Bibliographie sélective OHADA

Corporate law is in a moment of vibrant and contentious discussions about potential reforms. As firms exit Delaware, passive investment predominates, private equity expands, and public markets decline, corporate law faces a growing set of challenges that threaten its stability and efficacy. At the same time, the world faces pressing crises, including climate change, social and economic inequalities, and threats to democracy, though corporate law scholars typically consider these crises to be outside corporate law’s remit. In this Article, we argue that to understand and address the multidimensional crises that face both corporate law and society, we must address shortcomings in corporate law doctrine. We show how modern corporate law, shaped by neoclassical economic theories, provides an incomplete picture of the firm, and we propose an expanded theoretical perspective that draws from organization theory, a field long dedicated to understanding the complexities of the firm. This updated perspective demonstrates how firms actually consist of multiple constituents, including workers, the environment, and shareholders, who invest different forms of capital in the firm: labor capital, natural capital, and financial capital. It further shows that modern corporate law entrenches problematic power imbalances, privileging boards and insider shareholders over workers, the environment, and minority shareholders. Moreover, building on organization theory, we explain how corporate law fundamentally shapes and constrains firm behavior, leading these entrenched power imbalances to generate far-reaching negative consequences. To address these shortcomings, we propose redesigning board representation, fiduciary duties, and executive compensation to empower workers, the environment, and minority shareholders in relation to boards and insider shareholders. Integrating the organizational and economic perspectives can help address problematic power imbalances and ultimately provide a more effective corporate law framework to govern firms and serve society.

OHADA Law plays a crucial role in fostering economic growth and regional integration by harmonizing business regulations in the era of globalization and trade liberalization. This study examines the legal framework surrounding company membership under OHADA Law. While certain individuals such as legally incapacitated persons or those facing legal prohibitions cannot become company members, the law provides alternative solutions. The study explores the distinction between members and shareholders and clarifies the eligibility criteria for company membership. Using an analytical approach, this research finds that any natural or corporate entity, unless restricted by legal incapacity, prohibition, or incompatibility, can be a company member under OHADA Uniform Act. Furthermore, the law offers flexibility for incapacitated individuals by allowing legal representatives to act on their behalf.

Whistleblower protection is necessary to reduce mismanagement in private and public organisations worldwide. The protection of whistleblowers is a complex and particularly challenging task that it is up to national authorities. The research methodology is the literature review. In this context, reputable scientific journals, reports from international organisations and websites dealing with the research field of whistleblowers are studied. The main conclusions are that there is an institutional framework for the functioning and protection of whistleblowers, but best practices are not fully implemented. Furthermore, the effectiveness of the use of whistleblowers is extremely high in detecting fraud and high public risks compared to other audit techniques. For this reason, the protection and framework of the whistleblower process is increasingly being legislated for by more and more countries as their importance is recognised. Finally, monitoring the use of whistleblowers and applying best practices and criteria for their effectiveness will make their use more effective.

In this Article, I analyze the expanding common law doctrine of shareholder ratification, whereby shareholder approval can, for all practical purposes, absolve directors of fiduciary liability for their conflicted business decisions. Delaware law now allows a shareholder vote to perform substantially more work than ever before. Under prevailing doctrine, in transactions between a company and any party other than a controlling shareholder, shareholder ratification reinstates the business judgment rule and makes it irrebuttable, other than for waste. Substantive judicial review is effectively avoided for such transactions. Despite its extraordinary importance in corporate governance, the shareholder ratification doctrine’s foundations are feeble and its limits uncertain. Theoretically, there is no well-established basis for equating shareholder approval with either the informed, disinterested, and good-faith decision of a board or judicial review. Doctrinally, shareholder ratification’s expansion beyond its traditional context of self-dealing has been a judicial innovation, rather than an elaboration of precedent. And historically, the shareholder ratification doctrine, which originated in early 20th-century state interesteddirector statutes, was motivated by fairness principles that were lost in translation into the common law. This Article recovers the fairness genealogy of the shareholder ratification doctrine and, in doing so, provides useful guidance for the doctrine’s development, limits, and future application.

This article examines corporate governance in Africa and its significance for corporate repurposing. It relies on the framework of the Organisation for the Harmonisation of Business Law in Africa (OHADA), which unites seventeen African states under one corporate law jurisdiction while exploring how the interpretation and practice of this legal system can be integrated with or influenced by national sectoral laws and cultural norms. The workings of these different legal sources denote the case for heterodox pluralism of corporate purpose, whereby corporate membership is not tethered to shareholding only, but the workforce and neighbouring too and corporate legitimacy is not merely a function of legal arrangements but equally derives from broader society. The governance of corporations in Africa must correspond to such imperatives to ensure that the prevailing shareholder primacy norm does not continue its unencumbered de facto reign and reduce African stakeholderism to comparative impotence and mere scholarly exercise.

Environmental, social and governance (ESG) issues have gained prominence in recent years. Companies have come to understand their role in the global economy and that their decisions cannot be based solely on profits. They are now required to have regard for the environment in which they operate, to be mindful of the social factors that affect their employees, customers and the community at large, and to ensure that their corporate governance complies with the standards set out in the Companies Act 71 of 2008 and the various King Reports. While ESG has become a buzz word in the corporate world, there is still much uncertainty among stakeholders about what they are required to do and what the reporting requirements, if any, are. Its implementation in South Africa is still in its infancy and there is much uncertainty about what ESG monitoring and compliance truly entail. A perfect illustration of this is the fact that the Johannesburg Stock Exchange (JSE) only published ESG disclosure guidelines for the first time in 2022. This means that until the guidelines were published, hundreds of companies in South Africa had been wondering aimlessly in the dark when it comes to ESG issues. To make matters worse, while environmental issues and corporate governance issues have received significant attention from scholars and legislators in South Africa alike, the "S" in ESG has received little attention. It is often treated as the undesirable stepchild that everyone conveniently forgets is part of the ESG family. The purpose of this study is to highlight the gaps in the existing ESG regulatory framework, which leads to gaps in the understanding and monitoring of the implementation of the social indicators of ESG. The study aims to firstly determine whether companies in South Africa have a proper understanding of the social framework of ESG and whether the current legal and/or regulatory framework in South Africa offers sufficient guidance to n organisations to ensure that they comply with and fully implement the social guidelines of the ESG framework.

Although Zimbabwe has established several institutions to combat money laundering and related crimes, there is a perception that inadequate measures are taken to apprehend offenders responsible for financial crimes. Institutions such as the Financial Intelligence Unit (FIU), the Zimbabwe Anti-Corruption Commission (ZACC), the Zimbabwe Republic Police (ZRP), the National Prosecuting Authority (NPA) and the Reserve Bank of Zimbabwe (RBZ) have done little to prove that the government of Zimbabwe is resolute in combatting money laundering. On the contrary, it increasingly appears that these institutions are poorly equipped and lack the necessary capacity to enforce and uphold anti-money laundering (AML) measures in Zimbabwe. Further, there appears to be a selective application of the law, with one set of rules for individuals or institutions that are perceived as political adversaries of the incumbent establishment and a different set of rules for the political elite. Consequently, the selective application of the law projects Zimbabwe as a jurisdiction that is somehow tolerant to money laundering, corruption and related financial crimes, thereby lowering and tarnishing the standing of the country in the global economic community of nations. This paper provides a regulatory analysis of the AML role-players in Zimbabwe in order to assess their functions in combatting financial crimes. It also analyses whether these role-players are effective and substantively executing their responsibilities therein. The authors argue that while Zimbabwe is well able to effectively combat money laundering through the even application of the law to all persons regardless of their political or economic standing, it is imperative that its AML institutions operate without fear, favour or prejudice. This is crucial in combatting money laundering and instilling confidence in the general public's perception of AML institutions in Zimbabwe.

Despite the emergence of corporate governance as a formal discipline more than thirty years ago, the proliferation internationally of scholarly work on the topic and its formal regulation over this period, the scope, definition and direction of corporate governance remain contested. Company theories could potentially assist in this regard but have been inconsistent in their explanations of the both the means and ends of corporate governance. This has led to scepticism about the efficacy of theories to illuminate the phenomena associated with companies and company law. Notwithstanding, theory is critical as it makes explicit what is implicit in policymaking by regulators, as well as in the behaviour and decision-making by corporate actors, so that regulation and decisions are transparent for analysis and evaluation. The study, therefore, set out to provide a synthesis and doctrinal analysis of the main theories on the nature and general purpose of corporations in historical context. It was found that objections can be raised against all of these theories to a greater or lesser extent for inaccurate portrayal of the law, limited explanatory power and detachment from the real word. This study shows that corporate theories are a product of the settings in which they have developed and consequently none of these theories represents a universal or absolute truth, nor are they an inevitability due to widespread adoption and use. This leaves room for new formulations of the corporate form and its purpose fit for today’s context with its political, social and environmental challenges. This dissertation also includes further directions for theoretical exploration.

This paper constitutes a composite analysis of the legal framework and procedures for removing directors and the key challenges presented by the framework. It achieves this by looking at four legal questions: Firstly, it looks into what is the legal framework for director removal in South Africa, secondly, it delves into the challenges and/or uncertainties presented by this process, and further explores if there are any possible learnings South Africa can learn from foreign jurisdiction.

Sharing economy companies (sharecoms) have been internationalising rapidly, including entering African markets. Little research has been conducted on the strategies and behaviours of African sharecoms. Questions have been raised as to whether existing theories adequately explain the internationalisation of African firms. Thus, we analyse the internationalisation patterns of six African sharecoms, focusing on time, speed, and scope. The findings indicate that firms apply unique combinations of various internationalisation models. A novel pattern of internationalisation where the firms use “foreign gateway markets” as strategic “launchpads” before rapidly internationalising was also uncovered. Locational advantages, strategic networks, and relative technological advancement characterise the foreign gateway markets. We also propose the concept of “complex regional context” to define the context of emerging regions with many neighbouring countries with the potential for high levels of internationalisation but low levels of international business due to the lack of common enabling frameworks and institutions.

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

In law it is common to encounter two separate pieces of legislation which govern a single matter or transaction, for example, the Companies Act 71 of 2008 (the Companies Act) and the Securities Transfer Act 25 of 2007 both of which address the sale of shares. Similarly, the Income Tax Act 58 of 1962 (the Income Tax Act) and the Companies Act both have regulations which govern, respectively, tax law and company law matters in South Africa. These two Acts overlap in various business and commercial fields as tax is frequently an important component of any business transaction undertaken by a company. Issues, however, arise when the regulations in these two Acts, are inconsistent. This can be observed if one compares the current South African Income Tax and Companies Act, specifically as regards the sections involving merger and amalgamation transactions. Section 44 of the Income Tax Act governs merger and amalgamation transactions from a tax perspective and provides for tax rollover relief if certain requirements are met. The regulations governing mergers and amalgamations under the Companies Act are contained in sections 113, 115 and 116 of the Act. Although these sections in both Acts address the same transaction – a merger or amalgamation between two or more companies – there are several discrepancies between the regulations in the two Acts which appear to operate entirely independently of one another. In practice, one often sees that other sections in the Companies Act and Income Tax Act are used to achieve a merger due, in the main, to the uncertainties in the application of the relevant merger sections in the two Acts and the limited interaction between them. This study identifies and assesses the impact of the discrepancies identified in these two Acts in relation to merger and amalgamation transactions. The study makes recommendations to address these discrepancies and to align the South African Companies Act and Income Tax Act as regards merger/amalgamation transactions.

Groups of companies are a complex corporate structure, whose regulation can be problematic, especially when it comes to liability. Indeed, liability within corporate groups draws forth a series of issues principally due to the principles of separate corporate personality and limited liability. In the context of limited liability, which is based on the notion of separate legal personality, the main issue waxes the protection of the creditors, in particular the creditors of the subsidiaries. One can find three regulatory templates for handling corporate groups and their liability: policing via general company and/or civil law (such as the English model); policing via special group legislation (such as the German model); and policing via branches of law such as insolvency law, antitrust law, and contract law, among others (which is the case in numerous jurisdictions, either coupled with the first or the second model). Lifting the corporate veil has come as an answer to corporate separateness, by permitting to ignore the shareholders’ limited liability and hold them personally liable for the debts of their companies in specific circumstances. However, one can hardly find cases in which the corporate veil has been successfully lifted, due to many factors. Other important questions that are posed in the scope of corporate groups liability are the parent company’s liability for the payment of its daughter companies’ debts when insolvency strikes and other respects, besides the matter of group liability. Furthermore, liability is as well a key player in terms of tort law, and corporate social responsibility has therefore found a place in the sun in the present climate.

This thesis investigates the relationship between cross-country mandatory environmental, social and governance (ESG) regulations and firm-level outcomes, such as ESG performance, corporate finance, and investment, for both developing and developed countries. ESG performance is initially examined to determine whether mandatory ESG regulations affect it and to what extent. Second, the study investigates the impact of mandatory ESG on corporate finance and investment. Lastly, the study explores whether mandatory ESG regulations affect firm-level outcomes based on countries' governance and economic systems, and industries. The study uses a large sample of 69,010 firm-years across 73 countries, over the period 2005 – 2020 to address the foregoing issues. In addressing the impact of mandatory ESG regulations on ESG performance, the study employs a difference-in-differences (DiD) design. The DiD technique can isolate the effect of regulatory shocks to firm-level outcomes. According to the DiD analysis conducted, cross-country mandatory ESG improves firm-level ESG performance in developed countries, but not in developing countries. The study also concludes that mandatory ESG regulations have a positive impact only on ESG components in developed countries and have a more dominant impact on environmental (E) component. The findings are robust to a range of checks and test cases, including a triple DiD design set-up and propensity score-matched sample. The study employs an investment Euler equation framework and generalised method of moments (GMM) estimators to explore how mandatory ESG impacts corporate finance and investment. Euler frameworks account for the dynamic nature of investment, whereas GMMs account for endogenous dynamics in dynamic models. The study demonstrates that mandatory ESG increases corporate investment by increasing firms' access to external funds. The findings are robust to a battery of tests, including a triple DiD design set-up, propensity score-matched sample and the parallel trends assumption. Using an investment Euler equation framework and the GMM estimators, the study explores whether the impact of mandatory ESG on corporate finance and investment is dependent on a country's governance and economic system. When mandatory ESG is affected by country factors such as governance systems and economic well-being, the effect of mandatory ESG on investment via internal finance channel persists, according to the study. However, while consistent results are found in developed countries, inconsistent results are found in developing countries. According to the study, oil, gas, and mining firms are likely to respond effectively to mandatory ESG regulations because of increased scrutiny and pressure. Overall, the findings from the study imply that cross-country mandatory ESG has had a positive impact on corporate ESG performance, finance, and investment. For firms located in developed countries, these findings hold consistently, while for those located in developing countries, the opposite holds true. Also, the study reveals that firms in the oil, gas, and mining industries effectively respond to regulatory requirements. As a result, this study provides policy makers and accountants with an understanding of how mandatory ESG impacts firm ESG activities and performance, which is crucial for regulatory reforms.

Recent scandals have brought rankings to the forefront of the legal profession. Several of the most prestigious academic institutions have withdrawn from being ranked, citing the problematic nature of the rankings. However, rankings persist for both legal academics and practice, and there is substantial sentiment to improve the methodologies, with little detail as to how to improve. In this paper, we rank law firms on their clients’ IPO performance. We focus on the most relevant outcomes: litigation, first-day returns, disclosure, and legal fees. The focus on these measures provides benefits relative to other methodologies, which typically focus on inputs or size-related characteristics. Namely, this ranking is less manipulable and more accurately captures performance metrics that matter most to clients’ shareholders. Our rankings control for observable and unobservable deal characteristics, which helps ensure we capture law firm quality, not client traits. With the rankings based on legal fees, potential clients can compare the benefits of a particular law firm (e.g., lower litigation or higher selling prices) against the additional cost of hiring a higher-quality law firm. Hence, our rankings allow for a value-for-the-money comparison of law firms for clients selling shares in an IPO.

State-owned enterprises (SOEs) have recently gained prominence in global markets and feature among the world’s most influential enterprises. The aim of this research project is to analyse the international norms in force regulating whether SOEs are considered state or non- state actors, and their conduct state or non-state conduct, the interpretation and application of these norms by adjudicators in different international regimes, and to provide alternative prisms through which these rules and decisions can be assessed and re-thought by political actors. I show that, in relation to SOEs, the concepts ‘state and ‘act of state’ have been ascribed diverse meanings by adjudicators and other international actors, who have employed legal standards with divergent wording and thresholds when dealing with similar questions. I argue that the fragmented meaning of these terms should be understood, in part, as a result of the inherent malleability of these terms and the different expert vocabularies employed across regimes. It is exhibited that adjudicators in the international trade and investment regimes are more inclined towards piercing the corporate veil of SOEs, potentially evidencing the existence of biases against SOEs, which are perceived as inherently economically inefficient and politically motivated actors in an indiscriminatory manner. In the last chapter, I introduce alternative lines of thought regarding the regulation of SOEs in international law. I suggest that, instead of engaging in theoretical discussions on the proper delineation between the public and the private sector, it is more useful to focus on the distributional impact of international rules on various actors, especially on developing and emerging economies where the presence of SOEs is very high. Such alternative prisms of analysis open paths for future research and practice, with the goal of designing an international economic order that incentivises institutional experimentation in the pursuit of economic development and distributional equity.

Phoenix activity involves conduct whereby a failing company (the old company) is replaced by a second company (the new company) in the operation of the same or a similar business and that involves the same or similar company controllers. Transactions of this nature can be legal and even be beneficial to society, since entrepreneurs who pursue a viable business may, if the new company succeeds, benefit the economy and many other stakeholders. These transactions are referred to as legal phoenix activity. Problems arise however when phoenix activity is engaged in with the goal of evading the debt of the old company, known as illegal phoenix activity. In other cases, even well-intentioned company controllers can cause significant harm by resurrecting a fundamentally flawed business. This conduct, although not illegal, is unduly prejudicial to stakeholders and is known as problematic phoenix activity. While this thesis focuses on illegal phoenix activity, several measures identified should also curb problematic phoenix activity. This study identifies the elements and common characteristics of illegal phoenix activity. It then analyses regulation pertaining to those elements and common characteristics with the aim of finding effective solutions to the problem. This includes evaluating measures that reverse prejudicial transactions that occur during illegal phoenix activity as well as holding complicit parties, such as company controllers and the new company, accountable for their actions. Regulation aimed at preventing and investigating illegal phoenix activity is also considered. This thesis uses the comparative legal approach to analyse regulatory responses to illegal phoenix activity. Australia, the United Kingdom, and the United States of America are examined. Several reported cases in South Africa involving what appear to be illegal phoenix activity are explored, along with the existing measures that are applicable to illegal phoenix activity in South Africa. A single anti-phoenix provision is undesirable as it has the potential to unjustifiably infringe on legal phoenix activity. This thesis proposes a multi-pronged approach, which involves a combination of better enforcement of existing laws and the introduction of smaller targeted amendments to legislation aimed at reducing the incidence illegal phoenix activity.

This open-access book brings together international experts who shed new light on the status of social enterprises, benefit corporations and other purpose-driven companies. The respective chapters take a multidisciplinary approach (combining law, philosophy, history, sociology and economics) and provide valuable insights on fostering social entrepreneurship and advancing the common good. In recent years, we have witnessed a significant shift of how business activities are conducted, mainly through the rise of social enterprises. In an effort to target social problems at their roots, social entrepreneurs create organizations that bring transformative social changes by considering, among others, ethical, social, and environmental factors. A variety of social enterprise models are emerging internationally and are proving their vitality and importance. But what does the term “social enterprise” mean? What are its roots? And how does it work in practice within the legal framework of any country? This handbook attempts to answer these questions from a theoretical, historical, and comparative perspective, bringing together 44 contributions written by 71 expert researchers and practitioners in this field. The first part provides an overview of the social enterprise movement, its evolution, and the different forms entities can take to meet global challenges, overcoming the limits of what governments and states can do. The second part focuses on the emergence of benefit corporations and the growing importance of sustainability and societal values, while also analyzing their different legal forms and adaptation to their regulatory environment. In turn, the last part presents the status quo of purpose-driven companies in 36 developed and emerging economies worldwide. This handbook offers food for thought and guidance for everyone interested in this field. It will benefit practitioners and decision-makers involved in social and community organizations, as well as in international development and, more generally speaking, social sciences and economics.

This thesis concerns the recent and considerable change in corporate governance legislation, specifically how boards of directors address the issue of parity and the appointment of its members in public limited companies. This research will challenge European Union law which, to date, does not propose EU harmonization.The UK, France, Germany and Norway (a non-member country but one that will be included in this research) have introduced changes to their national legislation in relation to company boards in public listed companies. This research will focus on a comparative study of parity on company boards under European Union law and its application in the UK (pre-Brexit), Germany, France and Norway. The application of corporate governance codes or soft law and the proposal for a hard law directive demonstrate a fragmentation in the EU, as the application of law by hard quotas divides member states and parliamentarians in European Union law. Corporate governance law in the member states varies considerably, but it must respect the EU's primacy law. Comparisons of legislation between member states reveal the marked differences in law.Women are significantly under-represented on the corporate boards of public limited companies in Europe. Legitimate questions need to be asked. Does the European Commission have the right to make a proposal for a directive allowing for parity on the boards of public limited companies in the EU? The reality is that the Commission does not have a solid approach in dealing with the issue of parity. As long as there is too much inconsistency between Member States, this leaves considerable room for further research. Legislation and governance law between member EU member states diverge considerably and demonstrate inconsistency with the legislation between them, resulting in little or no consensus in the interpretation of EU law. Or member states diverge with opposing interpretations of EU law, especially concerning sovereignty.National legal systems differ considerably in the way legislation allows for the appointment of board members and the notion of parity. A review of corporate governance matters concerning shareholders, the composition and appointment of board members corporate governance codes reveal the gap between member states. The research focus on parity by way of a comparison of the soft and hard laws of the member states.. The research upholds European law Article 157(3) Treaty of the Functioning on the European Union (TFEU), which is the fundamental principle of EU law and basis of gender equality and parity.The research will contribute to raising awareness of this issue through quota legislation and the question of parity on boards in public limited companies in the EU.

The composition of the Board of Directors is commonly presented as an understandable variable for its effectiveness. However, the work that examined the relationship between the composition and effectiveness of the Board is not characterized, as they require about whether or not certain categories of directors (internal, external, independent) are relevant and the related empirical results are mixed. This work examines the relationship between the characteristics of the board of directors and its effectiveness in a type of business that is very common in the world, respecting the family business. Thus, the problem that this study tries to solve is to identify the characteristics of the board of directors that can contribute to its effectiveness in Cameroonian family businesses. We found that the size of the Board, the presence of external directors, and the cumulative management and control functions appear to have an impact on the effectiveness of the Board.