Bibliographie sélective OHADA

This dissertation examines the relationship between banking and society. It contributes to a better understanding of how banking affects society and, in turn on how society shapes banking practices. The first chapter studies the impact of inflation on trust in banks. Chapter two deals with the effect of trust in banks on financial inclusion. The third chapter investigates whether financial inclusion influences life satisfaction. Chapter four delves into how female bank leadership affects firm credit. The final chapter focuses on the influence of bank leaders’ age on sustainable lending. Overall, this dissertation highlights the important role of banks in societal development and the major influence of society in shaping banking practices.

Will the April 2nd Announcement generate its intended objectives? It’s still early days – however, it appears increasingly likely that negotiation outcomes – particularly between those significantly impacted by the Announcement, will be a major determinant in deciding whether the tariff hikes resulting from the April 2nd Announcement, will be short or long term. As of the 11th April, 2025, President Trump’s universal tariffs on China had amounted to 145% whilst China announced tariffs of 125% on U.S imports. Amongst other things, this paper aims to address complexities and challenges faced by regulators in identifying and assessing risk, problems arising from different perceptions of risk, and solutions aimed at countering problems of risk regulation. It will approach these issues through an assessment of explanations put forward to justify the growing importance of risks, well known risk theories such as cultural theory, risk society theory and governmentality theory. In addressing the problems posed as a result of the difficulty in quantifying risks, it will consider a means whereby risks can be quantified reasonably without the consequential effects which result from the dual nature of risk that is, risks emanating from the management of institutional risks.

It may be assumed that all of the United States’ trading partners were impacted by the recent “Liberation Day” announcement – an announcement which constitutes “two distinct tariff actions” – as will be highlighted in this paper. However, despite previous concerns of being targeted by their free trade agreement (FTA) partner, Canada and Mexico – as would have been or should be expected, have been exempted from the tariff imposition. As well as addressing factors which have contributed to the shift from free trade to increasingly and predominantly protectionist stances and most likely, fair trade practices, this paper is aimed at highlighting and explaining the rationales behind the recent historical developments – as well as highlighting those factors that have triggered the build up to the Liberation Day Announcement of the 2nd April 2025. It is remarked that “Trump’s reciprocal tariff doctrine, holds foreign countries accountable”. Against this backdrop of discontent with World Trade Organisation’s dispute resolution mechanisms, which will be further elaborated on, in the paper, the immediate and possible long term impacts of the Announcement, will be considered. As well as exploring the reasons for recent developments – by way of reference to historical developments and data, the paper also considers the underlying frameworks governing the calculations of recent tariff rates and hikes. Whilst there are arguments regarding the validity of such calculations, or whether the current scenario justifies the basis for implementing “national emergency measures”, what can be regarded as an emergency response can be determined through a consideration of underlying and contributory factors. If negotiations, and more specifically, bilateral negotiations, take place as hoped, between those countries impacted by the Liberation Day Announcement, financial stability across global markets is expected to be restored. However, if retaliatory measures follow – with an escalation of trade wars, possible repercussions should be cause for concern. The global trading system is still recovering from the recent crisis which was largely uncontrollable – hence, it is more likely (and hoped) that the recent market turbulence and volatilities will be short term.

Avec de plus en plus de transactions commerciales effectuées par voie électronique, les litiges résultant d'intérêts conflictuels ou de malveillance deviennent inévitables, car Internet est devenu un terreau fertile pour divers abus. Ces abus vont de la rupture de contrat et des actes délictuels aux actes criminels. Il en résulte que l'utilisation d'Internet a donné une dimension différente à ces litiges. Cependant, comme le dit la célèbre maxime Ubi Jus Ubi Remedium, là où il y a un droit, il y a un remède. Le Cameroun, suivant cette tendance, a adopté un cadre juridique qui offre une panoplie de recours disponibles pour les victimes de violations du commerce électronique et d'infractions connexes, dans l'intention de rapprocher la partie lésée le plus possible de la position qu'elle aurait occupée s'il n'y avait pas eu d'abus. Le but de cet article est d'évaluer l'efficacité du cadre actuel pour remédier aux victimes de violations du commerce électronique et d'infractions connexes. L'article examine donc les bases des responsabilités en commerce électronique et les recours disponibles pour les victimes, mettant en évidence les difficultés qui rendent ces recours moins efficaces à cet égard. Plusieurs recommandations ont été proposées par cet article pour améliorer le statu quo. With more and more business being conducted through electronic means, disputes stemming from conflicting interests or malice become inevitable, as the internet has become a breeding ground for diverse abuses. These abuses range from contractual breaches and tortious acts to criminal acts. It follows that the use of the internet has given a different dimension to these disputes. However, as the famous maxim Ubi Jus, Ubi Remedium states, where there is a right, there is a remedy. Cameroon, following this trend, adopted a legal framework that provided a panoply of remedies available to victims of breaches of e-commerce contracts and related offenses to bring the aggrieved party as close as possible to the position he would have been in if there had been no abuse. The purpose of this article is to assess the efficiency of the present framework for remedying victims of e-commerce breaches and related offenses. The article thus examines the basis for liabilities in e-commerce and the remedies available to victims, bringing out the difficulties which render these remedies less efficient for the purpose. Several recommendations have been proffer by this article to improve the status quo.

Financial technology (Fintech) is a rapidly growing industry, both locally and globally. In various ways, Fintech is undeniably transforming financial services and products in every possible part of the financial sector by changing how people access and use financial services. By using innovative technologies, such as distributed ledger technology and cloud technology, and combining large data sets, including alternative data sets, better products can be provided that can be hyper-personalised for market segments and improve access and participation in respect of financial services. Fintech is solving issues that touch the consumer, through a bottom-up approach, considering the retail consumer as a starting point, in contrast to the common traditional finance evolution from the institutional investors to the retail consumer in a top-to-bottom approach. What is exciting about what Fintech can do for Africa, is that it can move inefficiencies in services and product life cycles to become efficiencies and move the frontiers for already efficient products and services. Fintech, therefore, provides an opportunity to improve the archaic and pave the way for the future. This study focuses mainly on crypto assets to limit its scope. It first examines the Fintech landscape in Africa, more specifically, the activity level in each selected comparative country, namely Mauritius, Kenya, Zambia, Namibia and South Africa, and how the activity benefits or can potentially benefit the economy in the host country and lead to the deepening of financial inclusion. It further examines the regulatory frameworks in those countries. The study examines the regulatory approach taken and the local activity, exploring some of the risks identified in each country, and considers the requirements that regulators chose to implement to mitigate these risks, as well as the current state of regulatory frameworks. Consideration is given as to whether similarities in both the risks and the mitigation requirements exist and how this can be aligned across jurisdictions. Recently, international standard-setting bodies have increased their focus on ensuring the alignment and cooperation of regulatory approaches globally. In light of the call for alignment and increased collaboration through policy recommendations and guidance, and or regulators to provide comprehensive and effective regulatory approaches without stifling innovation, this study considers the theoretical possibility of allowing certain Fintech companies, specifically crypto asset service providers (subject to specified conditions) to operate across jurisdictions with a trans-border licence. This study examines Europe’s Markets in Crypto Assets Regulation, as it was the first of its kind continental-wide framework for crypto assets, offering numerous lessons to be learned from this framework. The Commonwealth Model Law on Virtual Assets is also considered, as it is intended to assist member countries in implementing Virtual Asset and Virtual Asset Service Provider regimes in their respective jurisdictions, as they deem appropriate. Lastly, the study will explore what a theoretical trans-border regulatory framework containing prudential and market conduct requirements could look like and what embedded supervision tools, for instance, through forensic nodes or zero-knowledge proofs, could be utilised to ensure that all the regulators participating as part of a licencing panel receive real-time data and have a full view of the level of compliance with the requirements imposed by the joint framework and can proactively and intrusively act, when needed. The proposed trans-border regulatory framework aims to support crypto asset service providers with multi-jurisdictional strategies in Africa in scaling their operations, with a focus on building Africa as a global Fintech hub. The proposed framework aims to achieve this through a harmonised regulatory framework that simplifies compliance, increases efficiencies, enhances innovation, allows for scalability, and better risk management. In addition to the goal of positioning Africa as a globally recognised Fintech hub, the harmonised framework aims to realise the purported benefits of the technologies utilised by crypto asset service providers, thereby deepening financial inclusion and promoting inclusive economic growth through increased access and participation, as well as lower costs.

Corporate law is in a moment of vibrant and contentious discussions about potential reforms. As firms exit Delaware, passive investment predominates, private equity expands, and public markets decline, corporate law faces a growing set of challenges that threaten its stability and efficacy. At the same time, the world faces pressing crises, including climate change, social and economic inequalities, and threats to democracy, though corporate law scholars typically consider these crises to be outside corporate law’s remit. In this Article, we argue that to understand and address the multidimensional crises that face both corporate law and society, we must address shortcomings in corporate law doctrine. We show how modern corporate law, shaped by neoclassical economic theories, provides an incomplete picture of the firm, and we propose an expanded theoretical perspective that draws from organization theory, a field long dedicated to understanding the complexities of the firm. This updated perspective demonstrates how firms actually consist of multiple constituents, including workers, the environment, and shareholders, who invest different forms of capital in the firm: labor capital, natural capital, and financial capital. It further shows that modern corporate law entrenches problematic power imbalances, privileging boards and insider shareholders over workers, the environment, and minority shareholders. Moreover, building on organization theory, we explain how corporate law fundamentally shapes and constrains firm behavior, leading these entrenched power imbalances to generate far-reaching negative consequences. To address these shortcomings, we propose redesigning board representation, fiduciary duties, and executive compensation to empower workers, the environment, and minority shareholders in relation to boards and insider shareholders. Integrating the organizational and economic perspectives can help address problematic power imbalances and ultimately provide a more effective corporate law framework to govern firms and serve society.

The use of artificial intelligence (AI) builds up the accounting system efficiency, increases data entry accuracy and simplifying the accounting process. The aim of the study is to prove the effectiveness of modern AI-based information technologies (IT) in accounting and the possibilities of AI application for process optimization. The effectiveness and efficiency were proven using comparison methods, statistical analysis, graphical cause-and-effect analysis, modelling using the linear regression method. The assessment was carried out using quantitative and qualitative indicators of labour productivity and process optimization. The results of the study showed that 18 accounting department employees on average are needed to perform standard transactions in the companies studied without AI. With AI, 1 person can handle such a volume of work. Accordingly, with the implementation of AI, the average reduction in Transaction Processing Time per Week is 696.26 hours. Regression analysis confirmed that the implementation of AI increases the companies’ productivity in terms of Transaction Processing Time. Reducing the Data Processing Complexity by one unit leads to a reduction in transaction processing time by 592.69 seconds. Each percent increase in Data Entry Accuracy contributes to a reduction in processing time by 5135.51 seconds. The prospects for implementing AI in accounting include further improving algorithms to increase the accuracy and speed of transaction processing, optimizing material and time consumed.  

The present article explores the implication of fairness as a regulatory and competition law concept applied to digital and Artificial Intelligence markets, in light of recent law and policy developments targeting the interaction between data, market power and competition law. Much of the policy discussions, legislative proposals as well some emerging case law elevate the matter of “fairness” in the context of digital markets and AI, creating both a novel regulatory framework as well as encouraging competition law to curb “unfairness” of said markets and related “unfair practices”. The interface between intellectual property rights and competition law is of utmost importance in this context, where we might find similar analogous insights as we can find regarding the matter of fairness within traditional EU competition law. Further, the question remains whether the “fairness norm” expressed in regulatory acts such Digital Markets Act, EU AI Act and the EU Data Act are akin to the “fairness” norms found in Union competition law, mainly under Article 102 Treaty on the Functioning of the European Union (TFEU).

No abstract available.

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.