Bibliographie sélective OHADA

India's economic progress and relations with other developing regions have received much attention, particularly the way in which Indo-African relations have evolved since 2000. This paper aims to put Indian FDI in Africa into perspective and provide some answers on the nature and possible impact of these flows to the continent. The study utilized the International typology offered by Dunning OLI paradigm to identify the important of Location Specific Advantages and how these advantages leads to selection of location for investment purposes by investors The study findings demonstrated that potential market growth, market opportunities and consumer base are the important indicated Indian firms targets Africa to seek new and unexplored markets of Africa. Competitiveness climate is important determinant along with economies of scale, investment incentives and availability of natural resources.

As much as the Organisation for the Harmonisation of Business Law in Africa (OHADA) aims to improve the legal environment for business, the harmonisation process should be seen as a tool of economic integration with several advantages. Despite the achievements and benefits, OHADA, like other regional integration efforts in Africa, has some temporary drawbacks that may become permanent if no effort is made to overcome them. The primary focus of the paper is to present OHADA‟s background; offer an overview of some of the salient benefits of OHADA‟s institutional and regulatory framework; consider OHADA‟s problem areas; and propose possible solutions to the problems. The value of the paper, therefore, lies in the insight it offers into OHADA, the benefits and problems of its institutional and regulatory framework. It is also important because it is laying the foundation in making the OHADA structure available for all Africans.

Abstract : Please refer to full text to view abstract. <br>LL.M. (Commercial Law)

The question remains whether societal reporting integrates the field of financial reporting. This old debate is repeated to scrutinize the case of African companies with strong cultural roots, which do not publish alternative societal documents to traditional financial reports. Through stakeholder theory (Jones and Wicks, 1999), this study aims to analyze the phenomenon, by describing the process of accounting recordings for social and environmental information (SEI) identified by the ISO 26 000 standard in an oil Company operating within OHADA Jurisdiction. The results indicate the presence of mandatory SEIs in the financial statements, which visibility depends on the pressure exerted by the State and the accounting regulations in force. Voluntary SEIs are not visible.

This article argues that the liability of the carrier is more flexible in OHBLA Transportation Law. It appears from the analysis that the carrier who is under strict or presumed liability may enjoy a large number of exemptions that may be classifiedunder classic and modern defenses on condition to act fairly and honnestly in performing the contract of carriage. The fairness and honnestly are expressed under the good faith principle. The contrary attitude -the performance in bad faith- will be sanctioned by the exclusion from the benefit of the various exemptions. The assessment of this unscrupulous behaviour of the carrier is vested on judges who have to determine in case of claims whether the behaviour constitutes a willful misconduct or a gross negligence. As examiners of the carrier's attitude, judges play a major role in establishing security and justice in contract of carriage. By setting up a flexible liability regime, the OHBLA Uniform Act is seen as a balanced instrument that sets up a compromise between carrier's interests and cargo's interests.

This study was motivated by the quest to find new innovative and practical ways of combating public procurement corruption in developing countries to complement the existing measures. This was achieved by comparing three jurisdictions, Hong Kong-China, Botswana and South Africa. The focus was on how each jurisdiction uses the following four measures to curb public procurement corruption: criminal measures; administrative measures; institutional measures and civil activism measures. It was established that Hong Kong uses what this study has classified as the traditional approach of combating public procurement corruption. The traditional approach is characterised by the use of a separate procurement legal framework and a separate corruption legal framework to curb public procurement corruption. Its strengths are in the strict enforcement of criminal measures that are anchored on a robust legal framework, a clear anti-corruption strategy, an independent anti-corruption agency (institutional measure), effective internal oversight and a strong political will. However, the following weaknesses of the traditional approach were identified: over reliance on criminal measures; excessive dependence on one enforcement institution; it neglects the development of administrative measures and has weak civil activism measures. It was established that Botswana uses what this study has classified as the classical approach of combating public procurement corruption. The classical approach is characterised by a procurement legal framework that incorporates very minimum anti-corruption provisions. The anti-corruption provisions in the procurement legislation are enforced by an external institution (the DCEC in the case of Botswana) which relies heavily on the criminal measures. Its strengths are the following: a strong legal framework which provides for a clear anti-corruption strategy; it has anti-corruption units in each Ministry and it has a dedicated Corruption Court. However, the classical approach has the following weaknesses: the anti-corruption agency is not adequately independent as it under the control of the executive (the President in the case of Botswana); lacks effective internal oversight mechanisms; weak political will; neglects the development of administrative measures and civil activism measures are almost non-existent save for the media. It was established that South Africa uses what this study has classified as the traditional cum silo approach of combating public procurement corruption. The traditional cum approach is characterised by multiple procurement legislation which has certain but minimum anti-corruption provisions and a separate corruption legal framework. Multiple anti-corruption agencies are prone to political interference which renders them ineffective and unfit for purpose. Its strength is in the promotion and protection of civil activism measures (right to access information, right to freedom of speech and legal protection of whistle-blowers). Notable weaknesses of the traditional cum silo approach are: the poor enforcement of criminal measures; there is no lead anti-corruption agency that spearheads and coordinates all cases of public procurement corruption; there is no clear anti-corruption strategy; the administrative measures such as debarment are poorly enforced; it has multiple anti-corruption institutions that lack focus and professionalism which results in political manipulation. The thesis concluded by suggesting a new approach, the contemporary approach to combating public procurement corruption which entails the enactment of a single procurement legislation (model law) the Public Procurement and Combating of Public Procurement Corruption Act (hereafter PPCPPC). The contemporary approach advocates for the regulation of public procurement and the combating of public procurement corruption in one legislation. This legislation (PPCPPC) takes into account, the current demands for public procurement as well as future developments of public procurement. These include but are not limited to self-cleaning, cyber-crime and public procurement corruption as well as the role of foreign convictions for debarment purposes. The envisaged PPCPPC will in addition to regulating public procurement, encompass the best criminal measures, administrative measures, institutional measures and civil activism measures. In addition, the contemporary approach through the PPCPPC proposes two new innovations: the corruption clearance certificate and a mandatory anti-corruption clause in all government contracts.

Abstract : Each member state of the BRICS countries is different about the modalities and limitations of party autonomy in their field of Private International law. The principle of party autonomy allows parties to choose the law applicable to their contract and is meant to respect the choice of contracting parties. Since laws are not absolute, they need to change to the needs of a changing society. This can generate a problem in instances where contracting parties have already chosen a choice of law to govern their contract. The question is then whether the governing law of a contract that was previously chosen by the parties can be changed after that contract has been concluded. The scope of party autonomy extends to permitting parties to modify their chosen law in instances where it is necessary to do so, subject to limitations of a specific legal system and principles of conflict of laws. However, the legal rules of each BRICS countries differ in permitting parties to modify the chosen law. This minor dissertation analyses whether the principle of party autonomy is recognised in each member state of the BRICS countries and whether it extends to allow for modification of choice of law. It further asserts that the BRICS countries could plausibly refer to the rules and recommendations of Article 2(3) of the Hague Principles on Choice of Law in International Commercial Contracts to advance the wide acceptance of modification of choice of law. <br>LL.M. (International Commercial Law)

An employer's insolvency has far-reaching consequences on workers. The consequence of business failures have complelled policy makers to provide for workers protection in the event of their employer's financial demise. The policy makers of the Organisation for the Harmonization of Busniess Law in Africa approach (OHADA) are not left out. This article seeks to examine OHADA's super-priority approach (article 95 of OHADA's Revised Insolvency Act - RIA) on the protection of workers claims with the aim of showing that approach is limited. Article 95 does not prescribe the limit on the amount protected, the time period and the category of workers concerned. This article ecognizes the need to reform article 95 of OHADA's RIA.In so doing, the article describe the position of two international bodies (International Labor Organisation -ILO) and the European Union -EU) on employee entitlements in insolvency as the bases needed to reform article 95 of OHADA's RIA. The value of this article lies in the nisights it offers into the current framework on insolvency and the opportuniy given to address the limitations that invariably arise from article 95 of OHADA's RIA.

This research traces the developments of the directors’ fiduciary duty to act in the best interests of the company and looks at how these developments affect human rights and interests of stakeholders. The main focus of the study is on the human rights impact of this duty. Initially, this duty was only regulated in terms of common law which proved to be problematic. The problem with common law lies within the definition of ‘best interests of the company’, which not only exclude the interests of other stakeholders but also has the potential to bring about violation of human rights, particularly the rights to equality, dignity and fair labour practice. At common law best interests of the company means interests of the company itself and its shareholders. The common law only protects the company and its shareholders, while excluding the rights and interests of stakeholders. The common law duty to in the best interests of the company is not in line with our contemporary law because it ignores human rights. The neglect of human rights by this duty renders it inconsistent with the values contained in the Constitution. Furthermore, the exclusion of stakeholders’ rights by this duty cannot be justified because stakeholders play an important part in safeguarding the stability and continued existence of the companies. The fiduciary duty to act in company’s best interests is now contained in the Companies Act of 2008. Inclusion of this duty in the Act enables our courts to interpret it in a manner that protects human rights and which takes into account interests of other stakeholders. Section 7 (a) of the Act provides that among other goals of the Act is the promotion of compliance with the Bill of Rights when applying the company law. The impact of section 7 is that it imposes an indirect duty on directors to consider the human rights impact of their decisions. Section 158 of the Act enables the courts to “develop common law as it is necessary to improve the realisation and enjoyment of rights established by the Companies Act of 2008.” Given this recognition of the Bill of Rights by the Companies Act, it’s of vital importance that our courts should interpret and apply the duty to act in the best interests of the company in manner that is consistent with the Constitution. Directors are now obliged to pay attention to the human rights impact of their decisions.

The underlying significance of instituting measures for effective corporate governance and rewarding resource management outcomes cannot be relegated. The countries and organizations that deemphasize this practice have mortgaged their potential for long-term growth and corporate sustainability. This paper adopts a critical narrative method to deconstruct the essence of corporate governance and economic resource management ideals. The paper furthers the ongoing conversations on two interrelated business concepts, and provides an apt perspective towards unlocking the essence of corporate governance relative to the Nigeria’s corporate environment. It depicts a corporate paradigm shift that accommodates the dynamics of global best practices taking into account some peculiarities of Nigeria’s corporate climate. The paper also captures relevant theoretical dimensions and pragmatic policy propositions, especially for underperforming socio-economic contexts. In the light of the central theme, specific issues are discussed under the sub-headings of conceptual and theoretical clarifications, corporate governance and resource management in Nigeria, shifting the paradigms, conclusion and recommendations.

Abstract available in pdf.

Modern electronic commerce is chiefly characterised by the use of unattended computers in the negotiation and conclusion of agreements. Commonly referred to as "electronic agents," these computers assist their users to negotiate better and profitable deals in virtual marketplaces. In South Africa, the legal force and effect of automated transactions, i.e. agreements concluded by electronic agents, is addressed in section 20 of the Electronic Communications and Transactions Act 25 of 2002 (hereinafter referred to as the ECT Act). According to section 20 (a) of the ECT Act, a valid and enforceable agreement will be formed where an electronic agent performs an action required by law for agreement formation. The same statute provides further in section 20 (b) that a valid and enforceable agreement will be formed where all the parties to a transaction or either one of them uses an electronic agent. The overall effect of these provisions is that an agreement cannot be denied legal validity and enforceability on the ground that an electronic agent was used, whether by one or both parties, to conclude it. Likewise, an agreement cannot be denied legal validity and enforceability on the ground that no human being took part in its formation. Although the ECT Act provides as a general matter that automated transactions are valid and enforceable in South Africa, that statute does not, however, create new rules for the formation of such agreements. This is made clear in section 3, which provides, amongst others, that the ECT Act should not be interpreted to exclude the application of the common law of contract to electronic transactions. Therefore, as with traditional or non-automated agreements, automated transactions too must satisfy the individual requirements of a valid contract at common law. As a matter of fact, the common law theory of contract formation is predominantly based on the assumption that human volition will always play a pivotal role in the making, acceptance or rejection of offers. For that reason, this research proceeds on a strong hypothesis that common law rules and principles pertaining to the formation of agreements are either insufficient or inadequate to accommodate the validity of agreements concluded by computers without the immediate intervention of their users. Consequently, the aim of this research is to discuss how the rules and principles of the common law of contract can be modified or developed in order to accommodate, within the common law theory of contract formation, the statutory validity of automated transactions in South Africa. The discussion of this research is limited to five legal issues, namely the basis of contractual liability in automated transactions, the analysis of offer and acceptance in automated transactions, the time and place of contract formation in automated transactions, the incorporation of standard terms and conditions in automated transactions, and the treatment of mistakes and errors in automated transactions. These issues are discussed first with reference to South African law, primarily with the purpose of determining the extent to which relevant common law rules and principles provide adequate solutions to specific challenges posed by automated transactions. To the extent that relevant common law rules and principles do not provide adequate solutions to the challenges of automated transactions, recommendations are made in this research for their development or modification. As shall be demonstrated in the course of this work, in relation to some of the abovementioned legal issues, the development or modification of common law rules has been done by the ECT Act. These "statutory developments or modifications of the common law" are also discussed in this work, primarily with the aim of determining the extent to which they provide adequate solutions to specific challenges posed by automated transactions. To the extent that these statutory modifications of the common law do not provide adequate solutions to the challenges of automated transactions, recommendations are made in this work on how the relevant provisions of the ECT Act may be interpreted by courts of law or amended by Parliament in order to strengthen the response of that statute. The abovementioned legal issues are also discussed in this work with reference to US and UK law, primarily with the purpose of determining how the law addresses the challenges of automated transactions in these jurisdictions, and to draw valuable lessons for the development or modification of South African contract law.

This dissertation explores the concepts of non-disclosure and misrepresentation in South African law. The principal focus surrounds the effect non-disclosure as a form of misrepresentation has on the liability of contracting parties. In order to explore this effectively, the study explores the concept of duty of disclosure, and whether such a duty exists in South African law. Instances when a duty to disclose arises are explained, such as positive steps taken to conceal facts, the seller having sole knowledge of the material fact, an omission or misleading language, and a change in circumstances. Similarly to the English law duty of disclosure in relation to information in contracts uberrimae fidei, the similar South African law concept in insurance or agency contracts known as ‘utmost good faith’, is discussed and explored. The study determines whether such a concept should be a mandatory requirement in pre-contractual negotiations. Additionally, this study explores the various avenues of relief that are available to those who have fallen victim to misrepresentation. This results in an analysis of the effectiveness and success of the current traditional methods of claiming and quantifying damages that are adopted by South African legislature and the judiciary. The discussion then explores the proposed alternate method which aims to combine a claim into one of delict and that of contractual liability, or on the other hand institute a claim solely based on contractual liability. Lastly, this study explores the effect the Consumer Protection Act 68 of 2008 has had on contractual agreements, remedies and penalties, and how this ground-breaking legislation has altered the approach previously adopted by the common law and whether it has done enough to protect consumers.

Issues related to international trade and the environment undoubtedly are of significance to developing countries like Cameroon because they argue that developed countries have depleted resources and indulged in environmentally harmful practices during the past century, in order to achieve unprecedented high standards of living.² The developing countries therefore demand a general but differentiated responsibility, seeking open trade and compensation for adopting environmentally restraining policies.³ Upon further reflection on the link between economic growth activities, environmental protection and social development, the triangular debate on these topics will be highlighted briefly, by introducing the various perspectives.⁴ Trade creates the wealth, which

South Africa has experienced significant levels of reckless credit thus leading to over-indebtedness of consumers. Furthermore, research conducted in 2008 and 2013 by the University of Pretoria indicated that there were abuses prevalent in emolument attachment orders (EAOs). An interesting aspect of the research was that credit providers were particularly interested in employed consumers, as their wages or salaries were deemed to be a form of security. The aim of this dissertation is to examine the link between reckless credit and EAOs. The main research problem revolves around the fact that credit providers do not conduct thorough pre-agreement assessments and have a tendency to subscribe to the tick box approach to compliance. Moreover, these pre-agreement assessments do not make provision for the inclusion of external market factors, which is essential to safeguard consumers against economic events. This dissertation argues that, at the point when reckless credit is granted, it is inevitable that default will occur thus leading to the culmination of an EAO. In this regard, the case of University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others; Association of Debt Recovery Agents NPC v University of Stellenbosch Legal Aid Clinic and Others; Mavava Trading 279 (Pty) Ltd and Others v University of Stellenbosch Legal Aid Clinic and Others (CCT127/15) [2016] ZACC 32 is important. The judgement illustrates how vulnerable consumers fell prey to unscrupulous credit providers who then took advantage of their salaries. An important aspect about the judgement was that section 65J of the Magistrates Court Act has now been amended through a joint interpretative mechanism of severance and reading in. The Constitutional Court’s order now requires judicial supervision in the EAO process, whereby a magistrate issues the EAO. This dissertation examines the effect of this and how EAOs are currently regulated. It also discusses whether judicial supervision is the solution to ameliorating the law on EAOs. Qualitative research methods were utilised such as legislation, case law, textbooks and journal articles. While there are no statistics to prove the link, anecdotal evidence proves the link between reckless credit and EAOs.