Bibliographie sélective OHADA

Market manipulation is one of the dishonest means used by unscrupulous investors to make unjustified profits. It is conduct which unlawfully interferes with the normal operations of the markets in order to create false appearances with respect to the trading activity or the price of a financial asset. Market abuse is one of the various challenges plaguing the crypto-assets market, and is one of the financial regulators’ priority concerns. This study examines and discusses the problem of market manipulation in crypto-assets, and the need for the enactment of an effective regulatory framework in order to combat this problem and to promote investor protection and safeguard the integrity of the markets. The study finds that South Africa and other countries need to introduce rules in crypto-assets market which aim at regulating the activities of crypto-asset service providers. Currently South Africa has not enacted a comprehensive regulatory framework to address the various illegal uses of crypto-assets. The general approach adopted by South Africa to regulate crypto-assets activities involves subjecting crypto-asset service providers and their activities under the various financial sector laws established to regulate the traditional financial markets. This approach has been criticised as being inefficient in light of the unique risks presented by crypto-assets. The study discusses some of these arguments in detail and concludes by highlighting the need for the adoption of innovative regulations, in the long term, which comprehensively and effectively addressed the various risks presented by crypto-assets which also include market manipulation.

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.

Criminal responsibility for corporate related human rights violations is a challenging and complex question in today’s world, this is partly because of the individual or personal character of criminal responsibility. It is held as a general rule that only human beings can commit offences. The primary objective of this research is to critically examine the human rights aspects of corporate criminal responsibility of companies in Cameroon. The conducts of business by various corporations in Cameroon are recognized as an impetus to economic, social, cultural and political advancement. With the rise in corporate crimes in the world today, the question has been whether a corporate body can be held liable for corporate crimes or not. The paper answers in the affirmative that a corporate body can be subject to criminal prosecution and liability for crimes occurring within the corporation especially in the domain of human rights. Considering that a corporate body cannot be imprisoned, or punished like an individual, there are ways to punish a corporation. A corporate body may be fined, ban, closed placed under judicial supervision for a specified period of time. With this in mind, the paper analyses the concept of corporate criminal liability with specific regards to corporate capacity, the basis upon which such liability attaches to a corporation and sanctions with the aim of illustrating the weaknesses of the different aspects trundled-out above.

International law is a robust system designed to unite world governments in an effort to, inter alia, cease human rights violations and hold those who commit them accountable. As it currently stands, and by its own design, the international human rights legal regime focuses on and applies only to state actors, meaning that violations committed by non-state actors, such as multinational corporations (MNCs), are seemingly conducted with impunity inside this space. Multinational corporations are powerful international players that have undoubtably fostered a significant role in reducing global barriers. By their very nature, they are far more mobile than states, allowing them to evade domestic power and regulatory schemes by detaching from their home state and relocating to a host state with weaker oversight and/or enforcement powers. Simply stated: even though MNCs have better financing, heightened mobility, and a disproportionate amount of influence when compared to world states, they operate with less global accountability. Commercial sexual exploitation of children (CSEC) is a fundamental violation of children’s rights. It consists of sexual abuse by the adult and remuneration in cash or kind to the child or a third person or persons. The child is treated as a sexual object and as a commercial object. Multinational corporations have been implicated in CSEC through acts of omission and commission. And despite the fact that much international law has been drafted to protect children around the world from CSEC—most notably the United Nations Convention on the Rights of the Child and its Optional Protocols—the numbers of children who have been emotionally and physically harmed by and through MNC conduct has only increased in the past decade. There have been numerous efforts by international organizations to address the challenges when regulating and monitoring human rights violations by MNCs. States, civil society organizations, and the private sector itself have also attempted to address these human rights violations through domestic law, modifying international law principles, and with civil regulation. Obstacles exist in the effectiveness of each of these approaches, leaving children at risk with no single effective strategy to combat and address rights violations by MNCs. The dissertation conducts a review of the current landscape of child law, through the lens of corporate accountability for CSEC. Then, it suggests a new alternative, putting forward an international solution to an international problem.

Money laundering, the financing of terrorism and proliferation financing continue to be serious threats to the stability of the international financial system. The international community therefore has prioritised the fight against these activities. For example, international bodies such as the Financial Action Task Force (FATF) and others have developed standards and recommendations against which countries and organisations are measured in this regard. Against this background, this thesis investigates to what extent Botswana’s legislative framework regarding money laundering, terrorism financing and other illicit financial flows complies with international standards, especially the FATF Recommendations. The study sets the scene by defining and describing money laundering, financing of terrorism and proliferation financing, after which the current statutory framework in Botswana is discussed in detail. After subsequently setting out the various global and regional (specifically African) initiatives in the fight against money laundering and other financial crimes, the current state of affairs in Botswana is benchmarked against both the South African framework as well as the FATF Recommendations. The investigation is limited to a technical assessment (doctrinal analysis) of Botswana law to determine the current compliance (or lack thereof) of the country’s statutory provisions and to make recommendations regarding how the framework can be improved. It is difficult for some countries, especially African countries like Botswana, to comply fully with the FATF Recommendations, since compliance can be expensive and dependent on high levels of expertise on the part of the relevant authorities. Therefore, such more vulnerable countries tend to face a higher risk of being used as conduits for money laundering and related activities. Despite these and other challenges, Botswana has gone to great lengths to re-assess and improve its anti-money laundering and combating the financing of terrorism (AML/CFT) legislation with a view to move towards full compliance with the FATF Recommendations. Nevertheless, the evaluation indicates that there are some remaining shortcomings in Botswana’s legislation. Consequently, the thesis concludes by proffering certain recommendations towards ensuring that Botswana’s AML/CFT legislation is rendered fully compliant with the FATF Recommendations.

In recent years, investment arbitration tribunals are increasingly confronted with allegations of corruption, mostly invoked by host States as a defense to investors’ claims. After an affirmative finding of an alleged corrupt act between the investor and a public official of the host State in the establishment or conduct of the investment, tribunals have adopted a binary approach to the issue – if they uphold allegations of corruption, they completely dismiss the investor’s submissions. This binary approach has resulted in an asymmetry of liability for the two parties to a corrupt act (i.e., investors and host States/host State officials), failing to take into account the inherent bilateralism of corruption and the fact that domestic laws and international norms have outlawed both the act of offering and of accepting bribes. In particular, public officials’ free participation in a corrupt act to advance investments is attributable to the host State and requires State responsibility under international law. Moreover, the increasingly prevalent practice of inserting anti-corruption provisions in investment treaties has reinforced this lop-sided feature, as well as offering only weak effectiveness in terms of deterring corruption. After a careful examination of the treatment of corruption issues in investment arbitration and investment treaties, this thesis proposes a paradigm shift from the current asymmetric approach to a more balanced approach. It calls on investment tribunals to take a dual-track approach that investigates both corruption and investors’ claims, and ensures that each party assumes responsibility for its own misconduct. It also proposes that treaty drafters include anti-corruption provisions that impose strong obligations of anti-corruption on both sides of corruption (i.e., investors and host States) rather than merely on a single party to it

This study was motivated by the quest to find new innovative and practical ways of combating public procurement corruption in developing countries to complement the existing measures. This was achieved by comparing three jurisdictions, Hong Kong-China, Botswana and South Africa. The focus was on how each jurisdiction uses the following four measures to curb public procurement corruption: criminal measures; administrative measures; institutional measures and civil activism measures. It was established that Hong Kong uses what this study has classified as the traditional approach of combating public procurement corruption. The traditional approach is characterised by the use of a separate procurement legal framework and a separate corruption legal framework to curb public procurement corruption. Its strengths are in the strict enforcement of criminal measures that are anchored on a robust legal framework, a clear anti-corruption strategy, an independent anti-corruption agency (institutional measure), effective internal oversight and a strong political will. However, the following weaknesses of the traditional approach were identified: over reliance on criminal measures; excessive dependence on one enforcement institution; it neglects the development of administrative measures and has weak civil activism measures. It was established that Botswana uses what this study has classified as the classical approach of combating public procurement corruption. The classical approach is characterised by a procurement legal framework that incorporates very minimum anti-corruption provisions. The anti-corruption provisions in the procurement legislation are enforced by an external institution (the DCEC in the case of Botswana) which relies heavily on the criminal measures. Its strengths are the following: a strong legal framework which provides for a clear anti-corruption strategy; it has anti-corruption units in each Ministry and it has a dedicated Corruption Court. However, the classical approach has the following weaknesses: the anti-corruption agency is not adequately independent as it under the control of the executive (the President in the case of Botswana); lacks effective internal oversight mechanisms; weak political will; neglects the development of administrative measures and civil activism measures are almost non-existent save for the media. It was established that South Africa uses what this study has classified as the traditional cum silo approach of combating public procurement corruption. The traditional cum approach is characterised by multiple procurement legislation which has certain but minimum anti-corruption provisions and a separate corruption legal framework. Multiple anti-corruption agencies are prone to political interference which renders them ineffective and unfit for purpose. Its strength is in the promotion and protection of civil activism measures (right to access information, right to freedom of speech and legal protection of whistle-blowers). Notable weaknesses of the traditional cum silo approach are: the poor enforcement of criminal measures; there is no lead anti-corruption agency that spearheads and coordinates all cases of public procurement corruption; there is no clear anti-corruption strategy; the administrative measures such as debarment are poorly enforced; it has multiple anti-corruption institutions that lack focus and professionalism which results in political manipulation. The thesis concluded by suggesting a new approach, the contemporary approach to combating public procurement corruption which entails the enactment of a single procurement legislation (model law) the Public Procurement and Combating of Public Procurement Corruption Act (hereafter PPCPPC). The contemporary approach advocates for the regulation of public procurement and the combating of public procurement corruption in one legislation. This legislation (PPCPPC) takes into account, the current demands for public procurement as well as future developments of public procurement. These include but are not limited to self-cleaning, cyber-crime and public procurement corruption as well as the role of foreign convictions for debarment purposes. The envisaged PPCPPC will in addition to regulating public procurement, encompass the best criminal measures, administrative measures, institutional measures and civil activism measures. In addition, the contemporary approach through the PPCPPC proposes two new innovations: the corruption clearance certificate and a mandatory anti-corruption clause in all government contracts.

The use of conduit company treaty shopping structures is often regarded as an impermissible erosion of a country’s tax base. For a developing country, such as South Africa, the protection of its tax base is an important policy consideration. Arguably, one way of combatting conduit company treaty shopping structures is by including in a country’s double taxation agreements the beneficial ownership requirement set out in Article 10(2) of the OECD MTC. The study examines how a South African court would interpret this requirement in provisions in South African double taxation agreements in the context of conduit company treaty shopping involving conduit companies receiving dividends. The study firstly considers whether the beneficial ownership requirement can be regarded as an anti-avoidance rule aimed at combatting conduit company treaty shopping falling outside agents and nominee scenarios. It further considers whether the term “beneficial owner” should have a legal or economic meaning. It explores the meanings given to this term by scholars and foreign courts and the OECD in its Commentaries to the OECD MTC. The study also considers the application of the rules of interpretation contained in the Vienna Convention on the Law of Treaties when giving meaning to this term. Lastly, the study considers whether the term should have the meaning assigned to it under the domestic law of a treaty country, or under international tax law. As part of this enquiry, the meanings of the expression “beneficial owner” in South African case law and legislation are explored.

This dissertation analyses the content and justification of the notion of fiduciary duties in private law relations. The thesis promotes the following understanding of fiduciary duties: in a legal relation where one party undertakes to act in the interests of another, and acquires decision-making authority over the other's interests, such party undertakes a core duty to exercise his best judgement in the other's interests. The core judgement duty requires a fiduciary to exercise judgement based on relevant considerations. While what constitutes a relevant consideration can be determined objectively, the weight to be ascribed to each relevant factor is left at the fiduciary's subjective appreciation.Due to the existence of this core duty, the law imposes a set of proscriptive duties. The proscriptive duties require a fiduciary to manage situations of conflict of interest. Their purpose is prophylactic: they aim to prevent self-interest (or another duty to exercise proper judgement) from affecting the reliability of fiduciary's judgement in a conscious or subconscious way. The proscriptive duties protect the core duty to exercise judgement and, as a result, the beneficiary's right to a proper exercise of judgement by the fiduciary.