Bibliographie sélective OHADA

The paper examines the impact of Foreign Direct Investments (FDIs)on economic growth in the five regions of Africa, as well as identifies their respective drivers of growth. It employs the Ordinary Least Squares (OLS) multiple regression analysis to examine the relative impact of Foreign Direct Investments, balance of payments, trade openness, technology and quality of labour force on economic growth in each of the five regions between 1980 and 2012. The study finds that foreign Direct Investments (FDIs) have no significant impact on economic growth in the five regions of Africa. The impact of FDI on growth is positive in Eastern, Middle and Western Africa but negative in Northern and Southern Africa. Similarly, there are differentials in the drivers of growth in the five regions. While trade openness is a negative driver of growth in all regions of Africa except in Northern Africa, both balance of payments and quality of labour force have mixed impacts on economic growth in Africa. In addition, technological progress impacted growth in Middle, Southern Africa and Western Africa but it appears that lack of it retarded growth in Eastern and Northern Africa. The study calls for policy reform frameworks that encourage and boost foreign Direct Investment flows to all regions of Africa, particularly Direct Investments in critical sectors of the economies, as well as check the negative effects of foreign Direct Investments. Furthermore, it recommends that regional economic blocks in Africa should be resuscitated and supported to develop and promote intra-Africa trade and Investments.

The interaction between competition law and intellectual property law has often attracted divergent views from scholars and practitioners of each respective sphere of law. Whereas some argue that the two are in conflict with each other and cannot be reconciled. The aforementioned tension between competition law and intellectual property law has been traced to the objectives of each. On the one hand, intellectual property rights confer upon their owners an exclusive right to behave in a particular way while on the other hand competition law strives to keep markets open. Other scholars have argued that, in real sense and practice, the two are actually not in conflict but rather that they complement each other. The question then becomes, is there really an irreconcilable difference between the two areas of law? This paper seeks to establish how the two aspects of law interact and seeks to propose that there be created a balance to alleviate the perceived conflict between the two. This paper will identify the areas in which the balance can be struck. It will also seek to establish how the Kenyan legislative framework as well as the courts has dealt with the conflict. It will proceed from understanding the goals and objective of both intellectual property law and competition law. This will provide the backdrop against which the alleged conflict originates from. A comparative study with other developed jurisdictions will be undertaken so as to advise on the route that should be taken by Kenya on the interface and a conclusion drawn on how the two areas relate and recommendations drawn from the issues identified in the study made.

Transparency of trade regulations by all WTO Members is essential for open, fair and predictable trade relations. Because of the negative integration process followed by the WTO Agreements, a myriad of different regulations apply in all WTO Members and have the potential of affecting international trade. With the progressive lowering of tariffs since 1947, these differing regulations remain the most significant barriers to trade, and the most difficult to reduce. The Agreements on Sanitary and Phytosanitary (SPS) measures and on Technical Barriers to Trade (TBT) provide the most comprehensive frameworks to address the costs arising from such regulatory diversity, through extensive obligations on regulatory transparency and cooperation and introducing elements of positive integration. Does transparency, within the SPS and TBT Agreements prevent disputes from rising, or ensure all Members access necessary information to raise more and better disputes? Through a presentation of the legal obligations and institutional framework of the two agreements (Part I), an in-depth analysis of the issues encountered by WTO Members in the implementation of the two Agreements and raised as trade concerns in the SPS and TBT Committees (Part II), and a study of the factors leading to disputes and transparency's role in addressing them (Part III), this thesis will demonstrate that transparency as it exists under the two agreements has the potential to both complement dispute settlement, by giving equal access to information for Members to raise disputes, and substitute dispute settlement, by fostering dialogue between Members before their frictions escalate to formal disputes. In this sense, the strength of the WTO legal and institutional system goes well beyond its dispute settlement system, with enforcement of WTO obligations fostered by better information sharing and dialogue among Members themselves, through non-judicial means.

This thesis intends to justify the necessity to propose an alternative remedy mechanism to current air carriers' obligations in offering complimentary services to passengers in force majeure delays. This mechanism mitigates disputes arising from passengers' dissatisfaction with air carriers' services. The proposal is the result of extensive research arising from a fundamental question: Who should be responsible for damages and/or inconvenience resulting from flight delays caused by force majeure? The source of information for this thesis stems from a combination of the analysis of case law and statutes on one hand, and experience drawn from professional practice and cultural context on the other. This thesis discusses the intersection of international conventions, national legislation, and the practice and expectations of air carriers and their passengers. The thesis specifically examines and highlights the inadequacies of relying on existing international conventions to provide a harmonized solution for flight delay claims. In terms of national remedy mechanisms, research and analysis have been focused on the advanced aviation markets in the West, such as the US and the EU, and on the emerging markets in the East, such as Mainland China and Taiwan. The research and analyses reveal how national laws, which are deeply influenced by socio-economic, political and cultural factors, trigger distinct conflicts of interest between air carriers and passengers. During the course of reviewing the legal jigsaw and uncertainties in current legal practice, the findings revealed more issues. In brief, making more laws cannot guarantee an effective solution for flight delay claims, especially in different jurisdictions. Accordingly, the findings support that a novel solution, free from the uncertainties and complexities in the current legal framework, is needed to resolve passengers' claims or expectations resulting from force majeure delays. Essentially, this novel solution is to form an alternative remedy mechanism that includes a fund and codes of conduct. The fund will implement a risk-sharing function among stakeholders that will include passengers, air carriers and airport managing entities. To mitigate disputes, the proposed codes of conduct will include guidelines to operate the fund with the aim of mutual respect between passengers and air carriers. In so doing, the remedy mechanism will provide equitable answers to the question: "Who should be responsible for damages and/or inconvenience resulting from flight delays caused by force majeure?"

This research is aimed at making out a case for the taxation of foreign source income in countries with developing economies. To this end the argument is presented that it is possible to tax foreign source income in a way that optimally coordinates the revenue entitlements of countries with developing economies, with the entitlement of multinational enterprises operating within their area of jurisdiction, to maximum profitability. It is proposed that this result may be achieved through the careful coordination of controlled foreign company (CFC) legislation and international business taxation in domestic law. To support this proposition, the following issues are addressed: a theoretical and conceptual framework for the implementation of a regime of foreign source income taxation in a country with a developing economy; an evaluation of the efficacy of the CFC legislation implemented in South Africa from which lessons in relation to the implementation of foreign source income taxation regimes in other developing countries are distilled; how the coordination of the interaction between a CFC regime, a domestic business income taxation regime, and an international business income taxation regime is effected; and an exposition of the factors that should be taken into account in the drafting of CFC legislation. To illustrate the possible real-world realisation of the coordination between CFC legislation and international business taxation in a country with a developing economy, model CFC provisions are drafted followed by an explanatory note on these provisions.

With the progressive transformation of the Internet from a romanticised instrument of freedom and self-expression into a commercial platform for digital distribution, most websites must be recognised as access interfaces to a wide range of content and services. This paper examines the contracts purportedly governing the use of such content and services. It explores the difficulties of establishing legal intention in a context that is not unambiguously commercial or transactional and contrasts popular beliefs with the basic principles of contract law. It draws a clear distinction between contracts governing traditional e-commerce exchanges, such as buying books on Amazon.com, and contracts governing the very use of websites. In the latter instance, the website (ie the resources made available thereon) constitutes the subject matter of the transaction. Equal importance must be attributed to the fact that such contracts are formed on websites and to the fact that they govern their use. The website user will question the existence of a contract on the basis that he did not have an intention to be legally bound, or had no awareness that a transaction was taking place. The website operator will argue that, objectively, all prerequisites of a legally enforceable agreement have been met. The outcome of the discussion will, to a large extent, depend on whether the user’s beliefs and expectations can be regarded as reasonable and on whether it is the user or the operator who deserves the protection of the objective theory of contract.

LL.M. (International Commercial Law) <br>The resolution of jurisdictional conflicts is one of the main functions of private international law. It provided rules to be applied when the courts of more than one country are seized of the same case in international litigation. In determining what that rule should be, regard must be had to the interest of all the relevant entities, namely, the parties to international cases and the courts dealing with such cases. The need to strike a balance is even more urgent in international commercial litigation where the outcome of the case normally has significant economic consequences. From this background, a study has been conducted of two major private international law regimes regarding their approaches to the resolution of jurisdictional conflicts, namely, the common‐law and the European Union (EU). This study is an inquiry into the suitability of each approach in the resolution of jurisdictional conflicts in international commercial cases. It is the view of the present author that each approach has advantages and disadvantages. The common‐law through the doctrine of forum non conveniens shows a greater ability to prevent forum shopping and to prevent injustices in specific cases. However, it is highly unpredictable. On the other hand, the EU approach through the lis pendens rule succeeds in ensuring predictability and certainty in the resolution of jurisdictional conflicts which is very crucial in international commercial litigation. However, its rigidity and inflexibility leads to the determination of international commercial cases by courts that are ill‐suited, thereby giving some room for forum shopping. It is therefore recommended that the two approaches should learn from each other so that their handling of international commercial cases is in line with the special nature of international commercial litigation. The common‐law approach should be made more predictable and the EU approach should allow the courts in the EU to determine which court is best suited to deal with an international commercial case.

This mini-dissertation explores the implications of Lagoon Beach Hotel (Pty) Limited v Lehane 2016 (3) SA 143 (SCA) for the South African cross-border insolvency dispensation, as this case deals with the various problems that arise in cross-border insolvency. As a result of these problems and a certain amount of uncertainty when it comes to dealing with cross-border insolvency issues, many investors are reluctant to invest cross-border. This is due to the fact that multiple countries, each with their own laws concerning cross-border insolvency, are involved. Thankfully, the United Nations Commission on International Trade Law has provided a set of guidelines in this regard, namely the Model Law on Cross-Border Insolvency. Although South Africa has enacted the Cross-Border Insolvency Act 42 of 2000, and most of the provisions provided for in the Model law have been included in the legislation, the Act still remains inoperative. Throughout this dissertation the Lagoon Beach case will therefore be critically analysed. The analysis will start off with a discussion of the common law, as it is currently the legal position in South Africa. Thereafter a detailed analysis will be conducted of the various orders of court of the Lagoon Beach case and how the courts differed or agreed in their approach. Finally, the Lagoon Beach case will be discussed in light of the Act and the issues in the case will be solved hypothetically by applying the Act to the problems discussed throughout the dissertation.

Social legitimacy is conventionally conceived to encompass an empirical notion based on the idea that, lacking societal acceptance, a (political or legal) regime will eventually disintegrate. This concern is reflected in the original compromise of 'embedded liberalism', which stands at the basis of the internal market of the European Union. The primary law set up of the internal market, indeed, shares the idea that the benefits of a joint commitment to free trade can only be achieved in a sustainable way if combined with an acknowledgement of domestic societal objectives within the same frameworks. Nevertheless, social legitimacy will eventually depend on the institutional design and structural rationales that embed societal values within such regimes and vice versa. This perspective is further developed, normatively, on the basis of the work of Karl Polanyi and adopted to critically assess the structural rationales that are developed within internal market adjudication, which the thesis approaches as a separate field of social ordering within the European Union. Thus, social legitimacy is developed as a requirement that perceives the legitimacy of internal market law on the basis of the extent to which it can respond and integrate social practice and values. On this point the thesis finds that the internal market lacks a sufficiently developed rationale or "common language" that is able to address the normative concerns of social legitimacy. Societal realities are often valued within a metric that risks doing violence to potentially genuine and worthwhile aspects of Member States' 'social spheres'. The thesis develops that the normative claims of social legitimacy are best addressed on the basis of a rationale of mutual responsiveness, which is considered a necessary but underdeveloped element of the constitutional form and social purpose of the internal market that is implicit in the constitutional theory of transnational effects. From a perspective of mutual responsiveness, the social purpose of the internal market is not to condition choices that necessarily require the market to trump the social sphere - or the opposite- to allow the social to necessarily trump the market. Mutual responsiveness advances a more holistic approach that conceives the market and the social, literally, as 'communicating vessels'. The normative concerns of social legitimacy and the potential of mutual responsiveness to address these normative claims are the central and connecting elements throughout the thesis.

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

Securing fast, inexpensive and enforceable redress is vital for the development of international commerce. In a changing international commercial dispute resolution landscape, the combined use of mediation and arbitration, and particularly a combination where the same neutral acts as a mediator and an arbitrator (same neutral (arb)-med-arb), has emerged as a dispute resolution approach offering these benefits. However, to date there has been little agreement on several aspects of the combined use of processes, which the literature often explains by reference to the practitioner’s legal culture. There is a heated debate in the international dispute resolution community as to whether it is appropriate for the same neutral to conduct both mediation and arbitration. When the same neutral acts as a mediator and an arbitrator, caucuses become a primary concern. This is largely due to the danger that an arbitrator will appear to be, or actually be biased, and the risk that the process may offend the principles of due process.A review of the literature shows that the combined use of mediation and arbitration raises more questions and concerns than it offers answers and solutions. This thesis proposes remedies for this situation. The purpose of this thesis is twofold. First, to investigate ways to address concerns associated with the same neutral (arb)-med-arb, which should allow parties to benefit from time and cost efficiencies of the process and the ability to obtain an internationally enforceable result. Second, to examine whether the perception and use of the same neutral (arb)-med-arb varies depending on the practitioner’s legal culture. The research involved an analysis of legal sources complemented by a two stage empirical study conducted through questionnaire and interview.The thesis identifies three major ways to address concerns associated with the same neutral (arb)-med-arb: 1) the involvement of different neutrals in combinations, 2) procedural modifications of the same neutral (arb)-med-arb, and 3) the implementation of safeguards for using the same neutral (arb)-med-arb. It demonstrates that not all of these ways will achieve the goals of fast, inexpensive and enforceable dispute resolution. The results support the conclusion that the perception and use of the same neutral (arb)-med-arb varies throughout the world depending on the practitioner’s legal culture. This and other factors ultimately affect the choice of ways to address concerns associated with the same neutral (arb)-med-arb. Further to these significant results, the thesis argues that the same neutral (arb)-med-arb is not a ‘one-size-fits-all’ process. Other combinations discussed in the thesis require more attention from practitioners and academics.This thesis makes a substantial and original contribution to the understanding of combinations in international commercial dispute resolution in four ways. First, the empirical study is the first study to investigate specifically the use of combinations in international commercial dispute resolution. Its results shed light on the use of combinations in international commercial dispute resolution, their common triggers, the way in which the processes are combined most frequently, and the most common forms of recording the outcome of combinations. Second, the thesis synthesises existing ways of addressing concerns associated with the same neutral (arb)-med-arb in international commercial dispute resolution and groups them into the three major categories mentioned above. Third, having identified that there is scope for a more widespread use of combinations in international commercial dispute resolution, the thesis provides recommendations on how to enhance the use of combinations. Finally, the thesis highlights several areas where future research is needed.

The call for democracy worldwide is based on the assumption that it allows citizens involvement on how they are governed. Being a representative system of government, democracy is projected to make political leadership responsive and responsible to the entire citizenry of the state. Southern Africa region has the most animated economy in sub –Sahara Africa, and democratic ideals appear more firmly established in the region compared to other regions in Africa. This has made the region, among others in the continent, the preferred choice of many migrants from different parts of the world. It is believed that the region has reached its Eldorado. However, a close observation of the politics of that region tends to suggest there has been the institutionalization of democratic rule without commensurate enthronement of responsible and accountable governance. This study systematically examined the political configurations of the region to concretely determine how the practice of liberal democracy in the sub-region has translated to accountable and responsible governance and its overall impact of the living standard of the citizens of the countries of that region. The paper examined accountable governance in the sense that leaders will be able to mange resource of the state for the well being of the populace. The reverse has been the case for the region. Southern Africa needs a developmental and capable state for socio-economic progress and sustainable democracy. This cannot be achieved without responsible political leadership, which would be responsive to the yearnings of the people. The mode of analysis was based on secondary sources and observation method. The paper adopted secondary and observation techniques as the mode of analysis

Designers are those individuals within our society with a desire and drive to create. In general designers can be found in all facets of industry and good designers (and ultimately good designs) are the very backbone upon a successful business is built. Designers are required to marry practical knowledge with artistic ability and we are reliant on their skills and to turn abstract ideas into formal designs for everything from the groceries we purchase, the cars we drive and of course, the clothes we wear. Whilst there is no definitive delineation of what a fashion design is, generally fashion designs relate to the creation of designs that focus on clothing, apparel and accessories. The style and functionality of the end products rest firmly within particular time frames, economic and socio-cultural environments within which particular designers find themselves. Accordingly the fashion design industry is never one that stagnates but rather is one that is constantly evolving. In South Africa, the fashion industry is blossoming. As an emerging economy, it is important to create opportunities and not barriers for entry into particular sectors for emerging entrepreneurs. The entire fabric of the fashion industry has certainly changed over time and these changes have brought an increased focus on issues of copying and counterfeiting. It is the contention of some in the industry that there is a need for stricter protection of the actual design in and of itself. Using intellectual property rights as a means of protecting fashion designs is very fitting as every new design begins with an idea, which then evolves, though a process of creative engagement and application of skill and labour to become the final original end product. Designers seeking to protect their designs would need to consider the provisions of the Copyright Act, the Designs Act and the Trade Marks Act. These Acts may in some instances provide a means for protect the actual design incidentally, i.e. by protecting the designer‟s rights in relation to reputation and goodwill associated with the goods whilst in others may afford protection to the design itself. The focus of this research will be a discussion of the legal mechanisms available to fashion designers in South Africa for the protection of their designs using their intellectual property rights and an assessment of whether the fashion industry is in need a stronger intellectual property regime than the current one.

IRep - Nottingham Trent University's open access institutional research repository

The Convention for the International Sale of Goods called the Vienna Conference 1980 is an astute international statute that regulates the sale of goods globally. It has been ratified by about 83 countries of the world and countries that have not ratified it have at a point or the other made reference to it. Major economic players apart from England have ratified and have their courts pronounce on the CISG. The Convention provides for the well known elements of contract and also allows for the usage of standard user terms, for example, general terms known or related to certain goods. It is imperial to state that there are also certain regional statutes that are similar to the CISG although with varying differences. It is important to also mention that the CISG also has its lacunae and defects such as allowance for exemption, contents and so on. The CISG has been pronounced upon by courts across the world and has been seen to be highly justiciable.

This article examines the existing literature on trade liberalisation and its effect on the economies of developing countries. It will also briefly examine the theory of comparative advantage which is seen as justification for global trade liberalisation under the auspices of the World Trade Organization. This process is also associated with greater openness, economic interdependence and deepening economic integration with the world economy. The study is important because once again the international institutions strongly advocate trade and financial liberalisation in developing countries. The proponents of trade liberalisation argue that multilateral trade negotiations would achieve these goals, and poor countries particularly would benefit from it. However, such policies may increase vulnerability and make developing countries further hostages of international finance capital. Adoption of open market policies in agriculture would also mean the abandoning of self-reliance and food sovereignty, which may have wider consequences in terms of food shortages, food prices and rural employment.

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.