Bibliographie sélective OHADA

Abstract not available.

Abstract not available.

Promotional competitions are competitions in which prizes are awarded by lot or chance in order to promote goods or services. Due to the chance element, these competitions are often categorised as lotteries or gambling. Initially, South African legislation did not make provision for the running of promotional competitions, but this situation changed when the Lotteries Act, 1997 came into force. Currently, promotional competitions are regulated by the Consumer Protection Act, 2008 (CPA). This thesis examines the regulation of promotional competitions in South Africa. It commences with a background discussion, which touches on the relevant terminology and some sociological aspects. It then considers the consequences of gambling and the need for and nature of regulation, and deals with the marketing and consumer protection contexts. This is followed by a brief overview of the global and South African history of gambling, lotteries and promotional competitions, which includes a discussion of South African case law. Foreign law relating to promotional competitions in New Zealand and Great Britain is explored in order to compare this to the South African position. This is followed by an examination of the current regulation of promotional competitions in South Africa, including a discussion regarding the interplay between the CPA and the Lotteries Act and a detailed analysis of the CPA’s provisions. The self-regulation of promotional competitions is discussed as well. The concluding chapter of this thesis contains recommended solutions for the problems identified in the analysis of the relevant legislation.

With the introduction of the National Water Act 36 of 1998 (NWA) in South Africa’s water regulatory regime, the foundations of the country’s existing water law system changed fundamentally. The NWA was promulgated with the primary aim to reform the law relating to water resources. The preamble to the NWA states that water is “a scarce natural resource that belongs to all people.” Section 3 of the NWA continues along similar lines and stipulates that all water use rights fall under the centralised control of the state or public trustee to inter alia improve the distribution, management, use, conservation and equality of access to this scarce resource. Statutory transformation of this nature has inevitable and important legal implications. It has for example been argued that the changed system has brought about a reallocation and redefinition of property rights to natural resources; a transformation which will inevitably impact the nature, form, extent, limits and protection of access and use rights that can be acquired in water as a natural resource. In an effort to understand the extent of the legal transformation brought about by the concept of public trusteeship, this thesis considers the impact of the concept in the broader South African water law context. The concept of public trusteeship is a novel concept in South African jurisprudence, without established links to existing principles of law. This thesis subsequently focuses on how and to what extent the German property law concept of őffentliche Sache may inform the development and interpretation of the South African concept of public trusteeship as entrenched in the NWA. Consequently, this thesis commences with an exposition of information on the idea of property and the relevance and importance of the different property rights regimes against which both the South African and German property regimes can be evaluated. This is followed by a description of the South African property rights paradigm and its different property concepts. The research introduces a novel take on the discussion of the regulation of rights in natural resources in South Africa, namely a “stewardship ethic of public trusteeship”. As a stewardship ethic could potentially influence the regulation of property in natural resources and even perhaps the property regime within which water as natural resource is regulated in South Africa, the next section of the research proceeds with a historical account of the South African water law dispensation. Although the historical review indicates that the concept of public trusteeship is not part of South Africa’s common law heritage, some of its principles find application in the common law concept of res publicae. The conclusion is that the concept of public trusteeship does not merely (re-) introduce the res publicae concept into the South African water realm. The concept of public trusteeship is a novel concept that was statutorily introduced into the South African water regulatory framework in terms whereof “ownership” of water resources vests in the national government, and are consequently administered on behalf of the nation and generations yet to come. A separate section of the research analyses and contextualises the concept of őffentliche Sache as it functions in German law to offer new insight into the implications that the statutorily introduced concept of public trusteeship might have on water as property and the property regime within which water is regulated in South Africa. This guides the study to the next section of the research, which illustrates that the concept of őffentliche Sache is at the basis of the German water regulatory framework. The conclusion of the study proposes an understanding of the concept of public trusteeship in South Africa based on lessons learned from the German concept of őffentliche Sache.

Arbitration provides speedy mode of settlement of disputes between the parties. In the course of arbitration, the arbitration tribunal has an obligation to give a fair opportunity to the parties to present their case. The fair hearing or due process of law in arbitration requires that both parties must be treated equally and given opportunity to be heard, which include a party may request the other party for production of documents, which are relevant to the case. Hence, the international arbitration rules contained the provisions to order a party, on its own or on the request of a party, to produce the documents relevant to the outcome of the case. Unless otherwise agreed by the parties, any denial of this opportunity may be considered as a violation of due process of law, consequently a party may challenge the enforcement of the award.

It is universally acknowledged that international trade and cooperation have become key drivers of SMEs. Indeed, the success of SMEs in the sales sector depends upon their capacity to conquer the foreign market and compete with larger companies. Many SMEs today, in particular those in Central and West Africa, are very much aware of this reality. However, because of differences between domestic laws and their maladjustment, many African SMEs still struggle to enter the international market and compete with larger companies. It is therefore obvious that any SMEs that want to succeed in international commerce today will be called upon to confront different regulations, whether domestic, regional or international, which are often shaped according to the realities and expectations of a particular environment. The challenge today is to regulate and harmonise these different legal systems, in order to render the law identical in numerous jurisdictions. This process of unifying the law internationally, in particular the law of sale, started in 1920 and culminated in 1988, with the implementation of the CISG. This Convention, which has become the primary law for international sales contracts, endeavours to deal with this problem of differences in law between states on a global scale, by attempting to achieve a synthesis between different legislations, such as civil law, common law, socialist law, and the law regarding industrialised and Third World countries. Even though the CISG appears to be a compromise between different legal systems, the fact remains that it is not yet applicable in many countries, especially those in Central and West Africa, which are mostly still ruled by domestic and regional law, namely the OHADA. The purpose of this study is to attempt to analyse and compare the OHADA’s Uniform Act Relating to Commercial Law to the CISG, in order to identify similarities and differences between the two, and to determine, with regard to the operating mode and structure of SMEs in West and Central Africa, which one of the two legislations is more appropriate.

The purpose of this study is to present the main facets of online dispute resolution, including a definition of the term, the types of resolution available, and the most recent legal regulations in this area. The article is an in-depth study of this field, discussing online mediation and electronic arbitration, their uses and their relationships with e-commerce. The strengths and weaknesses of online dispute resolution are identified and used to help formulate de lege ferenda stipulations. The paper is divided into three parts. Part I looks at preliminary aspects of online dispute resolution (ODR), including a definition of the term and an examination of its phases of development, implementation examples and the relationship between ODR and technology. Part II is devoted to examining the two most frequent forms of ODR: online mediation and electronic arbitration. Part III is an analysis of consumer disputes arising from commercial transactions made using electronic communications. As an example of the implementation of ODR, the author emphasises the importance of new European regulations on that and alternative dispute resolution (ADR): Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR), and Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR).

This study’s aim is to assess the trends and the macroeconomic determinants of FDI and to estimate its impact on economic growth, using West African Economic and Monetary Union (WAEMU) and its member countries (Benin, Burkina Faso, Cote d’Ivoire, Guinea Bissau, Mali, Niger, Senegal and Togo) as a case study. In order to achieve the objectives of the current study, the panel cointegration method is employed for the period that expands from 1980 to 2010. This method is constituted of three steps: first, running the panel unit root tests; secondly, run the panel cointegration tests to establish a long-run relationship between the included variables; and thirdly, to run the two models of this study. All this is supplemented by Granger causality test in order to determine the direction of causality between the two variables of FDI and economic growth in WAEMU and its member countries. The findings show that: (i) the variables market size, trade openness, human capital, infrastructure development, financial development, macroeconomic stability, exchange rate and political stability are significant determinants of FDI in WAEMU and in its member countries; (ii) not all the variables affect the same way FDI inflows in WAEMU and in each one of the WAEMU member countries; (iii) there is a positive relationship between FDI and economic growth which implies that FDI stimulates economic growth in WAEMU and its member countries; (iv) this study finds a causality relationship between FDI and economic growth, which runs from FDI to economic growth not from economic growth to FDI: meaning there is a unidirectional linkage between FDI and economic growth in WAEMU; (v) the study also finds that at cross-sectional level, FDI only causes economic growth, not the opposite: this implies that there is also a unidirectional linkage between FDI and economic growth in each WAEMU member country and its runs from FDI to economic growth. Therefore, it is important that the enabling environment should always be provided not only in WAEMU but also in its member countries in order to attract more foreign direct investment and further to stimulate the xiv country’s economic growth. Thus, this study recommends the followings, at the local or country level: first, improvement of the image of WAEMU countries. Rapid economic growth could result in an increase in foreign direct investment inflows, not only in WAEMU but in each one of the WAEMU member countries. But, this has to be done with more attention given to conditions (i.e. key variables) such as fair trade policy with abroad, development of infrastructure and financial system, availability of human capital through a sound human training and formation. At regional or WAEMU level, governments should set up policy that guaranties macroeconomic stability and political stability.

The use of mobile communication devices such as mobile phones, smartphones, tablet computers or notebooks with access to the internet has become an everyday phenomenon in today's business world. However, whenever mobile communications are used for the purposes of contract formation, that is, the mobile dispatch of offers or acceptances, the mobility of the communicating parties raises important difficulties for the application of traditional legal rules: The fact that messages transmitted via phone, email or SMS can be dispatched and received  at virtually any  place on  earth challenges the categories of private international law and international contract law, which are based on the (unspoken) assumption that parties communicate from their home country. The existing legal framework for cross-border contracts therefore hardly takes into account the possibility that parties may move across borders, and that the place of their communications may accordingly vary.The present article addresses the legal difficulties and uncertainties that cross­ border  mobile communication  raises under international rules of law. It elaborates on the traditional role of the site of communication in this context before scrutinising how 'mobility friendly' the provisions  of the relevant  conventions  developed  by the United Nations, the Hague Conference for Private International Law and other organisations  are. In doing  so,  it critically  discusses  in particular article 10(3) of the UN Electronic Communications Convention of 2005, the most recent attempt at regulating mobile communications. Finally, it identifies a number of problems that have hitherto been overlooked (as notably the interaction of article 10(3) of the UN Electronic Communications Convention with traditional private international law rules on the formal validity of contracts) and proposes appropriate solutions.

Foreign direct investment (FDI) plays an important role in the world economy and has the potential to contribute towards accelerating the process of economic growth and sustainable development in the least developed countries (LDCs). The paper provides a brief overview of recent trends and patterns in FDI flows to the LDCs, and then takes stock of the policies, programmes and measures pursued by host and home countries and by international organizations to stimulate FDI flows to LDCs and increase their benefits for these countries. It then lays out a number of policy proposals on how flows to LDCs, and the benefits associated with them, can be enhanced. Finally, it outlines some options for international action to strengthen such efforts – proposals and options that are also relevant to other developing countries.

This conference which held at the premises of the African Union Commission, Addis Ababa on 23 July 2015 examined the functions of arbitration institutions in Africa. The conferenced discussions focused on sharing experiences by users and providers for the effective administration of arbitration references in the continent. The conference was organised by Dr Emilia Onyema of the School of Law, SOAS. KEY ARTICLES : - Regional Arbitration Institution for ECOWAS: Lessons from OHADA Common Court of Justice and Arbitration ; - The Role of Arbitration Institutions in the Development of Arbitration in Africa ; - “Africa’s Century” – The rise of International Arbitration in Africa and what it means for users of Arbitral Institutions in Africa ; - Reawakening Arbitral Institutions for Development of Arbitration in Africa ; - Opening Up International Arbitration in Africa ; - Africa as a Viable Space for Arbitration: Role of National Courts and Laws - The Role of Counsel in Promoting African Arbitral Institutions ;

This study examined economic integration through trade between BRIGS (Brazil, Russia, India, China and South Africa) countries and sub-Saharan Africa. The study examines the comparative advantages of the two economic blocks with respect to the exportation of merchandise (food, agricultural raw materials, fuels, ores and metals, and manufactures). The findings of this study reveal the actual status of these two regions as economic partners in each of the five subsectors of merchandise exports.The  trend  shows  that,  with  the  exception  of  manufactures  exports, the competitiveness of all subsectors of the merchandise  exports of  BRIGS is characterised by a  declining  trend.  BRIGS has  a  comparative  advantage in the world in the exportation of manufactures and fuels, and comparative disadvantage in the export of food, agricultural raw materials, and ores and metals.  Interestingly, manufactures are  continuously  and consistently  in a steadily rising trend. This is evidence that BRIGS's structural transformation towards higher valued-added commodities is proceeding well, which means that policy makers should be considering ways of enhancing it further.In the case of sub-Saharan Africa, with the exception of manufactures exports, it is found to have comparative advantages in all merchandise exports. Sub- Saharan Africa’s competitive advantage is the highest in the exportation of ores and metals, followed by fuels, agricultural raw materials and food. Sub-Saharan Africa has a comparative disadvantage in the export of manufactures throughout the period considered in this study. This implies that the prospects of structural transformation to downstream of the higher value-added commodities export part of the supply chain are good: the slow pace of transformation towards higher value-added goods should therefore be demanding the attention of policy makers. The study has revealed that sub-Saharan Africa is more competitive than BRICS in the exportation of ores and metals, fuel, agricultural raw materials and food. On the other hand, BRICS is more competitive than sub-Saharan Africa in the export of manufactures.The study has also revealed that significant economic integration can be sustained  between  BRICS  and  sub-Saharan  Africa  in  the  exportation  of all merchandise subsectors. Specifically, sub-Saharan Africa is a potential destination market for BRICS’s exports of manufactures. Conversely, BRICS is also a potential destination market for sub-Saharan Africa’s exports of ores and metals, fuel, agricultural raw materials and food.Economic integration between BRICS and sub-Saharan Africa favourably influences peace and stability in the regions. Sustaining peace and stability in these regions also favourably influences the wellbeing of the communities.

Economic co-operation and integration brings with it a need to harmonise mechanisms for the regulation of international trade, not only at a public-law level between states but also at a private-law level between traders inter partes. It is often forgotten that differences in the substantive law applicable to a contract function as a non-tariff barrier to trade. Because international trade facilitates economic development, the focus in this article is on the harmonisation of sales laws. Traditionally, private law harmonisation has been conducted by international private or inter-state organisations that specialise in the harmonising of law at a global level. Today, private organisations and groups devoted to harmonising business laws, as well as regional economic integration organisations, are also pursuing legal harmonisation. Global, regional and domestic laws now all exist in the same area of the law, which can give rise to duplication of efforts and problems with the co-existence of global and regional sales law. This article will discuss these issues with reference to the United Nations Convention on Contracts for the International Sale of Goods (CISG) and selected regional laws in considering whether regional harmonisation can act as a stepping stone towards increased harmonisation at a global level or whether it is to be viewed as a threat to global integration and harmonisation.

Globalisation and the increasing movement of capital and labour across international borders, with the exception of migrant workers who are facing major obstacles due to immigration laws, are creating a situation where laws in general and labour laws in particular are acquiring an international character. International bodies such as the United Nations, the International Labour Organisation and the European Union have adopted various international norms and standards to which most countries have agreed and which have established minimum international standards for basic universal human rights and worker rights. The Southern African Development Community is a transnational organisation that has also adopted certain basic norms and standards in its Treaty, Charter on Fundamental Social Rights and various protocols that are applicable to all citizens within the Community. In this contribution, the concept of transnational labour relations is considered. The different international approaches towards transnational labour relations are evaluated, as is the manner in which the European Union approached the integration of regional labour standards. The author seeks to establish what the Southern African Development Community can learn from the European Union’s experience and in what way a transnational labour relations system or regional labour standards regime for the Southern African Development Community can be established.

Passivity rule: origin and reasons. Adoption of the European directive 25/2004 and its provisions. The adoption of the European directive by major member states and passivity rule in USA and China. The economic implications of passivity rule. Possible future developments.

LL.M. (International Commercial Law) <br>The principle of party autonomy is a fundamental characteristic of private international law. The contracting parties’ freedom of choice regarding the law governing their contract is one which optimises the fundamental principle of party autonomy. It is generally accepted that a choice of a governing law by the parties should be respected by adjudicating bodies such as domestic courts and arbitral tribunals. It would often benefit contracting parties to choose a neutral legal system so that there will be a “fair playing field” in case a dispute arises between them. However, some domestic legal systems and regional, supranational and international commercial instruments limit the choice of law to that of a recognised domestic legal system. Accordingly, choosing the UNIDROIT Principles on International Commercial Contracts as governing law will, in most cases, not be a viable option for the parties concerned. Such a limitation on the choice of a governing law does not promote the fundamental principle of party autonomy, which is characteristic of private international law. Parties to an international commercial contract should be able to choose a non-state system of law to govern their contract. The UNIDROIT Principles of International Commercial Contracts provide a comprehensive, complete and easily obtainable system of law compiled by legal experts in the various fields which form part of international commercial law. It follows a via media system of law with regards to Civil Law and Common Law legal systems. This paper will discuss the principle of party autonomy, as well as the possibility of a choice of non-state law, in particular the UNIDROIT Principles of International Commercial Contracts, as the law governing an international commercial contract. The choice of law will be discussed with reference to the position taken in domestic courts as well as that in international arbitration. To review the impact and success of the UNIDROIT Principles in the realm of international commercial contracting, various international commercial instruments will be discussed.

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

This study compares the legal principles applicable in both South Africa and Kenya in the creation of security by means of movables. It identifies the forms of security that can be created in the two jurisdictions. The main focus will be on the creation, publicity, priority of security interest and enforcement of the said interests. The research will in addition establish the challenges (if any) that are encountered when creating security by means of movables in Kenya and identify practical solutions that can be adopted in order to improve the creation of security by means of movables in Kenya.

Cooperative societies in the Western Highlands (West and North West regions) of Cameroon is an age old institution which started with the arrival of the European colonialists towards the end of the nineteenth century. The fertile soils of this region favors agricultural activities thereby giving rise to many cooperatives in the region. The cooperative societies that have been developed in these areas are the type found in sub Saharan Africa which has stood the test of time more than half a century whereby the other cooperatives elsewhere in the same country have failed. The question this article is about to provide answers is to what has made these cooperatives in the Western Highlands of Cameroon able to stand the test of time when others are quitting the scene. To come out with this scientific article we have implored the active participatory research methodology. The analysis shows that these cooperatives since their creation have been imploring certain innovative measures to make them adapt to the many constraints in their sector.