Bibliographie sélective OHADA

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.

No abstract provided.

Although extreme poverty has decreased in the last decades, we are a long way from eradicating global poverty. Similarly, the world has seen a considerable decrease in global inequality due to recent developments in emerging economies, but overall inequality between nations has risen in the last decades. International tax law may have a relevant role in improving or worsening global inequality. Extensive research has shown that the present international tax system was designed in a way that tends to benefit high-income economies. However, there has been no significant discussion about whether and how international tax law rules should be changed to address global inequality. The main goal of this thesis is to analyze the existing legitimacy and distributive justice issues that limit the ability of lower-income countries to raise tax revenues and consider what can be done to make the current international tax regime more aligned with global justice principles.The thesis builds on the contemporary literature in international political economy and global distributive justice and puts forth a normative framework for allocating the international tax base among states. First, it analyzes some of the legitimacy deficits of the present international tax system. In contrast to prevailing views about improving legitimacy, it demonstrates the shortcomings of focusing solely on making international tax policymaking processes more inclusive and argues for a greater focus on global distributive justice. It then analyzes the main tax theories that have defined international tax relations to date and demonstrates some of their limitations. The final part of the thesis puts forth normative principles that integrate distributive justice and considers the practical implications of the proposed normative framework for some of the most recent issues discussed in international tax policy

The OPA. Notions of takeover bids. Recognising and distinguishing the various forms of control within a company. Type of takeover bid. Subsequent defence techniques. The US control market and details of M&A and tender offers. Bids and acquisitions in China. Comparative European case studies. Shaldeholders' agreements. Regulatory sources and definition of covenants. Concerted action. Takeover obligations arising from concerted action. Cases. The Fondiaria-Sai case. Unipol-BNL. Other case of exemption.

The Uniform Act related cooperative societies (UA-COOP) is the main source of cooperative law in all the seventeen States parties to the OHADA founding Treaty. Ten years after its entry into force (2011-2021), the aim of this study is to assess the level of enforcement of this Act. More concretely, the aim is to compare the state of cooperative law at the time of the entry into force of the UA-COOP (2011) with the current situation (in 2021). Such a comparison should make it possible to assess the contribution of the UA-COOP to the development of cooperative law and strengthening of national cooperative movements in the OHADA zone.

In recent years, investment arbitration tribunals are increasingly confronted with allegations of corruption, mostly invoked by host States as a defense to investors’ claims. After an affirmative finding of an alleged corrupt act between the investor and a public official of the host State in the establishment or conduct of the investment, tribunals have adopted a binary approach to the issue – if they uphold allegations of corruption, they completely dismiss the investor’s submissions. This binary approach has resulted in an asymmetry of liability for the two parties to a corrupt act (i.e., investors and host States/host State officials), failing to take into account the inherent bilateralism of corruption and the fact that domestic laws and international norms have outlawed both the act of offering and of accepting bribes. In particular, public officials’ free participation in a corrupt act to advance investments is attributable to the host State and requires State responsibility under international law. Moreover, the increasingly prevalent practice of inserting anti-corruption provisions in investment treaties has reinforced this lop-sided feature, as well as offering only weak effectiveness in terms of deterring corruption. After a careful examination of the treatment of corruption issues in investment arbitration and investment treaties, this thesis proposes a paradigm shift from the current asymmetric approach to a more balanced approach. It calls on investment tribunals to take a dual-track approach that investigates both corruption and investors’ claims, and ensures that each party assumes responsibility for its own misconduct. It also proposes that treaty drafters include anti-corruption provisions that impose strong obligations of anti-corruption on both sides of corruption (i.e., investors and host States) rather than merely on a single party to it

The reform of the Investor-State Dispute Settlement (ISDS) mechanism has provoked much debate among legal scholars and practitioners. The critiques of ISDS mainly arise from concerns regarding the legitimacy of the mechanism such as the perceived tolerance for the lack of impartiality and consistency. To allay these concerns, there have been proposals to reform ISDS by establishing investment courts with tenured judges and appellate tribunals. However, international adjudication systems like ISDS cannot be fully analogized to domestic courts in common law countries: ISDS falls into a broader international regime where there are neither hierarchical/centralized decision-making and enforcement authorities nor a multilateral investment treaty, and the rules and principles on foreign investment protection are fragmented in around three thousand Bilateral Investment Treaties (BITs). Against this backdrop, this thesis argues that, although there is a general agreement among the international community to further legalize international investment law, the process of legalization via the specific avenue of reforming the adjudication mechanism (i.e. ISDS) is subject to (1) the institutional constraint of international investment law, especially the lack of shared understanding among the international community regarding the treatment of foreign investments, and (2) the internal constraints of adjudication as a mode of social ordering. It further cautions that pursuing predictability while disregarding the low level of shared understandings regarding investment protection may cause more legitimacy problems than it solves

Sovereign rights in Exclusive economic zones and Continental shelves are functionally limited to the economic exploitation of these zones. Moreover, in the case of disputed maritime zones these sovereign rights are neither exclusive nor necessarily constant. Nevertheless, states are still expected to provide the investments established in these zones the same treatment they should provide in their territories where they exercise full and constant sovereignty. If a host state agrees to the establishment of an investment in a maritime zone that become later contested, do the occurrence of the contestation and the hazards arising from such contestation relief the host state from its contractual and treaty obligations toward the investment by virtue of the force majeure concept. This paper argues that a traditional interpretation of the force majeure concept in respect of investment agreements and contracts, hampers states ability to de-escalate their maritime disputes, diminishes its capacity to conclude delimitation agreements and reduces the promotion of the UNCLOS III as well as its mechanisms for disputes settlement. It proposes a contextualist interpretation of the force majeure concept that is adapted to the exploitation of disputed maritime zones and states obligations under the international law of the sea. First, it examines the concept of force majeure as a doc-trinal hypothesis and its applications in international contracts and international in-vestment agreements. Second, it analyzes the legal act of maritime contestation as a force majeure event according to the possible interpretations of the concept of “force majeure”. Finally, it examines the recurrent legal implications susceptible of arising out of a contestation; provisional orders and unfavorable delimitation and their qualifica-tion as a force majeure event in the realm of investment agreements and contract.

In the Australian case of Bywater Investments Ltd v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation (the Bywater case) the Australian High Court dealt with the question of whether certain companies were resident in Australia for income tax purposes. The majority answered this question by applying Australian domestic law. In a separate but concurring judgement, Gordon J also discussed the interpretation and application of the relevant double taxation treaty. This contribution analyses Gordon J's judgment to extract guidance from it for the South African courts on their interpretation of double taxation treaties. It is submitted that South African courts should also follow the "first step" proposed by Gordon J when interpreting double taxation treaties. South African courts may find Gordon J's judgment "instructive" when dealing with the interpretation of the "place of effective management" concept in both domestic law and double taxation treaties. In his judgment Gordon J favours the goal of common interpretation and it is argued that South African courts should follow this example and explicitly support this notion in applicable cases. From Gordon J's judgment and the judgement in Krok v Commissioner, South African Revenue Service, it is deduced that the positions in South Africa and Australia are similar in that the courts in both countries will be bound by the principles of Articles 31 and 32 of the Vienna Convention on the Law of Treaties when interpreting double taxation treaties. Moreover, Gordon J's judgment indicates that the domestic principles of interpretation should not be used in the interpretation of double taxation treaties. Recent South African cases have suggested that there are no differences between the South African domestic principles of interpretation and those contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. This contribution submits that there are many similarities between the two, but that the rules are not exactly the same. South African courts should be aware of these differences and rather apply the rules of public international law, including those contained in the Vienna Convention on the Law of Treaties, when they interpret double taxation treaties. Gordon J specifically identifies the category of the Vienna Convention on the Law of Treaties in which he places the Commentary on the OECD Model Tax Convention, to rely on it for his interpretation of the relevant double taxation treaty. South African courts may well learn from this approach, to create more certainty in the process of interpreting a double taxation treaty.

This thesis consists of two separate, but related studies on the development of accounting in Africa in the era of International Financial Reporting Standards. The first part of this thesis presents the first empirical test of a hypothetical classification of financial reporting in Africa based on de facto or actual practices as opposed to de jure rules. Three multivariate techniques (principal component analysis, cluster analysis, and multidimensional scaling) were used to analyse the accounting policies of large, listed companies in Africa that are required by law to adopt IFRS. It was found that there is a dichotomy between the IFRS policy choices of companies in Francophone and Lusophone countries, on the one hand, and those in common law jurisdictions, on the other, thus confirming the two-group classification schemes proposed by Elad (2015) and Nobes (1983). The results of this study extend previous research by demonstrating that international differences in financial reporting in Africa have survived in the era of IFRS and that pre-IFRS regulations enshrined in national and regional charts of account appear to have influenced IFRS policy choice. Furthermore, companies in common law countries tend to provide more extensive disclosures in their IFRS financial statements than their counterparts in code law countries. These findings have important policy implications, particularly in the context of recent recommendations of the World Bank, the International Monetary Fund, and the Pan-African Federation of Accountants that large entities in Africa adopt IFRS. The systematic differences in the choice of IFRS options between companies in civil law and common law jurisdictions suggest that it would be difficult to achieve internationalcomparability and consistency in financial reporting. The second part of the study uses semi structured telephone interviews to undertake interpretive accounting research (Baker and Bettner, 1997, p.293) to assess the perception of accounting professionals in relation to IFRS adoption and its use in Ghana. It concludes that despite the problems associated with its adoption and implementation, overall, International Financial Reporting Standards are viewed as necessary for the financial reporting needs of the country.