Bibliographie sélective OHADA

This thesis examines the emergence of transnational regulatory cooperation between public and private actors. It inquires why a private regulator and an international organisation may enter into a cooperation agreement in order to regulate particular issues, and what this tells us about the relationship between ‘expertise,’ ‘authority’ and ‘legitimacy’ in particular domains of global governance. The argument put forward in the thesis is that different types of regulators cooperate because, in an unsettled global space with no hierarchical framework, it is necessary for them to acquire sufficient authority to secure compliance with their regulatory agenda. In order to acquire and maintain such authority, regulators must be perceived as legitimate and their regulation as effective. Cooperation can open venues for participation and deliberation and for the exchange of necessary competences (particularly expertise); and thus ultimately can help regulators establish and strengthen their authority. Another important finding of this research is that cooperation can develop into more long-lasting network structures. These networks are often of a multi-level nature. As such, they traverse local, national, and international spaces. The thesis then develops the idea of ‘networks of constitutionalization’ to describe the observation that bilateral arrangements as examined here generate ordering effects which extend beyond the two parties. Consequently they become the basis for norm creation and adoption for different types of actors located in the networks formed around the issue area. Thus, even in pluralistic structures, eventually a certain kind of constitutionalization can emerge putting into question sharp divisions between ‘pluralist’ and ‘constitutionalist’ interpretations of a developing global (legal) order. This work also encompasses two case studies: the ISO 26000 process, whereby the ‘private’ technical standard setter ISO concluded separate cooperation agreements with the ILO, the OECD and the UN Global Compact; and a case study on ‘Sport and Environment’ that focuses on the long-standing cooperation between the IOC and the UN Environmental Programme.

The Convention on Contracts for the International Sale of Goods (CISG) has proved popular, particularly outside Africa. However, only a few States have adopted it in Africa, with only two in the Southern African Development Community (SADC). Taking into account the role that African countries have played in the United Nations Commission on International Trade Law (UNCITRAL) and the creation of the CISG, it has always been pertinent to look at whether SADC Member States should adopt the CISG as an instrument for harmonising the law of international sales in the region. Since it came into force, only two SADC Member States (Lesotho and Zambia) have ratified the convention. There is apparent reluctance from the rest of SADC Member States to ratify the convention despite calls to that effect and the genuine need for legal harmonisation. The article revisits the call for the ratification of the CISG in SADC and considers other realistic alternatives to ratification.

At the heart of this thesis is the notion of Corporate Social Responsibility (CSR), an innovative concept deep-rooted in the globalisation phenomenon. The notion of CSR entails the much-debated duty of businesses, not only to comply with international and local standards in terms of, inter alia, labour rights and working conditions, human rights and environmental protection, but also to be at the forefront of voluntary and uplifting actions geared toward addressing societal issues and concerns. For corporations, it is about moving from the traditional approach of business as an activity with the sole purpose of realising profit towards acknowledging the need to integrate societal and environmental issues and concerns into their business purposes. The thesis examines selected multinational corporations’ (MNC) approaches to CSR as contained in their codes of conduct, in an effort to reach a comprehensive understanding of the purpose, interest and practices of businesses engaging in CSR activities. Particular attention is given to the analysis of labour orientated measures implemented by selected MNCs as they undertake to voluntarily act as proponents of the theory of the necessity of socially responsible businesses. The aim is to comparatively assess the legal dimension and the relevance, in different countries, of these MNC CSR commitments. The first part of the thesis is theoretical and has the purpose to present a comprehensive analysis of CSR against the current legal framework, at a global scale and within the context of selected countries. The thesis will explore the notion of CSR in order to present its definition and characteristics, briefly retrace its history, differentiate it from related and/or similar concepts, and finally assess the extent of its introduction and adaptation into various national and international institutional frameworks. Even though initially addressing the issue of CSR in the current legal framework as a whole, the scope of the thesis will ultimately be reduced to focus only on labour-related aspects of CSR. The aim of the thesis is to assess MNC’s CSR commitments, and subsequently highlight the interaction between CSR, labour and employment legal frameworks (at national and international level) and the effective implementation of labour rights and working conditions as observed in the context of different countries. More importantly, the thesis will also include a comparative analysis of CSR principles included in selected MNC codes of conduct, in order to assess the extent of their compliance with national labour legislation, international labour standards, as well as the standards and principles set by national and international CSR instruments and institutions. The purpose of such an exercise is to thoroughly assess the impact of a national context - in terms of national legal, economic, social and industrial framework - on the legal dimension, and the relevance of MNCs CSR commitments. A crucial argument developed in the thesis refers to the fact that MNC codes of conduct may have the potential to impact on labour rights and working conditions of a MNC across the different countries into which the MNC operates. Finally, considering the fact that as a topic CSR is a potentially controversial subject, it is necessary to point out, from the onset, that the thesis engages with the subject from a critical perspective. The approach therefore entails critically analysing and discussing MNC commitments and practices as observed in different countries, so as to be able to ascertain and comprehend the impact of a national context on the content, the relevance and the legal dimension of MNC codes of conducts

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The objective of this thesis is to critically analyse synthetic securitisation schemes in South African law as synthetic collateralised debt obligations using primarily credit default swaps (CDSs). This transpires from the perspective of primarily company law, and secondarily securities law and the law of contract. It includes a contextualised study of these schemes with regards to their origins, their significance regarding the recent financial crisis, and their rationales micro-economic influence and Basel capital requirements. Not only are the participants, such as parties acting in a primary role and secondary role and special-purpose institutions, studied, but also the obligations between these parties, such as the CDS contract, and the meaning of commercial paper, the legal nature of credit-linked notes, the business of a bank, and the influence of recent case law. It also includes a consideration of synthetic securitisation schemes in terms of the Collective Investment Schemes Control Act 45 of 2002. Furthermore, the role of systemic risk and moral hazard is explained, as well as the interaction between synthetic securitisation schemes, credit rating agencies and the function of risk management. The CDS is compared with insurance contracts, and a discussion of the 2014 International Swaps and Derivatives Association Credit Derivative Definitions is incorporated. For legal comparison, the South African model is compared with Canadian law and its unfunded credit derivatives in the light of recent regulation, and compared to German law and its prevalence of funded credit derivatives. Finally, suggestions are made as to the future of synthetic securitisation schemes.

The paper will be focused on examining the debt relief options available for consumer debtors in South Africa. This paper will look at the relationship between the National Credit Act 34 of 2005 and the Insolvency Act 24 of 1936. Further, it will examine the relationship between the provisions of section 74 of the Magistrates’ Courts Act 32 of 1944. The paper will conclude by looking at debt relief options available for consumer debtors in the United States of America and in England and Wales and will make comparative comments and recommendations on how we can adopt some provisions into our own insolvency system.

“Banks are neither private attorneys general nor bounty hunters, armed with a roving commission to seek out defaulting homeowners and take away their homes in satisfaction of some other bank’s deed of trust.” This Article examines the judicial treatment of mortgage assignments across various jurisdictions in the foreclosure context. Although some courts do permit debtors to challenge suspicious or problematic assignments, most have ignored such problems and denied standing to debtors attempting to assert assignment-based defenses. This is particularly surprising given the widespread and well-documented problems with foreclosure “robo-litigation,” including backdated documents, fraudulent notarizations, and unauthorized signatures. Despite the abuse of process by foreclosing entities, courts have permitted foreclosures to continue unabated and, in some instances, have even precluded the possibility of discovery to debtors seeking to ensure that title and assignments are legally valid. Judicial ambivalence about formal compliance by mortgage assignors and assignees in the foreclosure context is somewhat ironic given most courts’ routine enforcement of instruments against debtors who do not formally comply with all contractual terms. Current adjudicative approaches to mortgage assignment are seemingly disconnected from the devastating reality of the home mortgage crisis and its causes. Moreover, there are several rationales that would support a more robust enforcement of technical compliance with assignment procedures, including the need for procedural equity, title certainty, and public records integrity. Thus, as evidence exists that banks are still making many of the same problematic mistakes regarding transfer documentation, courts can perform an essential monitoring role as an important spur towards reform. Although it would not address all of the underlying causes of the housing crisis, an adjudicative approach that liberally permits challenges to mortgage assignments would encourage lenders and servicers to be more circumspect in their foreclosure processes.

Trusts are used for a variety of purposes, both in South Africa and abroad. Like so many other entities, trusts often do not function only in one jurisdiction and may therefore be exposed to international double taxation. South Africa, like most other states, enters into bi-lateral double taxation treaties, to limit the effects of international double taxation. Most of these treaties are based on the OECD Model Tax Convention on Income and on Capital (the OECD MTC). The South African trust is a unique creature. It is not based on the dual ownership concept on which most common law trusts are based, yet, it is not a juristic person either. The question that this research aims to address is how South Africa will interpret and apply certain provisions of the OECD MTC to trusts. Although the South African position is investigated, it is compared to the positions of the United Kingdom, Canada and the Netherlands. The dissertation starts with an analysis of the trust law in each of the relevant states, followed by an overview of the taxation regime governing trusts (and the parties thereto) in each state. The status of double taxation treaties and their interpretation are examined before certain critical provisions of the OECD MTC are analysed to determine how South Africa will apply these provisions to trusts. Hence it is explored whether a trust will be regarded as a person, whether it may be a resident and a beneficial owner for purposes of the OECD MTC. Furthermore, possible solutions for conflicts of attribution in the application of double tax conventions to trusts are investigated. The dissertation concludes that South Africa will regard a trust as a person for purposes of the OECD MTC. Moreover, some types of trusts may be viewed as residents and as beneficial owners for purposes of the OECD MTC. The solution proposed in the OECD’s Partnership Report should be applied to resolve conflicts of attribution involving trusts.

Foreign Direct Investment (FDI) is about economic prosperity and wealth creation of developing economies, (FDI) brings with it capital, technology, it provides a platform for the creation of jobs and links to the world economy which brings development. The New Partnership for Africa’s Development [NEPAD] asserts that to meet its developmental challenges, Africa will have to rely more on foreign direct investment [FDI] than aid. Given the fact, the aid flows to Africa have significantly declined over the years and that the continent has now to compete with other countries for the same resources needed for development. Therefore, [NEPAD] places greater emphases on the importance of foreign direct investment [FDI] as Africa’s new engine of economic growth, particularly in the manufacturing and agricultural sector, as opposed to the oil and gas and other natural resources. However, the contribution firms, and foreign direct investment [FDI] make to the society is determined principally by the investment climate. There are many features of a good investment climate, aside of legal framework, provision of security and maintaining infrastructure, which provide the opportunities and incentives for the investment to flow and flourish and create confidence in the mind of the investors, to invest productively, and they include strong and vibrant contract enforcement. Delays or uncertainties in the enforcement of contractual rights erode the value of property rights and diminish the opportunities and incentives to invest. Therefore, the process of seeking redress through the normal court system is too protracted and unsatisfactory to continue to serve as primary recourse option of executives and potential investors, and this also explain the slow of improvement in FDI in the manufacturing and agricultural sector inflow to Nigeria. There are additional reasons for all these difficulties and hurdles that constitute a clog to an efficient contractual enforcement. The legal system that made judges of regular courts to also handle election petitions and other ad-hoc assignments to the detriment of the regular pending commercial cases before the courts. Secondly, there currently distinct rules for each state of the Federation and there number of civil procedure rules required to be complied with to move cases through the system from filing to judgment enforcement. This has created additional and unnecessary procedures that elongate the process of contract enforcement. Thirdly, despite these enormous powers of the Sheriff and bailiffs in the process of trials and enforcement of contractual judgments, in Nigeria majority of the bailiffs in all our courts including the courts of records are either retired police or military officers with no formal training on their powers and obligations in accordance with the provision of the law.The dissertation mainly recommended the creation of Commercial courts or Commercial divisions throughout the federation to handle contractual and commercial cases; secondly, Secondly, it is recommended for the unification and adoption of a single the civil procedure rules throughout the country. Lastly to institutionalize the training and retraining of sheriffs and court bailiffs on the provisions of the rules as it relates their functions of giving effect to court orders and judgment.These would go a long way in providing an effective and speedy movement of civil cases through the system of trial and subsequent enforcement in our courts, which may further create confidence and improve the investment climate for the inflow of the Foreign Direct Investment (FDI) in to Nigeria.

Domestic laws on the African continent have been considered inadequate to attract the investment needed for development and economic growth. A crucial catalyst in attracting investment on the continent is law reform. The formulation of legislation has twofold effects: firstly, it is perceived to mitigate the risks associated with doing business in Africa; secondly, it legally obligates African governments to comply with standards of protection accorded to international investors through the regulation of the business environment. The formulation of legislation is a key determinant of the quality of investment attracted to the continent. This Chapter assesses how the Organization for the Harmonization of African Business Law (OHADA) has contributed to regional integration and economic growth on the continent.

Until recently, doing business in developing countries, and in Sub-Saharan Africa in particular, was associated with high risk. Although each investment decision is associated with some risk, there are always obligations incumbent on host States in that regard. However, when domestic law is too obsolete to match the requirements of an evolving investment and commercial environment which it is supposed to regulate, and when its effects are unpredictable, one of the fundamental conditions for attracting investment goes missing. This eventually underscores the need for a legal reform. The phenomenon of 'globalisation' on the one hand, and the need for (developing) countries to integrate their economies into the global market, on the other hand, considerably accentuated the postulate of development through law.Against this background, some African countries, at the dawn of the 1990s, felt a need to 'modernise' their legal systems for the major part inherited from colonialism. In this vein, they entrusted a supranational organ, the OHADA, to perform that legal reform. This paper is an attempt to test the OHADA against the discourse of law as a development engine. Furthermore, this is an assessment of the extent to which OHADA, as a legal tool, could be useful in serving the purpose of regional integration and economic growth in Africa.

This contribution focuses on the development of bank resolution regimes as a credible antidote to the ‘too big to fail' problem. The main objective of the analysis is to demonstrate the repercussions and challenges resulting from the implementation of bank resolution schemes on a cross-border level. This work is a selective survey of specific legal questions, which remain relatively unaddressed by academic literature and international standard-setting bodies (e.g. bank resolution triggers or safeguards for bank creditors under bank resolution) or still problematic (e.g. resolution planning or cooperation and information exchange between resolution authorities), in particular when applied in a cross-border context. The author aims to shed more light to the complexities of cross-border bank resolution while trying to answer to the fundamental question: have we ended the ‘too big to fail' problem?

The position of the whistle-blower is known to be a precarious one, with the whistle-blower often either regarded as a hero or a reprehensible traitor. Various pieces of legislation have attempted to remedy their precarious position, especially within the employment relationship, and in which the whistle-blower more often than not has the most to lose. The study at hand has the specific objective of comparing the position of the whistle-blower in terms of South African Law, against 16 specific measurables, and in comparison with the position of the whistle-blower in New Zealand, Australia (Victoria) and the United Kingdom. In the main, the protection offered to the whistle-blower within the South African context, is embodied within the Protected Disclosure Act 26 of 2000 (hereinafter referred to as the “PDA”).In examining the protection afforded to the whistle-blower in South Africa, it is concluded that the framework involved extends much further than just the mere provisions in the PDA. However, there are admitted challenges in respect of this framework as discussed, both legislative and non-legislative, especially in respect of duties of disclosures placed on persons in circumstances in which concurrent protection is not afforded to the whistle-blower. With reference to the comparison in respect of the measurement parameters set, it was found that the PIDA (UK) meets the least amount of the measurements set, with the PDA A (Australia, Victoria) meeting the most of the measurements; the PDA NZ is equally balanced in meeting and not meeting the measurements and the PDA meeting less of the measurements than not, but still meeting more than the PIDA. It was found that had it not been for the catch-all provision contained in section 4 (1) (b) of the PDA, the PDA would have ranked last.

Cette thèse examine l’impact de la structure actionnariale sur la structure du capital et la performance des banques commerciales européennes sur la période 2002-2010. Elle est composée de trois essais empiriques. Le premier chapitre teste l'effet de la divergence entre les droits de contrôle et les droits pécuniaires d'un actionnaire ultime sur l’ajustement du ratio du capital à son niveau optimal et sur l’offre de crédit par les banques. Les résultats montrent qu’en présence de divergence entre les droits de contrôle et les droits pécuniaires, les banques n’émettent pas du capital pour augmenter leur ratio et, au contraire, elles réduisent leur taille en ralentissant leur offre de prêts. Le chapitre 2 teste l’effet de cette divergence sur la rentabilité et le risque bancaires en temps normal et en temps de crise. Les résultats montrent que bien qu'une divergence entre les droits de contrôle et les droits pécuniaires soit associée en temps normal à une rentabilité plus faible et un risque plus élevé elle a, à contrario, amélioré la rentabilité et contribué à la résilience des banques pendant la crise financière de 2007-2008. Le troisième chapitre teste si le réseau des actionnaires auquel la banque est liée au sein d’une chaîne de contrôle affecte la relation entre la diversification et la performance. Les résultats montrent que la présence des investisseurs institutionnels dans les chaînes de contrôle aide les banques à tirer des bénéfices lorsqu’elles diversifient leurs activités.

Since the dawn of democracy South Africa has embarked in a process of dismantling protectionist business and trade policies, and made the country’s stream of commerce one of the preferred globally. The country’s sound competition and trade policies, natural resource endowments, market size and regional influence, attracted foreign businesss and foreign direct invetsment (FDI). Equally the country has been under pressure to protect the domestic industries from injurious competition and business, through sector specific laws, anti-dumping and countervailing duties laws, investment and competition regime. The concern has been the likilelihood of the introduction of trade and competition barriers, and the allienation of FDI. This paper critically examines the impact the country’s antidumping and competition law and practice upon foreign direct investment. Domestic industries have never been shy to file anti-dumping and anti-competition suits against foreign companies, sometimes even when there might be a public outcry. Relevant examples of these suits include the famous Wal-Mart anti-competition case, and recently the Brazilian frozen fowl meat anti-dumping case.

The promotion of international trade is seen as one of the important instruments to ensure development in developing nations and regions. The history of the World Trade Organisation (WTO) and the drafting of many regional and similar international trade agreements are evidence of this. The Southern African Development Community (SADC) is no exception.1 It is therefore strange that many states that are members of the WTO and actively encourage the opening up of international borders to free trade do not include public procurement2 in such free trade arrangements. This is particularly evident in developing states. If the WTO Government Procurement Agreement (GPA), which is a plurilateral agreement, is considered it is clear that many states do not wish to open their internal markets to competition in the public procurement sphere. It is therefore not surprising that public procurement has been described as the last rampart of state protectionism (Ky, 2012). Public procurement is an important segment of trade in any country (Arrowsmith & Davies, 1998). It is estimated that public procurement represents between 10% and 15% of the gross domestic product (GDP) of developed countries and up to 25% of GDP in developing states (Wittig, 1999). Unfortunately, governments often expect private industry to open up national markets for international competition but do not lead the way. Except for the limited use of pooled procurement,3 no specific provision is at present made for the harmonisation and integration of public procurement in the SADC. In view of the proximity of the member states, the interdependency of their economies and the benefits that can be derived from opening up their boundaries to regional competition in public procurement, the possibility of harmonisation and deeper integration in this sphere needs to be given more attention. The importance of public procurement in international trade and regional integration is twofold: first, it forms a substantial part of trade with the related economic and developmental implications; secondly, it is used by governments as an instrument to address socio-economic issues. Public procurement spending is also important because of its potential influence on human rights, including aspects such as the alleviation of poverty, the achievement of acceptable labour standards and environmental goals, and similar issues (McCrudden, 1999). In this article the need to harmonise public procurement in the SADC in order to open up public procurement to regional competition, some of the obstacles preventing this, and possible solutions are discussed. Reference is made to international instruments such as the United Nations Commission on International Trade Law (UNCITRAL), the Model Law on Public Procurement and the GPA. In particular, the progress made in the Common Market for Eastern and Southern Africa (COMESA) with regard to the harmonisation of public procurement, which was based on the Model Law, will be used to suggest possible solutions to the problem of harmonising public procurement in the SADC.

The Southern Africa Development Community (SADC), the African Union (AU) and other African regional economic communities (RECs) have as their ultimate objective the political and economic integration of the African continent. The SADC is home to a number of countries, all of them striving to improve their investment climate to attract foreign investors by reducing the costs of doing business in the region. One way of achieving this is by setting targets for and speeding up political and economic integration, improving interconnectivity and thereby enlarging the market size and enhancing its attractiveness. The SADC region still suffers from high levels of energy poverty through low access levels in all countries except South Africa and Mauritius. Numerous studies have shown that greater regional trading and cooperation on power development within the SADC could substantially reduce investment and operational costs as well as carbon emissions. The need for a regional power trading pool and regional cooperation grew out of the power utilities’ recognition of the vulnerability of individual countries if each continued to pursue a policy of self-sufficiency rather than out of a desire to minimise the social or financial costs of the region’s power. The power sector in southern Africa is undergoing tremendous reforms, more especially since the establishment of the Southern African Power Pool (SAPP) in August 1995. The SADC, however, faces serious challenges that include diminishing surplus generation capacity and the need to ensure that SADC citizens have equitable access to electricity at affordable prices. To meet these challenges, treaties and protocols have been adopted but are failing to deliver at the implementation stage. This article reviews the SADC energy-electricity regulatory framework in the context of economic and political integration and recommends the establishment of an independent regional regulatory authority to oversee the implementation of integrated holistic energy and air pollution control and prevention, and a common climate change policy. Such a regulator would be a highly resourced regional institution that will liaise with international institutions. This independent regional authority will serve as a catalyst for regional economic integration. It will also have a mandate to introduce and coordinate the establishment of an SADC regional emissions trading scheme that will contribute to managing the mitigation of greenhouse gases (GHGs) and the implementation of global warming adaptation strategies in the region.

Dommage économique causé par les cartels: une évaluation pour les pays en voie de développement (En collaboration avec Marc IVALDI, L'École d'économie de Toulouse et CEPR et Frédéric JENNY, ESSEC Business School, Paris) : La détection et la sanction des cartels reste toujours d'une grande importance pour les autorités de la concurrence développées en raison d'une compréhension claire de leur danger potentiel, et donc des avantages de leur dissuasion. Néanmoins, les pays en développement ont souvent du mal à créer ou à renforcer leur autorité de la concurrence - l'exécution d'une division antitrust est coûteuse et la preuve à l'appui concernant les avantages potentiels est toujours manquante. Présente étude fournit la preuve quantitative manquante. Elle propose une évaluation du dommage économique total causé par les cartels en termes de chiffre d'affaires affecté par les pratiques collusoires ainsi qu'en termes de profits excessifs des ententes découlant de surcharge des consommateurs. Les résultats suggèrent que le préjudice économique totale estimé en termes de profits excessifs divisés par le PIB correspondant peut atteindre jusqu’à 1%. En outre, comme la probabilité annuelle maximale de découvrir une entente déjà existante est estimée à environ 24%, il est suggéré que le dommage économique réel dépasse nos estimations, au moins quatre fois. / Évaluation de la précision des outils proposés dans les lignes directrices sur les fusions (En collaboration avec Marc Ivaldi, L'École d'économie de Toulouse et CEPR et Jérôme Foncel, EQUIPPE, Université de Lille) : Présente étude propose une évaluation complète de la précision de deux outils proposés par les lignes directrices sur les fusions les plus avancés - le critère traditionnel HHI et un plus récent UPP - et défini les conditions économiques qui favorisent les prédictions trompeuses. Les simulations de Monte-Carlo sont utilisées pour créer des économies qui sont utilisés pour mesurer les effets des fusions et d'évaluer la performance des outils d'évaluation choisis. Les résultats suggèrent que le test HHI à une capacité très faible de déterminer le potentiel de l'augmentation des prix lorsqu'il est appliqué à un marché de produits différenciés. Dans son tour, le test UPP peut aussi être très trompeur, même si l'on a une information parfaite sur les principaux ingrédients nécessaires pour le calculer. L’étude démontre que certains d'erreurs de type I et de type II se produit parce que les tests de type UPP par construction ne tiennent pas compte de la ‘pression’ sur le prix subie par le partenaire de fusion. Elle aussi explique comment ce dernier peut être réglé en tenant compte du degré de transmission croisé correspondant. / Le rôle du degré de transmission croisé dans les évaluations des fusions : Présente étude démontre que l'ignorance de l’effet de transmission croisé, et en particulier de son signe, peut conduire à des conclusions erronées dans presque toutes les étapes d’évaluation d’une fusion, y compris la procédure de définition du marché et l'évaluation des effets coordonnés et unilatéraux. Par conséquent, l’étude aussi offre un examen des propriétés de l'ensemble de la matrice des degrés de transmission dans un cadre suffisamment général et en même temps plus pratique pour les concentrations horizontales et tire les caractéristiques exactes des systèmes d'offre et de demande qui affectent le signe du degré de transmission croisé.

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