Bibliographie sélective OHADA

The paper analyses the rights and duties of Nigerian insurers at common law emanating from the contractual relationship between the insurer and the insured as amplified or abridged under the statute. It argues that the statutory incursion into the common law rules of uberrimae fidei, insurable interest, conditions and warranties and assignment of policies, circumscribing some of the rights exercisable by the insurer against the insured to defeat just claims as well as expanding the scope of the insurer’s duties in order to improve on service delivery is salutary. The paper, however, concludes that further reform measures, aimed at addressing some other salient issues, are still essential in the overall interest of the insuring public.

The stated purpose of the IFRS Conceptual Framework is to assist the IASB to develop Standards that are based on consistent concepts, and also to assist preparers to develop consistent accounting policies when Standards either do not apply or allow a choice of accounting policy. Yet, the Framework actually does surprisingly little to help the IASB (or preparers) determine which assets, liabilities, income and expenses should be recognised, and how they should be measured. The Framework’s focus on assets and liabilities implies that the accounting can, and should, be determined from the balance sheet. Yet, many current financial reporting requirements focus initially on the income statement, and so they are not so much derived from the Framework as instead in need of being reconciled back to it. At its heart, the problem here is that, while the Framework states that accrual accounting provides a better basis for assessing past and future performance than cash-based information, it does not explain why. To do so would require a conceptualisation of how entities’ business models are employed to create value, and of the strengths and limitations of accounting data in enhancing investors’ understanding of that value-creation. The lack of explanation of the purpose and informational objectives of accruals, how they relate to business models and how they cause the income statement and the balance sheet to interact are gaps in the Framework. Filling those gaps would provide a more robust, and natural, way for the IASB to develop recognition and measurement requirements in its Standards.

The likelihood of clashes between international norms has increased in correlation with the upsurge in the number of specialised regimes emerging within the international legal field. The present thesis takes a closer look at the different ways in which such norm conflicts can be addressed at the international level. In particular, it distinguishes between conflict resolution based on establishing priority by means of traditional maxims, and resolution based on the weighing of clashing norms to determine which prevails in the case at hand. To do so, the thesis takes a step back from the existing literature and examines the distinction within norms between rules and principles, relying predominantly on Robert Alexy’s theory on this subject. Taking a legal-theoretical approach to the subject of international norm conflicts, this thesis shows that Alexy’s principles theory is not only transferrable to international law in theory, but that we can, moreover, identify international norms as rules and principles respectively. Distinguishing between the different ways in which conflicts are resolved depending on whether the norms involved are rules or principles, it is shown that while both approaches are susceptible to certain conceptual uncertainties and pitfalls, this dichotomy nevertheless plays an important role in the efficiency of the international legal system, ensuring that a certain balance between stability and flexibility is maintained. Ultimately, it is demonstrated that by viewing international law, and international norm conflicts in particular, through the lens of Alexy’s principles theory, we can gain a clearer understanding of the structure and application of international norms on the one hand and, as a result, how to resolve international norm conflicts on the other. Thus, drawing a distinction between rules and principles among international legal norms can be a means by which scholars (as well as judicial bodies or even states) may analyse ambiguous judicial decisions or international legal provisions, and can thus foster greater clarity in the field of international law.

International transactions present unique legal risks. When a contract touches several different nations, a party may not know where it will be called upon to defend a lawsuit or, alternatively, which nation’s law will be applied to resolve that dispute. To mitigate these risks, parties will often write dispute resolution provisions into their contracts. Arbitration clauses and forum selection clauses help to reduce uncertainty relating to the forum. Choice-of-law clauses help to reduce uncertainty as to the governing law. Over the past few decades, such provisions have become commonplace in international contracting. And yet there exist vanishingly few empirical studies exploring the use of these provisions in international commercial agreements.

The concept of a sham trust has changed over the years. Presently it is defined as a perceived entity that is not entirely what it portrays to be. In addition, a sham is therefore regarded as invalid with a deceiving nature. A sham trust has the consequence that all the benefits and protection of assets are destroyed, seeing that no trust actually came into existence. Considering the above, for the purpose of the present study, only an inter vivos trust was evaluated and discussed in detail. The law of contract is considered to be the foundation of the principles for an inter vivos trust. Therefore, the law of contracts can be applied to solve problems presented by trusts. During the course of the present research, it became evident: in instances where a trust is declared a sham, the consequence is that the trust will be deemed void. There are instances where a sale agreement has been concluded prior to the discovery of the true nature of the trust, namely it being a sham. This raises the question on the legal position of assets vested in a sham trust. A further question arises about the consequences and whether the courts should set a guideline for such instances. From the findings it is evident that such a guideline is necessary. This would enable courts to determine the consequences of assets vested in a sham trust. There are various possibilities regarding consequences for assets vested in a sham trust. To determine the applicable consequence, the court should deal with each case individually based on the facts of that particular circumstances. This consequence could either entail that the assets should fall within the founder’s personal estate, or whether the concluded sale agreement should be deemed void. It is evident that the courts struggled with the distinction between a sham and alter ego trust, however, the case law referred to below gives more clarity in this regard. A proper formulation of the aspects of sham and alter ego trusts was provided in the cases of Van Zyl v Kaye1 and Van der Merwe v Hydraulics.2 The formulation of the two aspects in the above-mentioned cases was confirmed in the Supreme Court of Appeal judgement in the case of WT v KT.3 In the Khabola v Ralitabo,4 the court dealt with the typical example of the sham trust. In brief, the fact of the case were, that the parties had the intention to establish a partnership that was simulated to be a trust.

Amongst the seventeen OHADA member states there are over fourteen arbitration centers or institutions that handle disputes arising from contractual agreement without going through the courts of the state. The arbitration cost within the various arbitral centers differs from one arbitration center to another. The schedule or method for calculating fees are regulated by the rules of the various arbitration centers or by the OHADA Uniform Act Arbitration Rules pertaining to arbitration fees annexed to the rules of arbitration for the Common Court of Justice and Arbitration and for arbitration centers without arbitration rules. This contribution describes and contrast the various schedule of fees applicable with the arbitration centers under the OHADA zone in particular and also makes a comparative view of the arbitration fees out of the OHADA zone.

The world of work has changed and this includes its fundamental design, purpose and coverage of employment. Work in the informal economy has increased and in many developing and middle income countries, work in the informal economy is the norm. In South Africa as well as in other developing countries informal economy workers do not enjoy sufficient protection in terms of labour and social protection measures. These workers are not recognised, regulated or protected by labour legislation or social protection measures and can be characterised by varying degrees of dependency and vulnerability. In countries where the informal economy is increasingly creating a parallel economic world to that of the formal economy, the extension of protection by facilitating the ability of these workers to bargain collectively and the role of national and local governments become increasingly important. Women workers in the informal economy are particularly vulnerable and face discrimination on multiple grounds and levels as gender inequalities in the informal economy cut across race and class lines. Linkages between informality, gender and poverty exists, namely: the poor are more likely to work in the informal economy; more poor women than non-poor women work in the informal economy and that there is a gender gap in earnings in the informal economy as women were earning less than their male counterparts and were less likely to be organised and have social protection. It is of the utmost importance that labour and social legislation accommodates and extends protection to informal economy workers. The larger the informal economy becomes, the greater the need becomes for social and labour protection. It will be impossible to provide these workers with the protection they deserve without legislative intervention. Furthermore, this intervention must be innovative and tailor-made to successfully extend labour and social protection to informal economy workers. When considering the protection of these workers it is also of importance to explore the design and implementation of innovative and tailor-made solutions, considering for example the nature of their work and their workplace. The focus of this study is specifically on distinctive vulnerable categories of women workers in the informal economy who are without adequate labour and social protection. These categories are domestic workers, informal traders and waste pickers. It is important to consider lessons learnt in other jurisdictions to adequately address the challenges in the informal economy. This study considers interventions in two leading developing jurisdictions, namely India and Brazil. Both these countries have a high prevalence of informal workers with inadequate labour and social protection. Labour law must thus meet the challenges posed by the realities of new forms of work. The important function of labour law to protect and promote the human dignity of workers will often result in a cross-over of various subsystems of the law. If we consider human dignity as an important component of labour law, then we need to consider an interdisciplinary approach and the promotion of such an approach. This approach will mean that labour law can no longer function in isolation and other branches of the law, such as social security law, corporate law, human rights and family law will increasingly have an impact on the human dignity of workers. When considering the future of labour law and specifically in relation to the labour and social protection of women in the informal economy, it is vital that the new framework is intrinsically linked to concepts such as democracy, social justice, freedom, and human rights. International and regional institutions are playing an increasingly important role in the empowerment of women, the promotion of equality and decent work for all women. This study identifies and critically considers the relevant international institutions and instruments, the impact of international standards, regional institutions and regional labour standards, particularly those of the African Union (AU) and the Southern Africa Development Community (SADC), and other global initiatives directed at the social and labour protection of women workers in the informal economy. The South African position with reference to domestic workers appears to provide an adequate regulatory framework in respect of the regulation of these workers; however, in practice there are various challenges, including the enforcement of the legislative provisions and a disregard for the notion of substantive equality. Although domestic workers enjoy some protection, waste pickers and informal traders as own-account workers without a distinctive employee-employer relationship are excluded from most labour and social protection measures and innovative and tailor-made solutions are required. The regulation of waste pickers and informal traders in South Africa is fragmented and lacks comprehensive and uniform legislation is absent. Voice and representation is of paramount importance to these women to ensure decent work. Enabling frameworks must be established to promote this. One of the most important objectives of organisation for women workers is to promote the recognition of these women and given their vulnerabilities experienced on various levels, this recognition must be wide and include recognition as workers, citizens and members of society that must be afforded human dignity on all levels. The position of the three categories of women workers was also considered in two jurisdictions, namely India and Brazil to distil best practices with reference to these workers. The research question of this study is: How can labour law and social protection measures provide vulnerable women workers in the informal economy with the appropriate protection to ultimately give effect to decent work? The main inquiry of this thesis, therefore, is to explore the issue of extending labour and social protection to these workers through the extension of existing labour and social security rights; including, where necessary, the design and implementation of innovative and tailor-made solutions.

This research sought to establish whether the general acceptance that the common construction and engineering contracts as falling within the classification of the locatio conductio under South African law is correct. As the classification of a contract attracts specific essentialia and naturalia, and then too certain implied terms one example of an implied term that would have practical relevance is specifically investigated: The warranty against latent defects. Through this example I seek to demonstrate the relevance and importance of establishing what the classification of these contracts is, and its ensuing essentialia and naturalia. The investigation commenced by firstly considering the classification of the common building, construction and engineering contracts, with reference to the South African publications of JBCC and GCC, as well as the internationally published FIDIC Silver Book, FIDIC Yellow Book, and FIDIC Red Book, as well as the NEC ECC Option A and Option B. With alternate dispute resolution mechanisms, such as adjudication and arbitration, resulting in limited publications by way of case law and academic writing on the subject (specifically in South Africa), English law and German law were also consulted. It was established that, unfortunately, the classification of the common building, construction and engineering contracts under South African law is problematic: It does not fit the ordinary and previously accepted classifications, specifically that of the locatio conductio. This makes it questionable whether the warranty against latent defects could be, and should be, implied into any one of these contracts. The recommendation, accordingly, is that it is crucial for the construction and engineering industry to carefully consider and develop the true and relevant essentialia and naturalia applicable to these contracts. Only then will there be certainly as to what may be implied into these contracts, and what will not so be implied. Until this is achieved, the parties to these contracts, in order to have certainty, must deal with aspects such as the warranty against latent defects by way of an explicit written term in the particular contract.

Insurance fraud is a major issue in the insurance industry. Insurance companies around the world are all facing significant losses due to the prevalence of fraudulent claims. These fraudulent claims and subsequent losses suffered by insurers inevitably lead to a dilution of the insurance pool and result in other policyholders bearing the brunt of these losses. The inevitable solution for insurers is to hike the premiums for all other policyholders in order to compensate for their losses caused by fraudulent claims. Insurance fraud is an international problem and it is common for insurers in most jurisdictions to use forfeiture clauses. These clauses aim to protect the insurer by stating that if the policyholder should submit any type pf fraudulent claim, the policyholder will forfeit the entire claim. There has been much controversy around the validity and fairness of these clauses. This thesis seeks to provide an overview of the prevalence of fraudulent insurance claims in South Africa, England, Australia and New Zealand. Moreover, it will consider the fairness of forfeiture clauses in light of the fundamental movement towards policyholder protection in recent years both in South Africa and in those jurisdictions that form part of the comparative study. The thesis concludes that forfeiture clauses form an indispensable part of short-term insurance contracts and are justifiable and therefore lawful. It is, however, submitted that insurance companies have a duty to disclose the nature and extent of forfeiture clauses at the inception of the policy and again at claim stage. By using so-called staggered disclosure, insurers provide policyholders with the opportunity to consider their claim and the means with which to prove it in order to avoid instituting a fraudulent claim. The thesis recommends that these rules pertaining to staggered disclosure should form part of the 2018 Policyholder Protection Rules, together with a statutory definition of insurance fraud.

The use of conduit company treaty shopping structures is often regarded as an impermissible erosion of a country’s tax base. For a developing country, such as South Africa, the protection of its tax base is an important policy consideration. Arguably, one way of combatting conduit company treaty shopping structures is by including in a country’s double taxation agreements the beneficial ownership requirement set out in Article 10(2) of the OECD MTC. The study examines how a South African court would interpret this requirement in provisions in South African double taxation agreements in the context of conduit company treaty shopping involving conduit companies receiving dividends. The study firstly considers whether the beneficial ownership requirement can be regarded as an anti-avoidance rule aimed at combatting conduit company treaty shopping falling outside agents and nominee scenarios. It further considers whether the term “beneficial owner” should have a legal or economic meaning. It explores the meanings given to this term by scholars and foreign courts and the OECD in its Commentaries to the OECD MTC. The study also considers the application of the rules of interpretation contained in the Vienna Convention on the Law of Treaties when giving meaning to this term. Lastly, the study considers whether the term should have the meaning assigned to it under the domestic law of a treaty country, or under international tax law. As part of this enquiry, the meanings of the expression “beneficial owner” in South African case law and legislation are explored.

Abstract available in PDF.

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)