Bibliographie sélective OHADA

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.

Sovereign Wealth Funds have been the new 'rising star' of the global economy for a few years. Host States have reacted to their rise cautiously and have quite frequently cited 'national security' as a justification for maintaining an absolute degree of freedom in regulating their entry into their markets. This thesis is arguing that a substantial proportion of regulatory concerns that surround the operation of SWFs are actually not of a national security nature—at least as perceived by the relevant instruments regulating investment in International Economic Law. As a consequence, the current regulatory framework screening SWFs investments a priori is both legally and normatively problematic and, in fact, it constitutes a form of protectionism. As an alternative, this thesis suggests that SWFs ought to be primarily regulated after their entry into Host States' markets. In that context, a proper conceptualisation of the principle of non-discrimination that takes into account the 'regulatory unlikeness' between SWFs and other market suppliers/investors will allow the Host States to properly regulate them after their entry into their markets. Such a conceptualisation – contrary to usual analyses – draws heavily from International Investment law in order to interpret the relevant provisions of the GATS.

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.

The paper deals with arbitration law in Ivory Coast and is mainly based on interviews with the most important authorities in this field. After a short introduction into the OHADA legal system the two main arbitration centres of Ivory Coast are presented. First, the paper treats the internationally known OHADA arbitration centre of the Common Court of Justice and Arbitration, hereinafter known as CCJA. It explains the bodies and the organisation of the CCJA, the arbitration procedure in detail, the enforcement of the arbitral award, the interim measures and the legal remedies against decisions of the CCJA. Second, the functioning of the Court of Arbitration of Côte d'Ivoire, hereinafter known as CACI, is explained. It is the second arbitration centre of Ivory Coast and it was created by the Ivorian Chamber of Industry and Commerce and settles mainly disputes between nationals. The analysis treats the same topics as mentioned for the CCJA centre, but is restricted to point out the differences or peculiarities of the CACI procedure, in order to prevent repetitions. Third, the paper analyses the advantages and disadvantages of the two arbitration centres and compares them to the proceedings of the Commercial Court of Abidjan. It avoids the comparison of yet well-known arguments such as confidentiality of arbitration proceedings or the parties' free choice in regard to the place of arbitration and the language, etc. The work rather limits itself to concretely address the problems or the advantages of each dispute solution considering the latest developments in the judicial system. The purpose of the report is to give a practical introduction into the Ivorian arbitration law, in particular to foreign lawyers. It should provide them with solid theoretical knowledge of the different dispute solutions. With the help of concrete comparisons and explanations of the actual situation regarding the civil and commercial judicial system it should enable them to find the most suitable dispute solution for their clients.

The aim of this article is to explore Cappelletti’s most enduring teachings relevant to those who promote global or regional integration of private laws. The article will review Cappelletti’s insights into the dynamic history of law, the need to respect diversity and take into account society’s imbalances, and the duty of comparative lawyers to engage in “applied” interdisciplinary legal research.

Corruption has widely been recognized as one of the impediments to the socio-economic cum political development of Nigeria. By 2000, it was observed that the conduct of government business in Nigeria had become difficult and expensive due to pervasive corruption, particularly procurement fraud. Although procurement fraud is one of the most common avenues of corruption in most countries, its incidence in Nigeria by 2000 was particularly widespread. To reverse this ugly trend, the Nigerian government initiated the public procurement reforms with a view that a corrupt-free procurement process will among other things, promote economic development in the country. Consequent upon the reform, the Public Procurement Act was enacted while the Bureau of Public Procurement was established to ensure due process, accountability and transparency in the award of government contract. In this light, this study evaluated the impact of the public procurement reforms on the economic development of Nigeria. We relied on documentary method of data collection and content analysis of data. Meanwhile, employing the basic propositions emanating from the Marxist theory of the Post-Colonial State, this study noted that the nature and character of Nigerian state undermined the procurement reform from achieving its expected goals. We however, recommended for the removal of the immunity in the constitution and strengthening of the anti-graft agencies in Nigeria.

Audit quality has been evaluated in academic literature accordingly with auditor qualities, due to the difficulties of observing auditing technical process itself. The qualities of a good auditor are then competence and independence, sine qua none conditions of audit quality. That approach is otherwise valid only if there is a valuable framework like stock market where auditor’s competence and independence could be observed. In OHADA space countries, the financial market is approximately off. It is therefore impossible to assess audit quality the way it has been done in prior literature. This study suggests a new approach of assessing audit quality in OHADA countries in relation with audit committees member’s perception of auditing process. Using an innovative qualitative approach inspired from Manita (2008), the results suggest to take into account the auditor’s knowledge of the company, the relevance of the identified zone of risks and the degree of communication with the board of directors.

Jurisprudence

Management accounting information should aid management in the design and implementation of strategy. Firms adopting a customer-focused strategy need customer accounting (CA) metrics. Yet accounting literature provides limited insights into what CA metrics are used, how they are used, or what factors influence CA measure choice or hinder more widespread adoption of CA practices. This thesis enhances knowledge of actual CA practices as they operate in firms with a customer-focused strategy and uses contingency theory to explain the choice of CA practices and their use in three exploratory case studies consisting of two national banks and a global courier company. The two strategic business units in Alphabank employ locally-developed, activity-based costing systems to produce CA information. Personal Banking incorporates a ‘customer needs met’ variable into a customer lifetime value measure used to segment customers based on potential profitability. Business Banking is smaller and currently uses historical customer profitability analysis at the individual customer level. Despite Alphabank’s overall customer-focused strategy, only product profitability is reported at executive level, and tensions between finance and operations potentially hinder more widespread CA usage. Betabank offers excellent customer service, but despite being very customer-focused they do not measure customer profitability. Executives use predominantly aggregate financial figures with a focus on net interest margin. Service excellence is paramount and Betabank do not consider financial CA useful as they do not segment customers. However, they extensively use non-financial customer related measures to monitor excellent customer service provision in order to enhance future profitability. The courier company uses activity-based costing to produce historical customer profitability analysis which reports direct margin, gross margin and earnings before interest and tax. The analysis discloses significant profitability differences between customer segments, and even between individual customers within segments where customer relationship management is employed. They do not measure full customer lifetime value but the next year’s customer profitability can be modelled using historical cost drivers. Financial CA measures drive initiatives to enhance customer profitability and/or trigger price negotiations. Non-financial CA measures are used to drive the customer-focused strategy and enhance profitability. The three cases demonstrate a considerable diversity in their usage of financial CA practices, with Betabank choosing to use no financial CA at all. Competitive intensity and the use of customer relationship management are found to be key drivers of CA usage at the individual customer level. Segmental customer profitability analysis is used when a large number of customers receive standard services at standard prices. No individual customer profitability analysis is needed for such homogenous customers as they can be efficiently managed using revenue. Non-financial CA measures were found to be widely used and hence a key contribution of this study is that in practice customer-related, non-financial performance measures are a key component of CA practices and may be extensively used to drive a customer-focused strategy. From case analysis a contingency-based framework has been develop which identifies combinations of factors with strong interrelationships and common influences on the choice and usage of CA measures. This framework provides three main groupings of contingent factors (type of competitive advantage, level of customer heterogeneity, and stage of organisational development) which together potentially have strong predictive power in relation to the nature of CA measures which benefit firms with a customer-focused strategy.

An emerging question in U.S. business law is how the organizational documents of a business entity set the rules for resolving internal disputes. This practice is routine in commercial contracts, which may specify where or how disputes must be resolved. Recent use of litigation provisions in corporation charters and bylaws have sparked controversy, ultimately leading to legislative action to preserve shareholder suits from contractual waiver. Yet despite accounting for the majority of business organizations and sharing features with corporations, non-corporate business entities and their internal dispute resolution process have been largely ignored. How do these non-corporate entities set ex ante rules for resolving disputes among their constituents? This paper begins to map this uncharted area with an empirical study of the practice of limited liability companies (LLCs). We find widespread use of contract to alter the default dispute resolution practices. This study helps not only to inform the evolving statutory and judicial framework for LLC regulation, but also to predict how corporations may respond in the future to recent judicial and legislative changes.