Bibliographie sélective OHADA

Alternative Dispute Resolution, or ’ADR’, offers parties in dispute an alternative to traditional court-based litigation, which is often seen as slow, costly and ineffective. ADR frequently involves a neutral third party who will settle or facilitate resolution of the dispute. This paper examines three common ADR mechanisms, adjudication, arbitration and mediation, and explores their relative advantages and disadvantages in different contexts.

Before examining the substance of the law it is necessary to discuss the contrast between law and practice. It is important to keep in mind that the letter of the law is sometimes not what is done in practice. This realisation is often referred to as the “law and society perspective.” Advocates of this perspective treat legal doctrine as more than just a closed system because they recognise that there are other external influences at play. Beyond the law, people are also influenced by other factors such as social roles, morals, religion and culture. For example, university researchers have an external incentive mechanism outside of IP law. Such researchers frequently prefer to publish their results and discoveries in academic journals rather than file for patents. A patent cannot be granted where there has been a publication. However the researchers are motivated by other incentives such as access to research funds and the attainment of professorship. The Law and Society perspective highlights the fact that the formal processes, which are provided for by the law are at times substituted by informal customs and understandings. An information technology (IT) firm that contributed to this paper by participating in an interview (Interviewee A), provided a good example of such an occurrence. Rather than use any of the formal IP modes of protection which are discussed in the following sections of this paper, ‘Interviewee A’ uses a very unorthodox strategy to protect their IP. They said: “we rely on employment contracts, code of conduct, and especially personal ethics and behaviour to protect our IP. We therefore have a company culture that encourages teamwork and cooperation”.

Mediation has been a part of New Zealand’s employment statutory framework in one form or another for over a century, and has been the first port of call for employment disputes under the current Employment Relations Act for nearly 15 years.¹ I have been working as a mediator in this context for almost seven years in more than 1,000 mediations. Lawyers are playing a significant part in the field of mediation, with a large number representing clients in this forum on a regular basis. In an evaluation of 100 of my mediations over a ten-month period, 85% of parties were legally represented. This rate is consistent with anecdotal reporting across the employment mediation service. Lawyer representation in mediation is not unique to the employment context. There are various mediation schemes provided for under many New Zealand statutes as well as a wide raft of non-statutory mediation occurring in numerous settings. In my experience as a mediator with human rights and leaky building mediations, as well as working as a lawyer in a large commercial law firm, I am aware lawyers are representing clients in many other areas of mediation as well. Although there is a significant amount of mediation occurring and a large number of lawyers regularly appearing in mediation, my experience is that the majority of lawyers act in mediation as if they were in litigation and take an adversarial approach. My thesis is that lawyers have not adapted effectively to mediation and taken on the role of mediation advocacy. This paper explores the topic by first describing, in Part II, what I observe as lawyers’ adversarial approach in mediation. It then looks at other research to assess whether this experience is reflective of a wider issue. It finds there is evidence to support my observations. Part III analyses why lawyers are operating in an adversarial way in mediation and proposes several reasons this may be the case. Part IV puts forward what I propose is appropriate mediation advocacy. It sets out the knowledge, roles and skills required from lawyers when representing clients in mediation. Part V suggests what might be done to assist a shift away from the common, adversarial approach to effective mediation advocacy. This paper is written within the context of employment mediation in New Zealand. However, it draws on research from different jurisdictions and areas of practice so the conclusions it comes to may have more general application. The topic is not whether lawyers should be in mediation. I am not arguing that lawyers do not have a part to play in mediation. A lawyer well versed in mediation advocacy can play a highly effective part in the process. Leonard Riskin, one of the key authors on the topic of lawyers in mediation, expresses this even more strongly, saying he believes lawyers’ involvement is fundamental to mediation’s success.² Further, this paper is focused on lawyers representing parties in mediation and does not consider lawyers as mediators.

This thesis identifies a gap in existing theories of corporate finance. This gap is an implication of a Keynesian-Minskian analysis of markets and market-based economies. From a founding theoretical perspective rooted in the view that markets are not reliably efficient the case is developed that past price trend extrapolation is an important factor in corporate financing decisions. At a macro-financial level, companies repurchase equity over periods of strong market rises, while increasing debt at the same time. During periods of sustained, substantial market decline debt is retired and large new equity issues occur. This change in corporate financing is implicitly expensive as relatively low prices are realised for the new stock issued at these times. These factors suggest that conventional theories of corporate financing decisions that rely on corporate rationality and optimisation do not provide a compelling fit with observations in the period 1980-2012. Moreover, inference to Minsky’s (1986) argument that companies are compelled through market declines to shore up their balance sheets provides a better fit with the evidence. These arguments form the basis for the development of the ‘extrapolative expectations’ theory of corporate finance. The second major development in this thesis draws on the theoretical development outlined above to create market movement description and prediction models. These models operate on data drawn from the US Standard & Poors 500 index over the period 1980-2012. Two primary models are developed using binomial logistic regressions. The dichotomous dependent variables are drawn as quarters of market rise (1) or no rise (0), and market falls (1) or no fall (0), respectively for the ‘buy’ model and the ‘sell’ model. Variables tested and those found to add to an explanation of the dependent variables include: corporate debt flows, corporate equity flows, corporate dividend flows, interest rates, market volumes, and historical market levels. Each variable is tested for up to ten lags (two-and-a-half years). Collectively, the variables add to our understanding of those factors influencing (or at the least, signalling) market levels, enabling quarter ahead market forecasts to be made with greater accuracy than arises from an assumption of a random walk. This conclusion crystallises the view that company macro-financial flows and prices are an important cause or signal of future market direction.

This PhD thesis explores how the legal infrastructure for dispute resolution in transnational securities transactions can be improved, considering the regulatory and legal limits of the financial sector in each jurisdiction under study (US, Europe and Brazil). The two main objectives of the work are to a) identify the problems that currently exist for a dispute resolution mechanism in the securities area that can be used transnationally and b) propose solutions that can create a safe legal environment that can be used by the investor in case regulatory rules or the terms of the transaction are breached. The work is justified by the fact that financial markets are legal constructions, making legal certainty and the mechanisms available to enforce the terms of a transaction and apply regulatory rules, especially to the investor that is part of the transaction, essential for the own existence of financial markets. Therefore, the existence of transnational financial markets also depends on the existence of a transnational legal infrastructure, at least broad enough to protect the interest of investors. The argument developed through the work is that the creation of a transnational legal infrastructure depends on the type of dispute that is considered, since not only each type of dispute has its own peculiarities, but the national dispute resolution systems are also built based on the type of dispute that will be submitted to it. To create transnational dispute resolution systems for securities transactions, I propose the use of collective mechanisms of dispute resolution based on the initiative of private parties, the use of arbitration and the establishment of cooperation networks among national alternative dispute resolution mechanisms used to solve financial disputes.

The promotion of sustainable development is an objective shared by African Union (AU) member states and the pursuance thereof is expressly mandated by the Constitutive Act of the African Union, 2000 and the Treaty Establishing the African Economic Community, 1992. Lack of access to modern energy sources, such as electricity and the heavy reliance on traditional biomass as primary energy source are factors contributing to the non-achievement of the promotion of sustainable development. These factors are collectively referred to as energy poverty. The African Continent as a whole has limited, and in some instances, lack access to modern energy sources while the majority of its population relies heavily on traditional biomass as primary energy source. Africa can accordingly be classified as an energy poor region–a situation which does not bode well for the promotion of sustainable development. Access to reliable, affordable, economically viable, socially acceptable and environmentally sound energy services and resources is fundamental to socio-economic development. Mitigating the impacts of energy poverty and more specifically lack of access to modern energy sources on the sustainable development of Africa depends upon ensuring increased access to modern energy sources. The above-mentioned instruments furthermore contain provisions which link regional cooperation on the formulation of coordinated regional law and policy on areas/matters of common concern with the achievement of the objective of promoting sustainable development in Africa. One of the areas of common concerns listed is that of energy. Regional cooperation must accordingly be geared towards the effective development of the continent‘s energy and natural resources; promoting the development of new and renewable energy in the framework of the policy of diversification of sources of energy; and establishing an adequate mechanism of concerted action and coordination for the collective solution of the energy development problems within the AU. The formulation of coordinated energy law and policy should take place with reference to the specific sources of energy to be regulated. In this regard, the provisions of the Abuja Treaty and other sub-regional energy access initiatives list various sources of energy as forming part of a diversified AU energy mix – one of which is nuclear energy. In this study recommendations are made as to what should be embodied in a coordinated AU regional nuclear legal framework aimed at regulating increased access to nuclear energy capable of contributing towards the promotion of sustainable development. The recommendations are based on an examination of relevant international, regional and sub-regional legal instruments and other initiatives.

This thesis critically assesses the effectiveness of WTO legal rules in the regulation of international trade in petroleum and highlights potential conflicts between competing resources of energy from the WTO regime’s perspective. The theoretical framework of the thesis is built on the concepts used in natural resource economics, trade theories and international relations. On the basis of Hotelling’s rule of natural resource economics, it proposes a model that reconciles the use of petroleum and the development of renewable sources of energy in the power generation sector, which prospectively can be adopted with respect to the transport sector and other sectors involving energy use. The proposed model may improve global sustainable development. However, it is argued that WTO rules are not properly designed to regulate trade in petroleum and, if applied without due respect to specific issues pertaining to the petroleum industry, would obstruct the achievement of the social optimum, and detrimentally affect the national economies of WTO members and global welfare in general. To improve the WTO system, I propose a reformation of its normative ideology through the introduction of the strategic trade policy theory in complement to the neoclassical theory of trade, at least when trade in energy is concerned. On the basis of the study of the applicability of WTO rules to trade in petroleum and a review of proposals put forward by other scholars to improve the regulation of trade in energy, it is argued that the most effective way to improve the trading regime is to negotiate a new general agreement on trade in energy.The role of the WTO in the regulation of trade in energy is analyzed through a regime management theory borrowed from international relations studies. It is argued that the WTO as a regime manager is capable of improving the regime by properly maintaining the existing equilibrium and by initiating, and leading in negotiations of a new equilibrium.

This thesis explores three important issues in financial distress and corporate bankruptcy: bankruptcy venue choice and creditor recovery, the efficiency of Chapter 11 corporate bankruptcy and distressed exchanges, and the bankruptcy ripple effect on peer firms’ investment policy.

CSR refers primarily to a framework idea according to which a corporation is encouraged, if not obliged, to go beyond the speculative and economic goals that benefit its members only, in order to integrate, into its decision-making process, other more holistic considerations of an ethical, social and environmental nature for the benefit of all stakeholders. CSR is a key concept that attempts to reconcile economic objectives with social, ethical and environmental considerations, with the particularity of questioning interactions between a corporation and its societal, ethical and ecological environment. This paper has a modest, but not uninteresting, objective. First, it offers an exploratory study that sets out markers for a more exhaustive analysis of the potential for CSR in the field of law in the Ohada zone. Our study is intended to be both theoretical and pragmatic: it asks questions and suggests topics for review from a normative standpoint largely inspired by socio-economic analysis. One of the interesting features of our approach is to consider, comprehensively, a complex notion that reflects several different concerns and is crossed by various conceptual frameworks that must be re-read in an “enlightened” manner, to see how it could potentially be made operational as part of Ohada law. This previously unexplored approach could lead, in time, to the establishment of a transnational committee on CSR in the Ohada zone.

This thesis seeks to determine whether the evolution of international law has allowed for the concept of cultural genocide to be addressed in spite of its non-codification. It firstly provides an assessment of the evolution of the concept of cultural genocide, from a technique to a process of genocide, also known as 'ethnocide'. Acknowledging that the codification of the concept is unlikely in the future, it therefore undertakes a study of the evolution of international law with regard to the main components of the concept, namely genocide, culture and group. The evolution of the legal concept of 'genocide' raises the question of the interpretation of the international definition of genocide, which is enshrined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, so as to encompass instances of cultural destruction. The state of international and domestic judicial practice illustrates the limits of an evolutionary interpretation. In contrast, international law has evolved considerably in relation to the protection of some groups and their culture, so that customary international law, and especially international human rights law, may be deemed to prohibit group cultural destruction and consequently entail State responsibility. The thesis argues that this evolution could ground the articulation of an international law-based approach to the concept of cultural genocide both by allowing for its criminalisation through the crime against humanity of persecution and by providing tools for a stronger framework of State responsibility, especially in the context of genocide prevention. Furthermore, this approach would give rise to the possibility of further conceptualising reparation for the intended cultural damage. Against this background, the thesis firstly draws conclusions as to the irrelevance of enclosing the debate exclusively at the level of the genocide legal framework and, secondly, as to the relevance of cultural genocide as a 'paralegal concept', an understanding which would drive the interpretation of international legal norms, especially in cases involving indigenous peoples' cultural harm.

This thesis examines the relationship between the law on unfair commercial practices and consumer contract law. The thesis develops the claim that Directive 2005/29/EC, on unfair commercial practices (UCPD) has had a strong impact on the content of consumer contract law, despite the declaration concerning the independence between both branches of law contained in Article 3(2) UCPD. In order to substantiate this claim, the thesis examines the implications for consumer contract law of the main components of the regulatory regime laid down by the UCPD, namely, (1) the notion of average consumer, (2) the duty to trade fairly, (3) the duty of information and (4) the remedies. By looking both at the theoretical underpinnings and at the actual operation of this regulatory regime, the thesis casts light on the way in which the UCPD has shaped consumer contract law. The thesis further shows that this is an ongoing phenomenon whose ramifications may be far-reaching, for it implies that the UCPD is powerfully fuelling the Europeanization of contract law.

Legal systems around the world vary widely in how they deal with the assignment of receivables. This legal variety makes it difficult for financiers to conduct their international receivables financing business. This thesis suggests an International Registration System for the Assignment and Security Interest of Receivables (‘IRSAR’) and proposes a model international convention for the IRSAR (‘proposed IRSAR Convention’), which could help financiers to overcome the obstacles they currently encounter. Under the proposed IRSAR Convention, the international assignment of receivables would be regulated by a unified legal system with respect to priority and perfection. The IRSAR would facilitate international project financing. Furthermore, the IRSAR would enable companies to raise finance from greater ranges of investors around the world through international receivables financing and to dispose of non-performing loans more easily. The proposed IRSAR Convention would succeed the UN Convention on the Assignment of Receivables in International Trade in the attempt of establishing a registration system for international assignments of receivables. The proposed IRSAR Convention confines its scope of application by defining the assignor (or the security provider), inventing the concept of ‘Vehicle for the International Registration System’ (‘VIRS’). The proposed IRSAR Convention applies where the assignor or security provider is a VIRS. An assignment of a receivable where the assignor is a VIRS and a security interest in a receivable where the security provider is a VIRS could be registered in the IRSAR. Under the proposed IRSAR Convention, priority of assignments of and security interests in receivables is determined by the order of registration in the IRSAR. The proposed IRSAR Convention would be a receivables version of the Cape Town Convention. With respect to the contents and effect of registration, it would prescribe a notice-filing system along the lines of that adopted in the UCC Article 9. With respect to the operation of the registration, it would adopt an automatic online registration system operating 24 hours a day, 365 days a year like the International Registry under the Cape Town Convention.

Sanitary and phytosanitary (SPS) measures are measures aimed at the protection of human, animal and plant life and health within specified territories from the risks associated with the introduction and spread of pests and diseases through trade. The World Trade Organisation (WTO) developed an agreement on the application of SPS measures. South Africa is a member of both the WTO and the Southern African Development Community (SADC). In SADC, SPS measures are provided for in the SADC Sanitary and Phytosanitary Annexure to the Protocol on Trade of 1996. International Standard Setting Bodies (ISSBs) facilitate the effective application of the main elements of the relevant SPS agreements, especially harmonization and equivalence by establishing scientifically justified standards on which members may base their SPS measures. The relevant ISSB’s in terms of SPS measures are the OIE, IPPC and Codex Alimentarius. SPS measures have the potential to become or be used as non-tariff barriers to trade (NTBs). The SADC Protocol on Trade 1996 stipulates that policies and measures are to be implemented by members to eliminate existing forms of NTBs. Additionally members may not enforce new NTBs affecting or related to intra-SADC trade. The most relevant South African legislation in the context of SPS measures and this study is as follows: Agricultural Pests Act 36 of 1983, the Agricultural Products Act 119 of 1990; the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947, the Liquor Products Act 60 of 1989, Meat Safety Act 40 of 2000, Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972, Medicines and Related Substances Act 101 of 1965 and National Regulator for Compulsory Specifications Act 5 of 2008. The purpose of this study is to establish to what extent the South African legal framework complies with its obligations in terms of the SADC SPS Annexure to the Protocol on Trade.

Chapter 4 of the Companies Act of 2008 aims to regulate offers to the public of securities and is reviewed against the principles which underscore the regulation of offerings. An overview of the historical development of the company which is parallel to the regulation of securities shows the crystallized principles which are compared against the development and enactment of the current regulatory regime. The concept of “complete law” as key element to effective regulation is discussed and applied in the review of Chapter 4 determining the effectiveness of the dispensation. The three determining concepts of regulation: the “offer,” “securities” and “public” are studied against the definitions which determine regulation and the inclusion of secondary market regulation of unlisted securities. Serious shortcomings in the process are identified. These errors, together with the practical problems of defining and regulating the secondary market in Chapter 4 read with the remainder of the delineating definitions, concludes that the current system is not in line with the principles of regulation and the Grundnorm of fraud prevention, resulting in Chapter 4 falling under the concept of “incomplete law” resulting in a high probability of enforcement failure and inefficiency. A comparative overview related to the jurisdictions of the United Kingdom and the United States follows with recommendations aimed at amending Chapter 4 relating to the regulatory regime in toto as well as the regulation of unlisted securities in the secondary market.

Abstract not available.

Development is understood to be an economic process that aims at a constant improvement of the well-being of all individuals who have the right to participate and benefits from the fruits of development. Development is also a right that requires a progressive realisation by governments, international communities and private sectors to the satisfaction of all individuals. A progressive realisation of this right requires a vibrant economy, which can be acquired through International trade and Foreign Direct Investment (FDI). It is in this context that this thesis has attempted to discuss the influence of FDI and International trade on development. The discussion was initiated by focusing on the history of the multilateral trade system (MTS) by looking at various Ministerial rounds of both the General Agreement on Tariffs and Trade (GATT) and the World Trade Organisation (WTO). In this discussion the thesis found that, whilst there are various multilateral political frameworks regulating trade, FDI is subject to regional and domestic political frameworks. The thesis also discussed development in relation to the millennium development goals (MGDs). It was established the goal eight of the MDGs requires the integration of poor countries into the MTS so that they can be able to exploit their comparative advantage. This goal influenced the launching of the Doha Development Agenda (DDA) at the Doha round in 2001. However, the thesis also established that conclusion of the DDA has been progressing at a slow pace. Therefore it has not yielded substantial results for poor countries. The failure to conclude the DDA has led to an increase of Regional Trade Agreements (RTAs), which some scholars view as a supplement of multilateral trade integration. However, the SADC region has not been able to conclude their integration objectives due to the fact that many member states belong to other RTAs. In the case of FDI the thesis established that FDI is accompanied by a wide range of resources for host countries, which can be utilised for enhancing development. However, it was also established that the SADC has not been able to attract lucrative FDI due to a wide range of factors that impede FDI. On this finding, a case study was employed on four countries in the region, namely Angola, Botswana, South Africa and Zimbabwe.

This thesis was submitted for the degree of Doctor of Philosophy and awarded by Brunel University LondonThis study is an attempt at determining the normative legitimacy of the Economic Community of West African States (ECOWAS). At its core, it scrutinizes the current mandate of the organization following the layering of economic integration objectives with human rights protection, sustenance of democracy, and the rule of law. The study discusses the elements of legitimacy across disciplines mainly, international law, international relations and political science. Legitimacy is eventually split along two divides, the normative and descriptive/sociological aspects. The study traces the normative content (shared/common values) underlying integration in Africa, concluding that integration has been born on new ideals such as human rights, democracy and the rule of law. Expectedly, Regional Economic Communities (RECs) as building blocks of the prospective African Economic Community (AEC) under the African Union (AU) regime are mandated to play a vital role in moving the continent forward upon these values. The inquiry is extended to the institutions of ECOWAS to determine their capacity to effectively implement the new mandate of the organization and operate supranationally. In the process, key legal and institutional shortcomings are discussed, particularly in relation to national institutions. It is argued that while human rights protection enhances the normative legitimacy of ECOWAS, it must not be pursued in isolation. Economic integration and protection of citizens’ rights are co-terminus and mutually reinforcing. Hence, community institutions must reflect this link if they are to be effective. The study concludes on the note that, while ECOWAS possesses layers of legitimacy, and have carried out legitimation steps, it cannot be considered a legitimate organization if Member States continue to be non-compliant with community objectives and if key legal questions remain unaddressed. It is submitted that ECOWAS is merely undergoing legitimation, whether it can eventually be considered a legitimate organization is dependent on addressing the identified challenges

In 1998 the European Union adopted a new self-standing instrument of collective enforcement - the Action for Injunction. Until then, the main focus was on the improvement of the position of the individual consumer through the adoption of substantive consumer law directives. The Injunction Directive provides for a general framework on consumer law enforcement in national and cross-border litigation. Qualified entities, public agencies and/or consumer organisations, are granted legal standing. National courts are bound to mutually respect the standing of EU wide registered qualified entities. Outside these clear-cut rules on the mutual recognition of standing, the Injunction Directive remains largely silent. The implementation into 28 Member States swiftly revealed the rather limited harmonising effect. The thesis investigates and explains how despite the legally approved diversity, the Injunction Directive contains the potential to turn diversity into convergence. The key to understanding the potential is the thesis of dualism of enforcement measures. Read together with the Annex the Injunction Directive establishes the deep interconnection between collective and individual enforcement, of substantive and procedural enforcement, of judicial and administrative enforcement. The different levels and means of enforcement should not be regarded separately but should always be looked at in their interplay, in their mutual institutional design and their mutual impact. Evidence for convergence can be found in the Invitel judgment of the ECJ and in the practice of consumer organisations via co-ordination actions across borders by which they overcome the boundaries of collective vs. individual or judicial vs. administrative enforcement. Regulation 2006/2004 re-adjusts the dualistic structure of enforcement in favour of public bodies and promotes convergence through para-legal means, through new modes of enforcement, through co-operation and co-ordination outside courts and in open interaction between administrative bodies, to which consumer organisations are admitted on approval only.