Bibliographie sélective OHADA

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.

No abstract available.

Companies are constantly facing risks, including financial constraints, which may contribute to companies being unable to trade in the manner desired. Unfortunately, companies that find themselves in this predicament have, in reality, been without a remedy from as early as statutory provisions regulating company law were promulgated in 1926. Judicial management, as a remedy, is notorious for being an outright failure, but the current Companies Act 71 of 2008 introduced the remedy of business rescue for financially distressed companies. The scrutiny and spotlight on the new remedy turns on whether it can be truly accessible for the companies in question and what significant changes it has made to favour financially distressed companies. This mini dissertation will aim to discuss whether the remedy of business rescue has been a success or failure.

Defective products cause harm to persons and property on a daily basis. Product Liability law has accordingly evolved as a specialised area of the law of delict which seeks to prevent product accidents from happening and provides compensation in the event that defective products nevertheless reach the consumer market. Accordingly product liability regimes generally have both ex ante components such as product standards, recall mechanisms and liability provisions which are aimed at deterrence and risk-spreading as well as provisions that are applied ex post to provide redress and compensation. Designing an appropriate legal framework to underpin a product liability regime is a daunting task that involves achieving of an appropriate balance between the interests of various parties inter alia those of consumers, suppliers and the broader community. In recent decades many countries have migrated from a fault-based product liability regime to a regime which purportedly imposes strict liability on the whole supply chain. This bold move in modern product liability was pioneered in the United States who has since returned to fault-based liability for design and warning defects whilst returning strict liability in respect of manufacturing defects. After many years South Africa has joined the group of countries that applies strict liability to all defects regardless of their type. Notably the product liability regime introduced into South African law by means of the Consumer Protection Act 68 of 2008 (“CPA”) resembles the main features of the EU Product Liability Directive 85/374/EEC. The EU Model has also been taken over by Australia when they transitioned to a purportedly strict product regime in 1992. During this process the thesis also considers whether, by adopting the European model, South Africa has taken over a model which has been criticised by some American authors as outdated and based on 1965 strict product liability rhetoric as contained in section 402A of the Restatement (Second) of Torts which approach has since been discarded in the US in favour of the hybrid approach contained in the US Restatement (Third): Product Liability. This thesis focuses on product liability ex delicto. Its main aim is to interrogate and evaluate the product liability provisions contained in section 61 of the CPA, specifically with regard to the pivotal concept of defect and the statutory defences the Act has introduced. It details South Africa’s journey from the fault-based common law of product liability to the purportedly strict regime espoused by the CPA, which regimes operate parallel to each other. This is done to facilitate an understanding of the differences between the two regimes and specifically to aid interpretation and application of the product liability provisions in the CPA that deal with defectiveness and the new statutory defences. In order to obtain further guidance on how the concept of “defect” and the statutory defences in the CPA should, or could, be interpreted and applied the thesis initially considers the general foundational principles underlying product liability law and how this area of law has evolved in the United States, being the origin of modern product liability law. However, given that the South African regime of “strict” product liability ex delicto has its roots in the EU Directive and resembles some of the adapted features of the Australian product liability regime contained in the comprehensive Australian Consumer Law, the main comparative focus is on these two jurisdictions.

Ex aequo et bono is a long-lived legal concept that enables arbitrators to decide a dispute based on notions of fairness instead of a strict application of legal norms. Jurists generally agree that arbitrators authorised to decide commercial disputes ex aequo et bono can more easily tailor arbitral procedure to achieve an efficient and fair dispute resolution process. They therefore agree that ex aequo et bono arbitration maximises procedural flexibility. However, this flexibility is now perceived more as a negative rather than a positive, despite the potential of ex aequo et bono to mitigate growing concerns about the ‘over-judicialisation’ of arbitration – the increasing formalisation and inefficiency of arbitral procedure. Commentators usually assert that ex aequo et bono introduces excessive unpredictability into arbitration and encourages arbitrators to abuse their discretion. As a result, ex aequo et bono has remained unpopular to this day. This thesis challenges this overly negative conception of ex aequo et bono. It does so particularly under the UNCITRAL Model Law, as an important foundation stone of the global commercial arbitration regime. The thesis investigates significant divergence in the understanding of ex aequo et bono across state jurisdictions and international arbitration institutions. It also analyses the core trends in actual legal practice and in thinking about the principle. The thesis thereby demonstrates that the Model Law requires arbitrators to ensure that their arbitral awards are based on three objective elements: contract terms, trade usages, and mandatory rules of law. Accordingly, while the Model Law allows arbitrators deciding ex aequo et bono to invoke their subjective conceptions of fairness as the ultimate gap-filler when discerning the intention of the parties, the scope for doing so is not unduly expansive. Further, the refinement of various legal theories underpinning international commercial arbitration has enabled parties to determine and challenge more readily the arbitrators’ subjective ideas of fairness. The thesis therefore concludes that the flexibility inherent in ex aequo et bono needs to be both re-evaluated and rejuvenated. It urges the international arbitration community to adopt a revitalised conception of ex aequo et bono to counter-balance the encroaching ‘over-judicialisation’ of arbitration.

As a company distribution is a means by which wealth is transferred, it is a fertile ground for tax law reform to broaden the tax base and protect South Africa against base erosion and profit shifting. The South African government has identified the corporate tax structure, and many specific corporate tax rules, as areas in South African law in need of reform, and through which the policy objectives of stimulating foreign direct investment, promoting economic growth, and creating more employment opportunities can be achieved. This study involves an analysis on two levels: the corporate tax structure; and the specific tax legislation governing company distributions in South Africa. These aspects are contrasted with comparable rules in Australia and Canada. The study also evaluates the extent to which these laws conform to the normative values of equity, efficiency, certainty, and transparency, with the aim of suggesting improvements to promote South Africa’s current policy objectives. There are a variety of design models for a corporate tax structure. In the context of distributions, the ideal design should resolve whether tax should be paid on profit earned by a company, and also be levied on a second level, on distributions made to the company’s shareholders. Certain jurisdictions merge these two levels of tax to create a single taxable event which avoids the economic double taxation of income. There is, however, no dominant or universal model and several solutions can be mooted. Australia follows an imputation system which taxes corporate income at the first level of tax but grants a tax credit to shareholders on distribution, which means this income is taxed only once. Canada applies a hybrid integration system which also combines the two levels of tax and grants a tax credit to certain individual shareholders on distribution. However, the principles applied in these two models differ. The South African corporate tax structure is a hybrid, dual-rate system in terms of which different rates apply to corporate income and distributions to shareholders. All three systems offer relief for taxpayers which partially eliminates double taxation, with Australia having eliminated it fully for resident shareholders. In broad terms, a company distribution can be made by a company to its shareholders through either a return on capital or a return of capital. The policy approach adopted by the South African government is that all net accretions of wealth by the taxpayer should be taxable. Despite government’s intentions, there is a significant difference in the taxation rules applied to returns of an income nature (dividends and income), on the one hand, and returns of a capital nature (returns of capital, distribution of assets in specie) on the other. In addition, the net accretion of wealth is not always taxable on distribution to shareholders. In most instances the tax liability in respect of the return of capital is either deferred, or alternative rules are created which deviate from the principles and immediate tax liability that apply to returns on capital (dividends and income). In certain instances this deviation is justified, but in others it could lead to inequity between taxpayers and a narrowing of the tax base – both undesirable effects. A number of proposals are made to improve the law applicable to the taxation of company distributions as regards specific transactions. These are aimed, principally, at protecting the South African tax base against base erosion and profit shifting, and aligning South Africa’s tax law with international trends. The study finds that through the application of its hybrid dual-rate corporate tax system, South Africa has reduced economic double taxation to some extent, and that it is unnecessary for South Africa to integrate company- and shareholder-level tax. In addition, a variety of changes are suggested to improve the tax legislation applicable to specific company distributions, and to promote equity, certainty, and revenue collection. The South African tax legislation regulating company distributions is, in the main, fit for purpose, although there is room for improvement when it comes to simplicity, structure, and certainty.

No abstract provided.

In recent years, investor-State tribunals have often permitted shareholders' claims for reflective loss despite the well-established principle of no reflective loss applied consistently in domestic regimes and in other fields of international law. Investment tribunals have justified their decisions by relying on definitions of "investment" in investment agreements that often include "shares", while the no-reflective-loss principle is generally justified on the basis of policy considerations pertaining to the preservation of the efficiency of the adjudicatory process and to the protection of other stakeholders, such as creditors. Although these policy considerations militating for the prohibition of shareholders' claims for reflective loss also apply in investor-State arbitration, they are curable in that context and must be balanced with policy considerations specific to the field of international investment law that weigh in favor of such claims: the protection of foreign investors in order to promote trade and investment liberalization.

Upon the recognition that the implementation of the judicial management process would not be the success that it was anticipated it would be, it became apparent that there was need for a system of corporate rescue appropriate to the needs of a modern South African economy. The legislature then introduced a new business rescue regime when the Companies Act 71 of 20082 (the Act) came into effect in the South African law. This new Act remarkably changed corporate law. One of the central features of the Act is the introduction of business rescue- a procedure which provides for the rehabilitation of financially distressed companies in a manner that seeks to balance the rights of all stakeholders. These provisions are said to be the appropriate method for modern South African economy and they differently affect the stakeholders of a company. This thesis will be discussing the different rights given to affected persons in the new Companies Act and examine how the provisions of business rescue affect different stakeholders of the company and compare such effects with those experienced under judicial management, specifically in light of the improvements of the positions of the stakeholders. Although the new business rescue is a remarkable improvement from the old judicial management system, there is still room for improvement.

Arbitration is a way to resolve disputes outside the courts as a form of an alternative dispute resolution. The submitted dispute will be decided by one or more arbitrators, who will then render an arbitral award. One of the most fundamental principles of arbitration that must be adhered to by all arbitrators worldwide is the impartiality and independence of arbitrators, which have been regulated in various International laws. Arbitrators are not allowed to communicate with any party related to the case they are hearing. Further, arbitrators should not be influenced by others in making their decision and drafting the arbitral award to ensure objectivity and prevent any bias. An arbitrator's failure to act impartial and independent can lead to the invalidity or annulment of an arbitral award.

In a globalized world, arbitration plays an increasing role in settling international disputes. Almost all areas of Law are or might be concerned. Until very recently, [international] taxation was - as a rule - seen as a not ‘arbitrable-friendly’ matter. As the ‘classical’ method of settling international tax disputes - i.e., based on the so-called ‘Mutual Agreement Procedure’ (shortly, ‘M.A.P.’) - has shown its limits (mainly: lack of efficiency and involvement from the taxpayers themselves), arbitration became a subject of study for well-known and established academics and even an appropriate method of settling such international tax issues. As a result, both on international (O.E.C.D.) and European levels, legal initiatives have been taken, in order to promote arbitration as an additional tool of settling disputes in the field of international taxation. The purpose of the present article is, therefore, to describe and scrutinize these [very] recent legal initiatives and raise some potential issues that, at least in the author’s view, need to be addressed. One of these issues concerns the enforcement of such arbitral decisions.