Bibliographie sélective OHADA

Since deeper 'open-door' domestic reform in 1992, China has consistently maintained its position as the largest foreign direct investment (FDI) recipient among developing countries. In recent years China is going global as well. Accompanied with a large amount of outbound FDI, the level of debt is also increasing. Thus it is necessary for China to adopt a sustainable development policy and behave based on rules. China needs to work with the world to promote a rules-based investment climate. At a multilateral level, China joined the World Trade Organization (WTO) in 2001 and promised general and specific obligations on market entry and non-discrimination principles. Bilaterally, only after 2001, China has started negotiating preferential trade agreements (PTAs). The first part of the thesis analyses China’s legal obligations in investment agreements in pre- and post-WTO entry phases. Chapter 1 introduces China’s investment policy before 2001. Chapter 2 clarifies China’s commitments on non-discrimination principles under the WTO agreements, especially China’s Protocol of Accession. Chapter 3 compares Chinese BITs and PTAs with regard to investment principles. The second part of the thesis concerns interpretation on substantive and procedural provisions. Chapter 4 tries to answer the question of whether and how do tribunals consider jurisprudential concepts developed in the case law of the trade regime when resolving investment cases. Chapter 5 examines different remedies in trade and investment agreements. It is important for China to keep compliance with its commitments in international agreements, otherwise, it would face countermeasures which are highly costly. Also, China can implement competition rules in its domestic market for improving firms’ efficiency. Meanwhile, a balancing approach which emphasizes corporate social responsibility is equally important for China’s companies going global.

Die vorliegende Arbeit steht im Kontext der Regionalisierung im Internationalen Strafrecht. Sie untersucht die Faktoren, die der entsprechenden Entwicklung des afrikanischen internationalen Strafrechts unter der Ägide der Afrikanischen Union (AU) zugrunde liegen und beleuchtet die Inhalte dieser sich entwickelnden Disziplin. Primäres Ziel der Arbeit ist es, die theoretischen und praktischen Grundlagen für die Entwicklung eines tragfähigen Systems afrikanischer Strafjustiz zu untersuchen, das in der Lage sein soll, mit Verbrechen gegen den Frieden und die Sicherheit in Afrika umzugehen, die die öffentliche Ordnung des Kontinents bedrohen. Im Weiteren entwickelt die Arbeit das Verhältnis des regionalen, afrikanischen Strafrechts zu dem globalen System des internationalen Strafrechts, in dessen Mittelpunkt der Internationale Strafgerichtshof (IStGH) und der Sicherheitsrat der Vereinten Nationen stehen. Die Kombination der Analysen dieser verschiedenen Bereiche führt die Arbeit zu drei zentralen Schlussfolgerungen: Erstens ist die Entwicklung eines afrikanischen internationalen Strafrechts nicht nur eine Konsequenz der aktuellen Krise des internationalen Strafrechts. Sie ist ebenso und zuvorderst das Ergebnis einer Politik der Eigenständigkeit der AU und ihrer Mitgliedsstaaten. Diese zielt darauf ab, die regionale öffentliche Ordnung durch regionale Institutionen und strafrechtliche Verantwortlichkeit zu schützen. Die zweite Schlussfolgerung lautet, dass die AU ein System regional- afrikanischer Strafjustiz vorantreibt, das auf drei optionalen Modellen aufbaut: Der Delegation von Rechtsprechungsbefugnissen an Mitgliedsstaaten, der Errichtung hybrider Gerichte mit regionalen RichterInnen sowie dem Aufbau eines regionalen Strafgerichtshofs. Zusammen mit solchen Straftatbeständen der Verbrechen gegen den Frieden und die Sicherheit, die den Kontinent spezifisch betreffen, bilden diese Modelle den Kern des afrikanischen internationalen Strafrechts. Allerdings bleiben Tragfähigkeit und Effizienz des Systems problematisch. Es steht vor einer Vielzahl an Herausforderungen, etwa der Ratifikation des Malabo-Protokolls von 2014, das einen „Strafgerichtshof der AU“ errichten soll, der Förderung justizieller Kooperation der Staaten oder der Sicherung einer stabilen Finanzierung des Gerichts. Die dritte Schlussfolgerung lautet, dass ein afrikanisches internationales Strafrecht kein Ersatz für das allgemeine internationale Strafrecht ist. Es geht um die Koexistenz von Normen und Institutionen und eine koordinierte Beziehung, um Kollisionen und Ineffizienzen zu vermeiden. Die Arbeit diskutiert drei verschiedener Ansätze für stabile Beziehungen zwischen dem afrikanisch-regionalen und dem internationalen Strafrecht: Das hierarchische Modell, den kooperativen Ansatz und die Regionalisierung des IStGH in Verbindung mit dem Prinzip der regionalen Territorialität.

LL.D. (International Law) Please refer to full text to view abstract.

The industry of oil and gas is not peculiar to question anymore, inferable from the global condition as well as its various dimensions. While trying to complete an agreement procedure, it would barely be clear to expect the thing that could happen in the emergence of a debate. Hazard moving and fragmented contracting lie at the heart of the organization relationship innate in the obtainment and financing of extensive scale undertakings, such as power plants, oil and gas pipelines, and condensed natural gas facilities. An examination of gas bonds gives exact proof of the hazard moving results of legally binding inadequacy. This thesis is a basic examination of the discipline we call the law of oil and gas. A number of the imperfections connected with this "specific" status. Jurisprudential with its "uncommon" status. Jurisprudential imperfections have created as courts leave from essential contract, property, or tort law in quest for natural resources ideas. The marvel isn’t restricted to natural resources law but instead can occur in any "law of" setting. This article delineates the issues connected with oil and gas law by dissecting legal ways to deal with perceiving and applying "inferred agreements" under the oil and gas rent. By contrasting the experience and results under the oil and gas lead to the result under an agreement law investigation, it is conceivable to assess whether a specific "oil and gas" govern is vital or prudent. In the past quarter-century, huge changes have happened in the ways legal advisors approach strife. There have been uncommon endeavors to create systems went for more proficient, not so much expensive, but rather more fulfilling determination of contention, including more broad and suitable utilization of intercession and other " alternative dispute resolution " (ADR) approaches. This review analyzes what is known and not considered about the development and effect of ADR in government and state courts, in the business division, and in work and shopper settings. The investigation inspects the relationship amongst ADR and court trial, additionally underlines the more extensive employments of and method of reasoning for intercession and different process decisions. This study concentrates on the oil and gas contract with question by ADR.

LL.M. (International Commercial Law) Please refer to full text to view abstract

This thesis investigates three important issues on bank financial reporting quality: 1) the impact of banks’ retail versus wholesale funding structure on their earnings quality, 2) the implications of economic and monetary policy uncertainty for banks’ earnings opacity, and 3) the relationship between banks’ bad time history and accounting conservatism. In the first essay, we examine the implications of banks’ funding strategies for banks’ earnings quality. We find that banks’ greater reliance on retail deposits over wholesale funds is negatively and significantly associated with the magnitude of earnings management through discretionary loan loss provisions, the likelihood of meeting-or-beating earnings benchmark, and the extent of income smoothing through loan loss provisions. This finding is consistent with the arguments that retail deposits are relatively more stable and information-insensitive, represent a more conservative business model, and attract more intensive monitoring from the Federal Deposit Insurance Corporation (FDIC) than wholesale funds, thereby improving banks’ financial reporting quality. In the second essay, we investigate whether economic and monetary policy uncertainties affect banks’ earnings opacity. When economic and monetary policies are relatively uncertain, it is easier for bank managers to distort financial information, as unpredictable policy changes make assessing the existence and impact of hidden “adverse news” more difficult for investors and creditors. Policy uncertainty also increases the fluctuation in banks’ earnings and cash flows, providing additional incentives for bank managers to engage in earnings management. Our results show that uncertainty in economic and monetary policy is associated with greater magnitude of discretionary loan loss provisions, higher likelihood of just meeting-or-beating the prior year’s earnings, and lower levels of accounting conservatism, suggesting that economic and monetary policy uncertainties lead to higher banks’ earnings opacity. In the third essay, we examine the impact of banks’ bad times on the conservatism of accounting policy. Specifically, we investigate two types of bad times: banks’ own past experiences of undercapitalization and their experiences of witnessing the failures of other banks in state-wide and county-wide crises. We find that both types of banks’ bad times are positively related to timelier recognition of earnings decreases versus earnings increases in accounting income. We also find that following exposure to bad times, banks increase their allowance for loan losses. Collectively, our results suggest that bank-specific bad times and macro-level banking crises lead to greater bank accounting conservatism. These findings support the arguments that banks exposed to past crises overweight their bad time history, and become more cautious and pessimistic about their future earnings performance and loan quality.

For the past twenty years, international commercial arbitration scholarship has mainly focusedon the private dimension of international arbitration. Part of a greater movement toward the privatization of justice and law, this understanding of the discipline has obscured arbitrators'adjudicative role. By reflecting on different adjudicative models and by analyzing the form andcontent of arbitral decisions, new light can be shed on our understanding of international commercial arbitration.

Corporate law is based on the premise that directors are fiduciaries of their companies. This is an unbending duty which has to be adhered to at all cost by individuals appointed as directors of a company. Previously the director’s duties were governed by the common law which often relied on the interpretation of the courts on a case by case basis. Therefore the courts would often arrive at different conclusions based on a similar set of facts. The advent of the 2008 Companies Act (Act 71 of 2008)1 brought about a major evolution in South African company law by partially codifying the fiduciary duties of the directors. Understanding fiduciary duties of a director is of significant importance in the modern democracy based on the fact that directors engage on the international spectrum. Company directors have discretionary power which may be abused if they are not familiar with the fiduciary duties. This study seeks to comprehend fully the fiduciary duties of a director of a company. These are the duty to act bona fide, the duty to act for a proper purpose, the duty to avoid conflicts of interest and the duty not to use a corporate opportunity and information for personal profit. This task will be undertaken both in terms of the common law as well as statute (Companies Act 2008 Act). The study will delineate the fundamental consequences of partial codification of these duties and set out the current legal position of the common law which operates in tandem with the statute. In addition, it will deal with whether the common law provisions are still applicable side by side with the statutes. The duties of a company director represent a subject that is not merely academic in nature, but one that is of vital importance in our ever changing commercial world. More and more people are appointed as company directors every day and often they do not know or understand the implications of what they have agreed to.

LL.M. (Commercial Law) <br>The Constitution of the Republic of South Africa is the supreme law in the land. Thus, all law is subject to the Constitution and this inevitably includes the law of contract. The South African law of contract has been inherited from common law, namely Roman–Dutch law and has been applicable in South Africa to date. The Constitution states that the common law should be developed when it is not in line with the provisions of the Constitution. The values underpinning the Constitution are human dignity equality and freedom and these values must therefore be reflected in contractual relations. The common law principle of pacta sunt servanda, which means that agreements must be kept, at times this principle yields unjust and unreasonable results. The strict adherence to pacta sunt servanda has led to difficulties. The unenforceability of these contract terms has been shown in reported case law to stem from standard term contracts, unequal bargaining power and from persons who contract out of necessity. This dissertation concludes that South African law of contract and the current legal treatment of balancing contract law with constitutional values is unsatisfactory. The Bill on the Control of Unreasonableness, Unconscionableness, or Oppressiveness in Contracts or Terms which was tabled in 1998 should be revised and legislated, so as to regulate contracts and infuse the law of contract with the constitutional values of human dignity, equality and freedom.

Many contemporary private and public enterprises have been hit by scandals and underperformance which have been linked to organizational leadership. This study therefore sought to establish the impact of leadership styles on organizational performance. Leadership and organizational performance crises that have rocked institutions such as Eskom, the South African Broadcasting Corporation and the South African Airways, Steinhoff, Enron and others necessitated the study. The study focused on MBA year three students (class of 2017) at the University of KwaZulu-Natal. The assumption has been that since these are masters’ students, they have once been exposed to various leadership styles, some of them are leaders, all have studied leadership styles and therefore likely to understand how these styles impact on organizational performance. This is a quantitative study. The total population was 140 students of which a total of 100 were targeted. Simple random sampling was used. Most of the participants revealed that there is a significant link between leadership styles and organizational performance. They unanimously agreed that there is definitely a noteworthy relationship between leadership styles and the organizational performance. The respondents also revealed that transformational leadership style is the most complimentary leadership style to organizational performance followed by strategic and open leadership styles respectively. Participants agreed that toxic leadership style and autocratic leadership style are undermining the organizational performance. It is therefore recommended that organizations ensure continuous checks on leadership in order to ensure that available leadership can assist in the realization of organizational goals. In addition, it is also recommended for organizations to assess the "type" of a leader in terms of leadership styles before he/she is promoted to take leadership roles in the organization in order to make proper placements. This will allow the organization to assess whether that type of a leader is suitable for the organization. Future research is needed on how models can be developed on how to make proper placements to leadership levels/roles. Research should also focus on how leadership styles dovetail with other organizational efforts that are meant to boost organizational performance.

It is not uncommon for states to engage in arbitration proceedings with their investors (“Investor-State Arbitration” or “International Investment Arbitration”) administered under the International Centre for the Settlement of Investment Disputes. When these parties engage in document production during evidentiary proceedings, there arises an issue with regards to documents requested by the investor, which is considered as a “state secret” by the state. Based on the IBA Rules on the Taking of Evidence in International Arbitration (“IBA Rules”), states may have particular interest to refuse the production of a document. This is based on the argument that a document may be exempted from production if the document qualifies as a state secret by virtue of Article 9 of the IBA Rules. This paper will discuss appropriate measures to be taken by tribunals in order to allow for material and relevant evidence to be produced during proceedings, which may be crucial in being able to prove the case of the investor in the case of a conflict pertaining to the production of documents containing state secrets.

In Africa, whatever the considered age group, there are more entrepreneurs in the early stages of entrepreneurship than anywhere else in the world (Global Entrepreneurship Monitor (GEM) Report 2014). According to the gem survey (2014), 55.57 per cent of the population between 18–64 years expresses entrepreneurial intentions in Cameroon. Similarly, 37.4 per cent of the same age population is in the early course of their business activity. Between 2014 and 2015, total entrepreneurial activity has decreased in Cameroon (from 37.4 per cent to 25.4 per cent of all adults). Nonetheless, 61.1 per cent of the respondents think that entrepreneurship

The primary contribution of the thesis is a theory enhancing the legal understanding of the phenomenon of virtual property, encompassing presentation of data and a new conceptual framework to interpret it. The author argues that the normative debates concerning the phenomenon have underestimated the importance of understanding and conceptualizing it first, and aims at amending this gap. The ‘virtual property phenomenon’ refers to the users of internet platforms and online computer games ‘possessing’ virtual items – digital objects that exist within these services – and getting into economic and social relations concerning these items, with other users, service providers and third parties. These relations are regulated by different types of service-specific rules – contractual and the ‘code’ – created unilaterally by the service providers, who additionally retain the ability to interpret and enforce them, using ‘digital force’, i.e. by modifying and deleting virtual items, and blocking users’ accounts. The primary challenge stems not from the fact that the phenomenon is not regulated, but from the fact that lawyers lack words – terms and concepts – to even conduct a meaningful debate about it, or how to respond to it. The thesis consists of six chapters. Firstly, the author describes the phenomenon and analyzes the theoretical and regulatory legal challenges posed by its emergence. Secondly, he critically assesses the state of the art. Thirdly, a methodology to address these challenges is proposed, which can also be used in other research projects concerning law and technology. Fourthly, the author explains how the process of digitalization has fundamentally challenged the assumptions that private law held about the structure of reality, and proposes new doctrinal tools to conceptualize it. Fifthly, the author presents a legally useful concept of virtual items, and argues that granting users property rights over them might not be the optimal means of realizing the property goals. Finally, the author proposes a normative solution, a correction of private law, responding to the new type of inequality in relations, namely a user protection law.

This dissertation examines the phenomenon of book digitization and the legal challenges for the creation of digital libraries. It explores whether the current copyright framework supports libraries in the digital era as they strive to remain the institutional guardians of our literary treasures. The thesis hypothesis is that the current framework is unsuccessful or inadequate in supporting libraries. To test this hypothesis and identify the legal inefficacies the dissertation examines context, i.e. the history and rationale for applying copyright rules to books and libraries, the copyright rules as applied to libraries before and after digitization was possible, various digitization projects and the practical challenges that digitization brought about, and, the relevant litigation which has started on both sides of the Atlantic covering over a decade now. Furthermore, the thesis explores normative directions of copyright rules, including their exceptions, applicable to libraries in the digital era. It ultimately proposes that among various players claiming this role, libraries, given their institutional functions and capabilities, should be attributed rights to digitization and a favorable legal framework for providing access to digital material.

The ability of an organization to adjust its operation in light of the evolving changes in their operating environment determines the sustainability of the business unit in both the short and long term. The objective of the study was to determine the response strategies adopted by Kenyan commercial banks in response to the interest capping laws. A descriptive cross-sectional design was used. The population of the study was 42 commercial banks operating in Kenya. Primary data was collected using a questionnaire that was both closed and open ended. Data was analysed using the descriptive statistics. The study found that banks have employed adaptation strategies through working with other partners in the banking sector to leverage their synergy and concentrate on areas that enhance competitive advantage. The research findings also reinforced the need for the banks to work together as a sector and attempt and change the laws that inhibit their operations through lobby groups in parliament and other forums. The study also show that there exists a link between firms‟ strategic activities and their strategic responses and therefore, bank managers should diversify their product range especially to the youth who are apt in using the mobile technology to access services and improve the bank level of efficiency and effectiveness in their operations. The study recommends that the commercial banks ought to conform to the regulations to attract customers while the Central Bank as a regulator should likewise be sensitive to the operating environment and should be flexible in setting the rules in order to attract investment and support the growth in the banking industry. The Interest capping law is still at its infancy stage in Kenya and thus there is room for further research as the full impact of the law is realized in the long term.

The thesis entitled ―Consumer arbitration in South Africa and its effect on the consumer‘s right to redress and enforcement ‖ notes with concern the outdated and inadequate nature of the Arbitration law currently applied in South Africa. The fact that the Act was enacted in 1965 and has never been amended highlights the desperate need to review the prevailing arbitration law with a view to aligning it with the current needs of the business world. The thesis addresses the concern that consumers are not adequately protected by the current arbitration law and thus substantially develops the discourse on the topic of arbitration in situations of unequal bargaining power. It raises three primary research questions in this context. The first question reads thus, if private arbitration is properly conducted should it still provide the parties with the envisaged benefits? Secondly, is private arbitration constitutional, especially as it impacts upon consumers‘ contracting with large corporations? Thirdly, is the private arbitration process as it is currently applied, constitutional as far as it denies parties an appeal on merits against an award that is clearly wrong? The thesis attempts to answer these questions and offer recommendations for the South African Law Reform Commission (SALRC) within the specific context of commercial arbitration. In addressing these research questions, the thesis incorporates a brief overview followed by a detailed discussion of the Arbitration law framework in South Africa and abroad. The discussion of arbitration abroad is done in order to identify best practices, which could be adapted to suit the South African environment. International Arbitration law receives attention and a few observations regarding how selected foreign jurisdictions treat arbitration. Finally, the thesis explores the possibility of establishing an independent institution that will be fully equipped to handle arbitration proceedings from inception to completion.

This thesis examines the jurisprudence of the World Trade Organization (WTO) Panels and Appellate Body (AB) and investment tribunals on non-discrimination clauses contained in the WTO agreements and investment agreements respectively. The thesis puts forward an alternative conceptual perspective through which the interpretation of non-discrimination provisions in international economic law could be analysed. It is argued that nondiscrimination obligations (as every legal rule to a greater or lesser extent) are inherently indeterminate. This is a fortiori the case in regard to non-discrimination provisions due to their link to the concept of equality. The concept of equality is open-ended and value-laden: its content depends on the prioritisation of different values. Thus, equality in the economic sphere can accommodate different conceptions which reflect different ideological approaches in relation to regulation, economic development and the proper role of the State in the economy. International courts and tribunals enjoy broad discretion in selecting which conception of equality to adopt when interpreting non-discrimination clauses. This indeterminacy is a positive characteristic of international economic regimes. Both the WTO and the investment arbitration regime are equipped with institutional characteristics which enable the contestation of different ideological approaches and promote pluralism. In the WTO context, this role is fulfilled by the institutional structure of the organization which facilitates the dialogue between the WTO members and the WTO Dispute Settlement System. In the realm of international investment arbitration, the mechanism of party-appointed arbitrators, despite its shortcomings which can be addressed, ensures value pluralism.

The focus of this study is the protection of creditors’ rights in South Africa’s statutory business rescue regime provided for in Chapter 6 of the Companies Act 71 of 2008. In this analysis, three issues in particular are addressed in depth. The first is the creditors` power to initiate the business rescue process. The second is the position of creditors between the commencement and the termination of the business rescue process. The third issue is to suggest (on the basis of experience drawn from reported case law and academic criticism of the current business rescue statutory provisions) an improved model that will more effectively safeguard creditors’ rights in South Africa’s business rescue regime. In exploring these issues, I give a critical review of pertinent literature. With respect to the first issue, I conclude that the legislative provisions granting creditors the right to seek a court order initiating the business rescue process are open to criticism. By contrast, a resolution of the board of directors for the commencement of business rescue is a simpler route. With regard to the second issue I conclude that the company’s creditors have considerable influence in the business rescue process. Overall, the current statutory business rescue regime is intended to give a voice to all major stakeholders in the company’s continued solvent existence. In the event of certain irresoluble disputes in the course of that process, the judiciary has the final say. A substantial number of judicial decisions have provided interpretations of the statutory provisions, and the trend has been to try to restore financial ailing companies to solvency and viability where there is a reasonable prospect for success in this regard. In my conclusion, I propose a legislative model that seeks to strike an optimum balance between the competing and sometimes conflicting interests of the various interested parties and I suggest reforms directed at enhancing the protection of creditors’ rights. This thesis takes account of South African legislation and legislative amendments as at 31 December 2016 and of decisions of the South African courts up to and including those handed down during April 2017 and reported in the saflii on-line law reports. Since a substantial part of this thesis was written from outside South Africa, the author relied heavily on the safllii data base of judgments of the South African courts, rather than on hard copy law reports which take time to reach their destination by post.

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