Bibliographie sélective OHADA

In recent decades, the technical handling of custody business in the OHADA region has undergone a lasting change. There has been a shift from a direct to an indirect holding system, in which the interests of an investor in respect of the underlying securities are recorded in the books of an intermediary (such as a bank or a securities firm). Under the law of all states within the OHADA region, the traditional conflict of laws rule for determining the enforceability of a securities pledge that occurs in the indirect holding system is the lex rei sitae (or the lex cartae sitae or the lex situs ) rule. However, the traditional lex rei sitae rule cannot be appropriately applied to a system where the dematerialised securities are held through multiple layers of intermediaries located in different jurisdictions. Yet, until the intermediated system and the collateralisation of intermediated securities in the OHADA region will continue to operate in somewhat legally murky waters, leading to more instability in the financial markets. Therefore, Justin Monsenepwo aims to find an appropriate and consistent approach that reflects the reality of the indirect holding system in the OHADA region. “This publication is essential reading for policy makers, academics, market participants, and legal practitioners in the OHADA region and beyond. I am convinced that its in-depth analysis of OHADA’s substantive and conflict of laws rules will go a long way in filling the gap in this area and encouraging further development in the future.” Christophe Bernasconi, Secretary General of the „Hague Conference on Private International Law“ – HCCH in the foreword

The purpose of this study is to provide a legal analysis of the impact of targeted financial sanctions on letters of credit and demand guarantees. The letter of credit is an important method of payment used in international trade. The demand guarantee plays a significant role as an instrument of security in commercial transactions. In their simplest form both instruments constitute an undertaking by a bank to pay a beneficiary against delivery of certain stipulated documents. Letters of credit and demand guarantees are known to be reliable and provide a considerable measure of certainty and predictability to the underlying transaction. Consequently, they have been described as the “lifeblood of international commerce”. Targeted financial sanctions entail assets freezing and prohibitions to prevent funds or other assets from being made available, directly or indirectly, for the benefit of designated individuals and entities. Endorsed by the United Nations and implemented by the vast majority of jurisdictions around the world, targeted financial sanctions are increasingly being used to combat financial crime, including money laundering, terrorism financing and weapon proliferation financing. Banks play a critical role in financial crime prevention and detection. Hence they have been identified as institutions that must comply with targeted financial sanctions. The relationship between targeted financial sanctions and letters of credit and demand guarantees has generally not been well documented. It is hoped, therefore, that this study will make a meaningful contribution to the jurisprudence on letters of credit and demand guarantees. In investigating the impact of targeted financial sanctions, the study can be categorised into three parts. Part one investigates a bank’s compliance with domestic targeted financial sanctions. The chief findings of the study in this regard are that banks are under a legal obligation to comply with sanctions and, as a result, a bank that refuses to perform its contractual obligations under a letter of credit or demand guarantee may have a defence in law. In South African law the bank can raise the so-called defence of legal impossibility of performance to resist a claim for, or potential litigation in respect of, payment. Part two investigates a bank’s compliance with foreign targeted financial sanctions. Because compliance in this regard has no (legal) basis, the bank may conceivably be sued by the beneficiary for payment on the basis of breach of contract. Part three investigates problematic documentary practices that banks have adopted or conceivably may adopt to manage their sanctions risk exposure. In this regard, attention is given to so-called sanctions clauses and other non-documentary conditions. The issue of unjustified amendments by the beneficiary for the purposes of sanctions evasion is also considered in part three. The general conclusion arrived at is that by interfering with payment, targeted financial sanctions render letters of credit and demand guarantees unreliable, thereby having the effect of reducing their value to international trade and commerce. The author proposes certain recommendations and initiatives aimed at mitigating the impact of targeted financial sanctions on credits and guarantees. Key terms: letters of credit; demand guarantees; financial crime; sanctions evasion; targeted financial sanctions; compliance; banks; due diligence; payment; reimbursement; credits; guarantees.

This thesis examines securities market development in sub-Saharan Africa, focusing on securities law, securities law enforcement and securities markets integration. Adopting a primarily comparative methodology, the thesis examines the continued relevance of securities markets in sub-Saharan Africa; the way selected countries in the region regulate their markets and enforce compliance with securities law; and the potential of market integration to promote market development. This thesis advances 4 main claims. First, empirical evidence supports the link between liquid securities markets and economic growth, independent of the level of banking development. In this sense, securities markets can act as good complements to banks in providing capital to the real economy. Second, at the minimum, there is an arguable preliminary case that rules of securities regulation can hinder market development in select countries in sub-Saharan Africa, by imposing high compliance costs and eligibility requirements, without commensurate benefits in greater liquidity or reduced cost of capital. Third, enforcement of securities regulation in sub-Saharan Africa is generally weak. Whilst public regulators often have formal powers, budgets and staff; actual enforcement activity is sometimes limited by inadequate market monitoring and reliance on criminal as opposed to administrative sanctions. Poor public enforcement, in turn, reinforces poor private enforcement, leading to reduced market participation, illiquidity, and ultimately market underdevelopment. Fourth, although increased market integration can go a long way in facilitating market development in the region, integration cannot be a short/medium term solution to market underdevelopment in sub-Saharan Africa, given the significant economic, political and socio-cultural barriers to integration initiatives in the region. Ultimately, to develop their securities markets, policymakers in sub-Saharan Africa must focus their attention on making and credibly enforcing market-friendly rules of securities regulation. The thesis explores some ways this may be realistically accomplished.

This study examines the development of mortgage finance in Nigeria and its impact on economic growth. Aggregate housing finance data for by both banks and non-financial institutions was used to measure housing finance. Other variables considered include financial debt proxy by M2Per capita, financial instability proxy Interest rate and the level of development of the capital market measured by market capitalization. Time series data covering the period 1990-2016 was obtained from Central Bank statistical bulletin, National Bureau of Statistic and World Bank. The methodology adopted in the study is Vector Autoregressive Model (VAR) was estimated using linear regression method. The results of the analysis indicated that there is a one-way causal link runs from mortgage finance to economic growth. In addition, mortgage finance was found to be a significant determinant of increasing pattern of economic growth over a long period of time. Due to the level of the country’s financial depth, it was recommended that Nigerian government should intensify effort aimed at consolidating the level of financial re-structuring in the non-financial sector which mortgage financing belong. The central bank should make a policy stipulating commercial banks to set aside certain proportion of their total assets to finance housing demands.

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Legal systems around the world vary widely in how they deal with the assignment of receivables. This legal variety makes it difficult for financiers to conduct their international receivables financing business. This thesis suggests an International Registration System for the Assignment and Security Interest of Receivables (‘IRSAR’) and proposes a model international convention for the IRSAR (‘proposed IRSAR Convention’), which could help financiers to overcome the obstacles they currently encounter. Under the proposed IRSAR Convention, the international assignment of receivables would be regulated by a unified legal system with respect to priority and perfection. The IRSAR would facilitate international project financing. Furthermore, the IRSAR would enable companies to raise finance from greater ranges of investors around the world through international receivables financing and to dispose of non-performing loans more easily. The proposed IRSAR Convention would succeed the UN Convention on the Assignment of Receivables in International Trade in the attempt of establishing a registration system for international assignments of receivables. The proposed IRSAR Convention confines its scope of application by defining the assignor (or the security provider), inventing the concept of ‘Vehicle for the International Registration System’ (‘VIRS’). The proposed IRSAR Convention applies where the assignor or security provider is a VIRS. An assignment of a receivable where the assignor is a VIRS and a security interest in a receivable where the security provider is a VIRS could be registered in the IRSAR. Under the proposed IRSAR Convention, priority of assignments of and security interests in receivables is determined by the order of registration in the IRSAR. The proposed IRSAR Convention would be a receivables version of the Cape Town Convention. With respect to the contents and effect of registration, it would prescribe a notice-filing system along the lines of that adopted in the UCC Article 9. With respect to the operation of the registration, it would adopt an automatic online registration system operating 24 hours a day, 365 days a year like the International Registry under the Cape Town Convention.

Bank demand guarantees have become an established part of international trade. Demand guarantees, standby letters of credit and commercial letters of credit are all treated as autonomous contracts whose operation will not be interfered with by courts on grounds immaterial to the guarantee or credit itself. The idea in the documentary credit transaction/demand guarantee transaction is that if the documents (where applicable) presented are in line with the terms of the credit/guarantee the bank has to pay, and if the documents do not correspond to the requirements, the bank must not pay. However, over the years a limited number of exceptions to the autonomy principle of demand guarantees and letters of credit have come to be acknowledged and accepted in practice. In certain circumstances, the autonomy of demand guarantees and letters of credit may be ignored by the bank and regard may be had to the terms and conditions of the underlying contract. The main exceptions concern fraud and illegality in the underlying contract. In this thesis a great deal of consideration has been given to fraud and illegality as possible grounds on which payment under demand guarantees and letters of credit have been attacked (and sometimes even prevented) in the English, American and South African courts. It will be shown that the prospect of success depends on the law applicable to the demand guarantee and letter of credit, and the approach a court in a specific jurisdiction takes. At present, South Africa has limited literature on demand guarantees, and the case law regarding the grounds upon which payment under a demand guarantee might be prevented is scarce and often non-existent. In South Africa one finds guidance by looking at similar South African case law dealing with commercial and standby letters of credit and applying these similar principles to demand guarantees. The courts, furthermore, find guidance by looking at how other jurisdictions, in particular the English courts, deal with these issues. Therefore, how the South African courts currently deal/should be dealing/probably will be dealing with the unfair and fraudulent calling of demand guarantees/letters of credit is discussed in this thesis.

This paper seeks to assess the extent to which the provisions of the Uniform Act dealing with demand guarantees meet the OHADA objective of modernisation to facilitate commercial activity. It notes that in general those provisions are to be welcomed as a helpful contribution towards the aforementioned OHADA objectives. However, it argues that there is scope for some improvement and that a revision of the provisions is desirable, primarily to give the parties greater commercial flexibility by allowing them more freedom of contract and to reduce the areas of uncertainty and confusion. It is proposed to consider the key benefits brought about by the Uniform Act before identifying and explaining the main areas of concern.