Bibliographie sélective OHADA

The advent of Internet and digital technologies has radically transformed the way information is being produced and consumed. The consequences for copyright law are twofold. While digital media provide new opportunities for authors to produce and disseminate their works to the public, they simultaneously encourage and facilitate copyright infringement. Traditionally, in order to ensure compliance with the law, the copyright regime could rely upon the properties of physical media to constitute a natural barrier against copyright infringement. As the medium went digital, however, its properties became a catalyst for infringement. Designed for the physical world, the structure of the copyright does not adequately address the issues inherent to digital media. Private regulation therefore came into play in order to resolve the problem. While restrictive licensing agreements combined with technological measures of protection purport to reestablish a technological barrier against copyright infringement, permissive licenses such as Creative Commons purport to reduce the scope of protection granted by default under the law. Although differing in method, these approaches share a common goal: to realign the properties of the work with the properties of the digital medium by readjusting the legal attributes and technical characteristics of digital copies. As a legal concept, however, the notion of a copy must be precisely defined. After performing an ontological analysis of the copyright regime within the scope of the Functional Requirements for Bibliographic Records and the Information Artifact Ontology, the research concludes that physical copies fundamentally differ from their digital counterpart. While the former qualify as a token, the latter qualify as a class that is capable of multiple instantiations. Moreover, given that the identity of a digital copy can no longer be defined by its physical characteristics, it is fundamentally for the copyright license to determine the scope of the copy to which it refers.

The draft uniform act on contracts proposed for adoption by the Organization for the Harmonization of Business Laws in Africa ("OHADA") is a combination of continental and common-law concepts. To be effective in parts of the world where the informal sector is particularly important, for example in the 16 West and Central African states where OHADA currently operates, contract law must be particularly attentive to avoiding traps for the unwary. For this reason, enforcing gratuitous contracts may well be defensible, but requiring registration of commercial actors is not. The complexity of two OHADA laws applicable to contracts, however, increases the risk that law and norms will not overlap, creating just such a trap.

This thesis, exploring the rule of law for international rules, offers a human bond of common good between determinacy of substance and legitimacy of structure of rules in order to evaluate international obligations of States in international law on foreign investment. In an in-depth exposition of the theoretical underpinnings and practices underlying the normative structure of rules in international law, the thesis critically questions the legal reasoning embedded in—and the authority of rules borrowed from—principles and precedents or moral and political evaluations by arbitrators in interpretation of States' contractual, customary, and treaty obligations in investment arbitrations. With crucial moral, political, social and economic ramifications for the constitutional functions of States and concomitant interests of their human members implicated in the concept of expropriation in international law, the thesis provides a framework of legitimacy in a common good approach with structural criteria of recognition and coherence for the interpretation of States' obligations in investment arbitration. Coherence brings to the fore conflicting demands of justice requiring fresh evaluation divesting a general rule of its authoritative force, and recognition brings to the fore the validation of the power to engage in moral and political evaluation. Together, these structural criteria offer a common good approach of legitimacy to test the authority of States' obligations and the power of arbitrators in hard cases. By virtue of these criteria, the thesis characterizes the nature of substantive property rights of corporations and corresponding obligations of States in foreign investment as contingent and consensual in contrast with the absolute and constitutional rights of human beings in human rights. Through coherence and recognition, the thesis also portrays a supreme status for customary international law for the normative structure and substance of States' contractual or treaty obligations in the interpretation of hard cases in international law on foreign investment. The thesis espouses a new horizon for legal reasoning in foreign investment arbitration that eschews the lex lata veneer for lex ferenda propositions manufactured from precedents and principles, on the one hand, and the sheen of law for the conception of justice of investor-State arbitrators, on the other, in cases of hard confrontation between the demands of justice.

The purpose of this study was to investigate the legal effects of state succession on cultural property. This is not a new topic of international law. Indeed, the attempts to provide a legal framework for the cultural aspects of state succession have been undertaken in international practice and legal scholarship since at least the mid-nineteenth century. Initially, these were strictly bound to the origin of the European nation-state, determining its territorial boundaries accordingly to ethnic and cultural divisions. However, the concept of cultural property in international law has evolved towards a broader, more human-oriented idea of cultural heritage. Such a conceptual shift has occurred in the last fifty years, marked by the gradual recognition of the fundamental role performed by cultural manifestations in the preservation of human dignity and the continuous development of all mankind. This study discusses to what extent the practice and the theory of state succession reflect this evolution. It attempts to reconstruct the principles regulating interstate arrangements with regard to such matters, contextualizing them in a broad historical and geographical framework. Particular attention has been paid to the question of state succession to international cultural heritage obligations. This piece of work explores their content, sources and status in state succession. It explains that nowadays the preservation and enjoyment of cultural heritage do not constitute the exclusive concern of state sovereignty. On the contrary, such values are of general interest to the international community as a whole. Therefore, the study advocates a new doctrinal approach, based both on the principles of international cultural heritage law and human rights law. This implies the limitation of the contractual freedom of states in the matter of cultural agreements, in favour of the continuity of international cultural heritage obligations in cases of state succession. Finally, the study proposes a list of guiding principles relating to the succession of states in respect of tangible cultural heritage, which may contribute to the further development of international practice.

<p>This thesis analyzes the concept of corporate residence, with particular reference to the law in the UK and Canada. It explores why corporate residence is relevant in tax policy, how corporate residence is understood in law, and how revenue authorities respond to the use and alleged 'abuse' of residence rules. Part I argues that the residence of taxpayers generally (individual or corporate) remains a relevant factor in international tax design, that taxation of corporations on the basis of residence has some justification, but that there is a disjunction between meaningful residence-based taxation and current definitions of corporate residence in domestic law and tax treaties. The formulations of residence based on incorporation, central management and control, and place of effective management, particularly as applied to multinational enterprises, are considered and are found to be deficient. Part II critically analyzes the major policy responses of the UK and Canadian governments to the exploitation of corporate residence. It argues that key legislative and administrative responses to international tax avoidance activities, for both outbound and inbound investment, are purportedly based on the acceptance of formal corporate residence yet undermine that concept in an effort to impose tax or refuse treaty relief based on where economic interests actually exist. The responses considered are the application of controlled foreign companies legislation to offshore subsidiaries, the invocation of treaty anti-abuse rules with respect to offshore intermediaries, and the use of overarching general anti-avoidance measures to challenge varied structures that rely on offshore entities. These haphazard anti-avoidance rules are overlaid with revenue authorities' indignation at the motivations that underlie many corporate relocations. It is argued that a more coherent approach would be to focus on the objective reality or unreality of corporate establishment, by reformulating corporate residence in domestic law and tax treaties.</p>

In this thesis space technology trade and proliferation controls are analyzed, focusing on two substantive issues that illustrate the challenges and opportunities of reform. The first substantive issue examined is the challenge of domestic law and policy reform in light of international regulatory divergence. This issue is examined through a case study of the U.S. commercial communication satellite export control regime. The second issue is the international implications of space technology trade and proliferation control on global civil space cooperation. The unifying demonstration of this doctoral thesis is that States operate in an international legal system that perpetuates a self-justified security dilemma whose basis originates in the sovereign legal right of States to produce, procure, and maintain space technologies of a military nature. As a result, the international legal system governing space technology trade and proliferation creates a tension between perceived national security needs and the benefits of global cooperation.

The Southern African Development Community (SADC), formerly known as the Southern African Development Coordination Conference (SADCC), is an organization of Southern African states initially formed to reduce economic dependence on South Africa (then an Apartheid state) and to harmonize and coordinate development in the region. The vision and mission of SADC reach well beyond the harmonization of development within the region. It extends to fields that include political stability, peace building, the maintenance of security and justice as well as economic cooperation. The attainment of these goals requires well co-ordinated regional mechanisms; as such over the past decade member states have paid particular attention to the possibility of attaining these goals through regional integration. The transformation from SADCC to SADC indicated that the body would no longer be a loose association (conference) of states but rather a regional body that would have a legally binding effect on its member states. The question is, when the member states assembled in Windhoek, August 1992, did they create an institutional framework, and policies that would have enough legal force to ensure that the institutional agenda of integration is not defeated by member states? The argument of this dissertation is that the Treaty and the policies established afterwards contain principle imperfections that are self defeating for the pursuance of regional integration. The work will begin by discussing regional integration in general, highlighting the historical origins of SADC as well as the role of the African Union. The work will then discuss the dimensions and functioning of SADC, laying the foundation for a proper critique on how the institutional framework contains inherent weaknesses that eventually hinder the progression of SADC. The dissertation ultimately will discuss and benchmark the European Union against SADC, in an attempt to extract important lessons for the progression of SADC.

Litigation in developing countries has many defects which has prompted a need for the development of alternative dispute resolution mechanisms. Arbitration, being one such substitutive mechanism as a type of private litigation is the most suitable for the same. This paper deals with the need to develop institutional arbitration to co-exist with ad hoc arbitration and scale it down to be available for dispute resolution in developing countries using an illustration of India. Certain recommendations to make institutional arbitration, which is considered to be appropriate for International commercial dispute resolution, suitable for domestic disputes in developing countries have been highlighted.

Competition law and intellectual property rights (IPRs) have evolved historically as two separate systems of law. There is a considerable overlap in the goals of the two systems of law because both are aimed at promoting innovation and economic growth. Yet there are also potential conflicts owing to the means used by each system to promote those goals. IP laws generally offer a right of exclusive use and exploitation to provide a reward to the innovator, to provide an incentive to other innovators and to bring into the public domain innovative information that might otherwise remain trade secrets. Competition authorities regulate near monopolies, mergers and commercial agreements with the aim of maintaining effective competition in markets. This article introduces the concept of IPRs and Competition law. It highlights important areas of conflict between the two laws and also deals with the Indian antitrust law. It concludes by trying to harmonize the conflicts.

To be made effective, class action settlements must be negotiated fairly, be perceived as fair and reasonable by the settlement parties such that they agree to their terms and substance, and be characterized as fair, reasonable and adequate by a court at the occasion of a settlement approval hearing. But how is settlement fairness defined, in a collective litigation context? By which process is the evaluation of fairness made and the approval given by the court? What role does the court correspondingly have, in that context? This thesis explores the legal policy and reasoning behind the mandatory judicial approval of class settlements, the process by which it is sought and obtained, the currently relevant factors and indicia of settlement fairness which support all decisions to approve, and the roles of the principal settlement actors, particularly the settlement judge. It suggests hypotheses for reform applicable to these approval processes, roles of the actors and standard of settlement fairness. These hypotheses are tested, for their plausibility, against empirical data obtained from the qualitative interviews of seventeen judges conducted by the author in four target jurisdictions that have similar approaches to class action settlement approvals, and where class action litigation activity is heavy: Quebec, Ontario, British Columbia, and the United States federal courts. Ultimately, the thesis proposes final recommendations for reform of the class action settlement approval procedure.

Will harmonization of legislation relating to the management of ships’ ballast water be achieved, once IMOs’ 2004 Convention enters into force?

This article aims to compare the arbitration agreement of the OHADA legal system to that of the People's Republic of China. In the Chinese legal system the parties to a contract are required to have an arbitration agreement written before the occurrence of any incident in the execution of their contract. The parties must specify in advance, in the said agreement, the chosen arbitration institution for potential disputes. In the OHADA legal system, the parties are free to decide before or during execution of the contract of an arbitration agreement. They may also decide whether in case of a dispute, they would want to refer to an institutional arbitration or an ad hoc arbitration. According to the chosen legal system the consequences are different.

The chapter challenges claims about depoliticization in two different aspects. The first examined claim is that home states are disenfranchised from pursuing investment claims once they are lodged with ICSID. Is it the case that home states simply stay home? This chapter examines instances where home states may have played a role in investment disputes between contracting states. What the record generally reveals, however, is that home states involve themselves in disputes where ICSID hearings are imminent but not yet in play. The second, broader, reading of depoliticization maintains that disputes now are resolved without recourse to lowly politics but to ‘higher’ law. This more extravagant claim is vulnerable to the critique that investor-state dispute resolution is not emptied of political content but, instead, spills over with politics. As the regime implicates the capacity of public authority to act in a wide variety of regulatory contexts, the separation of law from politics is hard to credibly maintain. Not only are investor-state disputes embedded within regimes of political discourse and political power, the ambit of investment arbitrator discretion is so capacious that it can be said of arbitrators, as it has been said of the U.S. Supreme Court, that they can sensibly be regarded as political actors.

This thesis addresses issues of anti-dumping law and practice from a critical and juridical analysis position. In particular, the thesis seeks to determine whether the South African anti-dumping regime is compliant with the anti-dumping regime of the World Trade Organization (hereafter WTO), and to consider possible solutions for addressing instances where the South African law is not WTO compatible. The thesis departs from the hypothesis that the WTO merely requires functional equivalence of the implementation of national legislation on anti-dumping, and not the verbatim adoption of WTO jurisprudence and relevant provisions of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade of 1994 (hereafter URAA), into the legislation of State Parties. Some of the provisions of the URAA are not completely clear, and are cast in convoluted and complicated technical jargon, leaving loopholes that may be justifiably exploited by State Parties. The study in this thesis was achieved through the critical analysis of legislation and relevant legal documents, case law and contemporary literature. The primary research paradigm used in this study is interpretive and analytical, which is the same as qualitative research methodology. The legal comparative research method, with a historical component, also played an important role in this study. The literature study undertaken and the critical analyses made of the South African anti-dumping regime show mixed findings. The South African antidumping regime was found to have both positive aspects and problematic aspects when compared with WTO regulations. Some of the critical areas of the South African anti-dumping regime are WTO compatible whilst others are not. In some areas the South African anti-dumping regime has adopted functionally equivalent provisions to the provisions of the WTO law. However, the practice of the International Trade Administration Commission (ITAC) is sometimes fraught with inconsistencies. The compatibility of the South African anti-dumping system with the WTO regime came close to being examined by the WTO on 1 April 1999 in the dispute of South Africa - Anti-dumping Duties on the Import of Certain Pharmaceutical Products from India based on allegations that the method for calculating normal value used by the ITAC was found to be inconsistent with the URAA. Similarly, the conformity of the procedures and findings of the International Trade and Administration Act (ITAA) in anti-dumping cases came under attack in the cases of Algorax v The International Trade Administration Commission and others, and Scaw v The International Trade Administration Commission and others, respectively. Finally, the thesis ends with recommendations in response to the challenges identified and key submissions made throughout the analysis. Key recommendations include the broadening of the concept of interested parties to include registered trade unions and trade union federations; introducing an explicit and mandatory "public Interests" provision to ensure that South Africa's anti-dumping administration is free from political trappings in the form of the involvement of the Minister of Trade and Industry; introducing the new section 31 bis of the ADR in order to allow the initiation of anti-dumping petitions by a registered trade union or trade union federation; providing procedural guidelines for self-initiation of anti-dumping petitions by the ITAC; increasing transparency in anti-dumping proceedings and enquires; setting realistic time-lines for all anti-dumping processes and ensuring compliance with the same; improving the institutional and functional capacity of the ITAC; amending section 18.3 of the ADR to allow search and seizure operations pursuant to the provisions of the Criminal Procedure Act 51 of 1977 and the Customs Act; having a clear provision on verification visits confidentiality and a clear provision on producer knowledge; introducing a clear provision in the ADR dealing explicitly with zeroing pursuant to Article 2.4.3 (ii) of URAA; and the introduction of duty refund procedures. It is hoped that the recommendations made in this thesis, which are in the form of suggested legislative interventions required to upgrade certain areas of South African anti-dumping law and practice to be fully WTO compliant, will influence the introduction of suitably crafted anti-dumping legislation in South Africa. It is further hoped that the thesis will become an invaluable source of information for practitioners and students, and a critical source on the best practice for the imposition and implementation of anti-dumping measures. Moreover, the thesis will add to the body of academic writing on South African anti-dumping law.

"The main objective of the thesis is to examine whether improved market access for the exports of the least developed countries (LDCs) is a significant means for achieving sustainable development through trade. Further, it aims to examine whether LDCs face challenges in achieving their sustainable development in the existing market access regime... Recognising the specific needs of LDCs, the Preamble to the 'WTO Agreement' calls for positive efforts designed to ensure that LDCs secure a share in the growth in international trade commensurate with the needs of their economic development."

This thesis consists of three essays on trade, investment, and taxation that are unified by their policy relevance to developing countries. Following an introductory chapter on policy reform, the first essay revisits the institutional determinants of foreign direct investment (FDI) using a comprehensive new data set covering more than 80 countries. It exploits the presence of confirmed zero investment flows between countries to estimate productivity cut-offs of firms that invest abroad profitably. This approach corrects likely biases arising from firm heterogeneity and country selection in a theoretically derived gravity-type model. The analysis finds inward FDI to be highly responsive to cross-country variation in specific institutional provisions, such as arbitration of disputes and legal procedures to establish foreign subsidiaries. The importance of FDI-specific regulations stands out even after controlling for the general quality of institutions. Statutory openness to FDI, however, has no association with actual inflow of investment. The second essay examines cross-national differences in the survival of exports through the lenses of product, industry, and country characteristics. The estimates are derived from a new application of discrete-time models instead of the continuous-time (Cox) models that are standard in trade duration analysis. The examination of exports originating in more than 100 developing countries covering 4000 products over 12 years shows that export flows are much more fragile than suggested by trade theory. Using new measures of product sophistication and export diversification, the paper finds evidence of information and network externalities that aid export survival. Exports concentrated in a few industries or in a narrow range of destination markets exhibit higher rates of death, whereas export concentration within some industries is positively associated with survival, suggesting a synergistic network effect. The probability of export death decreases with proximity from the capital content of products to the national factor endowment, competitive real exchange rate, and bilateral trade preferences. Further, death rates for dynamic subsets of exports like manufactured components and processed food differ from other products, belying the notion that short durations are necessarily a result of poor exporter capabilities. The third essay assesses the revenue implications of coordinated tariff and tax reforms. It is shown for a sample of low-income countries over 25 years that they have had a mixed record of offsetting reductions in trade tax revenue, and that Value-Added Tax (VAT) has, at best, played a limited role. The paper then analyzes the specific case of Nepal, using a unique data set compiled from unpublished customs records of imports, tariffs, and all other taxes levied at the border. It estimates changes to revenue and domestic production associated with two sets of reforms: i) proportional tariff cuts coordinated with a strictly enforced VAT; and ii) proposed tariff cuts under a regional free trade agreement. It is shown that a revenue-neutral tax reform is conditional on the effectiveness with which domestic taxes are enforced. Furthermore, loss of revenue as a result of intra-regional free trade can be minimized through judicious use of Sensitive Lists that still cover "substantially all the trade" as required by Article XXIV of the General Agreement on Tariffs and Trade (GATT).

International sales contracts have very specific needs that stem from the multiplicity of legal systems which apply to such contracts. In addition to harmonised law, mercantile custom is able to address many of these needs. Mercantile custom represents usages which are clear, certain and efficient and are expected to be known and applied by merchants in a particular trade or region. To this extent mercantile custom fulfils an automatic harmonisation function. However, where a custom does not enjoy uniform application across all branches of trade, the harmonisation function of mercantile custom is limited, as is the case with trade terms. Trade terms reflect mercantile customs and usages which developed over a long time in order to simplify the trade in goods that are transported from one place to the other. They regulate the delivery obligations of the seller and buyer as well as associated obligations such as the passing of risk. Trade terms negate the need for elaborate contract clauses and appear in abbreviated form in contracts of sale. Although they provide a uniform expression of mercantile custom in a particular location or trade, the understanding of trade terms tend to differ from country to country, region to region or from one branch of trade to the next. The ICC INCOTERMS is an effort to standardise trade term definitions at the hand of the most consistent mercantile customs and practices. The aim of this study is to investigate the efficiency of INCOTERMS as a form of standardisation in international sales law. For purposes of the investigation the focus is limited to the passing of risk. Although national laws usually have a default risk regime in place, merchants still prefer to regulate risk by means of trade terms. This study will investigate the legal position in the case of FOB, CIF and DDU terms. An analysis of the risk regimes of a few selected national systems will show that each has their own understanding of these trade terms. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not refer to trade terms, but many commentators have concluded that the CISG risk rule is consistent with INCOTERMS. The study will discuss this in more detail. To determine the efficiency of INCOTERMS as a form of standardisation in international sales law, the study examines their characteristics, legal nature as well as their limited scope of regulation. Specific emphasis is placed on the interplay between the CISG and INCOTERMS and the possibility of some form of interaction and collaboration between the two instruments. It is concluded that collaboration between INCOTERMS and the CISG adds value to the international law of sales by increasing the efficiency of an international business transaction and thereby facilitating international trade.

This study is focused on the linkages between the legislative families as descriptors of national legislative systems and International Financial Reporting Standards (IFRSs) issued by the International Accounting Standards Board (IASB). We consider such analysis as a case study for the more general issue of explaining the preferences of national regulators in the adoption of foreign norms, rules, standards and practices. By using a dataset of 162 jurisdictions and dummy variables designed to capture the current stage of IFRSs adoption and, respectively, the taxonomy of their legislative systems, we find that a full IFRSs adoption is more likely to occur in countries which have principles-based on legislative mono-systems. In addition, we observe that a strong rule of law, with an effective mechanism of property rights reinforcement, as well as the pre-adoption existence of a pro-growth set of public policies can contribute to the encouragement of IFRSs adoption.

The traditional and religious layer. The colonial layer. Law of independence. Law in Sub-Saharan Africa today. Common law and civil law in Sub-Saharan Africa. The consequences of legal origins. Legal origins and legal institutions in Sub-Saharan Africa. Legal origins and poverty in Sub-Saharan Africa. An econometric model.

The emergence of the African Union (AU) is seen as an effort to reposition Africa for the challenges of contemporary global realpolitik and, in particular, it provides a road map towards the attainment of a political union. The institutional architecture of the AU, modelled after the European Union (EU), indicates an intention on the part of the architects of the AU to endow the organisation with supranational attributes. However, none of its institutions has as yet started to exercise supranational powers. It is against this background that this thesis explores the feasibility of transforming the AU from a mere intergovernmental organisation into a supranational entity. In the course of the investigation, it was found that a major obstacle to realising this is the absence of shared democratic norms and standards, a consequence of the unconditional membership ideology of the AU. This thesis argues that the starting point of closer integration in Africa should be the cultivation and adoption of shared norms and values. To address this, the study proposes that the AU design an institutional mechanism for regulating its membership. Using the African Peer Review Mechanism (APRM) as a case study, this study shows that it is possible to establish a regulatory regime based on strict adherence to shared fundamental norms and values. A major recommendation is the transformation of the APRM into a legally binding instrument for setting continental democratic standards, assessing whether member states fulfil these standards and ultimately determining which member states are qualified, based on objective standards, to be part of a democratic AU.