Bibliographie sélective OHADA

In principle, contracts are enforceable mutually beneficial agreements. In the event of a breach of contract, many national, supranational, and international legal systems—as well as recent European harmonization projects on private law—turn to cure regimes for the furtherance of such (assumed) contractually generated welfare. Namely, a mandatory Nachfrist-mechanism, a hierarchy of remedies, and debtor’s (in sales law: seller’s) rights to cure—before and after performance date—are normative devices intended to perform and preserve contracts, employing purportedly better, more cost-effective remedies for breach. Discussion of the utility of these legal institutions undisputedly belongs to the debate on modern contract law. In this thesis, one of these cure-oriented devices is exhaustively analyzed: the seller’s right to cure after performance date under Article 48 CISG1. Whereas according to paragraph (1) the seller—provided that certain preconditions are met—can impose subsequent performance on the aggrieved buyer, under paragraphs (2-4) they can merely offer cure within a period of time, irrespective of any preconditions. Article 48 CISG’s systematic setting, comparative law framework, origin, forerunners, preconditions for existence—general and specific—performance in practice, legal consequences—with regards to both the breach-of-contract regime and the availability of other remedies under the CISG—, and economic-behavioural implications are exegetically analysed. A particular focus is given to the allocation of contractual risk (see epigraph 3.2.9). Finally, conclusions are drawn at two levels: one concerning the CISG’s regime and another related to general Contract law. En principio, los contratos son acuerdos ejecutables mutuamente beneficiosos. En caso de incumplimiento del contrato, muchos sistemas jurídicos nacionales, supranacionales e internacionales—así como los recientes proyectos europeos de armonización en derecho privado—recurren a regímenes de subsanación para promover el bienestar que presumiblemente se ha generado con el contrato. A saber, un mecanismo de un Nachfrist obligatorio, una jerarquía de remedios y derechos del deudor (en compraventa: del vendedor) de subsanar—antes y después de la fecha de cumplimiento—son instrumentos normativos destinados a dar cumplimiento a los contratos y a preservarlos por medio de remedios, a priori, económicamente más eficientes. La discusión sobre la bondad y utilidad de estas instituciones indudablemente pertenece al planteamiento de un derecho de contratos moderno. En esta tesis se analiza exhaustivamente uno de estos instrumentos de subsanación: el derecho del vendedor a subsanar después de la fecha de entrega en virtud del artículo 48 CISG2. Mientras que de acuerdo con su párrafo (1) el vendedor –reuniendo ciertas condiciones previas– puede imponer una ulterior ejecución al comprador perjudicado; en virtud de los párrafos (2-4), éste solamente puede ofrecer una subsanación dentro de un plazo, pero independientemente de cualquier condición previa. Del citado artículo 48 se analizan exegéticamente el entorno sistemático, el marco en derecho comparado, el origen, los precursores, las condiciones previas para la existencia—generales y específicas—, su ejecución en la práctica, las consecuencias jurídicas—en el régimen del incumplimiento del contrato y en la disponibilidad de otros remedios bajo la Convención—así como las implicaciones económicas y conductuales. Se hace una contribución en relación con la asignación del riesgo contractual (véase infra 3.2.9). Finalmente, se extraen conclusiones a dos niveles: uno enfocado al régimen de la Convención y otro relativo al Derecho de contratos en general.

The study analyses the process through which investment arbitral tribunals identify and resolve conflicts between investment standards of protection and norms from other international regimes relevant for the merits of the dispute. It questions the validity behind the current approach that tribunals adopt, under which arguments based on extraneous norms are overwhelmingly unsuccessful and proposes its' transformation in three respects. First, rather than being a mere means of interpretation, as in current practice, a broader pool of international norms must be applied to the substance of investment disputes. Second, the concept of normative conflict must be broadened if one is to address the actual challenges that inter-regime conflicts pose for international law. Third, fleshing out the modalities under which one could use private international law as a source of inspiration in public international law context, the study offers best practices for approaching the types of conflict commonly found in investment disputes.

The Oil and Gas Industry Resolution originally recognised negotiation and concede to the alternative dispute resolution rather, their litigation. The paper analysed appraised the different alternative dispute resolution, formulae including mediation the doctrinal method of research which analyses all legal in others as applied. All methods relating to the dispute resolution were analysed from the library and it has formed that mediation which involves the process of resolution dispute weather the involvement of litigating is prefer for being use costly and time consuming. Litigation been so expensive and time wasting is not recommence for oil and Gas Industry.

Mercantile Law

The practice of spamming (sending unsolicited electronic communications) has been dubbed “the scourge of the 21st century” affecting different stakeholders. This practice is also credited for not only disrupting electronic communications but also, it overloads electronic systems and creates unnecessary costs for those affected than the ones responsible for sending such communications. In trying to address this issue nations have implemented anti-spam laws to combat the scourge. South Africa not lagging behind, has put in place anti-spam provisions to deal with the scourge. The anti-spam provisions are scattered in pieces of legislation dealing with diverse issues including: consumer protection; direct marketing; credit laws; and electronic transactions and communications. In addition to these provisions, an Amendment Bill to one of these laws and two Bills covering cybercrimes and cyber-security issues have been published. In this thesis, a question is asked on whether the current fragmented anti-spam provisions are adequate in protecting consumers. Whether the overlaps between these pieces of legislation are competent to deal with the ever increasing threats on electronic communications at large. Finally, the question as to whether a multi-faceted approach, which includes a Model Law on spam would be a suitable starting point setting out requirements for the sending of unsolicited electronic communications can be sufficient in protecting consumers. And as spam is not only a national but also a global problem, South Africa needs to look at the option of entering into mutual agreements with other countries and organisations in order to combat spam at a global level.

International trade can support economic development and social upliftment. However, people are often discouraged from contracting internationally due to differences in legal systems which act as a non-tariff barrier to trade. This article focuses on the private law framework regulating international contracts of sale. During the twentieth century, the problem of diverse laws was primarily addressed by global uniform law such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). However, uniform law is rarely complete and has to be supplemented by national law, trade usage or party agreement. Because of gaps that exist in the CISG the Swiss government made a proposal for a new global contract law. But is this a feasible solution to the fragmentary state of international trade law? In Europe, signs of reluctance are setting in towards further harmonisation efforts. The Proposal for a Common European Sales Law (CESL) was recently withdrawn, and now Britain has voted to leave the European Union; rumour having it that more countries might follow. The current private law framework for international sales contracts consists of a hybrid system where international, national, state and non-state law function side by side. This article submits that universalism is not per se the most efficient approach to the regulation of international sales law and that economic forces require a more varied approach for business-to-business transactions. The biggest challenge, however, would be to manage global legal pluralism. It is concluded that contractual parties, the courts and arbitral tribunals can effectively manage pluralism on a case-by-case basis.            

Africa unlike other developing regions of the world has experienced declining flows of foreign direct investment (FDI).The flow of FDI is expected to result into gradual reduction in reliance on external borrowed capital and acceleration of economic development. The study examined the declining flow of FDI to the African regions as well as the impact that it has had on economic development of the region, using the proxies of Income per capita, Life expectancy and Education indices. The study made use of pooled data from thirty nine African countries within the period 1993 and 2012.The method of analysis utilized for the study was the fixed effect least-square dummy variable model, employed to estimate the impact of foreign direct investment on economic development for the selected host African countries. The study finds that foreign direct investment is statistically significant in relation to economic development for host African countries. It is therefore recommended that the governments of host countries should consider closely the sectors that FDI flows into, encourage investment domestically in such sectors such that dependence on external financial flows could be reduced, resulting in sustained increases in income, literacy level and hence improved life expectancy which are expected to result into sustained economic development.

A dissenting opinion with reference to International Commercial Arbitrations elementarily denotes the expression of disagreement by an Arbitrator in relation to both the reasoning and the result of the award granted by the majority of the Tribunal. Though still at a nascent stage, the practice of delivering dissenting opinions is one which needs to be duly noted and taken into due consideration because of the incidental and collateral questions that it nurtures. Fundamentally, a dissenting opinion raises concerns related to the effect, the nature and the rectitude of such opinions. One such collateral question is the enforceability of such dissenting opinions and the repercussions that follow in the context of an arbitral award delivered by the majority. In addition to the above raised question, through this thesis the author will also address other questions such as whether the act of delivering a dissenting opinion is an indicator of the increased sense of maturity of arbitrators in international commercial arbitration? Whether the dissenting opinion possesses any precedential value to the arbitration cases arriving prospectively? and How do such opinions contribute to the development of arbitration jurisprudence. Moreover, through this thesis the author will also attempt from a comparative perspective to examine and make an incisive analysis of the governing rules of arbitration across various arbitration regimes such as ICSID, LCIA which already have a wellestablished arbitration jurisprudence.

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 study explores recursivity in international accounting standard-setting, focusing on participation of actors from African countries. While the International Financial Reporting Standards (IFRS) Foundation bases its legitimacy claims as a global standard-setter on a combination of expertise and a formally transparent set of recursive procedures for consultation of stakeholders, empirical results show that participation in the latter is geographically very uneven. The article argues that conceptual mismatch between the standard-setter's objectives on the one hand and the socio-economic, cultural and political conditions in many African countries on the other leads to selective recursivity that is problematic for the former's legitimacy and effectiveness. These findings are of wider relevance for debates on global standard-setting and development.

International arbitration allows great flexibility of the parties to structure their whole relationship. One of the key factors is the choice of the law applicable to the substance of the relationship. CISG is intended for the regulation of such relations between international businessmen. This paper builds on the empirical evidence of the International Arbitration Surveys conducted among various groups of practitioners on their reasoning con cerning choice of law applicable to the substance of the relationship and argues that although CISG is not chosen by them frequently (or arguably not chosen at all), this “omission” is not warranted.

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