Bibliographie sélective OHADA

Los modelos de negociación con opciones exteriores normalmente suponen que los pagos de estas opciones son independientes de las acciones que los negociadores toman durante el proceso negociador. Sin embargo, en muchos contextos, la opción exterior depende de lo que las partes hagan durante la fase negociadora. Uno de estos contextos es el de aquellas negociaciones que se llevan a cabo en presencia de un árbitro. Esta tesis realiza algunas contribuciones a la teoría de la negociación con opciones exteriores, enfatizando aquellas situaciones donde las opciones exteriores aparecen por la intervención de árbitros. En el capítulo 2 analizo los efectos del arbitraje en las negociaciones cuando su uso es voluntario. Considero un modelo de negociación por concesiones donde las partes tienen la posibilidad de llamar a un árbitro con el consentimiento del oponente. Demuestro que la introducción del arbitraje distorsiona el resultado de la negociación. Esta distorsión depende de los costes relativos de implementar una partición mediante un proceso negociador versus un proceso arbitral. Si los costes del arbitraje son pequeños en relación a los costes de la negociación, entonces la partición negociada se aproxima a la propuesta por el árbitro, y en casos extremos el arbitraje es utilizado en equilibrio. Sin embargo, los jugadores no eligen siempre el método más eficiente de resolver su disputa: a veces negocian cuando es más eficiente acudir al arbitraje. En el capítulo 3 estudio los efectos de diferentes procedimientos arbitrales en el resultado de una negociación, en un modelo donde los jugadores realizan demandas no crecientes y el árbitro es llamado solo cuando las negociaciones se declaran rotas. Dos procedimientos arbitrales son analizados: el arbitraje convencional, donde el árbitro es libre de elegir su acuerdo y el arbitraje de oferta final, donde el árbitro está obligado a elegir una de las últimas ofertas de los jugadores. Demuestro que si los jugadores son suficientemente pacientes y el árbitro sigue un procedimiento de oferta final, en equilibrio, los jugadores negocian una partición pero toma algún tiempo llegar a ella. Sin embargo, si el árbitro sigue un procedimiento convencional, en equilibrio los jugadores utilizarán esta institución para resolver su disputa. Finalmente, en el capítulo 4 discuto el papel que juegan las opciones exteriores inciertas en las negociaciones cuando existe información incompleta acerca de su existencia. Examino una guerra de desgaste donde los jugadores disfrutan de información privada acerca de sus posibilidades de dejar la mesa de negociación para tomar una opción exterior. Hay dos tipos de jugadores: los tipos débiles, que no tienen opciones exteriores y prefieren conceder que salirse del juego, y los tipos fuertes que tienen opciones exteriores tales que prefieren salirse que conceder. El principal mensaje que surge del análisis de este juego es que la incertidumbre acerca de la posibilidad de que el oponente se vaya, mejora la eficiencia porque incrementa la probabilidad de concesión. Más precisamente, si la probabilidad de que el oponente sea fuerte es relativamente alta, la negociación acaba con una concesión segura. En el otro extremo, si la probabilidad de que el oponente sea débil es alta, los tipos fuertes dejarán en algún momento el juego con probabilidad igual a 1, dejando a los débiles jugando, desde ese momente en adelante el ineficiente equilibrio de la guerra de desgaste clásica. Incluso en este caso, la probabilidad de concesión a lo largo de la fase de incertidumbre del juego se incrementa.

Societies have, since time immemorial, traded real goods and services for expectations of goods and services in some future. These expectations have been associated with tangible and, lately, intangible property - which is generally called money. From the crude quantity theory of money, the purchasing power of a monetary unit is given as 1/ P = T/(Mv). P is the price of the traded goods and services T, M is the total money supply and its turnover rate is v. The total money supply M is dominated by bank credit. In the South African law (and elsewhere) the judicial recognition given to bank credit (1) as money seems to have happened as an unintended side-effect to accepting cheques as delivery vehicles in a cash transfer without any tangible money moving from the transferor to the transferee. In payment of money, the law of property and the law of contract overlap and become inseparable. Both the English and South African laws define payment as performance of a preceding duty. The Supreme Court of Appeal, in the Vereins- und Westbank case seems to have declared an abstract transfer of ownership of money to be payment even though no preceding duty to pay was found. The profit of a financial investment is called interest and is calculated from a simple or compound interest formula. Despite medieval legal, theological and ethical objections, neither is illegal in the South African positive law. The last remnant of the medieval protection of a guilty debtor (often the ruler) at the expense of an innocent creditor is the in duplum rule. This is particularly obnoxious during modern rampant inflation that was unknown and could not be predicted when only metallistic money was in use. The influence of the in duplum rule is being limited by recent restrictive judgments in South Africa and in Zimbabwe. In South Africa, the Government has a constitutional duty to ensure that its subjects are not deprived of property. Specifically, the Constitution prescribes in Section 224(1) that the South African Reserve Bank must 'protect the value of the currency'. It is shown that the recent Reserve Bank policies, unless urgently modified, are in conflict with the publicly promised inflation rate of no greater than 6%. The exchange rates depend fundamentally on the price levels of the traded or tradable goods and services in the respective economies. This leads to the concept of purchasing power parity, which is most accurately reflected in the relationship between interest rates in different states and their relative foreign exchange depreciation rates. It is submitted that the South African Exchange Control Regulations have outlived their usefulness (if ever they had any) and are unconstitutional - at least in so far as they interfere with the South African Reserve Bank's obligation to pursue its primary object 'independently and without fear'. In the main, the South African Courts have applied restrictive interpretation to the Exchange Control Regulations and they have justifiably ignored the public international law obligation of the Republic to recognise the Exchange Control Regulations of fellow IMF members extraterritorially. (1) To money related claims on banks - see the body of the thesis for the two-creditor-two-debtor legal aspects in the 'bank credit'.

Defence date: 20 April 2002

This is an accepted manuscript of an article authored by Michael Trebilcock, and later published in International Economic Governance and Non-Economic Concerns.

This is the version of record of a paper presented at the Third EnviReform Conference, authored by Michael Trebilcock.

There has been a dramatic shift in the focus of trade policy concerns in recent years from the barriers that lie at the border to the barriers which exist “within the border.” The General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO) and other regional trading arrangements have been largely successful in reducing both the levels of tariffs worldwide and the scale of other border measures such as quotas. This has revealed a new and more subtle category of measures which restrict trade – the numerous regulations which governments enact to protect the health and safety of their citizens and the environment in which they live. Such regulations vary tremendously across borders: one nation's bunch of grapes is another nation's repository of carcinogenic pesticide residue. These efforts to protect citizens from the hazards of everyday life have become a virtual minefield for trade policy makers, in part because such differences can often be manipulated or exploited to protect domestic industry from international competition, and in part because even when there is no protectionist intent on the part of lawmakers, through a lack of coordination, mere differences in regulatory or standard-setting regimes can function to impede trade through increasing multiple compliance costs. It has thus become increasingly difficult to delineate the boundaries between a nation's sovereign right to regulate and its obligation to the international trading community not to restrict trade.

From an economic perspective, globalization is dismantling national barriers to entry and is transforming domestic markets into a global market. To meet the challenges posed by the integration of markets, corporations are joining forces with their former competitors to expand their presence in the global market. Rapid growth in transnational mergers to create global corporations is one of the key features of globalization. As multinational corporations are uniting, so should antitrust agencies that regulate them. Antitrust agencies around the world are realizing that the consumers whom they are mandated to protect are being adversely affected by decisions made beyond their national borders. By using the "effects" test, countries bring within their jurisdiction review of any merger or acquisition involving foreign companies with significant revenue or assets within their jurisdiction. The proliferation of merger control laws, in the absence of a mechanism to coordinate the transnational merger review, places an unnecessary burden on merging parties, and runs the risk of divergent outcomes, which at times cause friction among nation-states. Both to alleviate unnecessary burdens imposed on corporations and to reduce inefficiencies produced by the disparate review of a single transnational merger by several countries, this thesis proposes an International Merger Control Regime integrated into the WTO. The proposal focuses on ways to operationalize a "Lead Jurisdiction" model of oversight rather than on the creation of a new supranational decision-making agency. WTO dispute settlement and arbitration would be used to resolve conflicts arising out of the inability of a Lead Jurisdiction to arrive at an outcome satisfactory to other significantly affected jurisdictions.

The commercial lease has historically been treated as a conveyance of an interest in land which creates a property-based relationship between the lessor and lessee, despite the fact that the relationship is created by contract and could be seen as a contract for the ongoing use of the land. Some Canadian cases, however, have applied "partial contractualization " — using both property and contract rules and concepts to interpret leases. The article examines the historical development of the lease and its treatment in Canadian courts, as well as in other common law courts. The authors argue that the property/contract hybrid should be eliminated in favour of "complete contractualization " — using pure contract principles to interpret the commercial lease. The article points out how contract principles would serve the parties to the lease just as well, or better, than property principles and offers solutions for the anticipated problem area of security of tenure for the tenant.

This thesis has found out that the court does not have an efficient means of coercion to apply delivered decisions, there by making the enforcement of the court’s decision cumbersome; decision of the court dealing with sanctions on member state who fail to fulfil their obligations are more complex than the interpretation of ECOWAS text; the research showed that the court also did not provide for the time limit in which an application can be reacted or responded to or time limit in which an annulment decision must be enforced. This thesis has put forth suggestions for the court. The suggestions essentially call for full subregional integration process by the court like all other ECOWAS institutions. The research revealed that the place of the court in the subregional integration will be more important if the decisions delivered by it can be enforced without encumbrance within the ECOWAS region; and that member states and some national institutions should not hold on tightly to their sovereignty but rather try to put enough zeal into facilitating rapid and efficient execution of decisions made by the court. This research work highlighted the extent of the powers of the Community Court of Justice and the factors that have led to it a judicial body with limited powers as regards the lack of access to court being by individual citizens, with the expansion of the provisions of the protocol, the court is bound to blossom in the scope of jurisdiction. It is hoped that this will help to move the sub-region towards greater integration so as to be able to compete in the new competitive global market. The ECOWAS Court has consistently demonstrated courage in the discharge of its vital role in putting an end to violation of all human rights and impunity of perpetrators in the sub region

<p>This thesis seeks to ascertain the rules of private international law determining the procedural law of international commercial arbitral proceedings. In an Introduction, the author outlines the fundamental notions, introduces the topic and the major doctrines and issues, and sets out his methodology and structure of the work.</p> <p>The thesis examine first, as a preliminary issue, the considerations influencing the assumption of jurisdiction over arbitral proceedings. Chapter 1 discusses the various theories on the <em>lex arbitri</em> (the law supplying the general legal framework of an arbitration) as relevant to the procedural law, and concludes that they are deductive and therefore unable to satisfactorily to determine the applicable procedural law. Chapter 2 analyses major national laws as case-studies of the technique and scope of application of international arbitration law, and suggests a model of legislative and court jurisdiction based on the legal concept of 'seat of the arbitration' and on considerations based on the most appropriate court to control an arbitration. Chapter 3 discusses the obligations of the state of the seat under the European Convention on Human Rights and confirms the findings in Chapter 2.</p> <p>In a second part, the thesis elaborates on the title and extent of permissible municipal law interference. Chapter 4 tests the validity of the propositions derived from Chapters 2 and 3 against arbitral practice and concludes that seldom will arbitrators derogate from the law of the seat. Chapter 5 examines the particular case of arbitrations with states and similar entities.</p> <p>The third part discusses the relevance of compliance with the law of the seat at the stage of enforcement of an award. Chapter 6 deals with the technical issue of whether annulment at the place of making precludes enforcement in other <em>fora</em>. That chapter gives the opportunity to discuss models of separation of international jurisdiction and co-operation between different jurisdictions from a practical perspective. It thus serves as a convenient introduction to Chapter 7, which discusses the more abstract question of the nexus required between an arbitral award and the municipal law of the state of rendition in order for the award to enter, <em>in limine</em>, the scope of application of the international instruments in the field.</p> <p>The thesis ends with Conclusions in the form of model provisions for municipal law and arbitration rules.</p>

ENGLISH SUMMARY: Banks are one of the most important elements in the economic cycle of modem society. As money replaced bartering banks have gradually moved into the pivotal point of the relations between participants in the economic cycle. No project can be realized without money today. On the one hand, there are the investors who, irrespective of the amount, entrust their assets to the banks. On the other hand, there are those whose financial needs require the granting of some form of credit. Banks operating in these contexts clearly bear important responsibilities towards the different parties. A third party, the state, is also interested in a well-functioning banking establishment. Economic stability, without which there can be no political stability, cannot otherwise be ensured. The state is accordingly keenly interested in maintaining the operability of this system. To this end, various laws are made in the respective countries aimed at supervising the banking industry. This work deals with some of the legislation relating to bank supervision in the Federal Republic of Germany and the Republic of South Africa. In the various chapters certain aspects of bank supervision in the two countries are identified, juxtaposed and compared. The reasons for any differences are sought, discussed and where possible explained. From a historical point of view, the two countries developed differently. Nevertheless, the need to regulate this sector through legislative means arose at an early stage in both. Unfortunately, the catalyst for legislative development was mostly some or other financial crisis. Any measures for supervising banks must, to be binding, be constitutional. In this regard much must still be done in South Africa due to the fact that the New Constitution has only been in force since 1996. Thus certain regulations stemming from the Banks Act 90 of 1994 need to be reconsidered in the light of the constitution. Bank supervisory activity is performed by a national institution in both countries. Germany avails itself of an independent authority. However, in South Africa it is one of the tasks of the central bank which has established a specific office for this purpose. Legal and natural persons alike are subject to such supervision. Diverse other government institutions provide support for such supervisory work in both countries. The scope of banking supervision, that is the persons and transactions affected, is broad and also finely meshed. Both systems list a number of banking transactions that are subject to their supervision. This affects all domestic banks and all foreign banks that are domestically active. Access to the banking business is only permitted in both countries after an appropriate license has been granted. The license can be conditional. Moreover, both systems make provision for the revocation of the license in appropriate circumstances. The conducting of banking business without the necessary permission is forbidden in both countries under the threat of legal punishment. It is well recognized in modem society that legal subjects should be protected against the decisions of those who wield state power. The possible remedies of those affected by the decisions of the public authorities responsible for banking supervision in the different countries are investigated in conclusion.

Defence date: 26 October 1998

This is the version of record of a chapter authored by Nancy Gallini and Michael Trebilcock, and published by the University of Calgary Press.

This work considers two broad aspects of consumer law, namely, substantive and practical protection of consumer rights. The former examines the law on consumer protection as contained in the statute books and judicial decisions. The latter deals withthe law in practice. This considers the practical implementation of the various laws on consumer protection by the operative agencies. It also examines the practical effects of these laws on the level of consumer protection. The work is divided into ten chapters.Chapter one gives a survey of consumer protection in different jurisdictions. It also states the research problems, objectives of the study, hypotheses, scope, signi ticance of the work, conceptual frame work and literature review.Chapter two discusses the methodology adopted in this work. Chapter three considers the laws gov.erning dealings in regulated products. These products are food, drugs, cosmetics, medical devices, bottled water, chemicals and hazardous products. It is seen from this chapter that the law makes reasonable provtsfc;ns on the control of regulated products. In contrast, the level of practical protection bas remained low due to weak enforcement system.Chapter four examines the laws which impose further restrictions on dealings in drugs. This reveals that the law adequately controls dealings in drugs . But like the case of laws considered in the preceding chapter, implementation of the statutory provisions remains a problem.Chapter jive examines the functions and activities of the Standards Organisation of Nigeria whose duty it is to prescribe and ensure compliance with product standards. Like the cases of the agencies discussed in the previous chapters, a major problem facing the organisation is the ineffective implementation of its standards.Chapter six discusses the civil liability of an offender to the victim. This chapter reveals that a person whose product causes injury to the person or property of another, is civilly liable to that other person. His liability is without prejudice to his criminalliability. Chapter seven examines the course of action open to a claimant who is not in privity of contract with the defendant. This chapter reveals that such a claimant can sue in the tort of negligence. But his chances of success are greatly limited by the restrictive meaning accorded the term "product defect" in tort law. Proof of negligence also constitutes an almost insurmountable obstacle. The chapter concludes that as a way of getting round the problem of proof of negligence, there is need to introduce strict product liability in selected cases particularly in the fields of pharmaceuticals and articles of food. Chapter eight examines the contractual rights of a consumer/purchaser. This chapter shows that action in contract is of immense benefit to the claimant because he does not have to prove negligence on the part of the other contracting party. In addition, liability is strict since an exercise of due care will not absolve the offender. But this course of action is of limited application because it is not available ta a consumer who is not also the buyer of the product. This chapter concludes like the preceding one that the only solution ta the basic contract requirements is the introduction of strict liability in selected areas. Chapter nine analyses the data on the practical implementation of consumer laws, while chapter ten summarises our research findings and proffers some suggestions.

Little attention is paid to the civil remedies available when infringement of a trade mark or the right to goodwill occurs. Yet, for the owners of ~uch rights, these remedies are of much greater importance than theoretical considerations regarding the nature of the rights or what constitutes their infringement. This thesis analyses the civil remedies for trade mark infringement granted by the South African Trade Marks Act 194 of 1993. In the South African context, any consideration of civil remedies is rendered problematic by the attempted graft of English remedies onto a legal system with a different common-law background. It is, therefore, essential first to trace the English origin and application of these remedies, and then to determine whether each remedy is acceptable in terms of the South African common law. This is necessary, as our courts have previously rejected or adapted English remedies which were unknown to our common law but which Parliament introduced in legislation. The remedies of interdict (or injunction) in final and interlocutory form, compensatory damages, reasonable royalties, and delivery up are analysed from a substantive law and a procedural perspective. The procedural innovation of an inquiry as to damages is also considered. In respect of each remedy, (1) the English roots and development of the remedy are traced; (2) differences of approach in two other Commonwealth jurisdictions, Australia and Canada, are highlighted; (3) the development of the South African equivalent is detailed; and (4) suggestions for the future implementation of the remedy in South Africa are made. In the penultimate chapter, our common law and legislation (including the Constitution of the Republic of South Africa 108 of 1996 ) are measured against the requirements of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS). Recommendations for the effective utilization of each remedy in South Africa are then made. They include suggestions for legislative amendment in respect of delivery up and an inquiry as to damages, and the introduction of statutory damages as an further civil remedy.

This is a collection of essays about the restraint of trade doctrine as laid down in the courts of the United Kingdom and the British Commonwealth. Generally, I will not give an account of the restraint of trade doctrine in the United States of America, for even although each individual state (apart from the civil jurisdictions California and Louisiana) and the federation itself, has a common law system, for reasons peculiar to those jurisdictions, the restraint of trade case law there has become so vast and so confused as to be unsuitable for my purposes. More importantly, however, the common law restraint of trade doctrine in the United Kingdom and the British Commonwealth has been laid down by courts without any significant consideration of the state of the law in the United States. Davies v Davies (1887) 36 Ch D 359, 370 by contrast, the period during which the Privy Council operated as a supra national court of final appeal has resulted in considerable harmony in the doctrine within the British Commonwealth. Even now the House of Lords is influential in Australia and Canada and the influence is increasingly reciprocal. By way of an exception I will discuss the purposes of the anti-trust legislation in the United States. This is necessary because I intend to show that the common law restraint of trade doctrine was not able to be, and was never intended to be, a means of regulating the economy in contradistinction to the United States anti-trust legislation and related legislation in the British Commonwealth. This account is not merely a description of the law relating to the restraint of trade doctrine although I do purport to describe the law. There are other accounts of the restraint of trade doctrine which do that well. Accounts of the restraint of trade doctrine include: Matthews & Adler, The Law Relating to Covenants in Restraints of Trade (London, 2nd ed 1907); Sanderson, Restraint of Trade in English law (London, 1926); Heydon, The Restraint of Trade Doctrine (London, 1971); Trebilcock, The Common Law of Restraint of Trade; A Legal and Economic Analysis (Toronto, 1986); Dean, The Law of Trade Secrets (Sydney, 1990); Mehigan & Griffiths, Restraint of Trade and Business Secrets: Law & Practice (London, 2nd ed 1991); Holdsworth, History of English Law IV (3rd ed, 1945) 343-54, 373-9; VIII (2nd ed, 1937) 56-42. There are other, less detailed accounts in contract law textbooks. The purpose of this dissertation is to describe aspects of the doctrine as it developed between the medieval period and the twentieth century and then to use that account as a basis for an analysis of how the law has taken a number of paths during the twentieth century which cannot be justified by the rules and their justifications which existed in the law prior to that time. Such a development has had important consequences for the restraint of trade doctrine and even the law in general, most of which have been detrimental. I do not intend to give a continuous historical narrative covering the whole of the doctrine. The history has been described before. For example, I do not intend to give a discrete account of the process by which the absolute rule against general restraints of trade gave way to the rule of reason, although I do mention this process where relevant for other purposes. The history, so far as it is relevant, is integrated into each chapter. I will argue that historically the restraint of trade doctrine was a rule or complex of rules, of a certain form and content. The form and content of the rule are important because they bear on the meaning of the class term "restraint of trade" which is an element of the rule. The meaning of that term began to change around the year 1890. Beginning first with certain classes of trade combination, courts began to classify as restraints of trade covenants which did not in fact restrain trade. Then the courts similarly treated the exclusive dealing contract and certain forms of property transaction. Another trend in the law which added to the confusion about the meaning of restraint of trade was the failure by the courts to make definitive findings one way or another as to whether a particular covenant was in restraint of trade. The courts were then faced with a dilemma. The law required a court to refuse to enforce a covenant in restraint of trade unless the covenantee could justify the restraint by presenting evidence to the court from which the courts could assess whether or not that particular restraint was within the reason for the restraint of trade doctrine or not. Such considerations were entirely inapt in the case of covenants which, in accordance with the traditional view, did not restrain trade. Yet if the courts did not validate these contracts, catastrophic consequences would have followed for the parties to such contracts and, indeed, to contract as an institution. To solve the dilemma the courts began to interpret the famous statement of the restraint of trade doctrine by Lord Macnaghten in Nordenfelt v Maxim Nordenfelt Guns & Ammunition Co [1894] AC 535, 565 (HL) literally, rather than contextually. Ultimately this has resulted in the obscuring of the rule underlying the restraint of trade doctrine itself. There were many minor confusions along the way. It is important that the doctrine is coherent and its use consistent with its justifications because it is still a fruitful cause of legal change. In the last year the force of the rule has caused a radical restructuring of Association Football in Europe Bosman’s case. The rule has even penetrated the collective consciousness of the community at large. The broad thrust of the development and the detail will be outlined in the next thirteen chapters.

Theorising again about a topic that has already received a great deal of scientific attention may be viewed, to use some well known words of Camus, as "the ultimately absurd act" (Camus, 1975). Precisely in order to avoid, when dealing with a classic topic, falling into the absurd, or what is only slightly better, into the banal, it is necessary to use afresh methodological and conceptual tools. This should allow one to pose new questions and, finally, open up new intellectual perspectives. Conversely, the distance that one is to cover needs to be not too far removed from current paradigms. Otherwise one may fall into a different kind of trap -that of offering a contribution which is interesting but totally useless, as it were, for the purpose of shedding new light on the ongoing debate. In fact the main trigger for embarking on this project was a reaction to what were current legal critiques of the principle of subsidiarity at a given moment. Though I conceded that a critical outlook should be taken as regards subsidiarity, and no mere review of the principle in legal-technical terms, the standard critique left me with the bitter taste of scientific dissatisfaction. In my view it seemed, at best, to entirely miss the point as regards the issues, that were raised by the introduction of subsidiarity into the constitutional order of the Community, which, in turn, implied that the answers that were given were also clearly unsuitable. I therefore underwent the effort of giving an alternative critical reading of the principle of subsidiarity, the result of which constitutes the thrust of this thesis. Yet before entering into the following critique, it is important to make, by way of introduction, a number of remarks concerning (i) the genealogy of this thesis; (ii) the method; (iii) conceptual issues; (iv) the exposition of the main research hypothesis according to which this work shall be conducted; and (v) the structure of this thesis.