Bibliographie sélective OHADA

This thesis examines securities market development in sub-Saharan Africa, focusing on securities law, securities law enforcement and securities markets integration. Adopting a primarily comparative methodology, the thesis examines the continued relevance of securities markets in sub-Saharan Africa; the way selected countries in the region regulate their markets and enforce compliance with securities law; and the potential of market integration to promote market development. This thesis advances 4 main claims. First, empirical evidence supports the link between liquid securities markets and economic growth, independent of the level of banking development. In this sense, securities markets can act as good complements to banks in providing capital to the real economy. Second, at the minimum, there is an arguable preliminary case that rules of securities regulation can hinder market development in select countries in sub-Saharan Africa, by imposing high compliance costs and eligibility requirements, without commensurate benefits in greater liquidity or reduced cost of capital. Third, enforcement of securities regulation in sub-Saharan Africa is generally weak. Whilst public regulators often have formal powers, budgets and staff; actual enforcement activity is sometimes limited by inadequate market monitoring and reliance on criminal as opposed to administrative sanctions. Poor public enforcement, in turn, reinforces poor private enforcement, leading to reduced market participation, illiquidity, and ultimately market underdevelopment. Fourth, although increased market integration can go a long way in facilitating market development in the region, integration cannot be a short/medium term solution to market underdevelopment in sub-Saharan Africa, given the significant economic, political and socio-cultural barriers to integration initiatives in the region. Ultimately, to develop their securities markets, policymakers in sub-Saharan Africa must focus their attention on making and credibly enforcing market-friendly rules of securities regulation. The thesis explores some ways this may be realistically accomplished.

A constitutional analysis of a differentiated tax treatment of residents and non-residents in respect of income deriving from immovable property in South Africa', Daniel Baines explores whether South African resident taxpayers' constitutional rights to equality and property are infringed by current laws which tax residents at higher rates than non-residents on rental income and proceeds from the disposal of fixed property. He aptly sets out what the right to equality and property entails and how these relate to taxpayers. He finds that the higher effective tax rates paid by residents violates their constitutional right to equality. The thesis provides valuable insight into a resident's right to equality and property in terms of current tax rates and illustrates how current tax rates are unconstitutional. The recommendations brought forward contribute toward the discussion of how tax rates should be altered in order to ensure that residents' constitutional rights are no longer violated.

No abstract provided.

The European-inspired bilingualism and bi-legal system in Cameroon lead to an irregular profile and may be interesting for the European Union (EU) in its quest for preservation of intercultural processes through translation. The Organization for the Harmonization of Business Law in Africa (OHADA) of which Cameroon is part is only affiliated to Civil Law. However, the two legal systems employed in Cameroon (where both Civil Law and Common Law are used) are based on a balance in what concerns the conceptual, epistemic and stylistic representation. Intercultural dysfunction is the consequence of the lack of methodology in legal translation. Collaboration between legal translators and practitioners is key to adopt an agreed-upon model in multilingualism.

The arbitration of internal trust disputes has attracted significant attention in the arbitration and trust law communities in recent years with draft clauses and rules produced by arbitral institutions, several states undertaking legislative reform in order to provide such arbitrations with a statutory basis and numerous scholars as well as practitioners writing articles on the subject. Such enthusiasm is justified on the basis that arbitration has several advantages over litigation, such as confidentiality, international enforceability of judgments, the ability to choose one’s judge and the power to tailor the procedure. Notwithstanding these advantages, trust arbitration has failed to make any great inroad into trust disputes due to the many novel and complex points of legal practice and theory which it entails. For example, although arbitration does not typically involve minors or legally incapable parties’ trusts do, and thus trust arbitration raises numerous due process and human rights concerns. Similarly, court supervision and enforcement of trusts is sometimes considered essential to the very nature of trusts and questions therefore arise concerning the extent to which arbitral tribunals could supplant courts in that regard. Another complication is that trusts are not contracts and questions therefore arise about how to bind individuals to a trust arbitration agreement, particularly as regards beneficiaries who may be unascertained, minor or legally incompetent at the time the trust was created. The aim of this thesis is to analyse and present potential solutions to these complications from an English law perspective, although other common law legal systems will be analysed where relevant

This thesis addresses the problem of individuals’ lack of control over personal data in the digital world. It sheds light on market and regulatory failures that lie behind the status quo and proposes a framework to improve regulatory responses. The two regulatory regimes that are at the core of this thesis are EU data protection regulation, which protects individuals’ fundamental rights over data, and EU competition law, which safeguards the sound functioning of the market and consumers’ economic interests. Despite the existence of these two regulatory regimes, individuals do not have sufficient control over personal data collected by digital firms, whose control over large datasets is a factor contributing to market monopolisation. The thesis argues that one reason for the shortcomings of today’s regulatory framework is that the market failure is composed of a combination of factors, which are currently addressed by the different regimes relatively independently. This dichotomy hinders the development of an effective strategy to tackle the market failure in its entirety. The approach taken in this thesis is that by integrating the two regimes, it might be possible to close the gaps deriving from a narrow perception of their regulatory spaces. Hence, the thesis formulates a holistic approach, encompassing data protection regulation and competition law, designed to increase the effectiveness of the regulatory framework as a whole. Different dimensions of the regimes’ interrelation are analysed, to uncover new ways to harness their complementarity and minimise their inconsistencies and overlaps. The thesis looks at how the regimes can incorporate elements from each other to inform their policies and application of their rules, as well as developing a complementary enforcement strategy. The holistic framework ultimately allows both regimes to better tailor their regulatory responses to the functioning of the digital market and take account of the diverse elements that constitute the market failure they seek to correct.

The rapidly growing bilateral and multilateral economic relationship between Turkey and African countries leads to the necessity of understanding each other's business and financial environment. Therefore, the accounting system as a fundamental tool for organizing and disseminating financial information should be accessible and understood by business actors and other stakeholders in these areas. Furthermore, the lack of study related to this subject has led us to carry out this comparative analysis between the two accounting systems by comparing financial statements prepared under each one and analyzing their main similarities and differences. The main purpose of this study is to highlight major differences and similarities between the SYSCOHADA and the FRS for LMSE. Also, the study is aimed to get a good understanding of both accounting sets and help practitioners and businessmen, and women operating in these places to have a good knowledge of the accounting regulations related to each country. On a topic basis and based on financial statements prepared following the SYSCOHADA rules and restated to be adapted to the FRS for LMSE, all main differences and similarities were thoroughly analyzed. Following the case study and the thematical analysis of different accounting topics, it can be understood that the two accounting sets differ to some extent due to philosophical approach on some topics such as the prudence principle where the SYSCOHADA, contrary to the FRS for LMSE, does not allow the recognition of potential profit resulting from currency translation gains related to receivable and payables until such profit becomes certain. However, these two sets also share some major similarities due to their proximity in some way to the IAS/IFRS. The effect of the main differences between the two sets can be noticed in the restated financial statements. The annual net income following the FRS for LMSE increased compared to the initial annual net income in the SYSCOHADA. Also, total assets and liabilities restated following the FRS for LMSE have decreased compared to the SYSCOHADA financial statements. Türkiye ile Afrika ülkeleri arasında hızla büyüyen ikili ve çok taraflı ekonomik ilişkiler, birbirlerinin iş ve finans ortamını anlama zorunluluğunu doğurmaktadır. Bu nedenle, finansal bilgilerin düzenlenmesi ve yayılması için temel bir araç olarak muhasebe sistemi, bu alanlardaki iş aktörleri ve diğer paydaşlar tarafından erişilebilir ve anlaşılabilir olmalıdır. Ayrıca bu konuyla ilgili çalışma eksikliği, iki muhasebe sistemi arasında bu karşılaştırmalı analizi, her biri altında hazırlanan finansal tabloları karşılaştırarak ve temel benzerlik ve farklılıklarını analiz ederek yapmaya yöneltmiştir. Bu çalışmanın temel amacı, SYSCOHADA ve BOBİ FRS arasındaki önemli farklılıkları ve benzerlikleri vurgulamaktır. Ayrıca, çalışma hem muhasebe standartları iyi anlamak hem de uygulayıcılara ve bu yerlerde faaliyet gösteren iş adamlarına her bir ülkeyle ilgili muhasebe düzenlemeleri hakkında iyi bilgi sahibi olmalarına yardımcı olmayı amaçlamaktadır. Konu bazında ve SYSCOHADA kurallarına göre hazırlanmış ve BOBİ FRS' ye uyarlanmak üzere yeniden düzenlenen mali tablolara dayalı olarak, tüm temel farklılıklar ve benzerlikler kapsamlı bir şekilde analiz edilmiştir. Vaka çalışması ve farklı muhasebe konularının tematik analizi sonucunda, iki muhasebe setinin bir ölçüde felsefi yaklaşım nedeniyle ihtiyat ilkesi gibi bazı konularda farklılık gösterdiğini anlaşılmaktadır. SYSCOHADA, BOBİ FRS'nin aksine alacak ve borçlara ilişkin kur farkı kazançları kaynaklanan potansiyel kârın kesinleşene kadar muhasebeleştirilmesine izin vermemektedir. Bununla birlikte, bu iki muhasebe seti, UFRS/UMS'ye bir şekilde yakın olmaları nedeniyle bazı önemli benzerlikleri de paylaşmaktadırlar. İki sistemin temel farkların etkisi, yeniden düzenlenen mali tablolarda fark edilebilir. BOBİ FRS'yi takiben yıllık net gelir, SYSCOHADA'daki yıllık net gelire kıyasla artmıştır. Ayrıca, BOBİ FRS'yi takiben yeniden düzenlenen toplam varlıklar ve yükümlülükler, SYSCOHADA finansal tablolarına kıyasla azalmıştır.

This study tries to get a clear grasp of the factors that might play positively or negatively in a country’s convergence or adoption of the international financial reporting standards (IFRS). Through a comparative analysis between Turkey and the OHADA countries and based on the existing literature, the transition process towards the IFRS and challenges faced by each one is discussed from a historical perspective to the level of development. As a result, it is understood that the adoption or convergence towards the IFRS can be a challenging and a long-term process requiring multiple adjustments. Also, countries may differ in terms of historical past, level of development, cultural and socio-economic aspects which can all influence their transition. In addition, given the lack of study on the new adoption of the IFRS in the OHADA countries, this paper will contribute to filling the gap in the literature on the transition process. Furthermore, it will help countries which are in their early stage of the transition process to avoid some missteps and learn from others experience to get better prepared for a successful shift towards a fully IFRS compatible accounting system as has done Turkey. Bu çalışma, bir ülkenin uluslararası finansal raporlama standartlarına (IFRS) yakınsaması veya tam olarak benimsemesinde olumlu veya olumsuz rol oynayabilecek faktörleri tespit etmeyi amaçlamaktadır. Türkiye ile OHADA ülkeleri arasında karşılaştırmalı bir analiz yoluyla ve mevcut literatüre dayalı olarak, UFRS'e geçiş süreci ve bu süreçte karşılaşılan zorluklar, tarihsel bir perspektiften tartışılmaktadır. Sonuç olarak, IFRS’in benimsenmesi veya uyumlaştırılmasının zorlu ve birçok ayarlama gerektiren uzun vadeli bir süreç olduğu anlaşılmaktadır. Üstelik bu güçlükler, ülkelerin geçişlerini etkileyebilecek, tarihsel geçmiş, gelişmişlik düzeyi, kültürel ve sosyo-ekonomik yönler açısından farklılık gösterebilir. Buna ek olarak, OHADA ülkelerinde IFRS'in yeni benimsenmesine ilişkin çalışma eksikliği göz önüne alındığında, bu makale geçiş süreciyle ilgili literatürdeki boşluğun doldurulmasına katkıda bulunacaktır. Ayrıca, geçiş sürecinin erken aşamalarında olan ülkelere bazı yanlış adımlardan kaçınmalarına ve diğerlerinin deneyimlerinden öğrenerek, Türkiye'de olduğu gibi tamamen IFRS uyumlu bir muhasebe sistemine başarılı bir geçiş için daha iyi hazırlanmalarına yardımcı olacaktır.

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.

The study sought to examine the Corporate Social (CSR) and management of oil related conflicts in Host Communities of the Southern States. Corporate Social Responsibility is the commitment of businesses to contribute to sustainable economic development by working with employees, the local community and the society at large to improve their lives in ways that are good for business and for development. The study was guided by three research objectives, three research questions and three hypotheses. The design adopted for this study is exploratory and descriptive research design and was conducted in Bayelsa, Delta and Rivers State in Nigeria. The population of this study comprised of 15,245,247 residents in Bayelsa, Delta and Rivers State in Nigeria. The instrument for data collection was a set of structured questionnaire. Data derived from the field were analyzed using the Statistical Package for Social Sciences (SPSS) version 23.0. And statistical tools such as mean and standard deviation were used to respond to the research questions, while inferential statistical tool of independent sample T-test was used to test the hypotheses at 0.05 level of significance. Findings from the study showed that there is a significant difference in the mean ratings of male and female respondents on the level of relationship between IOC’s and hosts Communities in Niger Delta Region, Nigeria ((P=0.738>0.05), df (400) =. -0.49273, p=0.738); there is a significant difference in the mean ratings of male and female respondents on the on CSR programs carried out by IOCs in hosts Communities in Southern Nigeria (P=.117>0.05), df (400) = -401.618, p=.117); further findings showed that there is a significant difference in the mean ratings of male and female respondents on the Factors causing conflict between oil companies and host communities in Southern, Nigeria (P=0.775>0.05), df (400) =382.256 p=0.775). Based on the findings of the study, it was recommended that host communities should be integrated into the planning process, a paradigm shift from planning for to planning with the host Communities, amongst others.

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.