Bibliographie sélective OHADA

Tax authorities have always assessed and enforced taxes based on the physical address of businesses over the years. Nevertheless, the idea of tax jurisdiction has taken on a new meaning with the development of information and communication technology, and its profound impact on every facet of human existence – including but not restricted to trade and business. This development has undoubtedly increased capital mobility, especially in corporate form, and exposed more the weaknesses in national tax laws by enabling the artificial relocation of important economic components and potential exemption from taxes. Since it is getting harder to separate the digital economy from the rest of the economy for taxation reasons, the process of digitalization has emerged as one of the primary growth drivers. This expansion, together with aggressive tax planning strategies used by multinational enterprises (MNEs) to move revenues to low-tax jurisdictions and the development of business models requiring less physical presence, has increased the workload for tax administrators; furthermore, it has reduced governments’ capacity to raise funds in the traditional manner. In this regard, I assess how “adequate” the selected African countries’ frameworks are vis-à-vis the ongoing OECD and UN negotiations. Beyond the consultations, I call for a more inclusive and Africanised approach and the need for African countries to improve their tax administration mechanisms.

In light of accelerating technological innovation and shifts in dispute resolution paradigms, this article elucidates the transformative potential of blockchain technology and smart contracts in mediation. The paper posits that these advancements offer an innovative framework for dispute avoidance and a more efficient, transparent process for resolving conflicts, particularly in commercial settings. The article critically assesses the inherent challenges and argues that overcoming these obstacles necessitates a multi-stakeholder approach, encompassing legislative measures, educational initiatives, and technological enhancements. It ultimately contends that blockchain and smart contracts hold the capacity to significantly reshape the landscape of mediation.

This is an accepted manuscript of a book chapter in the edited volume: Big Data and Armed Conflict: Legal Issues Above and Below the Armed Conflict Threshold

This chapter provides background information on the evolution of the common law of contracts. It begins with a short history of the evolution of the common law in England including the roles played by the Roman Catholic Church, the development of a dual court system—one in law and the other in equity, the transition from absolute monarchy to a parliamentary form of government, the creation and restrictiveness of the English writ system, the common law’s reception in America, and the building of a general law of contract in the nineteenth century. It explains the historical differences between law and equity, along with the fusion of the two into a single court system. It also discusses the justifications given for contract law and its role in society. It describes the different perspectives of written or formal law, theory, and practice, and importantly, the difference between law in the books versus law in action. Finally, it explains the differences between rules, principles, and standards, and the boundaries of contract relative to other areas including tort and unjust enrichment.

The main purpose of transportation is connecting people to destinations they value. This seemingly banal statement would, if taken seriously in policymaking, upend transportation and land use planning. Today, planning agencies rely on key performance indicators (KPIs) to measure outcomes. While ostensibly neutral and technical, these measurements in fact imply policy judgments and drive legal consequences. They operate both as a shield against litigation and as a sword to justify new projects. But the way KPIs are set up reflects confusion about basic purposes. They are used to plan and evaluate based not on the ability to reach anything but rather simply to accelerate the speed of traveling. We seek to anchor transportation policy discussion in first principles. The shift we propose is mode agnostic in that it is relevant to all means of transportation. Even so, shifting from a goal of speed to one of reachability would be a leap. We believe such a shift suggests important open questions regarding the barriers to reform and we engage a few of them.

This paper provides insights on how business climate affect global value chains (GVC) participation in the panel of African nations. The study explores country-level data spanning over a period of 2006–2018. Using the novel method of moments (MM)-Quantile regression, system generalized methods of moments (SYSGMM) and Panel spatial consistent correlation (PSCC) techniques, the study finds that all aspects of business environment have significant impacts on GVC participation in Africa. In specific, information and communication facilities, getting electricity, getting credit, trading across border, enforcing contract, protecting investors and business start-up registration have positive and significant impact on GVC. We also discover that tariff reduces GVC participation while strong political institutions enhance participation. The study concludes that business environment factors are fundamental to ensure high level of GVC participation. Political institutional framework needs to be strengthened to further encourage GVC participation in Africa.

As African countries grapple with the challenges of terms of trade occasioned by economic uncertainty, there is a need for a study on the effect of terms of trade on household income in Africa. Also, as African countries continue to commit to the role of institutional quality in improving terms of trade, this study further reinforces the role of governance on household income in Africa. The study employs the Two-stage Least Squares (2SLS) fixed effects estimation technique based on data spanning 2002–2021 for 36 selected African countries. This study provides more robust evidence by employing household final consumption expenditure as a measure of household income. Findings suggest that improvement in the terms of trade stimulates household income. Similarly, the results indicate that governance plays a critical role in enhancing household income status in Africa. Specifically, government effectiveness, control of corruption, regulatory quality, rule of law, and political stability positively and statistically significantly influence household income levels in Africa. Furthermore, GDP per capita growth positively impacts household income, albeit the effect is statistically insignificant. On the contrary, higher inflation rates, exchange rate volatility, and foreign direct investment (net inflows) have a limiting effect on household income, although, the effect of currency depreciation is generally not statistically significant. Sequel to these findings, the study calls for strong institutional quality and export promotion strategies in Africa.

This paper investigates the recent performance of Nigeria towards Africa’s regional integration as a major power in Africa. The main objective of the research is to determine the extent of Nigeria’s commitment to the realization of the African Union’s vision of becoming a fully integrated, prosperous and peaceful Africa; and a dynamic force at the global level. Since her independence in 1960, Nigeria has been widely acknowledged as a leading power in Africa (The Giant of Africa) by several studies because of its preponderant political, economic and militarily power; influence; and benevolent contributions regarding to the liberation and progress of Africa. However, there are hardly substantive assessments of its recent performance towards Africa’s integration. The study adopts the Hegemonic Stability Theory; and descriptive analysis method to analyze data obtained from secondary sources. Analysis of the 2016 and 2019 Regional Integration Index (ARII) reports covering the period from 2010-2019 reveals that Nigeria has performed poorly towards the continent’s integration among its peers, both at the continental and sub-regional levels. The paper concludes that Nigeria’s poor performance would significantly slow the acceleration of Africa’s integration; and the country risks losing its leadership position in Africa to its rivals, especially South Africa. It recommends that the Nigerian government should take deliberate steps in formulating and implementing policies that would improve its performance across the five dimensions of the regional integration; and it should strengthen its commitment to consolidate its leadership position in Africa, and motivate smaller countries to contribute their best.

The paper is an investigation of the challenges of regional integration in Africa and their effects on the implementation of the African Continental Free Trade Area (AfCFTA) policy. The major objective of the paper is to proffer solutions to the challenges for the effective actualization of the policy. The assumptions of the neo-liberal theory were used to support the AfCFTA initiative to promote economic growth and development in Africa. The data used to advance the argument were obtained from secondary sources of data collection. The study finds that language barrier, multiple currencies, porosity of borders, foreign interference, political instability and insecurity, poor human development, over-lapping of membership of sub-regional organizations, poor state of infrastructure, and state-centric nature of integration initiatives are some of the core challenges hindering the effective execution of the AfCFTA policy. The study recommends that the African Union (AU) should intensify effort at realizing a single currency policy for Africa; design comprehensive regional security architecture to include high technological surveillance, joint air and ground border patrol among member states of Regional Economic Communities (RECs) to address trans-border crimes and insecurity. There should also be institutionalization of counterpart funding among AU member-states for infrastructural development; and encouragement of private and civil society participation in the integration initiative, among others. In concludes that if the challenges identified are not effectively addressed, it will be very difficult for the AU to successfully realize the objectives of the AfCFTA policy.

Africa is indeed a continent blessed with an abundance of natural resources, ranging from valuable minerals like gold, diamonds, copper, and oil. These resources hold immense potential for fostering economic growth and development across the continent. However, Africa continues to grapple with extreme poverty and underdevelopment, with corruption being identified as a major impediment to progress. This paper focuses on the pervasive issue of corruption in Africa, with Nigeria, Uganda, and Zimbabwe as case studies. The research employs a descriptive and analytical method of historical research, grounded in the Prebendal Theory as its theoretical framework. The findings of this study reveal the staggering impact of corruption on Africa's development, with annual losses of approximately $60 to $100 billion due to illicit financial flows. These flows divert resources away from political and socio-economic advancement, exacerbating widespread impoverishment. In conclusion, the paper underscores the corrosive effect of corruption on Africa's development and offers several recommendations to address this issue. These include promoting merit-based leadership selection, enforcing stronger legal actions against corruption, empowering anti-corruption agencies, engaging citizens and civil society in the fight against corruption, and strengthening the rule of law and judicial independence. These recommendations aim to pave the way for a more transparent and accountable future in Africa.

This study evaluates the South African income tax regime for investments using trusts. It considers whether reforms are required, and if so, how can this be done to create a tax framework that will encourage investment, limit tax avoidance and curb capital outflows, while considering South Africa’s unique context and challenges.

The African Continental Free Trade Area as a flagship project of Agenda 2063 represents renewed attempts by the African Union to drive the continent closer to its economic integration ambitions, which can be formally traced back to the adoption of the African Declaration on Cooperation, Development, and Economic Independence, and later the Treaty Establishing the African Economic Community. Building on these frameworks, the AfCFTA seeks to, amongst others, advance intra-African trade by creating a single market for goods and services facilitated by the movement of persons, promoting sustainable and inclusive socio-economic growth, creating a liberalised market for goods and services, and promoting industrial development. Central to the attainment of the objectives of the AfCFTA is a well-functioning and effective institutional framework at a continental, regional, and national level all well-integrated to facilitate and oversee its implementation. The strengthening of regional and continental institutions to effectively lead and drive Africa’s transformation agenda has also been recognised by Agenda 2063 as a key enabler to this end. The demise of previous African integration efforts has mainly been attributed to the weakness of regional and continental organs to be able to effectively oversee and administer the implementation of continental programmes by the countries. This thesis appraises the institutional framework established to oversee the implementation, administration, facilitation, and monitoring of the AfCFTA, and this is considered against the broader African Union institutional framework and the regional economic communities. Although vastly different, the thesis further considers the experience and best practices from the European Union regional integration model to draw lessons and with a view to reforming and integrating African continental and regional bodies to be able to effectively oversee key initiatives including the AfCFTA. Finally, the thesis considers some of the work already initiated by the AU to review and reconfigure the extant continental bodies and then recommends some key interventions to reinforce and better integrate the institutional framework of the AfCFTA with the existing continental and regional frameworks.

No abstract available.

This study addresses the effects of the adoption of IFRS 16 on the passenger air transport sector. With practical effects for financial years beginning on or after 1 January 2019, IFRS 16 established the standardisation of a single accounting modelfor all leases, whether operating or financial. With this new adoption, IFRS 16 aims to increase the transparency and quality of the information that is presented in the financial statements for the most diverse stakeholders. This study aimed to assess the effects of adopting this new international standard in a specific sector and to identify whether the changes in some of the financial indicators are felt in the same way by all companies, this being the main focus of this study. Based on a sample of 12 airlines from various countries in Europe and South America, the financial indicators were interpreted by analysing the reports and accounts before and after the application of IFRS 16. The main conclusions obtained are: i) the adoption of IFRS 16 led to an increase in assets, liabilities and EBITDA, however in different proportions for each of these items; ii) companies with negative equity and, therefore, with greater risks of bankruptcy or greater information asymmetry, tend to resort more to leasing as a way of financing their assets; iii) the financial autonomy and solvency ratios showed significant variations for companies that resort more to operating leasing.

Choice of law is a perplexing concept due to the importance of party autonomy, the diversity of connecting factors, and the variety of different contractual issues. The problem of choosing a governing law is complicated in consumer contracts by industrialised mechanisms depriving consumers of negotiation rights. The core mandate of the African Continental Free Trade Area (AfCFTA) is to establish a single market for goods and services associated with the free movement of legal persons for economic integration. This objective requires a harmonised consumer protection policy to resolve the diverse consumer protection regimes applicable in state parties within AfCFTA member states. This policy should provide suitable consumer protection mechanisms generally and in the context of choice of law specifically. Implementing a draft competition policy bestows a legitimate mandate on the AfCFTA to negotiate a continental framework on consumer protection as both fields of law complement each other to safeguard consumer rights in cross-border trade. This article argues the dynamics of providing adequate choice of law rules on consumer contracts to inform suitable mechanisms on consumer interest within the AfCFTA. The article discusses the abuse of choice of law clauses in consumer contracts, affecting consumers’ rights in cross-border contracts within the AfCFTA. It suggests a harmonised consumer protection policy to regulate and mitigate these clauses. The article also examines trends in Global North jurisdictions like the European Union to inform a context-specific institutional framework for the AfCFTA’s choice of law rules.

South Africa's controlled foreign company ("CFC") rules were enacted more than two decades ago before most of today's business models existed. These are anti-avoidance rules that ensure the South African taxation of profits diverted offshore by South African residents. In terms of the CFC rules, the profits of a non-resident company may also be subject to tax in South Africa at the hands of its South African resident shareholder if such non-resident company is considered to be a CFC. Advances in technology developments and the use of information communication and technology ("ICT") have given rise to what is referred to as the digital economy. The term refers to economic activities hinged on the use of ICT and the internet. Digitalisation has made it possible for a business to carry on economic activity without the need for a multitude of offices, staff, equipment, and other resources. As a result, new business models like Uber and Shien have emerged. This paper argues that the current South African CFC rules have not kept pace with these new business models and do not effectively regulate the new business models and the digital economy. This paper recommends that the CFC rules be updated to address the digital economy and new business models by amending the rules, incorporating the provisions of Electronic Communications and Transactions Act 25 of 2002 into the rules, using country-by-country reporting, and even considering implementing a regime alternative to CFC rules.

Exchange platforms listed on European markets: financial contamination? The Luna collapse: present-day exposé. Aògorithmic stablecoins. The Luna project and the Terra ecosystem. Legal framework of a billion-dollar scam. Class action lawsuits. National and European implications of such actions. Misleading advertising (binance's liability) and culpa in eligendo. Exchange platforms listed on European markets: financial contamination? Parallels between shares and cryptocurrency investments: lack of transparency giving rise to bubbles. InvestVoyager case study. FTX case study. Positive law and new horizons. DeFi self-regulation: AML compliance and exchange platforms. The proposal of MiCA regulation (markets in crypto-assets). Payment systems directive 2 (PSD2). Directive 2009/110/EC on e-money. Potential solutions (proposals). External audit of smart contracts: a comprehensive examination-technical and legal perspectives. Digital euro. Establishment of a national or European commission: risks for consumers and comparative research. Regulation of exchanges and enforcement of transparency obligations.