when financial constraint is measured by a text-based index, the BLM index. However, the results do not provide evidence of an impact in that case.

The mediation process is the parties' will to the dispute to reach an amicable, non-binding settlement to end their dispute. The Egyptian legislature adopted the idea of issuing a draft law on mediation in civil and commercial matters to settle disputes between the parties, whether before the litigation stage or after appearing before the courts. The Egyptian Ministry of Justice held many community dialogue sessions to find the final version of the draft law. However, the concerned authorities have not issued the law until writing this paper. This research aims to compare and analyze the Egyptian mediation procedures and the British mediation procedures to improve, develop, and enhance the Egyptian ones especially the draft law as well as overcoming the obstacles that hinder the spread of mediation. On the one hand, presenting the Egyptian procedures in the draft mediation law and the rules of the Cairo Regional Center for International Commercial Arbitration, CRCICA. On the other hand, the British procedures represented in the Institute of Civil Engineers' mediation rules, ICE.

This collection explores the relevance of global trade law for data, big data and cross-border data flows. Contributing authors from different disciplines including law, economics and political science analyze developments at the World Trade Organization and in preferential trade venues by asking what future-oriented models for data governance are available and viable in the area of trade law and policy. The collection paints the broad picture of the interaction between digital technologies and trade regulation as well as provides in-depth analyses of critical to the data-driven economy issues, such as privacy and AI, and different countries' perspectives. This title is also available as Open Access on Cambridge Core.

The nexus between climate-related risks and financial risk. From nuclear to climate apocalypse. The turning point: Paris agreement and UN 2030 agenda for sustainable development. The VUCA world. The European Union as pioneer of ESG revolution. Climate-related risks in the banking sector. The EBA framework of ESG risk for financial institutions. The principles for responsible banking. Environmental-related risk assessment. The mispricing of the environmental-related risks. The environmental-related disclosure as a risk mitigation tool. How do UniCredit assess, monitor and mitigate climaterelated risks. UniCredit’s financial risk management framework. Comparison with KPMG benchmark.

The UNCITRAL Model Law on International Commercial Arbitration provides for the extension of the mandate of the arbitral tribunal post issuance of the final award for the issuance of correction, interpretation, additional award, and remittance of the award back to the arbitral tribunal to remove grounds for challenging the award. Using a doctrinal approach, this paper examines the deviations of the national laws of adopting jurisdictions from the Model Law in regards to this extended mandate, and evaluates the improvements and drawbacks in these deviations. Mainly, the findings of this paper are that, of the many deviations, the positive changes are those that provide comfortable and lenient default provisions for the benefit of inexperienced parties, and since correction, interpretation, additional award, and remittance are useful provisions that are designed to help self-rectify the arbitral process, without adversely delaying it, then the changes that increase the efficacy of these provisions are welcomed. On the other hand, unnecessary deviations are seen as drawbacks that hinder the harmonization of national arbitration laws aimed at by the Model Law. The adopting jurisdictions shall be limited to those acknowledged as such by the UNCITRAL.

This thesis examines the value relevance of accounting information under integrated reporting (IR) in a comparative mandatory and voluntary setting. A meta review is conducted of all published work focusing on integrated reporting since 2011, which provides detailed insight into the gaps in the IR literature. Multiplicative log-linear model is used in measurement, which is a novel technique that mitigates the shortcomings of traditional value relevance models. The findings show that value relevance of summary accounting information increases after the implementation of IR in the mandatory setting. In the voluntary setting, market effect and the existing reporting paradigm effect the value relevance of accounting information under IR. If the market is large and existing reporting requirements are robust voluntary adoption of IR has minimal to no effect. However, in smaller markets with less rigorous reporting environment, adoption of IR does result in increased value relevance of accounting information. Compared to traditional models, the multiplicative model provides estimates that are more stable over time and shows better explanatory power. Overall, the findings of this thesis show that capital providers value the information content of IR under specific circumstances. This thesis contributes to the IR and value relevance literature by providing the first comparative cross-country evidence of the effect of IR in the change in value relevance of reported accounting information. It provides policy relevant input to the standard setters of IR by demonstrating the effect of IR in the decision usefulness of summary accounting information. The thesis further provides robust evidence of the efficacy of using the multiplicative log-linear model in measuring value relevance instead of the traditional linear additive models.

The States, international organizations and interest groups are increasingly concerned with treaty claims of foreign investors, who sometimes seek compensation for the States' legitimate regulatory measures, such as tobacco plain packaging, nuclear energy phase out and environmental regulations. International investment law has yet to develop a comprehensive and predictable framework addressing some of the basis questions related to compensability of legitimate regulatory measures. The thesis carries out a comparative legal analysis to identify the key features of the prohibition of uncompensated expropriation as a general principle of law, and explores the rationale of that principle in political philosophy. Equipped with the results of this analysis, it proceeds to propose an analytical approach addressing practical questions related to the compensatory protection of foreign investments.

This paper analyzes the protection of Foreign Direct Investments in the OHADA area, specifically, its regulation by the Treaty of Organization and Harmonization in Africa of Business Law (OHADA Treaty). It is to restore legal and judicial security within their scope that OHADA member countries have undertaken to harmonize and unify their economic sector legislation to attract foreign investment as a factor in economic development. Several national and international legal instruments are responsible for the protection of foreign direct investment in OHADA countries. Indeed, the volume of foreign direct investment (FDI) to developing countries increased considerably during the 1990s; As Africa is now one of the favorite destinations for Western and even African investors, it is becoming a very profitable continent for investors. However, the issue of regulating or securing foreign investment in African countries is still flawed. The establishment of OHADA, in a way, is in the same direction; if we stick to the purpose of the organization prescribed in paragraph 5 of the preamble to the OHADA Treaty, which states that the purpose of the OHADA law is to "promote the growth of economic activity and encourage investment." Unfortunately, this objective remains only an announcement of the preamble to the Treaty, because of the definition of business law given by Article 2 of that treaty. However, the list of subjects is not exhaustive, investment remains absent. Thus, foreign investment is not regulated by the OHADA Treaty, so even investment-related activities are held by other subjects (corporate law, commercial law, and security law). The omission of FDI in the scope of the OHADA Treaty leads us to raise the question of its regulation.This work proposes a reflection that the OHADA Treaty should be modernized through reform including investment and many other issues to deal effectively with the issue of foreign investment given the ineffectiveness of national and sub-regional instruments in this area.

The trend for multinational companies has been a preference to forum shop rather than to open insolvency proceedings in developing countries. The US and the UK are prime venues for such bankruptcy tourism enabled by long-arm jurisdiction through extraneous connection. At the same time, there has been a pattern in developing countries of insolvency law reforms which have been circumvented when multinational companies forum shop. Using doctrinal and comparative methodologies, this thesis examines how forum shopping and long-arm jurisdiction to the US and UK affect the efforts of developing countries to reform their insolvency laws and their possible effects on local stakeholders of multinational companies in developing countries. Additionally, the thesis proposes a longer-term strategy of dealing with forum shopping and long-arm jurisdiction by using the concept of centre of main interests ('COMI') as the basis for opening main insolvency proceedings. To ensure that the proposed insolvency procedural legal law is implemented uniformly, the thesis proposes the creation of a supranational court from which national courts, insolvency practitioners and multinational companies can request clarifications on the provisions of the proposed insolvency procedural legal framework. The thesis identified that developing countries require effective insolvency laws and institutions and highlighted key principles that should be included in the reforms. The hope is that developing countries can improve their insolvency laws and institutions to a global standard. Once the proposed insolvency procedural legal framework is implemented, multinational companies will be encouraged to utilise them once jurisdiction is identified through the COMI test rather than forum shopping.

Dans un contexte marqué par le développement durable, le législateur OHADA n’a eu de cesse d’être accablé de toutes parts pour son statisme vis-à-vis de la montée des problématiques sociétales. Au lendemain des reformes du système comptable OHADA, les problématiques sociétales ont une fois de plus raté le rendez-vous de la normalisation. Toutefois, de nombreuses entreprises continuent à publier leurs informations sociétales parallèlement à leur communication financière. A cet effet, le problème que soulève cet article est celui de la compréhension des modes de production et de diffusion des informations extra-financières en l’absence d’une réglementation en la matière. Une étude empirique de nature descriptive est menée auprès d’un échantillon de 120 entreprises diffusant leurs informations sociétales au sein de l’espace OHADA. Il en ressort que le site internet et l’implication dans le développement de la communauté locale sont apparue respectivement comme support et thème de diffusion les plus utilisés dans l’espace OHADA en matière de reporting sociétal sous la pression de certaines parties prenantes notamment les associations consuméristes, les départements ministériels en charge de l’environnement, du travail et de la sécurité sociale. In a context marked by a widespread awareness of the needs of sustainable development, the OHADA legislator has been constantly burdened on all sides for its statism to the rise of societal problems. However, After the reform of the OHADA system, sustainability problems once more did not met up with the appointment of normalization. However, several enterprises continue to publish their societal information in parallel with their financial communication. As such, the problem raised by this article is that of understanding the mode of production and disclosure of non-financial information in the absence of a regulatory framework. A descriptive empirical analysis is carried out with a sample of 120 enterprises which propagate their societal information in the OHADA zone. It reveals that internet websites and implication in the development of the local community are respectively the medium and theme of the most used disclosures in the OHADA zone with regards to sustainability reporting under the pressure of some stakeholders especially consumer associations, ministerial departments in charge of the environment labor and social security.

This researcher examined the effect of corporate governance (CG) and corporate social responsibility (CSR) on banking performance in the Central African Economic and Monetary Community (CEMAC) region. The data was obtained from the Worldwide Governance and the World Bank sovereign database from 2003 to 2018. This study employs the z-score to proxy the CSR factors such as labor force participation rate, population density, and renewable energy. The results reveal that the fixed effects model is superior to the pooled ordinary least square (OLS) and the random-effects model. The findings show that CSR has a significantly positive relationship, while CG has a positive but insignificant relation with banking performance in the CEMAC region. It suggests an ineffective implementation of CG strategies in the entire CEMAC region.

Businessmen have a choice in the resolution of disputes, they may elect litigation or submit to arbitration. Delays, outrageous cost and undue technicalities associated with courts, makes commercial arbitration the preferred mode of settlement in the business world. However, the recalcitrance of an award-debtor to comply with the terms of the award necessitates the intervention of the courts. Nigeria has provisions for enforcement of foreign arbitral awards within her legal system. However, reliance on courts for enforcing foreign awards frequently frustrates the gains initially made by arbitration. Enforcement of arbitral awards via the courts has numerous legal challenges. This study is therefore aimed at analysing the challenges facing enforcement of foreign awards in Nigeria. The objectives of the study were to: (i) analyse the impact of extant legal regimes on the recognition and enforcement of foreign awards in Nigeria; (ii) examine the effects of the concepts of arbitrability and public policy exceptions on the enforcement of awards in Nigeria; (iii) examine the challenges inherent in judicial review on the enforcement of foreign awards in Nigeria; and (iv) examine the adequacy of the Arbitration and Conciliation Act 1988 (ACA 1988) in the recognition and enforcement of Islamic commercial arbitral awards. The study employed doctrinal methodology of legal research where primary and secondary of legal materials were subjected to descriptive and content analysis. The primary sources used were legislations, regulations, treaties, conventions and case laws, while secondary sources used were texts books, journals, internet materials, conferences and seminars papers. The findings of the study were that: i. the provisions of the laws regulating enforcement of foreign arbitral awards in Nigeria, particularly, Sections 51 and 54 of ACA 1988 have inherent and procedural defects, thus preventing the smooth enforcement of the award; ii. the narrow interpretation by the Nigerian courts on ‘arbitrability’ based on Sections 54 and 57 of ACA 1988 which restricts disputes to contractual and commercial disputes only, prevents the enforcement of foreign awards from jurisdictions with liberal interpretation. iii. the amorphous nature of the scope of public policy creates a challenge for the courts in Nigeria in determining whether a foreign award violates the country’s public policy or not; iv. the powers of the courts to set aside foreign awards based on grounds contained in Sections 29, 30 and 48 ACA 1988 are open-ended and allow the courts to examine the merit of the disputes rather than limit themselves to the validity of the award for enforcement; v. the provisions of ACA 1988 on enforcement of foreign arbitral awards do not consider the idiosyncrasies of awards from Islamic law jurisdictions, despite growing investors’ interests in Islamic commercial transactions. The study concluded that it is obvious that the various legal challenges identified showed that the existing legal frameworks on enforcement of foreign arbitral award in Nigeria are weak and ineffective. The study therefore recommended that the Nigerian arbitral laws in particular, the provisions on enforcement of arbitral awards under ACA 1988 should be amended.

The Alternative Dispute Resolution (ADR) provides a non-litigation settlement mechanism for the parties of logistics activities. The advantages of ADR are highlighted in logistics dispute resolution due to the characteristics of logistics dispute and the difficulties faced in the litigation procedure. In the dispute resolution process, ADR means a simple, cost-efficient, and convenient method for the parties involved to settle disputes quickly, flexibly, and friendly. With its legitimacy and rationality, ADR should be the preferred choice for the parties involved in logistics dispute resolution.

The problem statement of this thesis is ascertaining the legal nature of debt securities in furtherance of a consistent and coherent legal description of the South African positive law as it relates to this class of instruments. It focuses on four core issues: the legal history, legal nature, classification, and current legal issues relating to debt securities. Historical and analytic-systemic approaches to the problem statement make up Part 1 of the study. The historical approach shows an emergent commoditisation of debt, which is an important phenomenon in the analysis of securities law. It further shows a great deal of English influence in the development of the South African legal environment, most notably in terms of company law (as the primary driver of securities law) and the financial marketplace, its institutions and its regulation. Also highlighted is a notable scarcity of debt securities relative to equities, which materially impacted legislative developments. Finally, it points to an increase in the legal importance of the “securities” concept as a legal term to describe and govern debt and equity securities. Thereafter the analytic-systemic approach is used to identify a set of private law-rooted first principles applicable to South African registered securities, and herefore to debt securities as well. It posits that these securities should be understood conceptually as comprised two interdependent but functionally separate legal objects, rather than in terms of two different kinds of ownership (i.e. beneficial and registered). The first object is the "security instrument”, a locus for (holdership of) the incidents that flow from the entitlement of determination (beskikkingsbevoegdheid) over the underlying complex of rights and competencies of registered securities. These can be understood as incidents of execution. The second is the "security asset”, a locus for (holdership of) the incidents that flow from the entitlement of enjoyment (genotsbevoegdheid) over that underlying complex, and corresponds with the proprietary, patrimonial dimension of securities. These can be understood as incidents of enjoyment. This construction enables a more coherent understanding of the sui generis relationship of agency between beneficial owner and her nominee, as well as of the dynamics of ownership and quasi-possessio. These insights are then applied to the uncertificated environment, addressing a number of difficult and uncertain problems within the system that enables uncertificated securities and their holdership. Finally the particularly difficult issue of how to classify (and therefore identify) debt securities is dealt with. Here it is concluded that a typological approach is the only viable methodology to deal with this problem, and a number of necessary and thereafter possible classificatory indicia are outlined for this purpose. The functional-policy approach makes up Part 2 of the study. It is a policy-aware application of the theoretical framework developed to a select number of themes and legal issues of the current environment. Principally it shows that the reconceptualisation of registered securities has explanatory and problem-solving value, specifically relating to transfer, the granting of limited real interests, good faith acquisition, and the protection of holdership of certificated and uncertificated securities.

In an era of economic distress, some organizations have found refuge and growth potential in cooperation. Mediation, a highly recommended cooperative concept, has been enabled in certain countries but not all. Some applications lacked local cultural support making it, despite government efforts, a failure to launch. In this article, we investigate attempts to launch mediation in the Cairo Business Community (CBC). This study enabled us to revisit how Egyptian culture was prototyped by Hofstede and to question its representativeness. Hofstede has consistently described Egyptian culture as being highly cooperative / collectivist but our observations indicate that this culture is now more of an individualistic / competitive type, due to the tremendous economic difficulties that Egyptian society is going through. These difficulties and their impact on culture are at the heart of the explanation of the failure to launch mediation in the CBC.