Bibliographie sélective OHADA

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.

Le sujet de la thèse est la résolution en ligne des litiges (ODR) et l'objectif de la thèse est de proposer un modèle de système ODR basé sur l'expérience du mouvement de résolution des différends. ODR n’est pas un phénomène isolé de ces derniers temps, mais en raison de l'évolution des conflits et la résolution des différends. Initialement, les différends survenus entre les parties à la proximité géographique et pour laquelle les tribunaux traditionnels sont le principal moyen de résolution. Cependant, comme les gens ont commencé à voyager de plus grandes distances et de communiquer de loin, les conflits ont évolué comme ils ont augmenté en nombre, sont devenus frontière plus complexe et de plus en plus transversale. Résolution des différends évolués en règlement des différends parallèle et alternatif (ADR) a été utilisée. Cependant, les conflits ont évolué une fois de plus quand le monde est entré dans l'ère numérique. Non seulement les conflits sont devenus encore plus transfrontalier, mais de nouveaux conflits sont apparus qui proviennent exclusivement dans le cyberespace. Afin de satisfaire aux exigences de l'ère numérique, la résolution des différends fit sortir le concept de l'ODR. ODR est née de la combinaison de l'ADR et de la technologie de l'information et de la communication (TIC) de l'ère numérique. D'autres moyens de règlement des différends ont été transférés dans le monde virtuel et ont donné naissance à la résolution des litiges en ligne. ADR et ODR sont examinés largement, et l'examen comprend leurs concepts, leur origine, les principales formes de négociation, de médiation et d'arbitrage et leurs équivalents en ligne, ainsi que leurs avantages et leurs inconvénients. La thèse illustre l'évolution des conflits et la résolution des différends de l'ère analogique, lorsque la résolution des différends était face à face, à l'ère du numérique, lorsque les différends sont réglés dans le cyberespace. Il démontre que l'ODR est une nécessité de l'ère numérique, mais aussi qu'il a le potentiel pour être un moyen révolutionnaire, efficace et réussi à résoudre les différends; d'une manière qui sera l'avenir de la résolution des différends. Sur la base de l'expérience accumulée par l'examen de l'évolution de la résolution des différends et sur ? Lla base des conclusions tirées, la thèse formule une proposition pour le système ODR. La thèse décrit le système ODR, de son processus en trois étapes et la nécessité de l'arbitrage en ligne, sur le réseau ODR, la régulation du système ODR, l'architecture technologique des fournisseurs ODR, leur financement, ainsi que les mesures nécessaires de la sensibilisation et la confiance afin que ODR remplit son plein potentiel.

This dissertation uses Python-based programming to retrieve and analyze a sample of approximately 400,000 material contracts that companies filed with the Securities and Exchange Commission between 2001 and 2013, focusing on the dispute resolution mechanisms specified therein. The first chapter considers the effectiveness of two state-level efforts to attract dispute resolution business, examining how specialized “business courts” and the Revised Uniform Arbitration Act affected arbitration and choice-of-forum clause use in these material contracts. The second chapter examines whether and how companies and executives “customized” their arbitration clauses in response to Internal Revenue Code Section 409A, which increased both the likelihood and the complexity of potential disputes between these parties. The third chapter considers how companies and executives responded when the Supreme Court overturned the Ninth Circuit’s anomalous refusal to enforce employment-related arbitration clauses. Each chapter finds that contracting parties adjusted their dispute resolution provisions in response to the policy change(s) at issue – suggesting that for the sophisticated parties in my dataset, these provisions receive careful thought and are not mere “boilerplate.”

The Fair and Equitable Treatment (FET) standard is the most important and, because of its flexible nature and its status as a ‘catch-all’ provision, most controversial investment protection standard in international investment treaties. The standard imposes the most far-reaching obligation of any aspect of such treaties. This thesis’ core contention is that the current investment tribunals’ interpretation of the FET standard prioritises the interests of foreign investors and neglects the perspectives of host developing countries. Therefore there is a pressing need to reconceptualise the interpretation of the FET standard. In service to depicting the perspectives of host developing countries, this thesis advances an understanding of classifications such as ‘developing’ and ‘developed’ that reflects the issues and challenges that these countries face in the investment dispute context, such as their lack of resources, administrative capacity, technology, and infrastructure, as much as the economic and social level of development international organisations generally emphasise in their classifications. It addresses socio-political circumstances such as political instability, social unrest, conflict and its aftermath, social and political transition, and economic crises and their impact on host developing countries in the investment dispute context. Through a detailed study of the approaches they have taken to such issues in their interpretation of the breach of FET standard in disputes involving host developing countries, it shows that current investment tribunals have taken inconsistent and inadequate approaches to the issues host developing countries face. It argues that a reconceptualised interpretation of the FET standard which acknowledges the developmental issues and challenges this thesis has identified would accommodate the needs of the host developing countries while continuing to give reasonable protections to foreign investors and therefore serve the needs of the system as a whole.

La responsabilité des intermédiaires d'Internet fait débat dans un univers numérique de plus en plus complexe. Les intermédiaires offrent des services en ligne. Ils créent ou facilitent des transactions entre des parties tierces (hébergement, e-commerce, fournisseurs d'accès…). A la fin des années 1990, un consensus s'est établi sur l'instauration d'une responsabilité limitée pour ces acteurs, dans le but de favoriser leur développement ainsi que celui d'Internet par des externalités croisées. Cependant, l'apparition régulière de nouveaux usages a induit des externalités négatives affectant certains agents économiques. La multiplication récente de décisions de jurisprudence parfois contradictoires, en particulier dans le domaine de la propriété intellectuelle, vient désormais remettre en cause cette exemption. Elle fait naître un risque juridique pour les intermédiaires d'Internet. Ces-derniers doivent alors prendre en compte ce nouveau contexte dans leurs modèles d'affaires. Notre recherche étudie les comportements spécifiques que la responsabilité des intermédiaires d'Internet engendre à travers l'exemple de la propriété intellectuelle. En premier lieu nous décrivons l'évolution historique de cette responsabilité. Nous développons ensuite un modèle théorique simple qui explore l'influence du risque légal dans un contexte de concurrence entre un intermédiaire et un ayant droit du copyright. Enfin nous étendons ce modèle de concurrence aux différents comportements de protection que peuvent choisir les intermédiaires.

The EU regulation no. 1346/2000. The proposal for a modification of the regulation. New trends.

This thesis examines whether the establishment of Joint Development Zones (JDZs) for the development of offshore oil and gas resources in the Arctic and Southern Oceans can effectively resolve competing continental shelf and outer continental shelf (OCS) claims arising under the provisions of Article 76 of the United Nations Convention on the Law of the Sea (LOSC). One of the effects of global warming has been increased interest in oil and gas activity in the Arctic region, however there is significant concern as to the related environmental risks. The Environmental Protocol to the Antarctic Treaty currently suspends exploration for state parties for oil and gas in the Southern Ocean, however current exploration has been reported. A JDZ may be defined as an inter-governmental arrangement of a provisional or permanent nature, designed for joint exploration and exploitation of the hydrocarbon resources of the sea-bed. JDZs are generally based on agreements to suspend sovereignty claims and share offshore oil and gas in the JDZ region. The thesis was prepared to contribute to the prevention of potential international conflicts over offshore oil and gas resources. State claims may be based on historic claims, interpretation of treaties, and LOSC exclusive economic zone (EEZ), continental shelf, and OCS delimitation provisions. LOSC provides dispute resolution alternatives, including referral to the International Court of Justice and international arbitration. A significant number of states have, however, preferred to adopt JDZ agreements. The methods used for the thesis included analysis of LOSC maritime delimitation provisions, existing JDZ agreements, the terms of model JDZ agreements, and analysis of current Arctic and Southern ocean maritime boundary disputes. The principal thesis conclusions are: - JDZs can resolve resource disputes as demonstrated by the existing international state practice in adopting JDZs. JDZ regimes are not a universal panacea, however, and successful JDZs are based on the continued political support of the respective states; - LOSC maritime boundary delimitation provisions may not resolve boundary disputes, which can arise due to issues including conflicting sovereignty of land territory; - Specific Arctic and Southern Ocean disputed regions have similar characteristics to existing JDZs. JDZs may therefore potentially apply to resolve these disputes; - JDZs can potentially provide solutions for disputed boundaries, such as between United States/Canada (Beaufort Sea), United States/Russia (Bering Sea) in the Arctic Ocean region, and between United Kingdom/Argentina/Chile in the Southern Ocean; - JDZ should be adapted to better protect and preserve the marine environment, and to provide a significant liability regime similar to the Greenland regime; - JDZs should support a framework of regional governance, including Arctic Council or Antarctic Treaty representation in the respective JDZs; and - Potential game changing events may affect the use of JDZs in the future, including political and technological developments, and significant oil and gas discoveries. The result of the thesis conclusions is to prove the hypothesis that JDZs can effectively resolve resource conflicts in the Arctic and Southern Ocean regions.

Music has, and continues to play, an important role in society. It is therefore natural that more music composers enter the scene to capitalize upon this role that music has in society. It is however becoming more common place for music composers to start copying each other, either directly or indirectly. Fortunately, copyright laws have been developed to further protect the rights enjoyed by copyright holders, such as music composers, and these laws essentially protect the composers from the unlawful reproduction of their original music. Copying is, to some degree, inevitable, therefore, the question asked by this paper is to what extent is someone entitled to ‘copy’ from another person without it amounting to copyright infringement. In determining if there is copyright infringement, two tests must be applied and satisfied, namely, the causal connection test, and the substantial similarity test. Causal connection is usually met by establishing whether the alleged infringer had access to the original work. The substantial similarity test is the focus of this paper. The courts rely on this test to determine if that part which was reproduced from the original work is of substance i.e. if it is a part of the work which attributes uniqueness and quality to the original song. Of course, this test is notoriously difficult to understand and apply, hence the need for this paper to address the question on when there is substantial similarity in two works. This paper is of benefit to academics, authors (musicians) and lawyers, as not only is the substantial similarity test discussed from a theoretical point of view, but the question of when something is substantially similar is answered from a pragmatic point of view. It is hoped that this paper is used as a guideline in understanding and applying the substantial similarity test in music copyright infringement cases.

The Companies Act 71 of 2008 introduces a completely new system for the regulation of distributions by a company to its shareholders. The preferred method for protecting the interests of creditors in distributions is now based on a solvency and liquidity test. Regrettably, the provisions setting out the requirements for distributions on the one hand and the solvency and liquidity test on the other have been poorly drafted. This thesis first explains and then applies an innovative interpretation theory to these provisions with a view to piecing together coherent content. The thesis finds that creative interpretations will not suffice in various places, meaning that substantive revision is required. The thesis concludes with brief amendment proposals and accompanying commentary.

The United Nations Convention on Contracts for the International Sale of Goods (the CISG or the Vienna Sales Convention) was adopted at a diplomatic conference of the United Nations held in Vienna during 1980. The Convention came into force on 1 January 1988. According to its preamble, the Convention is based on the premise that “the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade”. The CISG has proven to be successful in its endeavour and currently has 74 member states representative of all legal traditions. As an international convention, the CISG has been lauded for its “simplicity, practicality and clarity”. Schlechtriem observed that the CISG has now gained worldwide acceptance. It has even been stated that the CISG has established a “world law on international sales” and that it has influenced several domestic sales laws. It is submitted that the CISG constitutes an important component of modern international commercial law or of the modern lex mercatoria. Therefore, a study that aims to establish a better understanding of the scope and functioning of the CISG and its relationship with domestic law, is of special relevance for the international business and legal community. The two basic methods of the unification of law, ie the unification of substantive law and the unification of private international law, have both been utilised in the field of the international sale of goods. The CISG is the most notable example of first mentioned method of unification.

This seminar paper considers whether OHADA - an experiment in unifying business law in African countries - has been a success. Following a prologue that explains the origins of the paper, the first part of the paper sets out basic information about the Organisation pour l’Harmonisation du Droit des Affaires en Afrique (“Organization for the Harmonization of Business Law in Africa,” known by the acronym OHADA). This part is followed by a review of law and development literature to assess the value of this literature for an evaluation of the success (or not) of OHADA. A third part then focuses on one specific uniform law, the law of secured transactions. The paper concludes that notwithstanding challenges the OHADA institutions exist and have produced uniform business laws for the formal business sector. Whether OHADA has been the cause of increased investment and trade requires studies that have not been carried out.

In Europe and especially in France, the African business law landscape, as well as the legal discourse, for developing West African countries is almost exclusively dedicated to OHADA, the Organization for the Harmonization of Business Law in Africa, created in 1993. While economic development in the Member States is the obvious underlying reason for the modernization and unification of African business law, the exact nature of such development remains uncertain, as does the manner in which a such result can or will be achieved. OHADA’s Uniform Acts are, with some minor exceptions, a carbon copy of French business law. The only goal is to increase international investment, which, in turn, is expected to generate economic development, but all without taking any notice of equality or social justice issues. That, without a doubt, is the reason why OHADA is constantly criticized as a law that benefits foreign investors, while remaining ineffective, even illusory, for local traders. To go beyond the criticism, the authors have decided to focus on the relationship between law and the informal sector and to draw lines between formal and informal rules in the business sector.

Recently, South African company law underwent a dramatic overhaul through the introduction of the Companies Act 71 of 2008. Central to company law is the promotion of corporate governance: companies no longer are accountable to their shareholders only but to society at large. Leaders should direct company strategy and operations with a view to achieving the triple bottom-line (economic, social and environmental performance) and, thus, should manage the business in a sustainable manner. An important question in company law today: In whose interest should the company be managed? Corporate governance needs to address the entire span of responsibilities to all stakeholders of the company, such as customers, employees, shareholders, suppliers and the community at large. The Companies Act aims to balance the rights and obligations of shareholders and directors within companies and encourages the efficient and responsible management of companies. The promotion of human rights is central in the application of company law: it is extremely important given the significant role of enterprises within the social and economic life of the nation. The interests of various stakeholder groups in the context of the corporation as a “social institution” should be enhanced and protected. Because corporations are a part of society and the community they are required to be socially responsible and to be more accountable to all stakeholders in the company. Although directors act in the best interests of shareholders, collectively, they must also consider the interests of other stakeholders. Sustainable relationships with all the relevant stakeholders are important. The advancement of social justice is important to corporations in that they should take into account the Constitution, labour and company law legislation in dealing with social justice issues. Employees have become important stakeholders in companies and their needs should be taken into account in a bigger corporate governance and social responsibility framework. Consideration of the role of employees in corporations entails notice that the Constitution grants every person a fundamental right to fair labour practices. Social as well as political change became evident after South Africa's re-entry into the world in the 1990s. Change to socio-economic conditions in a developing country is also evident. These changes have a major influence on South African labour law. Like company law, labour law, to a large extent, is codified. Like company law, no precise definition of labour law exists. From the various definitions, labour law covers both the individual and collective labour law and various role-players are involved. These role-players include trade unions, employers/companies, employees, and the state. The various relationships between these parties, ultimately, are what guides a certain outcome if there is a power play between them. In 1995 the South African labour market was transformed by the introduction of the Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation that governs labour law in South Africa. The notion of industrial democracy and the transformation of the workplace are central issues in South African labour law. The constitutional change that have taken place in South Africa, by which the protection of human rights and the democratisation of the workplace are advanced contributed to these developments. Before the enactment of the LRA, employee participation and voice were much-debated topics, locally and internationally. In considering employee participation, it is essential to take due cognisance of both the labour and company law principles that are pertinent: the need for workers to have a voice in the workplace and for employers to manage their corporations. Employee participation and voice should be evident at different levels: from information-sharing to consultation to joint decision-making. Corporations should enhance systems and processes that facilitate employee participation and voice in decisions that affect employees. The primary research question under investigation is: What role should (and could) employees play in corporate decision-making in South Africa? The main inquiry of the thesis, therefore, is to explore the issue of granting a voice to employees in companies, in particular, the role of employees in the decision-making processes of companies. The thesis explores various options, including supervisory co-determination as well as social co-determination, in order to find solutions that will facilitate the achievement of employee participation and voice in companies in South Africa.

This thesis aims to provide an analytical framework to which investor-State arbitral tribunals can refer in cases where international trade law is invoked. The starting point of the present study is the trend in commentary on international trade and investment law, which makes the argument that international trade and investment law should be reconciled due to the clear "convergence" between (some of) their constitutive elements. This convergence argument is not misguided: there are similarities between the underlying principles of global trade and investment and, as such, a better coordination of these principles would be helpful for several reasons. Such reasons include legal certainty, reduction of transaction costs, better coherence in the operation of international agreements that now combine both trade and investment provisions, to name a few. However, no matter how reconcilable or converging the two disciplines may be, their enforcement mechanisms are structurally different and are likely to remain so even if the reforms towards a modernization of the investment dispute settlement (currently discussed at the EU policy level) are eventually implemented in the near future. In light of this last point, it is possible to claim that integration between trade law and investment law will only have limited or even negative effects if the trade and investment adjudicators continue to exercise their functions in an isolated manner, without taking cognizance of (i) the norms contained in the other discipline and (ii) the other adjudicator's scope of authority. Effective convergence of trade and investment entails a two-way process pursuant to which one adjudicator can use (i.e. take into account, refer to, apply, interpret and enforce) the law of the other and vice-versa. The thesis envisages one of the two dimensions of this process, namely the use of trade law by the investment adjudicator. Looking into the details of the convergence argument, the role of investment dispute settlement mechanism and the use of trade norms over the past two decades by litigants and arbitrators, the present study identifies both the legal techniques and obstacles these actors shall apply or go beyond in order to use trade norms in the most appropriate way and, more importantly, benefit from this use.

The purpose of this thesis is to do a comparative reappraisal of debt relief measures available to natural person debtors in the South African insolvency law. Although the broader South African natural person insolvency system currently includes three statutory debt relief procedures, namely, the sequestration procedure regulated by the Insolvency Act 24 of 1936, the administration order procedure in terms of the Magistrates Courts Act 32 of 1944 and the debt review procedure found in the National Credit Act 34 of 2005, not all natural person debtors have access to the system. The majority of this marginalised group are debtors with no income and no assets (the so-called No Income No Asset (NINA) debtors). Also, only one measure provides real debt relief in the form of a statutory discharge of debt. Furthermore, the existing measures have developed in a haphazard fashion which has led to a multiplicity of procedures, regulators and forums that resulted in ineffectiveness, inequality and uncertainty. The larger system therefore lacks proper policy considerations. This thesis provides the reasons for reform by, amongst others, arguing that the present situation is unconstitutional as it unreasonably and unfairly discriminates against the NINA group of debtors in particular. It measures the broader South African system against internationally accepted principles of efficient and effective natural person insolvency regimes. In this regard it is found that the system as a whole is seriously deficient. With reference to international principles and guidelines as well as suitable attributes found in foreign jurisdictions, the thesis concludes with suggestions for real law reform. Both substantive and procedural recommendations are made.