Bibliographie sélective OHADA

Healthcare markets have started being created in Europe. Indeed, some European countries, such as the UK and the Netherlands, have started adopting the choice and competition model for healthcare delivery. Taking as a starting point that as health systems in Europe move towards market driven healthcare delivery, the application of competition law in these systems will increase, the goal of this doctoral thesis is (a) to identify some of the competition problems that may be raised in light of the reality that especially in hospital and medical markets the pursuit of competition and the pursuit of essential dimensions of healthcare quality may inevitably clash (b) to demonstrate that competition authorities would be unable to address some of these competition problems if they did not pose and address a fundamental question first: how should we define and assess quality in healthcare? How should we take healthcare quality into account in the context of a competition analysis? In delving into these questions, this doctoral thesis explores how the notion of healthcare quality is defined from antitrust, health policy and medicine perspectives and identifies three different models under which competition authorities may actually assess how a specific anticompetitive agreement or hospital merger may impact on healthcare quality. These are: (a) the US market approach under which competition authorities may define quality in healthcare strictly as choice, variety, competition and innovation (b) the European approach under which competition authorities may extend the notion of consumer welfare in healthcare so that it encompasses not only the notions of efficiency, choice and innovation, but also the wider objectives and values European health systems in fact pursue (c) the UK model under which competition authorities may cooperate with health authorities when they assess the impact of a specific transaction on healthcare quality. The thesis identifies the main merits and shortcomings of these models and emphasizes that what is crucial for the adoption of a holistic approach to healthcare quality is not only the model under which healthcare quality is actually integrated into a competition analysis but also competition authorities’ commitment to protect all dimensions of this notion.

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The picture presented and often referred to in EU internal market law and legal scholarship is clear. Within the internal market private actors are the recipients of rights and public authorities are constrained in their (regulatory) powers. The notion of this new individualism is bound up with capacities, powers, and resources that empower private actors to engage in the internal market and cross-border situations;ultimately serving the objectives the internal market seeks to attain. Yet, within thinew individualism a conceptually different class of private actors has emerged that is constrained in economic freedoms, i.e. through obligations, rather than being empowered in the context of the internal market. This thesis will enquire the reasons that led to the development of this counter-culture. Why did it emerge? To what extent does this phenomenon affect the roles of private actors in the internal market? I will demonstrate that under the counter-culture private actors are responsibilized and transformed into ‘competent authorities’, i.e. alternative forms of regulatory authority, in the internal market. Private actors are placed into systems of shared responsibilities the relationships of which are coordinated by EU internal market law. In this regard, the concept of responsibility will serve as a tool to bridge the gap between the new positions EU internal market law allocates to private actors and the emerging legal consequences, i.e. allocation of obligations or tasks. The legal contexts of EU free movement law, EU discrimination law, EU food safety law and EU data protection law will serve as case studies against which the construed conceptual framework will be tested. Under the counter-culture the new individualism is no longer only about the exercise of self-interests. Rather, this form of the new individualism comes with a requirement to give account to the interests of other actors within the internal market.

East African Community Law provides a comprehensive and open-access text book on EAC law. Written by leading experts, including the president of the EACJ, national judges, academics and practitioners, it provides the most complete overview to date of this increasingly important field. Uniquely, the book also provides a systematic comparison with EU law. EU companion chapters provide concise overviews of EU law and its development, offering valuable inspiration for the application and further development of EAC law. The book has been written for all practitioners, judges, civil servants, academics and students faced with questions of EAC law. It discusses institutional, substantive and jurisdictional issues, including the nature of EAC law, free movement and competition law as well as the reception of EAC law in Partner States.

The study, entitled “Identification of the parties to the employment relationship: an appraisal of teleological interpretation of statutes”, is a legal-interdisciplinary doctrinal investigation situated within the fields of labour law and the interpretation of statutes. It concerns itself with the proper interpretation of labour legislation in general and the interpretive question as to who should be party to the employment relationship in particular, within the context of the advent of constitutionalism and the proliferation of and the increase in the importance of labour legislation. In law, meaning-generation is a function of statutory interpretation and every application of a text to particular circumstances entails interpretation. The protection extended by labour legislation is only extended to those persons who are defined as “employees”. The study describes the teleological model of statutory interpretation, which aims to give effect to the purpose of a legislative provision in light of constitutional values. The study explores the five elements of (teleological) interpretation that should be considered when interpreting concepts such as “employee”: the text, the context, the telos (or values), the history and the comparative dimension. The chief findings of the study includes: that legislation has become an indispensable source of contemporary labour law; that the courts have adopted a teleological approach to the interpretation of statutes; that the courts have, in interpreting the term “employee”, adopted a teleological approach to the interpretation of statutes; and that the interpretations advanced by the courts have not had the profound effect envisaged by the Constitution on the transformation of society.

The debate on business and human rights attracts the interest of many parties, and regularly makes the headlines. On 19 January 2017 De Morgen, for instance, ran the following headline: “These banks do business with companies that violate human rights and nature”. The discourse suggests that few question that business enterprises should respect human rights. The legal meaning and consequences of associating 'business' with 'human rights' remain contentious, however. By clarifying the existing legal framework this thesis seeks to rationalize the debate. Special attention is paid to enforcing the responsibility of business enterprises for human rights through domestic judicial remedies. The analysis is concretised through a case study on adverse human rights impacts of environmental degradation caused by mining in South Africa. Based on the findings of the study, the thesis reflects on how the international legal framework on business and human rights should be developed further.

South Africa has been experiencing a number of violent strikes by trade unions in recent times. The issue is not only to hold unions liable for damage caused during strikes, but also to reduce the number of violent strikes. This study investigates if victims of such violence can hold trade unions liable for the violent acts committed by their members during industrial action. The Labour Relations Act, 66 of 1995 (LRA) makes provision for the dismissal of employees who commit misconduct during an unprotected strike. It also provides the remedy of an interdict and a claim for just and equitable compensation which can be made against the union, during an unprotected strike. It is further possible to hold the union together with its members liable for damages in terms of the Regulation of Gatherings Act, 205 of 1993 (RGA). The study argues that a strike or conduct in furtherance of a strike that becomes violent could lose protection and the trade union should consequently be held liable, in terms of the LRA and/ or the RGA, for damages caused by its members. This study investigates the position in Canada, Botswana and Australia to determine if there could be any other basis upon which to hold trade union liable for the conduct of its members. The study recommends that the common law doctrine of vicarious liability should be developed by the courts to allow trade unions to be held liable for damages caused by members during violent industrial action. Policy considerations and changing economic conditions and the nature of strikes in the Republic favours the expansion of the doctrine of vicarious liability to trade union member relationship.

The rapid increase in globalization in the last two and a half decades has caused businesses to easily transcend national boundaries. States respond to such flexibility by harmonising their laws to easily adapt to such changes in order to attract investments. This is the case with the OHADA jurisdiction where its architects foresaw an economic spur through integration of business laws. Though expected to stay within the bounds of the law, the law cannot absolutely determine how businesses should prioritise their stakes. As such, ethics comes in to complement the law. This article uses the stakeholder theory of corporate control to investigate the place of ethics in OHADA, as applied in Cameroon. It concludes that an altruistic social conscience is still highly wanting.

In South Africa compliance with competition law has become a major concern for firms that achieve and maintain certain levels of success and growth in the market, as their actions are often a source of complaints and litigation by rivals and competition authorities. With substantial financial penalties often levied against them for a variety of conduct deemed to constitute an abuse of their market position, dominant firms must constantly be aware of the likely impact of their business strategies and actions on both rivals and consumers. What were once thought to be normal and economically sound business practices and decisions, such as cutting prices to attract customers, have now acquired new meanings, with devastating consequences for dominant firms. So, are dominant firms under attack from competition law? In this study I aim to determine this. I track the historical development of competition law in three jurisdictions: South Africa, America, and the EU, with the aim of identifying traces, if any, of hostility towards dominant firms in the origins of competition law. I further investigate whether the formulation and enforcement of certain aspects of existing abuse of dominance provisions manifest as hostility towards dominant firms. While acknowledging the important role that competition law enforcement plays in promoting competition and enhancing consumer welfare, I conclude that significant unjustified economic and legal prejudice is suffered by dominant firms as a result of the way in which certain abuse of dominance provisions have been formulated and applied. I also offer appropriate recommendations.

This paper contributes to measuring the influence of business (and tax) law reforms on sub-Saharan African countries tax mobilization ability. Relying on a new business law reform indicator, our results validate the significant impact of corporate law modernization on governmental revenue, and unearth a complementary effect between business and tax law reforms.

The United Nations Commission on International Trade Law prepared the first global treaty specifically devoted to electronic commerce law, the United Nations Convention on the Use of Electronic Communications in International Contracts. That treaty builds on the highly successful UNCITRAL Model Law on Electronic Commerce and the UNCITRAL Model Law on Electronic Signatures. This article describes the main goals of the Electronic Communications Convention and its scope of application. In particular, it illustrates how that Convention may fully enable the use of electronic means under other widely adopted treaties such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the United Nations Convention on Contracts for the International Sale of Goods. The article also describes the main substantive provisions of the Electronic Communications Convention, in particular clarifying how that Convention updates and completes the provisions of the UNCITRAL Model Law on Electronic Commerce. This Model Law is the backbone of electronic commerce law in numerous countries and a de facto legislative standard insouthern Africa. Finally, the article describes the manner (or patterns) in which the adoption of the Electronic Communications Convention takes place. It stresses that, while the Convention is often used as a source of inspiration for domestic law reform, in order for it to achieve all its intended goals, its formal adoption as a treaty is necessary. The final message is therefore a call upon all states to consider the adoption of that Convention in order to support the broader use of electronic means, especially in the light of the implications for economic development and the promotion of paperless trade.

It is impossible to draw a distinct line between force majeure and change of circumstances, because the two overlap. In order to regulate both force majeure and change of circumstances, the United Nations Convention on Contracts for the International Sale of Goods (CISG) has adopted a unified model in article 79, whereas Chinese law adopts a dual model by treating them as different things and regulating them in different articles. Where the purpose of a contract becomes impossible to achieve because of a force majeure and both the CISG and Chinese Contract Law (the CCL) adopt the same model of termination of the contract, the contract should be terminated by one party with a notice to the other party instead of ipso facto avoidance. In a case of a change of circumstances, in order to terminate the contract, both the CISG and the CCL actually follow the path of raising an action by a notice of avoidance or termination to theother party. Both approaches have their merits and demerits but the differences between them in practice are not as large as presumed. Where force majeure and change of circumstances overlap each other, possible ways for termination of the contract are for a party either to choose their preferred solution or to follow the lex specialis derogat generali. The latter way is preferred in this article; and while in an action for termination the judge may balance the interests of both parties in making a final decision, the uniform application of the law, the safety of the transaction and the fairness of the judgment may be ensured in so doing.

The Gulf of Guinea states (GOGs) discussed in this article comprise a diverse group of more than 20 African states bordering on the oil-rich Gulf of Guinea. They are former colonies of Belgium, France, Great Britain and Germany. These states are of strategic importance to the United States, the European Union, India and China because of their tremendous natural resources that include biodiversity, oil, gas and other strategic minerals. But to what extent are they also of strategic importance not only to South Africa but to SADC member states? After all, the GOGs boast of their sea routes being safer and more convenient for sea transport. Post-colonial independence finds these states still adopting a mixture of foreign legal systems side by side with indigenous laws and customs. The region is still underdeveloped, with poor physical infrastructure, weak government structures, an inefficient legal system, and internecine strife and other inter-state disputes exerting a debilitating influence. The NEPAD Plan of Action of 2001 looks to the regional economic communities (RECs) to become the leaders in regional economic co-operation and integration. Although the GOGs are characterised at present by overlapping membership of various communities, they have enjoyed some successes based on the newly found petroleum commodity which, wisely managed, can help to increase intra-African trade and produce a viable extensive African market buttressed by South Africa's economic advances into the rest of Africa. In some of the regions in Africa RECs such as ECOWAS and SADC have been able to transform their economic and monetary co-operation efforts into a powerful driving force for economic policy co-ordination and integration, but a strong, credible, effective and efficient legal framework with sustainable supporting institutions is now needed. South Africa is well poised to assist with deepening the political and economic integration in the GOGs by intensifying foreign direct investment (FDI), capacity-building and training projects, and the transfer of skills and technology. But the RECs overlapping membership needs to be rationalised, the negative influences of the superpowers need to be resisted, and support is required to maintain peace and stability and ensure the security of the maritime regimes. A strong, independent supra-national body that is also able to supervise and monitor revenues from oil for the benefit of the region as a whole should be established.

Disparities in national laws are likely to result in uncertainty which, in turn, creates obstacles to international commerce. It is acknowledged that strong investment flows cannot be achieved without a secure legal and commercial environment. Mindful of such a need, states decided to harmonise sales law internationally. To this end, in 1980 they adopted the United Nations Convention on Contracts for the International Sale of Goods known as the Vienna Sales Convention or the CISG. The CISG has led a number of countries, including the Organisation for the Harmonisation of Business Law in Africa (OHADA) law states, to modernise their local sales law. However, only three of 17 countries that constitute the OHADA community have ratified the CISG. OHADA law countries give the impression of favouring a more regional approach to the unification of sales law rather than the CISG’s global approach by implementing a local Commercial Uniform Act. Their indifference towards the CISG is not without consequences for commerce in the OHADA region. This article seeks to demonstrate that the lack of ratification of a universal convention, as for example the CISG, poses a danger to commercial dealings. It also intends to show that the CISG is not hostile to regional uniform sales laws of the OHADA Commercial Uniform Act type. It concludes that OHADA countries do not need to be afraid of their acceptance of the CISG and recommends that it be ratified.

This article explores the possible modification of the UNCITRAL Model Law on International Commercial Arbitration (MAL) to include the topic of arbitrability. This is an area in which the domestic legal systems differ, particularly in relation to the arbitrability of intra-corporate disputes. The article also deals with new art 2A, introduced into the Model Law in 2006, which deals with the interpretation and gap-filling system under the Model Law. The interpretation of MAL in accordance with its international character is a very important step towards uniformity and therefore the different tools required for a uniform interpretation are analysed. These include case law and scholarly writings; the meaning and importance of achieving both a uniform and an international interpretation of MAL are also considered. The article also analyses the whole text of MAL in order to arrive at the general principles on which the Model Law is based; when problems have to be solved, these principles should guide issues of interpretation that arise under this law.

This article investigates whether regional harmonisation is merely an academic exercise or a serious attempt to create a uniform contract law in a defined region. It builds on the recently conducted Symposium at Villanova University in 2013 and addresses comparatively the efforts by well-defined regions, namely OHADA, the EU and ASEAN. OHADA has introduced regional uniform laws; the EU is still working on formulating them. Furthermore, UNCITRAL has considered a proposal by the Swiss government to work urgently on a new initiative to further harmonise contract law. Against this backdrop, this article argues that regional proposals to harmonise contract law are akin to saying that ‘ein Gespenst geht um’ (a ghost is going around) (Reich 2006: 425). This is justified, because a proposal to create a harmonised contract law in East Asia has currently also been discussed, but the discussions have stalled. Is there a solution or do we simply admit that regional harmonisation is not possible? The starting point is the CISG, as has been adopted by 80 countries and needs to be considered by any region as a possible, albeit not perfect, solution. If the CISG has already been ratified, the issue, then, is how any regional developments can coexist with it. Or does a ratification of the CISG preclude any regional harmonisation? Secondly, the question must be asked whether regional harmonisation will reduce transaction costs, which is beyond what the CISG was able to achieve. This article argues that as far as the drafting of international instruments isconcerned, a shift in thinking has occurred. Instruments such as the Cape Town Convention are considered to be reforming the law in a particular narrow area rather than attempting to draft codes. Furthermore, the process is driven by industry groups. Regional harmonisation must take note of the ongoing shift and a more fruitful approach is to develop uniform laws through a better understanding and coordination of existing instruments.

Growth in international trade has led to considerable expansion of the scope of matters capable of settlement by arbitration. In spite of sustained scholarly activity on arbitrability, the question of what is arbitrable remains controversial but relevant in many regions of the world, including Africa. Arbitrability has the potential to affect the validity of an arbitration agreement, strip an arbitrator of jurisdiction, or derail enforcement of an award. Given the significance of the concept, it is vital that entities involved in international transactions do not speciously extrapolate knowledge of what pertains in Europe and America across all jurisdictions and regions of the world. This study draws a comparison between arbitrability and its relationship with public policy in Europe and America on one hand, and the trend in Africa in an attempt to critically investigate the extent to which African states are willing to extend the scope of arbitrable subject matters. A number of trends on arbitrability are discernible. Most commercial disputes are arbitrable and this observation generally aligns with practice in Europe and America. Beyond this, there are three significant differences in the areas of scope of subject matter, approaches to arbitrability regulation and the role of public policy.

This second conference in the SOAS Arbitration in Africa Conference series examined how African judges can better support the growth of arbitration. The conference was hosted by the The Lagos Court of Arbitration in their premises in Lagos, Nigeria from 22-24 June 2016. This conference booklet contains some of the papers and slides, and photographs from the conference.

The Nigerian judicial system is currently in a state of distress. Not only has the judiciary been trailed by allegations of corruption, incompetence and god-fatherism amongst others, the wheels of justice in Nigeria are slowly grinding to a near halt. This is because of the large and growing case list of courts as well as the recurrent industrial strike actions embarked upon by court staff. As a solution to this crisis, stakeholders have put forward a number of suggestions, one of which is the use of alternative dispute resolution methods like domestic arbitration, as a solution to the problems of the judiciary and as a viable alternative to the court system. As we will however come to see in this thesis, Nigeria’s Arbitration and Conciliation Act 1988 (“Arbitration Act”), which is based on the UNCITRAL Model Law 1985, is not only outdated, it is also for many reasons not suitable and relevant to a developing country as Nigeria. For example, the existing Arbitration Act fails to take the legal and social idiosyncrasies of the Nigerian nation into consideration. Furthermore, the Act fails to incorporate the pre-existing and judicially recognized customary arbitration practice into the Act. In addition, the Nigerian Arbitration framework contains a number of anti-arbitration provisions, which have clearly inhibited the growth of domestic arbitration in Nigeria. Moreover, between 1988 and now, a number of beneficial changes have occurred within the sphere of arbitration and from which the Nigerian arbitration framework can draw lessons. All these among others, make the Nigerian Arbitration Act an unsuitable alternative to the court system in Nigeria. This thesis therefore recommends a bespoke domestic arbitration framework, which takes account of the legal and social idiosyncrasies of the Nigerian nation as well as recent but relevant domestic arbitration practices in similar jurisdictions as Nigeria. Among other recommendations, the proposed framework borrows a leaf from the deeply rooted and judicially recognised customary arbitration practice in Nigeria. Furthermore, in a bid to identify and incorporate relevant provisions and practices that have emerged within the sphere of domestic arbitration between 1988 and now, we undertake a comparative analysis of the Ghanaian Alternative Dispute Resolution Act 2010, the UNCITRAL Model Law 2006, the English Arbitration Act 1996 as well as the Uniform Act on Arbitration 1999 of OHADA. It is believed that this modern but tailored framework will encourage the use of domestic arbitration in Nigeria and by extension ameliorate the problems in the judicial system.

Francophone African countries have made a tremendous effort in harmonising domestic standards and reporting with the International Financial Reporting Standards (IFRS). Moving from two distinct OCAM streams to two OHADA streams (effective 1985) and now one OHADA Uniform Accounting Act embodying 17 member countries (effective 2001) is a milestone towards harmonisation of reporting practice both domestically and internationally. This empirical study examines whether the effort of harmonisation, especially after the 2001 standards has resulted in the successful convergence of firms' accounting practices by analysing public limited liability companies' compliance with the OHADA Uniform Accounting Act and if such compliance has improved over time. The study has been carried out using the 2008 and 2009 annual reports of three public limited companies in the OHADA zone that translate their financial statements into IFRS. The ranks of closeness and compliance index have been used to analyse data. Findings reveal a relatively high level of compliance with the accounting regulation by sampling limited liability companies. The results also give an indication of harmonisation in accounting practice of limited companies within member countries as they were found to be substantially consistent in compliance, especially in countries that have instituted the Statistics and Tax returns (or "DSF") as a reporting medium.