Bibliographie sélective OHADA

Alarmed at the ease with which global bankruptcy jurisdiction can be engineered in the US through a combination of the Bankruptcy Code’s low bar to entry and the worldwide effects of a bankruptcy case, critics argue that the US promotes abusive bankruptcy forum shopping and harmful imposition of US norms on overseas stakeholders. This article advances a revised account of US bankruptcy jurisdiction over non-US debtors from a distinctively Anglo-American standpoint. The article’s central thesis is that critics overemphasise formal jurisdictional rules and pay insufficient attention to how US courts actually exercise jurisdiction in practice. It compares the formal law ‘on the books’ in the US and UK for determining whether or not a domestic insolvency or restructuring proceeding relating to a foreign debtor can be maintained in each jurisdiction and provides a functional account of how US bankruptcy jurisdiction over foreign entities is exercised in practice using the concept of jurisdictional congruence as a benchmark.

The thesis contemplates the need for Nigerian policy makers to undertake a reform of secured transactions law to meet international best standards, building upon earlier, unsuccessful, efforts by lawmakers, and drawing upon international benchmarks. It critically analyses the Registration of Security Interests in Movable Property by Banks and Other Financial Institutions in Nigeria (Regulation No.1 2015) 'CBNR' published on 2 February 2015. The CBNR, with a primary aim of facilitating affordable credit, and to modernise secured transactions law through the use of personal property as collateral, has departed from its previous position which it inherited from England. This thesis has drawn comparisons between the CBNR and prior reform initiatives particularly the Draft Law 2009 prepared by the Centre for the Economic Analysis of Law (CEAL). These reforms, which were not implemented, recommended wholesale changes to harmonise all existing secured transactions law in Nigeria. The CBNR does not follow this approach, but instead, adopts a piecemeal approach to reform. Correspondingly, this forms the framework within which this study has been undertaken with reference to whether a piecemeal or wholesale reform is now required. This thesis has followed the International Finance Corporation (IFC) approach which focuses on a three-stage secured transactions reform strategy - modernisation of the existing legal framework; establishment of an electronic collateral registry; a concerted effort towards building capacity. With the assistance of international secured transactions legal frameworks such as the UNCITRAL Legislative Guide on Secured Transactions 2007, and its Registry Guide 2014, the CBNR has been benchmarked against these adaptable legal frameworks for the purpose of harmonising secured transactions law, in search of the international best practice which may be desirable for Nigeria. The thesis identifies and discusses at length several problems and inconsistencies associated with the CNBR, and the thesis makes suggestions for a wholesale reform of the Nigerian secured transactions law. This thesis builds on existing knowledge on secured transactions law reform with particular reference, and usefulness, to sub-Saharan African countries and other developing countries that wish to attempt a similar reform of this nature.

This dissertation serves to expand the means within international law by which to address the global interdisciplinary crisis that is climate change. The principle of sovereignty over natural resources is identified as a principle of international law, evolutionary in nature, fundamentally connected to the international legal climate change regime, and able to be impacted by the effects of climate change. The gravity of climate change is illustrated, as is the intricacy and composition of the international legal climate change regime. In the process, a particular shortcoming of the international legal climate change regime is identified, namely the lack of state compliance with climate commitments made in terms of the Kyoto Protocol 1997 and the Paris Agreement 2015. The gravity of the effects of climate change warrants the repositioning of any principle of international law that is able to address this shortcoming of the international legal climate change regime and increase the effectiveness of the regime. In this regard it is determined, more specifically, that the gravity of the effects of climate change warrants a reinterpretation and reconfiguration of the principle of sovereignty over natural resources. Climate change, forming part of the general, growing, global concern for environmental conservation and sustainable development, influences the interpretation and configuration of state rights and state duties in terms of the principle by eliciting an interpretation that restricts state rights and expands state duties. Furthermore, the gravity of the effects of climate change on the well-being of people, warrants a reinterpretation and reconfiguration of the principle of sovereignty over natural resources as a people-oriented principle as opposed to the conventional state-oriented principle, and ought to be applied with due regard to the rights of people in terms of the principle. The right of people in terms of the principle of sovereignty over natural resources, is identified as the right to economic selfdetermination, which gives effect to the right of people to dispose freely of natural resources. Should this right be promoted in future applications of the principle of sovereignty over natural resources, the right may well be established as constituting a significant basis on which people are able to hold states accountable for climate commitments made in terms of the Kyoto Protocol 1997 and the Paris Agreement 2015. In this way, the principle of sovereignty over natural resources, specifically the implementation of the right of people to dispose freely of natural resources in terms of the principle, presents a negative incentive for state compliance with climate commitments and can contribute to addressing the lack of state compliance within the international legal climate change regime. In summary, this dissertation proposes that the grave effects of climate change warrant a repositioning of the principle of sovereignty over natural resources that allows it to constitute a contribution to climate change law and the global fight against climate change.

This thesis is made up of three empirical studies that fall under the general classification of international and financial economics, particularly the study focuses on the financial system of selected African countries. The first empirical study presented in Chapter 2 examines the role of financial development in improving the effect of FDI on the economic growth of some African countries. Investigations were conducted to pinpoint which financial structure could provide the best improvement by applying the bank-based vs. market-based debate. Results from the regression analysis conducted show that the effect of FDI on economic growth becomes significant only when financial development measures were factored in. Analysis of results indicate that development of the overall financial system of African countries would be more beneficial in comparison to developing either the banks or financial markets alone. Chapter 3 empirically measures the level of financial integration in Africa’s Regional Economic Communities (RECs) using beta and sigma convergence to measure the speed and degree of financial integration in four RECs. These chapter also theoretically examines how regional financial integration contributes to financial development and economic growth in Africa. Analysis of the results show that Africa’s RECs are integrating at a relatively slow and diverse rate. Therefore, policy makers in Africa would need to focus on reform strategies that would strengthen financial integration in their regions. A fully financially integrated system would contribute immensely to financial development and promote sustainable economic growth. The fourth chapter investigates the effect of access to finance on firms’ productivity. Using cross-sectional firm-level data to estimate the effect of access to finance on labor productivity, total factor productivity (TFP), and the stochastic frontier trans-log model. This study estimates an instrumental variable (GMM) model to address potential endogeneity bias between access to credit and firms’ productivity. The results obtained show that the lack of access to finance negatively affects the productivity of firms in Africa. This study suggests that the development of a balanced financial system should be of topmost priority to policy makers. This ensures that more finance is channelled towards those firms whose productivity depends heavily on the availability of finance irrespective of their characteristics. This would result in firms increasing their investments in productivity-enhancing activities, which would benefit long-term economic growth

The thesis attempts to explore an efficient policy and administrative framework to tax the small businesses in developing countries. In order to approach the policy and administrative problems concerning the taxation of small business in developing countries this thesis asks How can small businesses be efficiently taxed in developing countries? This thesis over eight chapters qualitatively explores this research question. The analyses conclude that first, in a typical developing country a well-designed simple to follow presumptive tax regime is more efficient than the actual account based tax system. Second, this thesis argues that the noncompliance of small businesses in developing countries may not be adequately explained by the standard expected utility based compliance models. The leading tax compliance models which mainly emphasise on the perceived reward from evasion might ignore some crucial factor that constitutes the tax compliance environment of small businesses in developing countries. This thesis illustrates broadly the typical tax compliance environment of small businesses. It argues that a simple to follow tax system that requires a minimal level of taxpayer compliance would attract a section of small taxpayers into the formal tax net. Third, this thesis demonstrates that there are crucial differences between typical urban and rural businesses. A small business tax regime should have a separate set of presumptive instruments for each class of small business in order to make an efficient estimate of their economic activities. Fourth, this thesis analytically examines the presumptive methods and their practical applications. The findings suggest that in developing countries presumptive tax methods have been adopted mostly in arbitrary manner, without the objective considerations to many crucial design issues. Fifth, this thesis has developed a focused analysis on the taxation of urban small businesses in the contexts of developing countries. This thesis analyses some crucial characteristics of urban small businesses and stresses that enterprise formalization should be a key element of urban small business tax policy. For a meaningful expansion of the tax net, tax administration should put more focus on urban small businesses as these businesses have relatively more potential to grow as more stable and sustained taxpayers. This thesis concludes that a turnover based presumptive taxation is more efficient to tax the urban small businesses. Lastly, this thesis explores the issues concerning the taxation of rural small businesses. This thesis reports that the overall tax burden on the agricultural income had substantially declined over the last few decades. Developing countries should not ignore the tax potential of the rural taxpayers. In a typical developing country an asset based presumptive tax system is more efficient to tax the agricultural income of the rural small businesses. This thesis has argued that it would be more efficient to adopt a single asset based presumptive income tax replacing all the prevailing taxes on the agricultural income such as agricultural land tax, wealth tax and income tax.

The regulation of consumer credit in Namibia mainly is provided for by the Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980. These legislative enactments originated in South Africa and were applied in South West Africa during the period of South Africa’s mandate over what is now the Republic of Namibia. Despite the fact that these enactments are over 35 years old, they are substantially unchanged. In response to an awareness of the threat of consumer over-indebtedness and other events such as financial crises, the purpose in this thesis is to undertake a situational analysis of the debt prevention measures as provided for by the Namibian legislative framework and the extent of protection these measures afford consumers in terms of irresponsible credit and over-indebtedness. A broad survey of the policies aimed at promoting responsible lending benchmarks the Namibian consumer credit regulatory framework against the leading international best principles which have been developed in response to global economic challenges. The Namibia Financial Institutions Supervisory Authority in the 2014 Microlending Bill proposes to introduce responsible lending practices in the form of a compulsory pre-agreement assessment of the prospective consumer before providing them with credit. In a comparative investigation, the creditworthiness assessment and related measures central to the responsible lending regimes in South Africa and Australia are considered. Measuring the Namibian consumer credit regulatory framework against these recent developments, it is submitted that the current debt prevention measures are inadequate in protecting consumers from irresponsible credit lending and the risk of consumer over-indebtedness. This thesis supplies reasons for the need in Namibia to update the regulatory structure of the credit industry in order to protect consumers. As a contribution to the promotion of a culture of responsible lending in the Namibian consumer credit market, the thesis proposes the introduction of responsible lending measures in Namibia’s consumer credit legislative framework.

Text of a talk given by the author at the University of West London on 8 March 2016 on the topic of Alternative Dispute Resolution, its relation to the concept of access to justice and the idea of practising law in the interest of justice.

This Chapter aims to distill a consistent approach to arbitrators’ independence and impartiality from past decisions on disqualification requests. In a first part, the interpretation of the manifest lack requirement provided for in Article 57 icsid Convention is scrutinized. The definition of this threshold (i.e. the burden of proof imposed on the challenging party) is crucial, because it determines the effectiveness of the right to an independent and impartial decision-maker. The second part of the Chapter inquires how specific categories of alleged conflict are dealt with. It seeks to derive consistency and predictability from the outcome or reasoning of disqualification

In The Independence and Impartiality of ICSID Arbitrators, Maria Nicole Cleis examines the standard of independence required under the ICSID Convention, as evidenced in existing disqualification decisions, and makes novel suggestions for reforms to ensure unbiased decision-making. Readership: All interested in International Investment Law and investor-State arbitration in particular. Readership includes academics, lawyers and arbitrators involved in investment-related disputes (including in-house counsel), treaty negotiators and NGOs.

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

<p>Art. 11 of the Principles on Choice of Law in International Commercial Contracts, adopted by the Council of the Hague Conference in March 2015 contains provisions governing the relationship between the system of law1 chosen by the parties under Art. 2(1) (the “chosen law”) and the laws and policies of other systems. It provides as follows:</p> <p>1. These Principles shall not prevent a court from applying overriding mandatory provisions of the law of the forum which apply irrespective of the law chosen by the parties.</p> <p>2. The law of the forum determines when a court may or must apply or take into account overriding mandatory provisions of another law.</p> <p>3. A court may exclude application of a provision of the law chosen by the parties only if and to the extent that the result of such application would be manifestly incompatible with fundamental notions of public policy (ordre public) of the forum.</p> <p>4. The law of the forum determines when a court may or must apply or take into account the public policy (ordre public) of a State the law of which would be applicable in the absence of a choice of law.</p> <p>5. These Principles shall not prevent an arbitral tribunal from applying or taking into account public policy (ordre public), or from applying or taking into account overriding mandatory provisions of a law other than the law chosen by the parties, if the arbitral tribunal is required or entitled to do so.</p> <p>In brief summary, therefore, the first and third paragraphs address the relationship between the chosen law and certain laws and policies of the forum, the second paragraph addresses the relationship between the chosen law and certain laws of legal systems other than the forum, the fourth paragraph addresses the relationship between the chosen law and the certain policies of the legal system whose laws would have applied but for the parties’ choice under Art. 2(1) and the fifth paragraph addresses the limits of the application of the chosen law in arbitration proceedings.</p>

The rights of freedom of association, to organise and to bargain collectively are recognised internationally and form part of the constitutional framework of progressive and democratic states. The full enjoyment of these rights by trade unions often is hindered by the imbalance in the power relations between the employer and the representatives of the workers, hence the need for statutory intervention. The Labour Relations Act 66 of 1995 (LRA of 1995) postulates a collective bargaining regime which is voluntarist in nature and strengthens its effectiveness through a set of organisational rights and the right to strike. Incidentally, the current statutory framework for the enjoyment of organisational rights has had a direct impact on the enjoyment of the right to freedom of association and the right to organise. It is accepted that possession of the right to collective bargaining is internationally recognised as the basis of the authority to set thresholds of representivity in the workplace. The organisational rights framework in this context has been directly impacted upon. It is this direct impact that necessitates an enquiry to determine whether South Africa’s framework on the acquisition of organisational rights conforms to international standards set by the ILO and the Constitution, 1996. This thesis argues that the policy choice of the South African labour relations system in respect of some of the consequences of majoritarianism insofar as representation in individual cases is concerned does not necessarily foster the ideals of the Constitution, 1996 and the principles of international labour standards. The model of democracy as envisaged in the Constitution, 1996 is not one that promotes exclusivity. However, the effect of section 18 of the LRA of 1995, which allows threshold agreements, arguably may foster such exclusivity in the workplace. This situation has resulted in industrial democracy being a terrain of endless conflict between employers and labour, even more among trade unions themselves. As a result, the rivalry between unions in workplaces is exacerbated. The original intent behind the organisational rights of trade unions and their right to strike was to bolster their capacity to bargain collectively. It was meant to get them to focus on collective bargaining gains they can secure and to bargain more effectively. However, the current framework that favours majority trade unions has the effect of minority trade unions generally finding their existence threatened and their being systematically excluded from the acquisition of organisational rights. This study questions the power of majority trade unions to enter a collective agreement with an employer in the workplace and set unjustifiable thresholds of representivity in respect of organisational rights. This arrangement creates a hurdle in respect of the provisions of the LRA that seek to promote industrial democracy, the enjoyment of the rights to freedom of association, to organise and to engage in collective bargaining. Recent amendments to the LRA of 1995 are an attempt to mitigate the effect of sections 18 and 20 on the enjoyment of organisational rights. The CCMA, inter alia, has been granted powers to grant organisational rights to trade unions that do not meet the set threshold in terms of the empowering provisions of the LRA of 1995 if they meet certain requirements. However, these amendments do not go far enough to prevent employers and majority trade unions from continuing to set unjustifiable thresholds that can have potential to replace the determinations of the CCMA. Therefore, the study discusses the question whether the provision in the LRA of 1995 on the setting of thresholds of representivity for the acquisition of organisational rights and the concomitant amendments are in line with the democratic model envisaged by the Constitution, 1996 and to international labour standards which recognise the rights to freedom of association of minority trade unions. This research concludes by advancing recommendations pertaining to threshold agreements and the rights of minority trade unions and to what extent it is justifiable to permit them to enjoy them.

There is tension between the South African Revenue Service’s duty to collect taxes on the one hand, and its duty to respect taxpayers’ rights on the other. An environment where there is clearly respect for the rights of the taxpayer may indeed result in increased voluntary compliance. This thesis constitutes a comparative appraisal of whether the following enforcement powers of the South African Revenue Service (“SARS”) in the South African constitutional context, namely (i) SARS’ power to conduct searches and seizures in order to verify compliance and investigate the commission of offences; (ii) the “pay now, argue later” rule; and (iii) the appointment of a third party on behalf of a taxpayer are in accordance with the Constitution of the Republic of South Africa, 1996 (“Constitution”). It is argued that these powers do not necessarily conform to the Constitution’s values and the fundamental rights contained in the Bill of Rights in Chapter 2 of the Constitution. To address the apparent shortcomings in the current dispensation, the thesis compares these enforcement powers of SARS with similar powers afforded to the revenue authorities of Canada, Australia, New Zealand and Nigeria. Important conclusions are drawn from this comparative review and a number of recommendations for law reform are proposed which, if implemented, would align these enforcement powers with the provisions of the Constitution. The recommendations entail, inter alia, that the seizure component of a search and seizure process should be treated separately, that half of the payment obligation should be suspended until the dispute is heard by an impartial forum, and that an objective measure must be in place to ensure that a taxpayer is able to afford basic necessities when a third party appointment is made.

As we have seen from the numerous high profile launch failures and accidents that have occurred between 2014 and 2016, space activities are still ultra-hazardous in nature, despite sixty-plus years of technological development. These activities range from essential to modern life (ex., telecommunications) to futuristic and forward thinking (ex., space tourism). In order for these activities to not only continue, but also develop and grow, this inherent risk must be managed.Further complicating the risk dynamic in outer space, States are required to take liability and responsibility for the activities of their nationals in space, including private entities and individuals. The reality of this relationship is that while States wish to promote the development of their domestic space industries, they will also usually require certain levels of insurance and indemnification to protect the State against potentially costly mishaps.With regard to outer space, political will is lacking at an international level to create new binding rules for activities in space. Likewise, States are reluctant to unilaterally impose stricter (even if ultimately beneficial) regulations on their entities for fear that their domestic industries will flee abroad to greener pastures, creating a regulatory prisoner's dilemma. These factors create a scenario where the major space insurers responsible for writing policies across national boundaries may be uniquely positioned to enforce or at least promote mechanisms to increase safety and sustainability in the commercial space industry. Increasing safety and sustainability in outer space may help to keep premium costs from growing out of control for these hazardous activities, as well. Thus, this thesis addresses three fundamental questions: 1)From a legal and policy perspective, is there a regulatory void that needs to be filled, at least temporarily?2)Are insurance companies in a position to be able to fill or partially fill that void?3)If so, how, and what actions can they undertake to improve their ability to execute that governance function?In answering these questions, this manuscript-based thesis explores the existing body of space law and common practices in space activities, including notable lacunae, and applies theories of "insurance as governance." This approach permits both analysis of the existing status of the industry and recommendations to increase the viability of space activities moving forward.

Abstract not available.

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.

This study is situated in the context of the regionalisation of international criminal law. It deals with the development of African international criminal law under the aegis of the African Union (AU). It aims to examine the factors which inform this development, the concept and the content of regional law so laid down for the African continent. The primary objective has been the exploration of theoretical and practical bases for the establishment of a viable system of African regional criminal justice in order to deal with crimes against peace and security in Africa, which put in danger African regional public order. The thesis also examines the relationship between African international criminal law and the global system of international criminal justice, currently dominated by the International Criminal Court (ICC) and the United Nations Security Council. The systemic analysis of these different issues have enabled to reach three main conclusions. First, the development of African international criminal law is not simply a conjectural consequence of the crisis observed within global international criminal law. It is also and chiefly the result of the policy of self-reliance of the AU and its member states aiming to protect and defend African regional public order through the recourse to regional institutions of criminal accountability. Second, the African Union is consequently promoting a system of African regional criminal justice based on three optional models of justice, namely the delegation of jurisdiction to a member state, the creation of hybrid courts with participation of regional judges and the establishment of a regional criminal court. Together with those crimes against peace and security that are of specific concern to the African continent, these models of justice form the core of the content of African international criminal law. However, the viability of the system towards delivering efficient justice remains problematic. There are numerous challenges to overcome, including ratifying the Malabo Protocol of June 2014 instituting the “Criminal Court of the African Union”, promoting judicial cooperation of African states and finding financial resources to support the Court’s actions. Third, African international criminal law is not a replacement of global international criminal law in the continent. There is rather a coexistence of norms and institutions which commands a certain degree of coordinated relationships to avoid competing actions and so inefficiency of justice. This thesis discusses two main approaches to consistent relationships between African regional criminal law and the global system of international criminal justice, namely the hierarchical model and the cooperative approach. It proposes a third alternative approach, that is, the regionalisation of the ICC in conjunction with the principle of regional territoriality.

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