Bibliographie sélective OHADA

Since its innovation as a modern financial product in the 1970s, securitization has swept the global financial market. In 2000s, in order to ease China’s concentrated debt risks in the banking system and to improve the country’s imbalanced financial system, the Chinese government started to promote a trial program of securitization. An associated regulatory system was then created to facilitate the development of the Chinese securitization markets. Unlike regulations drafted and applied in North America, where an ex-ante regulatory analysis procedure and an ex-post evaluation system are installed, the current Chinese securitization regulation system is built mainly upon a basis of trial and interim rules. In other words, Chinese regulations regarding securitization were not comprehensively assessed before their adoption and there has been no systemic ex-post evaluation of the current securitization regulatory system in the past 20 years. This raises the question of whether the Chinese securitization regulation system facilitates the achievement of its regulatory objectives. The author purports to answer this question using three tools: The theory of regulation, legal historical analysis of law, and comparative law. To begin the analysis, the author designs an analytical framework based on the theory of regulation to evaluate Chinese regulations on securitization. In this evaluative framework, perspectives and criteria are stipulated to guide and draw the boundary of the evaluation. While applying the analytical framework, the author reviews the development of the Chinese securitization regulatory system over the past 20 years. The author studies the historical context of regulations established and regulatory modifications adopted in order to assess whether the logic embedded in the current Chinese securitization regulatory system is still valid. To better evaluate the Chinese securitization regulatory system, the author also applies a micro comparison of certain Chinese securitization regulations with their counterparts in North America. The purpose of this comparison is also to understand whether the Chinese characteristics in Chinese securitization regulations facilitate the achievement of its regulatory objectives. At the end of this assessment, the author provides a report to find the merits and disadvantages of Chinese securitization regulatory system. Due to the evaluative nature of this research, no demonstrated solutions are proposed in this report. Depuis sa création dans les années 1970, la titrisation s’est répandue à travers le marché financier mondial. Dans les années 2000, le gouvernement chinois a commencé à promouvoir le programme de titrisation afin d'atténuer les risques liés à la concentration de la dette dans le système bancaire et d'améliorer un système financier déséquilibré. La règlementation associée a été mise en place pour faciliter le développement du marché chinois de la titrisation. Contrairement aux régles créées et appliquées en Amérique du Nord, qui suivent une analyse ex ante —c’est-à-dire avant leur adoption — et une évaluation ex post — soit après leur application pendant une certaine période, le système de réglementation de la titrisation actuellement en vigueur en Chine a été élaboré sur la base d’essais et de mesures provisoires. Autrement dit, la Chine ne s’est pas fondée sur une analyse ex ante approfondie, et n’a mené aucune évaluation systémique ex post de ses réglementations de la titrisation au cours des vingt dernières années. Ce système chinois de réglementation de la titrisation facilite-t-il ou non la réalisation de ses objectifs réglementaires ? L'auteur tente de répondre à cette question à partir de trois outils : la théorie de la réglementation, l’analyse historique du droit et le droit comparé. Pour commencer, l’auteur conçoit un cadre analytique basé sur la théorie de la réglementation pour évaluer les dispositions chinoises en matière de titrisation. Dans ce cadre d’évaluation, des perspectives et des critères sont proposés pour guider et délimiter l’évaluation. À la lumière de ce cadre analytique, l’auteur replace la réglementation chinoise de la titrisation dans son contexte historique et retrace les modifications apportées au cours de deux dernières décennies. Il s’agit ainsi d’évaluer si la logique qui a présidé à l’adoption de ces règles reste valide dans le contexte actuel. Mais pour mieux saisir les caractéristiques de la réglementation chinoise de la titrisation, l’auteur ajoute à cette analyse historique interne à la Chine des micro-comparaisons de la titrisation chinoise et de ses règles avec leurs homologues nord-américains dans différentes sections de cette thèse. C’est ainsi qu’il sera possible de voir si les caractéristiques chinoises de la réglementation en matière de titrisation facilitent ou non la réalisation de ses objectifs. Au terme de cette recherche évaluative, l’on proposera un rapport qui mettra en lumière les avantages et les inconvénients du système chinois. En raison de sa nature évaluative, cette thèse ne proposera aucune solution aux inconvénients repérés.

Banks are regarded as special financial institutions because, apart from the various critical intermediary and other functions they fulfil in a financial system, the hallmark of their business models is receiving deposits from the public and using such deposits for extending loans against interest from which they make profit. Unlike other companies, banks are however vulnerable to loss of public confidence and remain exposed to various risks and failure. Banks are thus critically important actors in domestic and global financial systems, - thus their safety is critical to the maintenance of financial stability. As a result, banks are subject to stringent regulation and supervision to ensure their safety. Despite prudential regulation, the failure of banks remains a reality. If the risk of bank failure is not adequately addressed through appropriate regulation and supervision, , it may result in a financial crisis like the 2008 Global Financial Crisis (2008 GFC). Because banks play a special role in an economy and their failure may have an adverse impact on financial stability and depositors, this thesis aligns with the view expressed by academics and international organisations that there is a need for a special regime (lex specialis) to deal with the failure of banks since normal insolvency procedures are not suitable for this purpose. f. This is because bank failures require swift, timely intervention by a supervisor to resolve failing banks in an orderly and optimal manner to ensure the maintenance of financial stability, depositor protection and relegating bailouts with taxpayers’ money as a last resort. A very notable lesson that emanated from the 2008 GFC is the criticality of special resolution frameworks for banks; the need to balance the interests of shareholders, creditors, and depositors, while promoting financial stability objectives. As a result, the need for special resolution frameworks for banks which empowers Resolution Authorities with adequate resolution tools and powers to resolve a failing bank timeous and orderly , has become a legislative imperative in contemporary financial systems. To deal with bank failures in Namibia, the Banking Institutions Act, 2 of 1998 (the BIA 1998) contained provisions that allowed for the assumption of control and liquidation of a failed bank. However, the newly enacted Banking Institution Act 13 of 2023 (the BIA 2023 which repealed the BIA 1998) has changed that position and introduced a single provision in section 70 that provides for bank resolution. Until now, prior to the introduction of this very new statutory provision, all bank failures in Namibia were dealt with under the limited supervisory tools of the BIA 1998. This study seeks to determine whether section 70 of the BIA 2023, is sufficiently aligned with international best practice as captured in the Financial Stability Board’s Key Attributes of Effective Resolution Regimes for Financial Institutions (FSB KAs), issued in 2011, as updated in 2014 and 2024. Alternatively, if the regime introduced by the BIA 2023 does not adequately align with the FSB KAs it is then considered whether the new Namibian bank resolution framework requires to be strengthened further to better align it with the FSB KAs. To consider possible further reforms to the new Namibian bank resolution regime, this thesis considers the resolution frameworks in Germany and Nigeria by way of comparative studies to observe best practices.

Zimbabwean financial sector has experienced significant periods of financial distress as depicted by numerous bank failures since 1980. Bank failure occurs when a financial institution experiences significant financial distress, rendering it incapable of fulfilling its obligations to depositors, shareholders and other stakeholders. In other words, bank failure is when a financial institution undergoes substantial financial distress rendering it unable to meet its obligations as they become due. In this thesis, the researcher adopted the definition of bank failure which refers to a situation where a bank is in financial distress and is recapitalised either by the central bank or a strategic investor, acquired by another institution, surrenders its license or the license is suspended, or it closes its operations altogether. This thesis reveals that in Zimbabwe bank failures can be attributed to various factors including the failure of regulatory and supervisory systems to detect irregularities in the operations of banking institutions. In addition, poor corporate governance practices such as inadequate oversight, inexperienced management, undue influence by dominant shareholders, nonperforming loans, excessive risk-taking, abusive related party transactions and noncompliance with laws are commonly cited as causes of bank failures in Zimbabwe. Bank failures often pose negative implications to the banking sector and banking stakeholders such as depositors and investors. This owes to the fact that banks serve as intermediaries that facilitate the avenues for deposits and extend credit services to individuals and the production sector of the economy. It is submitted that the proper functioning of banks requires effective and adequate regulatory supervision. Failure to provide robust and effective regulation of banks could lead to bank failures. This thesis presents a comparative analysis of the banking statutory framework of Zimbabwe and those of the UK and South Africa to determine if the banking laws in Zimbabwe are robust enough to prevent bank failures. The thesis reveals that the banking statutory framework in Zimbabwe is not robust enough to curb bank failures in times of stress because it lacks effective regulatory oversight. This thesis further reveals that poor banking regulation, inconsistent enforcement, weak regulatory insolvency procedures, and inadequate supervision framework are some of the weaknesses in the current banking statutory framework which needs to be rectified in order to combat bank failures effectively in Zimbabwe. The Banking Act does not fully incorporate the international best standards on bank supervision to prevent bank failures. Consequently, the banking statutory framework in Zimbabwe does not comprehensively and effectively provide for the prevention of bank failures like those of the UK and South Africa. The robustness of the banking statutory framework is in providing adequate and effective regulatory provisions and enforcement mechanisms that curb bank failures in Zimbabwe. The researcher proposes the adoption of a new model, the Zimbabwean twin peaks model, comprising the Zimbabwean Prudential Regulatory Authority and the Zimbabwean Financial Sector Conduct Authority. It is argued that if the adoption of the twin peaks model is considered and robustly implemented, it can prevent the causes of bank failures in Zimbabwe.

L'Europe a été à l'avant-garde de l'éthique de l'intelligence artificielle (IA), en élaborant des chartes et des principes non contraignants sur l'IA « digne de confiance ». Le terme « digne de confiance » est utilisé par l'Europe pour désigner les systèmes d'IA qui sont « éthiques », « légaux » et « techniquement robustes ». L'Europe a complété ces principes non contraignants par un texte de loi sur l'IA, connu sous le nom de règlement sur l'IA, ou AI Act. Le règlement sur l'IA est l'un des premiers cadres légaux au monde à réglementer les systèmes d'IA dans différents secteurs et cas d'utilisation, en mettant l'accent sur la sécurité et la protection des droits fondamentaux. Pour les questions opérationnelles, le règlement sur l'IA s'appuie principalement sur des normes techniques en cours d'élaboration. L'approche européenne combine donc trois niveaux d'instruments réglementaires : les chartes éthiques de l'IA, le règlement sur l'IA et les normes techniques.L'approche par la normalisation est traditionnelle dans le domaine de la sécurité des produits, mais dans le règlement sur l'IA, les normes sont également censées répondre aux préoccupations en matière de droits fondamentaux. Pour éviter de faire des choix normatifs difficiles, les organismes de normalisation jouent la carte de la sécurité en élaborant des normes qui restent à un niveau élevé. De plus, dans le cadre du règlement sur l'IA, la responsabilité de l'élaboration des normes techniques est déléguée à des organismes de normalisation privés, où les grandes entreprises multinationales sont surreprésentées et exercent une influence considérable. Ces normes sont également généralement payantes, bien que la situation puisse évoluer dans les années à venir après une récente jurisprudence de la Cour de justice de l'Union européenne. Les experts en normalisation sont donc sous pression pour fournir des normes à temps et de bonne qualité. Europe has been at the forefront of Artificial Intelligence (AI) ethics, developing non-binding charters and principles on "trustworthy'' AI. The term "trustworthiness'' is used by Europe to designate AI systems that are "ethical'', "legal'' and "technically robust''. Europe has supplemented these non-binding principles with a binding regulation on AI, known as the AI Act. The AI Act is one of the world's first comprehensive frameworks for regulating AI systems across different industries and use cases, focusing on safety and protection of fundamental rights. The AI Act relies, for operational questions, mostly on technical standards that are in the course of development. The European approach thus combines three layers of regulatory instruments: AI ethics charters, the AI Act and technical standards.The standardisation approach is traditional in product safety, but under the AI Act, standards are also expected to address fundamental rights concerns. To avoid making hard normative choices, standardisation organisations are playing it safe, developing standards which remain at a high-level. Moreover, under the AI Act, the responsibility for developing technical standards is delegated to private standardisation bodies, where large multinational companies are over-represented and hold significant influence. These standards are also often locked behind paywalls, although the situation may evolve in the coming years after a recent case law from the Court of Justice of the European Union. Standardisation experts therefore face pressures to deliver standards on time and of good quality.

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.

This dissertation examines the relationship between banking and society. It contributes to a better understanding of how banking affects society and, in turn on how society shapes banking practices. The first chapter studies the impact of inflation on trust in banks. Chapter two deals with the effect of trust in banks on financial inclusion. The third chapter investigates whether financial inclusion influences life satisfaction. Chapter four delves into how female bank leadership affects firm credit. The final chapter focuses on the influence of bank leaders’ age on sustainable lending. Overall, this dissertation highlights the important role of banks in societal development and the major influence of society in shaping banking practices.

Financial technology (Fintech) is a rapidly growing industry, both locally and globally. In various ways, Fintech is undeniably transforming financial services and products in every possible part of the financial sector by changing how people access and use financial services. By using innovative technologies, such as distributed ledger technology and cloud technology, and combining large data sets, including alternative data sets, better products can be provided that can be hyper-personalised for market segments and improve access and participation in respect of financial services. Fintech is solving issues that touch the consumer, through a bottom-up approach, considering the retail consumer as a starting point, in contrast to the common traditional finance evolution from the institutional investors to the retail consumer in a top-to-bottom approach. What is exciting about what Fintech can do for Africa, is that it can move inefficiencies in services and product life cycles to become efficiencies and move the frontiers for already efficient products and services. Fintech, therefore, provides an opportunity to improve the archaic and pave the way for the future. This study focuses mainly on crypto assets to limit its scope. It first examines the Fintech landscape in Africa, more specifically, the activity level in each selected comparative country, namely Mauritius, Kenya, Zambia, Namibia and South Africa, and how the activity benefits or can potentially benefit the economy in the host country and lead to the deepening of financial inclusion. It further examines the regulatory frameworks in those countries. The study examines the regulatory approach taken and the local activity, exploring some of the risks identified in each country, and considers the requirements that regulators chose to implement to mitigate these risks, as well as the current state of regulatory frameworks. Consideration is given as to whether similarities in both the risks and the mitigation requirements exist and how this can be aligned across jurisdictions. Recently, international standard-setting bodies have increased their focus on ensuring the alignment and cooperation of regulatory approaches globally. In light of the call for alignment and increased collaboration through policy recommendations and guidance, and or regulators to provide comprehensive and effective regulatory approaches without stifling innovation, this study considers the theoretical possibility of allowing certain Fintech companies, specifically crypto asset service providers (subject to specified conditions) to operate across jurisdictions with a trans-border licence. This study examines Europe’s Markets in Crypto Assets Regulation, as it was the first of its kind continental-wide framework for crypto assets, offering numerous lessons to be learned from this framework. The Commonwealth Model Law on Virtual Assets is also considered, as it is intended to assist member countries in implementing Virtual Asset and Virtual Asset Service Provider regimes in their respective jurisdictions, as they deem appropriate. Lastly, the study will explore what a theoretical trans-border regulatory framework containing prudential and market conduct requirements could look like and what embedded supervision tools, for instance, through forensic nodes or zero-knowledge proofs, could be utilised to ensure that all the regulators participating as part of a licencing panel receive real-time data and have a full view of the level of compliance with the requirements imposed by the joint framework and can proactively and intrusively act, when needed. The proposed trans-border regulatory framework aims to support crypto asset service providers with multi-jurisdictional strategies in Africa in scaling their operations, with a focus on building Africa as a global Fintech hub. The proposed framework aims to achieve this through a harmonised regulatory framework that simplifies compliance, increases efficiencies, enhances innovation, allows for scalability, and better risk management. In addition to the goal of positioning Africa as a globally recognised Fintech hub, the harmonised framework aims to realise the purported benefits of the technologies utilised by crypto asset service providers, thereby deepening financial inclusion and promoting inclusive economic growth through increased access and participation, as well as lower costs.

ENGLISH ABSTRACT: The Constitution of the Republic of South Africa, 1996 (“Constitution”) enshrines the right to equality, emphasising “the full and equal enjoyment of all rights and freedoms”. This commitment embodies the principle of substantive equality, which extends beyond mere formal equality by addressing systemic inequities and striving for transformative change. The pursuit of transformative equality is underpinned by two constitutionally mandated mechanisms: affirmative action and the prohibition of unfair discrimination, both direct and indirect. Within this framework, the prohibition of unfair discrimination serves a dual purpose: It establishes a foundation for defending formal equality while simultaneously acting as a transformative tool, particularly in safeguarding against indirect discrimination. In a transformative context, the concept of protection against indirect discrimination specifically is significant as it acknowledges that equal treatment can still perpetuate inequality. The concept has the unique ability to identify hidden barriers and protect against more subtle forms of unfair discrimination, rendering it instrumental in advancing substantive equality and promoting long-term, systemic change. Yet, despite its transformative potential, the application of protection against indirect unfair discrimination in South African employment jurisprudence remains underdeveloped. And even in jurisdictions where the concept has received greater attention (for purposes of this study, the United States of America, Canada and the United Kingdom), it has not significantly advanced substantive workplace transformation. The reasons for this limited success are partly shared across these jurisdictions and partly unique to South Africa. Given the above, the primary objectives of this study are threefold: (i) to explore the protection against indirect discrimination in advancing transformative equality within the South African constitutional framework; (ii) to investigate the reasons for the limited development and application of this concept in South African employment law; and (iii) to assess whether the prohibition of indirect discrimination should be upheld as a distinct legal concept in employment law. These objectives were anchored by the fundamental question guiding the study: what role does the concept stand to play in employment law in SA in future and, if any, to what extent and in what form? The study begins by examining the broader concept of equality – a notion that is both complex and continually evolving. Key questions that are addressed include: What does equality mean? What are the objectives inherent to equality? What values underpin the concept? Following this exploration, the focus shifts to the role of equality within the South African Constitution, specifically the content of the right to equality as provided for in section 9 of the Constitution. This includes an overview of the constitutionally mandated mechanisms for enforcing equality, namely affirmative action and the prohibition of unfair discrimination, with particular attention to protection against indirect forms of unfair discrimination. The study thereafter narrows its focus to the application of the latter concept within South African employment law. It highlights the challenges that have hindered the effective development of the concept, which can be broadly categorised as conceptual and practical obstacles. The South African experience is compared to the development and application of the concept in the United States, Canada, and the United Kingdom, offering a comparative perspective on the concept’s evolution in the aforesaid jurisdictions. The study concludes by presenting suggestions and recommendations on the future role of indirect discrimination within South African anti-discrimination employment law. It also recommends strategies for more effective implementation of the concept.

ENGLISH ABSTRACT: This study provides exploratory insight into the social justice mandate of the Commission for Conciliation Mediation and Arbitration (“CCMA”) in the context of labour relations in South Africa. As a vehicle for the advancement of social justice through the efficient resolution of labour disputes, the CCMA is a compelling actor in the pursuit of social justice in South Africa’s labour environment. Social justice as a legislative and policy imperative requires an investment in understanding its conceptual ideals and demands in order to empower those acting in its pursuit with the knowledge they need to fulfil its demands. The CCMA’s most critical functionary, its commissioner, holds the key to unlocking labour justice for many members of the public. One wonders, given the criticality of advancing social justice in labour relations, whether social justice is appropriately understood in order to enable the kind of decision-making that efficiently and consistently addresses the workings of power and inequality as they manifest in employment relationships. This study’s main provocation is to transform the pursuit of social justice (in the South African labour context, at least) from an elusive endeavour to a more tangible, realistic one. It attempts to offer a way of thinking about and applying social justice in the practice of labour dispute resolution in South Africa and the CCMA context. It critically explores the interwoven mechanisms of power, prejudice, and injustice and how these mechanisms work to sustain unequal labour relations. The commissioner’s role is thus a critical one, that involves a deliberate pursuit to recognise, understand and interrupt these movements of power and mitigate the effect of inequality. Any movement towards social justice that does not pay close attention to this matrix of power and prejudice threatens to dilute the transformative potency of social justice. This study identifies and discusses the decisions of commissioners that fall short of the kind of conscientious decision-making required by a mandate of social justice. Discussions in this study also point out significant achievements in centralising social justice principles in decision-making processes at the CCMA, where arbitrators, in reducing injustice and advancing justice in labour relations, show a conscientious consideration and appreciation of historical contexts, power, privilege and disadvantage. Living up to the constitutional imperative to transform society in the way of equality, commissioners ought to develop their agency and be empowered by the Constitution of the Republic of South Africa, 1996, to disrupt inequality. This study contributes to the understanding and clarification of social justice and its implications for the South African labour environment. It also posits ubuntu as an important consideration in the balancing exercise required to achieve justice.

As technology continues to advance, more trade is moving online. The increase in digital trade brings with it both opportunities and challenges in the international trade field. The increase in digital trade could for instance result in a spike in digital trade imports which may subsequently cause or threaten to cause serious injury to domestic industries and platforms dealing in like or directly substitutable digital data/content and services. This would necessitate the application of safeguard measures to avert any such serious injury or threat to serious injury caused to the domestic industries and platforms. The procedure for applying safeguard measures to digital trade currently is unclear. The current legal framework on safeguard measures does not apply to digital trade despite increased digital trade over the years. Thus, this study explores the prospects and practical challenges relating to safeguard measures’ application to digital trade with a specific focus on African domestic industries and platforms. While domestic industries and platforms in any part of the world could be affected by surges in digital trade imports, Africa is in a precarious position. Intra-Africa digital trade volumes could be increased and disadvantages of African domestic industries and platforms by surges in digital trade imports could be prevented through regulation and judicious use of safeguard measures. This study established the need to regulate to tap into the potential of digital trade and prevent African industries and platforms from falling behind and from the disadvantage of market dominance by big techs from outside Africa. In conclusion, the study noted legal and institutional gaps in the application of safeguard measures to digital trade. The study has recommended that specific institutions at the global, continental and national levels take necessary actions to build a clear and robust framework for safeguard measures in digital trade.

This thesis critically analyses Uganda’s bilateral investment treaty (BIT) system to determine its compatibility with sustainable development imperatives and proposes a new model BIT that aligns with Uganda’s evolving development priorities. Recognising the country’s reliance on foreign direct investment (FDI) for economic growth, this study interrogates the extent to which Uganda’s current BITs—many of which were concluded during earlier policymaking eras—expose the country to legal, economic, and regulatory risks. These include susceptibility to investor–state dispute settlement (ISDS) claims, constraints on the host state’s right to regulate, and a lack of provisions promoting environmental, social, and developmental objectives. Through doctrinal and comparative legal analysis, the study traces the historical evolution of international investment law (IIL), critiques the limitations of Uganda’s domestic and treaty-based FDI frameworks, and identifies substantive and structural weaknesses in Uganda’s in-force and model BITs. The analysis also considers international reform efforts and best practices from new-generation investment agreements, including the AfCFTA Protocol on Investment, the Investment Facilitation for Development (IFD) Agreement, and the SADC and EAC Model BITs. Particular attention is paid to the South African BIT reform experience as a comparator for Uganda’s reform journey. The study finds that Uganda’s BIT system is outdated, overly protective of investors, and poorly aligned with its sustainable development goals (SDGs). It recommends terminating unratified and problematic BITs, renegotiating existing ones, and adopting a new model BIT that balances investor protection with Uganda’s regulatory autonomy and sustainable development objectives. To this end, a draft model BIT is proposed as an annex to guide future treaty negotiations and reform Uganda’s investment regime in line with contemporary global standards and regional aspirations.

The purpose of this thesis is to evaluate the impact of the Basel Accords on small indigenous banks in developing countries, with particular concentration on small Zambian banks. The problem statement intends to investigate whether implementing the three Basel Accords is conducive to the growth of small banks in Zambia. The study further aims to determine whether the present approach to legal regulation of small banks in Zambia is appropriate. The methodology is based on desk-bound research and examination of both primary sources and secondary sources of material such as books, journals, and relevant articles. The study is impacted by the dearth of secondary research work and the difficulty of getting information from sources like the Zambian central bank and other information centres. While Basel I and II seem to have stabilised the Zambian financial sector, the Basel III Accord appears to have impacted negatively on many small banks to the extent that they have been forced into merger and acquisition arrangements with larger foreign banks to fund their undercapitalised positions to survive. It also emerges that the Zambian financial system is strongly linked to the international global economy; regionalisation with organisations like SADC and COMESA being the first stages in the process. This situation is likely to introduce increased instability in the Zambian financial sector by making banks more vulnerable to the vagaries of the international financial markets. It is thus recommended that the Zambian central bank should be more proactive in lobbying for better conditions for small banks from the Basel Committee for Banking Supervision and other international financial regulatory bodies; it should also avoid “cutting and pasting” rules from other jurisdictions to avoid possible distortions in the banking sector. It should also encourage further development of primary and secondary markets in low-cost paper and provide small banks with long-term, low-interest loans to support their growth. The Bank of Zambia, the Zambian central bank, should consider establishing a separate Act financial services Act for small banks to better regulate them. The central bank should also seek out non-Basel Accord solutions for small banks including re-examining the positive aspects of the infant-industry argument. Lastly, it should introduce a formal system for classifying banks in Zambia. At the international level, it is suggested that the global standard-setting bodies should undergo radical reforms to ensure that they are in tandem with the problems that banks in developing countries face as well as allow them to have a say in global standard setting. It is recommended that global standard-setting bodies apply simpler rules for smaller banks. The impact of the Basel Accords on small indigenous banks in developing countries and Zambia, in particular, is important because of the role that small banks play in developing economies in growing small and medium-sized businesses that are often ignored by large foreign banks. It is also important that small banks are allowed to grow into large and medium-sized banks to effectively compete against foreign multinational banks. Institutions based on neoliberal ideals appear to only serve Western businesses’ interests despite their call for all countries to create a level playing field. Due to the dearth of empirical research, there are several gaps in the work that may provide opportunities for further research in this important area of the law.

This thesis critically examines a much-debated issue in international law: the legitimacy of the Investor-State Dispute Settlement system (ISDS). The system was initially conceived to provide an alternate dispute resolution mechanism for the protection and promotion of foreign investment. In time, this objective has incited a discussion on the legitimacy of the system as the developed world has started to experience the role of host states. Since then, they have taken the lead in the reform process to achieve a balance between host state's and foreign investors' rights. To this effect, both the European Union (EU) and the Third Way Approaches to International Law (TWAIL) are for centralization of the system arguing its current problems emanate from its ad hoc and decentralized nature. Although both are aimed at system centralization, the paths they take to achieve it clearly differ. The EU seeks a permanent investment court by which ad hoc arbitration would give way to a more centralized framework. However, TWAIL advocates for a return to the pre-ISDS era, where national courts resolve investment disputes between foreign investors and states. The effectiveness of these two reform ideas in addressing the purported legitimacy concerns of the ISDS is critically examined in this thesis using Martti Koskenniemi's legal approach. Ultimately, it asserts that neither proposal is adequate to resolve the legitimacy issue of the system, as legitimacy can only be achieved by strengthening the principle of justice, which is feasible alone through a more decentralized structure.

Post-commencement financiers provide a lifeline to companies under business rescue and these financiers have their best interest in the survival of these companies. Should it be that the business rescue plan is unsuccessful, the chances are that the post commencement financiers will be the largest creditors. In Wescoal Mining (Pty) Ltd v Mkhombo NO, a dispute arose regarding the appropriate adoption of a business rescue plan during the meeting. One critical legal issue was whether the Companies Act bestows voting rights exclusively to the company's creditors who existed at the initiation of business rescue, or if creditors accruing after the commencement may also partake in voting on the plan. Following an assessment by Judge Wilson, it was established that only creditors with claims predating the commencement were eligible to participate in the voting process. Subsequently, Judge Wilson believed that section 135 of the Companies Act places post-commencement financiers as creditors in a different class and provides for their protection and interests in a different way. Against this background, the dissertation evaluates the position of post-commencement creditors when it comes to voting on a business rescue plan.

This thesis includes three essays that examine the effects of firm policies on labor costs, corporate culture, and stock markets. The first essay studies the impact of major customers on supplier firms’ performance, and I find that supplier firms are willing to collaborate with their major customers while keeping low financial leverages. The cooperation with major customers results in higher productivity and strategic alliance, which could explain the reduction in the labor share of supplier firms. In my study, labor share is defined as the ratio of labor costs to total revenue. Compared to firms without major customers, supplier firms with at least one major customer would reduce labor shares on average by 33% in absolute terms. The findings contribute to the growing literature on the global trend of labor share reduction. The second essay examines the effect of market competition on corporate openness, which is a particular aspect of corporate culture. Corporate openness reflects how open firms are when facing new ideas and experiences, and measures firms’ willingness to innovate and cooperate. I conclude that market competition improves firms’ corporate openness through good corporate governance. Furthermore, corporate social responsibility activities are seen as a positive social outcome of corporate openness. As to economic consequences, less open firms would experience stock return reductions when the market competition is high. The third essay studies the firms listed on Chinese stock exchanges that established an internal whistleblowing mechanism. The results show that the employee whistleblowing system prevents firms from misconducting and leads to reduced stock price crash risk. Furthermore, a cooperative corporate culture helps the internal whistleblowing system decrease crash risk, while an unfair organizational climate exerts the opposite influence. Overall, this study contributes to the emerging literature on the governance role of whistleblowing.

This dissertation critically analyses new generation continental, regional and bilateral investment treaties in Africa with the aim to explore enhancements that could be made thereto in order to enable African citizens to hold investors accountable for investment-related climate change issues in Africa. The main research question answered in the dissertation is: to what extent does African investment treaty practice incorporate climate change-related provisions and investor accountability for climate change. The dissertation analysed traditional investment treaties, particularly noting their silence on climate change and investor accountability, and their partiality to investor protection. Using the AfCFTA Investment Protocol as an anchor alongside other new generation continental, regional and bilateral investment treaties in Africa, it discusses a fundamental contemporary shift in African investment treaty practice towards ensuring sustainable investments and greater investor accountability for sustainability in Africa. It also explores the various limitations in these new generation investment treaties that still make investor accountability. In the end it proposes reforms to the Investor-State Dispute Settlement provisions of these investment treaties to recognise citizen-led arbitral claims against investors, utilising the Hague Rules on Business and Human Rights as the procedural infrastructure for handling arbitration of such claims.

This dissertation on the relationship between the business rescue practitioner and the directors of the company under business rescue. In essence, this dissertation investigates whether a conflict arises between the duties, roles and powers of the business rescue practitioner and those of directors of the financially distressed company. The aim of this dissertation is to study what are the limitation on duties, roles and powers of directors of the company as a result of the appointment of the business rescue practitioner and the extent thereof. In achieving the above objective, this dissertation commences with setting out the background of business rescue proceedings in South Africa by analysing provisions of Chapter 6 of the Companies Act 71 of 2008 which has introduced “a new corporate rescue procedure” in South Africa, being business rescue. The focus is on provisions dealing with duties, roles and powers of directors in the ordinary course as set out in section 66, 75 to 77 of the Act. The focus then shifts to the provisions dealing with the commencement of business rescue proceedings, the appointment of the business rescue practitioner and his duties, roles and powers. In order to establish whether a conflict truly exists between the duties, roles and powers, various sources dealing with this issue are considered. In order to assess whether there are solutions in dealing with the conflict and/or limitation that arises, this dissertation includes a comparative study on selected foreign jurisdictions dealing with the interaction between the board of directors and business rescue practitioner are considered. In particular, this dissertation considers corporate rescue mechanisms in the Commonwealth of Australia, the United Kingdom and the United States of America. The purpose of the comparative study is to determine which lessons can be learned from the practices in the aforementioned jurisdictions. The overall objective of this study is to determine how the South African legal framework pertaining to the interaction between directors and business rescue practitioners can be enhanced.

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.

Informal social security is a non-governmental form of social security between kin and/or community members and is a prevalent practice in South Africa. The question this dissertation analyses is whether the South African government fails in its constitutional duty to protect and advance informal social security. The dissertation limits itself to analysing cash transfers through social grants, and social insurance in the Unemployment Insurance Act and the Compensation for Occupational Injuries and Diseases Act. This dissertation delineates its definition of informal social security, historically contextualises its practice, and explains the contemporary formal social security framework. This dissertation finds five prominent shortcomings in the formal framework, and that these shortcomings have a profoundly negative, weakening effect on informal social security, as the more people who rely on informal mechanisms, the less it can respond to needs arising from life contingencies, shocks, and risks. The dissertation concludes by analysing three legal reform proposals the state can implement: extending existing social insurance frameworks to those in the informal sector, promoting cooperatives as a formal platform for the informal, and the basic income grant.