Bibliographie sélective OHADA

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OHADA Law plays a crucial role in fostering economic growth and regional integration by harmonizing business regulations in the era of globalization and trade liberalization. This study examines the legal framework surrounding company membership under OHADA Law. While certain individuals such as legally incapacitated persons or those facing legal prohibitions cannot become company members, the law provides alternative solutions. The study explores the distinction between members and shareholders and clarifies the eligibility criteria for company membership. Using an analytical approach, this research finds that any natural or corporate entity, unless restricted by legal incapacity, prohibition, or incompatibility, can be a company member under OHADA Uniform Act. Furthermore, the law offers flexibility for incapacitated individuals by allowing legal representatives to act on their behalf.

ENGLISH ABSTRACT: The Constitution of the Republic of South Africa, 1996 (“Constitution”) enshrines the right to equality, emphasising “the full and equal enjoyment of all rights and freedoms”. This commitment embodies the principle of substantive equality, which extends beyond mere formal equality by addressing systemic inequities and striving for transformative change. The pursuit of transformative equality is underpinned by two constitutionally mandated mechanisms: affirmative action and the prohibition of unfair discrimination, both direct and indirect. Within this framework, the prohibition of unfair discrimination serves a dual purpose: It establishes a foundation for defending formal equality while simultaneously acting as a transformative tool, particularly in safeguarding against indirect discrimination. In a transformative context, the concept of protection against indirect discrimination specifically is significant as it acknowledges that equal treatment can still perpetuate inequality. The concept has the unique ability to identify hidden barriers and protect against more subtle forms of unfair discrimination, rendering it instrumental in advancing substantive equality and promoting long-term, systemic change. Yet, despite its transformative potential, the application of protection against indirect unfair discrimination in South African employment jurisprudence remains underdeveloped. And even in jurisdictions where the concept has received greater attention (for purposes of this study, the United States of America, Canada and the United Kingdom), it has not significantly advanced substantive workplace transformation. The reasons for this limited success are partly shared across these jurisdictions and partly unique to South Africa. Given the above, the primary objectives of this study are threefold: (i) to explore the protection against indirect discrimination in advancing transformative equality within the South African constitutional framework; (ii) to investigate the reasons for the limited development and application of this concept in South African employment law; and (iii) to assess whether the prohibition of indirect discrimination should be upheld as a distinct legal concept in employment law. These objectives were anchored by the fundamental question guiding the study: what role does the concept stand to play in employment law in SA in future and, if any, to what extent and in what form? The study begins by examining the broader concept of equality – a notion that is both complex and continually evolving. Key questions that are addressed include: What does equality mean? What are the objectives inherent to equality? What values underpin the concept? Following this exploration, the focus shifts to the role of equality within the South African Constitution, specifically the content of the right to equality as provided for in section 9 of the Constitution. This includes an overview of the constitutionally mandated mechanisms for enforcing equality, namely affirmative action and the prohibition of unfair discrimination, with particular attention to protection against indirect forms of unfair discrimination. The study thereafter narrows its focus to the application of the latter concept within South African employment law. It highlights the challenges that have hindered the effective development of the concept, which can be broadly categorised as conceptual and practical obstacles. The South African experience is compared to the development and application of the concept in the United States, Canada, and the United Kingdom, offering a comparative perspective on the concept’s evolution in the aforesaid jurisdictions. The study concludes by presenting suggestions and recommendations on the future role of indirect discrimination within South African anti-discrimination employment law. It also recommends strategies for more effective implementation of the concept.

Tackling corruption is a global issue and tackling it effectively requires determination, cooperation and specialised technological knowledge. A significant proportion of global GDP is the sum of the money associated with corruption and fraud. The main objective of this article is to assess how new technologies such as cryptocurrencies and blockchain can combat corruption. The methodology of this article is a literature review. Specifically, scientific articles from databases and international organizations with expertise in new technologies are studied. This article deals with the new ways of corruption and money laundering. New technologies and the knowledge of them are a very important element in order to deal effectively with corruption. Perpetrators of financial crimes are usually ahead of the auditing authorities in terms of techniques and therefore knowledge of the new technology and the possibilities it offers is essential to effectively combat corruption and fraud globally. Cryptocurrencies and blockchain can combat corruption primarily due to their key characteristics of transparency, security, and decentralization. A key prerequisite for the transparency of cryptocurrencies is the application of supervision rules by the responsible authorities and the implementation of blockchain technology. In practice this is often not the case and cryptocurrencies are used as a money laundering tool.

ENGLISH ABSTRACT: This study provides exploratory insight into the social justice mandate of the Commission for Conciliation Mediation and Arbitration (“CCMA”) in the context of labour relations in South Africa. As a vehicle for the advancement of social justice through the efficient resolution of labour disputes, the CCMA is a compelling actor in the pursuit of social justice in South Africa’s labour environment. Social justice as a legislative and policy imperative requires an investment in understanding its conceptual ideals and demands in order to empower those acting in its pursuit with the knowledge they need to fulfil its demands. The CCMA’s most critical functionary, its commissioner, holds the key to unlocking labour justice for many members of the public. One wonders, given the criticality of advancing social justice in labour relations, whether social justice is appropriately understood in order to enable the kind of decision-making that efficiently and consistently addresses the workings of power and inequality as they manifest in employment relationships. This study’s main provocation is to transform the pursuit of social justice (in the South African labour context, at least) from an elusive endeavour to a more tangible, realistic one. It attempts to offer a way of thinking about and applying social justice in the practice of labour dispute resolution in South Africa and the CCMA context. It critically explores the interwoven mechanisms of power, prejudice, and injustice and how these mechanisms work to sustain unequal labour relations. The commissioner’s role is thus a critical one, that involves a deliberate pursuit to recognise, understand and interrupt these movements of power and mitigate the effect of inequality. Any movement towards social justice that does not pay close attention to this matrix of power and prejudice threatens to dilute the transformative potency of social justice. This study identifies and discusses the decisions of commissioners that fall short of the kind of conscientious decision-making required by a mandate of social justice. Discussions in this study also point out significant achievements in centralising social justice principles in decision-making processes at the CCMA, where arbitrators, in reducing injustice and advancing justice in labour relations, show a conscientious consideration and appreciation of historical contexts, power, privilege and disadvantage. Living up to the constitutional imperative to transform society in the way of equality, commissioners ought to develop their agency and be empowered by the Constitution of the Republic of South Africa, 1996, to disrupt inequality. This study contributes to the understanding and clarification of social justice and its implications for the South African labour environment. It also posits ubuntu as an important consideration in the balancing exercise required to achieve justice.

The freedom of the parties to choose the applicable law to the merits is often presented as an important benefit of arbitrating disputes involving intellectual property (IP). Yet, the reality is more uncertain and controversial than is commonly assumed. Is party autonomy really permitted in IP arbitration? Should it be? This article answers these questions with regard to patents, trademarks, and copyrights, using recent examples drawn from arbitral practice. It first examines the situation where the parties only made a choice of contract law, and considers in this regard whether that law can and/or should be extended to infringement claims and/or the remedies to infringement, either directly or through the technique of characterization. After discussing the impact of overriding mandatory rules in contractual IP cases, the article then examines the situation where the parties chose a law to govern IP questions, including by way of a broad choice-of-law agreement covering non-contractual problems. It seeks to provide as much guidance as possible to arbitral tribunals, using mainly the distinction among infringement, ownership, and validity issues, and by distinguishing among different scenarios in which party autonomy is more or less acceptable.

Abstract The rise of remote work, accelerated by the COVID-19 pandemic, has created significant challenges for employees, employers, and the government, complicating the management of remote teams while striving to maintain productivity and organizational cohesion. The central problem addressed in this study is the deteriorating state of employment relations marked by downsizing and layoffs, particularly in the private sector in Nigeria. This study aims to analyze the impact of remote work on these stakeholders through a systematic and thematic review based on PRISMA guidelines. Twenty four publications from 2013 to 2023 were reviewed, sourced from Google Scholar, DOAJ, Scopus, and Web of Science. The findings indicate that while organizations are beginning to adopt tools for remote work and virtual communication, these resources are primarily accessible to larger companies due to associated costs. Additionally, the study highlights the pressing need for enhanced infrastructure and structural improvements to support remote work at a societal and economic level. In conclusion, the study recommends that the government enhance infrastructural development and that organizations implement better strategies for remote work. Furthermore, individuals should pursue advancements in technology to adapt to the changing landscape. These recommendations aim to promote sustainable employment relations and economic development in Nigeria in light of the evolving digital economy.

This study investigates the effects of dynamic capabilities (DCs) and multichannel integration quality (MCIQ) on the performance of banks (BP). It also explores the moderating role of environmental dynamism in the banking industry, using a moderated mediation model. Quantitative analyses were employed to examine data collected from multiple banks. Structural equation modeling (SEM) was used to test the relationships between variables, while moderation and mediation effects were analyzed using SEM-AMOS. The findings reveal that dynamic capabilities and MCIQ significantly enhance bank performance. Furthermore, environmental dynamism (ED) moderates the relationship between these variables, intensifying their effects on performance under high levels of dynamism. The mediation analysis shows that MCIQ partially mediates the impact of dynamic capabilities on bank performance. The study is limited by its cross-sectional design, which restricts causal inferences. Additionally, the findings may not be generalizable to non-banking industries or regions with distinct regulatory frameworks. The results provide actionable insights for bank managers, emphasizing the importance of fostering DCs and enhancing MCIQ to sustain performance in rapidly changing environments. The findings highlight significant social benefits, as improved dynamic capabilities (DCs) and critical information quality (MCIQ) enhance bank performance, fostering economic stability, financial inclusion, and customer trust. By enabling resilience and innovation in dynamic environments, banks contribute to broader societal goals, including sustainable development and socio-economic growth. This research contributes to the literature by integrating DCs and MCIQ in a moderated mediation framework, offering a novel perspective on their interplay with environmental dynamism in the banking sector.

Whistleblower protection is necessary to reduce mismanagement in private and public organisations worldwide. The protection of whistleblowers is a complex and particularly challenging task that it is up to national authorities. The research methodology is the literature review. In this context, reputable scientific journals, reports from international organisations and websites dealing with the research field of whistleblowers are studied. The main conclusions are that there is an institutional framework for the functioning and protection of whistleblowers, but best practices are not fully implemented. Furthermore, the effectiveness of the use of whistleblowers is extremely high in detecting fraud and high public risks compared to other audit techniques. For this reason, the protection and framework of the whistleblower process is increasingly being legislated for by more and more countries as their importance is recognised. Finally, monitoring the use of whistleblowers and applying best practices and criteria for their effectiveness will make their use more effective.

PURPOSE : Financial institutions such as Bureaux de Change are susceptible to money laundering, posing a significant risk to a nation’s financial stability and security if not properly regulated and supervised. Botswana is a member of the Financial Action Task Force (FATF), a global organisation that sets standards, promotes policies to prevent money laundering, terrorist financing and arms proliferation, all to safeguard the global financial system. Efforts have been made to incorporate FATF recommendations on money laundering into the fiscal laws of Botswana. However, some deficiencies still remain. Although there are no recorded cases of money laundering in Botswana, Bureaux de Change entities are susceptible to it as their business involves cash transactions and rapid money transactions. This paper aims to analyse the challenges faced by Bureaux de Change entities in combating money laundering in Botswana. This will be done by assessing the effectiveness of the current regulatory framework and role of the regulatory authorities in combating money laundering within Bureaux de Change entities. DESIGN/METHODOLOGY/APPROACH : This paper provides a comprehensive examination of the obstacles faced by Bureaux de Change entities in Botswana when it comes to combating money laundering. A qualitative research method and doctrinal research method are both used in this context. FINDINGS : It is hoped that policymakers and other relevant persons will adopt the recommendations provided in the paper to enhance the curbing of money laundering in Botswana. RESEARCH LIMITATIONS/IMPLICATIONS : This paper is only limited to the regulation of money laundering within the Bureaux de Change entities in Botswana and does not provide empirical research. PRACTICAL IMPLICATIONS : This paper is useful to policymakers, lawyers, law students and regulatory bodies especially in Botswana. SOCIAL IMPLICATIONS : This paper suggests changes to the Bank of Botswana (Bureaux de Change) Regulations of 2004 to improve their effectiveness, robustness and competitiveness in combating money laundering. ORIGINALITY/VALUE : This paper is original research on the challenges of combating money laundering within Bureaux de Change entities in Botswana.

As technology continues to advance, more trade is moving online. The increase in digital trade brings with it both opportunities and challenges in the international trade field. The increase in digital trade could for instance result in a spike in digital trade imports which may subsequently cause or threaten to cause serious injury to domestic industries and platforms dealing in like or directly substitutable digital data/content and services. This would necessitate the application of safeguard measures to avert any such serious injury or threat to serious injury caused to the domestic industries and platforms. The procedure for applying safeguard measures to digital trade currently is unclear. The current legal framework on safeguard measures does not apply to digital trade despite increased digital trade over the years. Thus, this study explores the prospects and practical challenges relating to safeguard measures’ application to digital trade with a specific focus on African domestic industries and platforms. While domestic industries and platforms in any part of the world could be affected by surges in digital trade imports, Africa is in a precarious position. Intra-Africa digital trade volumes could be increased and disadvantages of African domestic industries and platforms by surges in digital trade imports could be prevented through regulation and judicious use of safeguard measures. This study established the need to regulate to tap into the potential of digital trade and prevent African industries and platforms from falling behind and from the disadvantage of market dominance by big techs from outside Africa. In conclusion, the study noted legal and institutional gaps in the application of safeguard measures to digital trade. The study has recommended that specific institutions at the global, continental and national levels take necessary actions to build a clear and robust framework for safeguard measures in digital trade.

In this Article, I analyze the expanding common law doctrine of shareholder ratification, whereby shareholder approval can, for all practical purposes, absolve directors of fiduciary liability for their conflicted business decisions. Delaware law now allows a shareholder vote to perform substantially more work than ever before. Under prevailing doctrine, in transactions between a company and any party other than a controlling shareholder, shareholder ratification reinstates the business judgment rule and makes it irrebuttable, other than for waste. Substantive judicial review is effectively avoided for such transactions. Despite its extraordinary importance in corporate governance, the shareholder ratification doctrine’s foundations are feeble and its limits uncertain. Theoretically, there is no well-established basis for equating shareholder approval with either the informed, disinterested, and good-faith decision of a board or judicial review. Doctrinally, shareholder ratification’s expansion beyond its traditional context of self-dealing has been a judicial innovation, rather than an elaboration of precedent. And historically, the shareholder ratification doctrine, which originated in early 20th-century state interesteddirector statutes, was motivated by fairness principles that were lost in translation into the common law. This Article recovers the fairness genealogy of the shareholder ratification doctrine and, in doing so, provides useful guidance for the doctrine’s development, limits, and future application.

This paper analyzes the effect of Basel III adapted to WAEMU on the behavior of banks in the zone (intermediation and market activities). After having developed a model for optimizing the return on bank equity, under various constraints (balance sheet constraints, Basel III regulatory constraints), we resort to linear programming via the Danzig simplex algorithm and to a structure of reasonable rates to obtain the optimal values of the various bank balance sheet items. The results, obtained by comparing these theoretical values with the values observed before Basel III (before January 1, 2018), show an increase in the supply of loans, obtained not only from deposits and bank refinancing but also via resources from the financial markets. We can also observe the intuitive result of an increase of bank reserves in line with the constraint that Basel III imposes on banks to increase their liquidity. In short, Basel III tends to strengthen bank financing in the zone, while improving the soundness of banks through the constitution of larger reserves.

The liability of land transport operators in Cameroon is guaranteed by a good number of laws including; the constitution of Cameroon, the penal code, the 2001 law governing the Profession of Road Transport Operators, the 2023 law governing the rail sector in Cameroon and more. Such liability can be under the Tort of negligence, vicarious liability, or strict liability as provided for under section 289(1) of the Cameroonian penal code on Unintentional killing. However, the laxity of the courts in handling accident-related disputes, the contradictory and vague nature of the laws on the liability regime and even the lenient nature of the sanctions provided for by these laws do not meet up with the rate of accidents today in Cameroon. This article therefore has as its objective to examine the effectiveness of the legal frameworks in the establishment of liability of land transport operators in cases of accidents in Cameroon. Arguably, the author holds that the legal frameworks establishing the liability of land transport operators in cases of an accident in Cameroon are ineffective. A doctrinal research method has been adopted where both primary and secondary sources of information have been consulted. Our finding reveals that; the ineffectiveness of legal frameworks in the establishment of the liability of land transport operators in cases of accidents is a result of the laxity of the courts in implementing the laws and, the vague and contradictor nature of the law. We, therefore, recommend that; separate court hearings should be set for accident-related disputes and judges trained only on that, the laws should be revised, the sanctions in cases of accidents should be increased and all mitigating circumstances in cases of accidents should not be taken into consideration like a first-time offender, the plea of guilt etc.

AI is well known today as a valuable tool that can improve our daily lives. In addition, it can improve the efficiency and productivity of many professions, such as the internal auditor. The research methodology is literature review. The primary objectives of the article are twofold: Firstly, to provide a comprehensive description of the institutional framework for the operation of AI internationally, and secondly, to examine the benefits that arise from the use of AI in internal audit units and organisations in general. The significance of the research lies in its examination of artificial intelligence (AI) as a valuable instrument in the arsenal of internal auditors. The findings suggest that AI has the potential to enhance the efficacy of internal audits, reduce the time required for their execution, reduce the frequency of internal audits, and, in general, optimise the operations of companies and organisations.

This thesis critically analyses Uganda’s bilateral investment treaty (BIT) system to determine its compatibility with sustainable development imperatives and proposes a new model BIT that aligns with Uganda’s evolving development priorities. Recognising the country’s reliance on foreign direct investment (FDI) for economic growth, this study interrogates the extent to which Uganda’s current BITs—many of which were concluded during earlier policymaking eras—expose the country to legal, economic, and regulatory risks. These include susceptibility to investor–state dispute settlement (ISDS) claims, constraints on the host state’s right to regulate, and a lack of provisions promoting environmental, social, and developmental objectives. Through doctrinal and comparative legal analysis, the study traces the historical evolution of international investment law (IIL), critiques the limitations of Uganda’s domestic and treaty-based FDI frameworks, and identifies substantive and structural weaknesses in Uganda’s in-force and model BITs. The analysis also considers international reform efforts and best practices from new-generation investment agreements, including the AfCFTA Protocol on Investment, the Investment Facilitation for Development (IFD) Agreement, and the SADC and EAC Model BITs. Particular attention is paid to the South African BIT reform experience as a comparator for Uganda’s reform journey. The study finds that Uganda’s BIT system is outdated, overly protective of investors, and poorly aligned with its sustainable development goals (SDGs). It recommends terminating unratified and problematic BITs, renegotiating existing ones, and adopting a new model BIT that balances investor protection with Uganda’s regulatory autonomy and sustainable development objectives. To this end, a draft model BIT is proposed as an annex to guide future treaty negotiations and reform Uganda’s investment regime in line with contemporary global standards and regional aspirations.

This study interrogates the intersection of climate justice and litigation in the South African context. It addresses the urgent need for legal methods to address the disproportionate impact of climate change on marginalised communities. As climate change has become one of the greatest global challenges, marginalised communities most keenly feel its impacts, particularly those historically disadvantaged by socioeconomic inequalities rooted in apartheid. What follows is a critical examination of the most important international climate frameworks, in particular the United Nations Framework Convention on Climate Change (hereinafter UNFCCC) and the Paris Agreement, which have shaped the global discourse on climate change. The increasing recognition of the rights of historically marginalised and vulnerable communities underscores the potential role of climate litigation in achieving climate justice for all by holding both government and corporations accountable for their actions and lack thereof in mitigating climate change. The study examines the South African legal framework and recognises its progressive constitution that guarantees environmental rights. On the other hand, the study highlights significant barriers to effective climate action, particularly for the country’s most vulnerable, poor and marginalised populations, who often lack access to legal resources and skills needed for climate action. Using decided climate cases such as Earthlife Africa v. Minister of Environment, the study highlights the problems that plaintiffs often face when it comes to proving causation and the need for expert evidence in such litigation. Finally, the study concludes that while climate litigation offer opportunities for climate justice, the challenges identified need to be addressed to ensure the effectiveness of climate processes in achieving climate justice. The study therefore makes recommendations for strengthening legal aid, promoting public climate litigation and improving community capacity. By implementing these recommendations, climate justice will be achieved so that South Africa can effectively utilise climate litigation to demand climate justice for both current and future generations.

This article examines corporate governance in Africa and its significance for corporate repurposing. It relies on the framework of the Organisation for the Harmonisation of Business Law in Africa (OHADA), which unites seventeen African states under one corporate law jurisdiction while exploring how the interpretation and practice of this legal system can be integrated with or influenced by national sectoral laws and cultural norms. The workings of these different legal sources denote the case for heterodox pluralism of corporate purpose, whereby corporate membership is not tethered to shareholding only, but the workforce and neighbouring too and corporate legitimacy is not merely a function of legal arrangements but equally derives from broader society. The governance of corporations in Africa must correspond to such imperatives to ensure that the prevailing shareholder primacy norm does not continue its unencumbered de facto reign and reduce African stakeholderism to comparative impotence and mere scholarly exercise.

The Financial Action Task Force (FATF) is a watchdog established to counter the abuse of the financial system by criminals for money laundering, the financing acts of terrorists and proliferation financing. For the FATF to achieve its mandate, it came up with a set of global standards in the form of Recommendations. The Recommendations seek to mitigate the risks of money laundering and terrorist financing and to assess whether FATF member countries are taking effective action to combat money laundering and terrorist financing. South Africa is a member of the FATF and therefore, is obliged to comply with the standards set to combat money laundering and terrorist financing and proliferation. The FATF uses assessments done through peer mutual evaluations. In other words, FATF members assess one another’s anti-money laundering and counter-terrorism financing (AML/CTF) regulatory frameworks for compliance with FATF’s standards. Following the FATF's assessment in the years 2003, 2009 and 2018, South Africa’s AML/CTF regulatory framework was found to be weak leading to greylisting in 2023. The greylisting of South Africa follows the findings of strategic deficiencies in the country’s implementation of the FATF AML/CFT standards. Greylisting by the FATF carries various economic and reputational implications for South Africa such as increased scrutiny from international partners resulting in increased compliance costs for financial institutions, an estimated reduction in South Africa’s gross domestic product (GDP) and a decrease in foreign direct investment (FDI). Since the greylisting, South Africa has embarked on a legislative and regulatory journey to address the shortcomings with a view to be taken off the greylist. This dissertation provides a detailed analysis of the FATF standards, evaluates South Africa's legislative and institutional responses in the form of the Prevention of Organised Crime Act 121 of 1998, Financial Intelligence Centre Act 38 of 2001 and the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004, and assess their effectiveness in addressing the identified deficiencies. Recommendations are suggested to assist in fortifying South Africa’s AML/CTF regulatory framework.