Bibliographie sélective OHADA

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.

New technologies have been continuously emerging to enable effective reuse of an ever-growing amount of data on the Web. Innovative firms can leverage the available technologies and data to provide useful services. Comparison-shopping services are an example of reusing existing data to make bargain-finding easier. Certain reuses have caused conflicts with the firms whose data has been reused. Countries in the European Union have implemented the Database Directive to provide legal protection for database creators, but the impact and the interpretation of the new law are unclear and still evolving. Lawmakers in the U.S. have not decided on a policy concerning database protection and data reuse. Both data creating and data reusing firms need to develop strategies to operate effectively in this uncertain environment. Comparison-shopping and other data reuse services face similar legal and strategic challenges. Thus we address these challenges in the broader data reuse context. We use economic reasoning to formulate strategies in anticipation of the likely policy choices and interpretations of existing legislation. Both data creating firms and data reusing firms should focus on innovative ways of using or reusing data to create differentiated products and services. For firms that gather data from multiple sources, they can also use the insights gained from integrated data to provide other value-added services.

An Intermediary Holding Company (“IHC”) is a company that is interposed between an ultimate holding company and the operating subsidiaries of a group of companies. The IHC operates at an international level such that either its holding company or its subsidiaries or both are located in a country foreign to the IHC. Its main functions are to acquire, manage and dispose of the assets of the group of companies and to facilitate structural flexibility of a group of companies. Investors have tax and non-tax reasons for conducting business using an IHC, and, depending on the reasons, they determine the location of the IHC based on the characteristics of potential host countries. This thesis analyses the suitability of the South African corporate tax regime for the use of South African-resident Intermediary Holding Companies. The South African government has the objective of promoting South Africa as a gateway for investment in Africa and for this reason the present research is important. Such an objective could be adversely affected by a corporate tax regime that is not suitable for the operations of an IHC. Furthermore, the Katz Commission recommended in 1997 that South Africa should consider introducing a regime that is suitable for the location of holding companies. In discharging its functions the IHC attracts liability for corporate income tax, capital gains tax, controlled foreign company tax and dividends tax. It also exposes itself to anti-avoidance measures such as thin capitalisation and transfer pricing provisions. The existence of such taxes and anti-avoidance measures in the tax system of a country may deter investors from locating an IHC in such country. Exchange control regulations could also adversely affect the ability of the IHC to perform its functions effectively, as their purpose is to restrict the movement of capital out of the country. The South African legal system contains all these taxes and anti-avoidance measures as well as exchange control provisions. However, it also contains tax instruments that alleviate the tax burden on an investor using an IHC such as the participation exemption, advance tax rulings and a network of tax treaties. Against this background this thesis analyses the South African corporate tax system to determine whether it is suitable for locating an IHC. In the analysis, a comparative study is done of the tax systems of two of the most effective IHC host countries, namely the Netherlands and Mauritius. In addition, a brief discussion of the special features contained in the tax systems of Belgium, Ireland and the United Kingdom outlines why these jurisdictions are not necessarily successful in attracting IHCs. The thesis also discusses harmful tax practices and the attitude of the international community towards countries that engage in harmful tax competition in order to determine the limits to which a country should use the tax system to attract investment. Finally, the thesis makes recommendations as to what adjustments could be made in order to enhance the suitability of South Africa to host an IHC. The thesis recommends a special dispensation as regards corporate income tax and exchange control that would apply to wholly-owned South African companies that own foreign subsidiary shares and loans that consist of 80% of the gross asset total of these companies.

The authorities of the West African Economic and Monetary Union UEMOA fully understand that accounting plays the significant role in the process of economic development and regional integration in the member states. They decided to establish a common new accounting system, called West African Accounting System (SYSCOA). The accounting system has been developed on the initiative of the Central Bank of West African States

South African company law has provided for the rescue of financially distressed companies since 1926 when the statutory procedure of judicial management was introduced by the Companies Act 46 of 1926. Unfortunately, judicial management has never been regarded as a successful corporate rescue procedure and for most of its existence it has been severely criticised on many grounds. The Companies Act 61 of 1973 that replaced the Companies Act 46 of 1926 did very little to improve this situation and judicial management remained underutilised. As a result, the Companies Act 71 of 2008 now introduces two newly-created corporate rescue procedures in the form of business rescue proceedings and the compromise with creditors. This study analyses judicial management and the new corporate rescue procedures to establish whether the identified weaknesses of judicial management have been adequately and effectively addressed in the new procedures. A comparative study with similar procedures in England and Germany is undertaken to determine whether the South African legislature has delivered on its promise to create a system of corporate rescue that will meet the needs of a modern South African economy. Several weaknesses in the new procedures are identified and a number of recommendations are made to improve the relevant provisions and to assist in providing South African company law with an efficient and acceptable corporate rescue regime.

This study examines the macro and micro level determinants of the quality of reported earnings. The prior literature suggests that both micro and macro variables impact on discretionary accruals choice in managing earnings. However, most of the studies on earnings management have been single country studies that have focussed only on micro variables as all firms within the samples examined have been subject to the same interplay of macro economic, legal, cultural and institutional frameworks. This study addresses this gap in the literature by using a sample of 156,906 firm year observations from 63 countries over the period 1998-2007 to examine the role of thirteen micro and macro variables in determining earnings quality. The macro variables studied include legal enforcement, political system, and control of corruption, culture and adoption of IFRS. Earnings management is estimated using the modified Jones model (Dechow et al. 1995) in a cross section (DeFond and Jiambalvo 1994; Francis et al. 1998). The results of the study indicate that macro and micro level variables have a strong impact on earnings management behaviour and thus earnings quality. The limits imposed by a country's legal, cultural and institutional setting on managerial discretionary accruals choices, strongly impact the quality of reported earnings. Future research on earnings management should therefore control both micro and macro level variables.