Bibliographie sélective OHADA

Sovereign rights in Exclusive economic zones and Continental shelves are functionally limited to the economic exploitation of these zones. Moreover, in the case of disputed maritime zones these sovereign rights are neither exclusive nor necessarily constant. Nevertheless, states are still expected to provide the investments established in these zones the same treatment they should provide in their territories where they exercise full and constant sovereignty. If a host state agrees to the establishment of an investment in a maritime zone that become later contested, do the occurrence of the contestation and the hazards arising from such contestation relief the host state from its contractual and treaty obligations toward the investment by virtue of the force majeure concept. This paper argues that a traditional interpretation of the force majeure concept in respect of investment agreements and contracts, hampers states ability to de-escalate their maritime disputes, diminishes its capacity to conclude delimitation agreements and reduces the promotion of the UNCLOS III as well as its mechanisms for disputes settlement. It proposes a contextualist interpretation of the force majeure concept that is adapted to the exploitation of disputed maritime zones and states obligations under the international law of the sea. First, it examines the concept of force majeure as a doc-trinal hypothesis and its applications in international contracts and international in-vestment agreements. Second, it analyzes the legal act of maritime contestation as a force majeure event according to the possible interpretations of the concept of “force majeure”. Finally, it examines the recurrent legal implications susceptible of arising out of a contestation; provisional orders and unfavorable delimitation and their qualifica-tion as a force majeure event in the realm of investment agreements and contract.

In the Australian case of Bywater Investments Ltd v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation (the Bywater case) the Australian High Court dealt with the question of whether certain companies were resident in Australia for income tax purposes. The majority answered this question by applying Australian domestic law. In a separate but concurring judgement, Gordon J also discussed the interpretation and application of the relevant double taxation treaty. This contribution analyses Gordon J's judgment to extract guidance from it for the South African courts on their interpretation of double taxation treaties. It is submitted that South African courts should also follow the "first step" proposed by Gordon J when interpreting double taxation treaties. South African courts may find Gordon J's judgment "instructive" when dealing with the interpretation of the "place of effective management" concept in both domestic law and double taxation treaties. In his judgment Gordon J favours the goal of common interpretation and it is argued that South African courts should follow this example and explicitly support this notion in applicable cases. From Gordon J's judgment and the judgement in Krok v Commissioner, South African Revenue Service, it is deduced that the positions in South Africa and Australia are similar in that the courts in both countries will be bound by the principles of Articles 31 and 32 of the Vienna Convention on the Law of Treaties when interpreting double taxation treaties. Moreover, Gordon J's judgment indicates that the domestic principles of interpretation should not be used in the interpretation of double taxation treaties. Recent South African cases have suggested that there are no differences between the South African domestic principles of interpretation and those contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. This contribution submits that there are many similarities between the two, but that the rules are not exactly the same. South African courts should be aware of these differences and rather apply the rules of public international law, including those contained in the Vienna Convention on the Law of Treaties, when they interpret double taxation treaties. Gordon J specifically identifies the category of the Vienna Convention on the Law of Treaties in which he places the Commentary on the OECD Model Tax Convention, to rely on it for his interpretation of the relevant double taxation treaty. South African courts may well learn from this approach, to create more certainty in the process of interpreting a double taxation treaty.

This thesis consists of two separate, but related studies on the development of accounting in Africa in the era of International Financial Reporting Standards. The first part of this thesis presents the first empirical test of a hypothetical classification of financial reporting in Africa based on de facto or actual practices as opposed to de jure rules. Three multivariate techniques (principal component analysis, cluster analysis, and multidimensional scaling) were used to analyse the accounting policies of large, listed companies in Africa that are required by law to adopt IFRS. It was found that there is a dichotomy between the IFRS policy choices of companies in Francophone and Lusophone countries, on the one hand, and those in common law jurisdictions, on the other, thus confirming the two-group classification schemes proposed by Elad (2015) and Nobes (1983). The results of this study extend previous research by demonstrating that international differences in financial reporting in Africa have survived in the era of IFRS and that pre-IFRS regulations enshrined in national and regional charts of account appear to have influenced IFRS policy choice. Furthermore, companies in common law countries tend to provide more extensive disclosures in their IFRS financial statements than their counterparts in code law countries. These findings have important policy implications, particularly in the context of recent recommendations of the World Bank, the International Monetary Fund, and the Pan-African Federation of Accountants that large entities in Africa adopt IFRS. The systematic differences in the choice of IFRS options between companies in civil law and common law jurisdictions suggest that it would be difficult to achieve internationalcomparability and consistency in financial reporting. The second part of the study uses semi structured telephone interviews to undertake interpretive accounting research (Baker and Bettner, 1997, p.293) to assess the perception of accounting professionals in relation to IFRS adoption and its use in Ghana. It concludes that despite the problems associated with its adoption and implementation, overall, International Financial Reporting Standards are viewed as necessary for the financial reporting needs of the country.

Amid COVID-19 pandemic lockdown in the year 2020, Economic Community of West African States hereafter called ECOWAS quietly celebrated its forty-five years of establishment. Widely, much was not heard of or written about the community probably due to the challenges of the pandemic. However, the address of the President of ECOWAS Commission to the staff of ECOWAS institutions on the occasion of the commemoration of the community’s forty-fifth anniversary serves as a reminder that attention should also be given to this regional giant against all odds. Thus, the purpose of this paper is to celebrate ECOWAS at forty-five and then examine whether it is a fool at forty that is proverbially referred to as a fool forever. The paper, through thorough examination of the data collected from secondary sources finds that ECOWAS is still far from achieving its main mandate, its achievements as orchestrated by His Excellency, the President notwithstanding. The paper argues that the postponement of the establishment of ECO, a common currency for the region for the sixth time from 2020 to yet to be announced date, lack of realistic free movement of persons and goods among members and selfish interests of its leaders in the guise of national interest are enough reasons to conceive ECOWAS as a fool at forty-five. With the aid of constructivist theory,it concludes that even if ECOWAS at forty-five is still fooling around it has the chances of not being a fool forever if the leaders should turn a new leaf and pursue the attainment of the community’s mandate before its fiftieth anniversary.

Consumer protection laws have not evolved on par with the development of electronic media. As a result, consumer protection laws do not address all major areas of legal concern that affect the electronic commerce (e-commerce) consumer. Furthermore, differing laws in the area of consumer protection make harmonised consumer protection neigh on impossible. Currently, there is a plethora of laws on the protection of consumers but most of these laws are within the sphere of conventional consumer protection legislation which does not adequately address the legal challenges posed by the proliferation of electronic transactions (e-transactions). Specific e-transaction laws are now to be found in certain international and regional documents emanating from organisations including: the United Nations (UN); the Council of Europe; the Organisation for Economic Cooperation and Development (OECD); the African Union (AU); the Economic Community of West African States (ECOWAS); the Southern African Development Community (SADC); the Common Market for Eastern and Southern Africa (COMESA); and the East African Community (ECA). These legal instruments have already been implemented in certain states’ national legislation, while other countries have yet to accede to them. Despite these legal instruments, e-commerce consumers are faced with inadequate or obsolete legislative provisions and are yet to enjoy full protection equivalent to that accorded to the “traditional” consumer. Furthermore, given the trans-national nature of the internet, divergent laws will inevitably prove to provide inadequate protection to e-commerce consumers. In this research, international and regional legislative instruments, as well as the national laws of selected countries such as the United States (US), the United Kingdom (UK), the Republic of South Africa (South Africa), the Federal Republic of Nigeria (Nigeria), and the Commonwealth of Australia (Australia) are examined. The strengths and gaps in each of these instruments and laws are identified with the aim of harmonising the principles they espouse in a single, cogent, and comprehensive body of rules which could take the form of an international convention. An international convention should be based on national and international best practices. The national adoption of the minimum standards espoused in the proposed Convention will ultimately, promote harmonisation.

ENGLISH ABSTRACT: How do members hold their own trade unions accountable in South Africa? What legal mechanisms, if any, are available to assist union members in receiving adequate representation and service from their unions? This study approaches these questions through a comparative and historical examination of the regulation of the union member relationship in the UK, USA and the RSA. The study commences with an examination of what unions do, how they function and what benefits potentially accrue to their members, while the role played by unions in utilising collectivisation to offset the bargaining power of employers is demonstrated. The need for organised labour, by society in general, but South Africa specifically, is brought into sharp relief. This is, however, offset by the examination of 25 constitutions of broadly representative South African trade unions, where the lack of proper regulation of the union-member relationship is brought to the fore. This already means the common law and current judicial approach that is so reliant on the interpretation and implementation of trade union constitutions to address union-member disputes is unsuitable, certainly in those instances where the constitution is either silent or ambiguous, or where the nature of the relationship between the union and its member(s) mimics that of the constantly present imbalance of power and influence between employers and employees. The comparative examination of union accountability is undertaken against the backdrop of the common historical phases of proscription, acknowledgement/assimilation, and readjustment of and towards trade unions. The historical and contemporary regulation of the union-member relationship in South Africa is examined in the same way. The study demonstrates that purely statutory regulation of the union member relationship by means of punitive provisions and inter-union self-regulation measures are not feasible. A series of possible legal mechanisms – that draw from the comparative examination – are suggested, even though they are to be utilised in a collective (rather than individual) way. Even these suggestions, however, are subject to the challenges of cost-effectiveness, accessibility and efficiency of enforcement by (the) average union member(s). Three proposals are made to foster improved union member accountability: Firstly, the use of section 103A of the LRA by the Registrar so as to place unions that meet the appropriate criteria under administration, in order to restore accountable functioning and elevate the interests of the member(s) over that of the officials of the union; secondly, the introduction of a duty of fair representation – to be administered by the CCMA – to hold both union and employer accountable to members, and; thirdly, in conjunction with the first two proposals, the use of a package of further measures (and an associated information campaign), such as bolstering the financial/institutional capacity of the Registrar’s office, compelling the inclusion of accountability clauses within union constitutions, and minor amendments to the LRA with regard to balloting, reporting/transparency (and the enforcement thereof). If implemented, the expected outcomes are improved labour relations, increased accountability and professionalisation of trade union administration, a realignment of the employer-union divide and elevating the awareness of union member rights and concomitant obligations on trade unions – all of which are of critical importance in South Africa’s post-Marikana society.

ENGLISH ABSTRACT: The maxim, that copyright law does not protect ideas, is frequently challenged when the established principles are tested against new forms of expression or exploitation of a work. The evolution of computer programs, its unique characteristics and the increasing value of software as a commodity have resulted in a strained relationship between copyright law and the public interest regarding access to the underlying ideas in a computer program. This work examines the misalliance between copyright principles and the technical nature of computer programming, with a specific focus on the act of decompiling an existing program where it is undertaken in order to understand the underlying ideas and techniques. The impetus for this analysis is the sui generis classification of computer programs in South African copyright law and the potential this offers for development of domestic law in pursuit of national policy goals. This work conducts a normative analysis of the law and the technical reality of decompilation, from the perspective that copyright law must maintain a clear separation between the idea and the expression. The review of national and foreign copyright law is, throughout, conducted with a perspective on the effect of protection and a critical examination of the degree to which the law maintains an adequate balance between the private and public interests in the protection of software. In this respect, the current legal position is evaluated and a different, normative and prodevelopmental perspective regarding decompilation is proposed. It is submitted that are balancing of interests is justified and essential in order to establish an appropriate level of fairness and, at the same time, stimulate progress in this industry. It is argued that the act of using computer code to discover its meaning should not amount to infringement in the form of reproduction or adaptation of the work. It is found that the perception of decompilation, as a form of infringement, relies on an analogy to literary work. This view, it is argued, is ill suited to the nature of computer programs, at odds with the sui generis classification in SA copyright law, causes overbroad protection and violates the idea/expression separation. In light of the technical review of decompilation, it is found that the legal basis for prohibiting decompilation as a form of infringement is narrower than commonly assumed and that copyright law principles should be reinterpreted purposefully to permit decompilation. This work advocates that decompilation must be permissible and that an exemption, in SA copyright law, which is limited to decompilation for interoperability alone, is not appropriate in light of the national developmental agenda. Therefore, an alternative exemption is proposed which accommodates the technical reality of decompilation, the public interest in access to ideas and the commercial interests of copyright owners. This approach is supported by an analysis of international copyright law and is based on the inherent flexibilities of the three-step test. The justification for the findings of this work and the proposed departure from foreign precedent is supported by a close examination of the effect of a limited decompilation exception in foreign law and the impact of legislative measures to restrict circumvention of technological protection measures.

La commercialisation de la microfinance a mis au premier plan la performance financière des I MF, les IMF adoptant désormais une logique commerciale de rentabilité en plus de leur logique sociale établie de lutte contre la pauvreté. Cela pose un défi de gestion crucial pour les IMF pour équilibrer l'aspect social et commercial de leur mission. Cette thèse vise à analyser comment les IMF surmontent leurs défis pour atteindre leur double objectif social et commercial. Elle s'appuie sur le concept de bricolage comme perspective théorique et sur une approche méthodologique abductive, exploratoire et qualitative. La thèse vise également à fournir une meilleure compréhension du secteur de la microfinance camerounaise, en termes de son histoire et évolution, et des défis spécifiques au secteur. L'étude identifie diverses pratiques de bricolage que les IMF utilisent pour faire avancer la réalisation de leur double mission. Les résultats suggèrent l'utilisation de ces pratiques de bricolage par les IMF pour mobiliser des ressources, renforcer la légitimité et accroître leur ou/reach, dans un contexte caractérisé par des contraintes de ressources. Ces trois résultats de bricolage se renforcent mutuellement pour faciliter la réalisation du double objectif des IMF. Cette recherche a également mis en évidence les quatre phases d'évolution du secteur de la microfinance camerounaise et les cinq principaux défis auxquels sont confrontées les IMF du secteur. Cette thèse contribue à la littérature sur la microfinance. Elle propose un nouvel regard sur la gestion de la double mission des IMF en montrant comment les IMF mobilisent les stratégies de bricolage pour faire avancer leurs objectifs sociaux et commerciaux. Elle met en lumière le lien entre la littérature sur la microfinance et le bricolage.

This paper’s foundation is the global character of (harmful) tax competition. While this phenomenon’s global existence is widely recognised alongside the…

This article is devoted to the complex analysis of the English legislation of the international commercial arbitration. The author analyzed the commercial disputes and the bodies that proceed these disputes in England as well as main statutes regulating the international commercial arbitrations of England. The international commercial practices of the London International Court of Arbitration are described. Moreover, the author represents the main conclusions formed on the basis of the provisions of the national legislation on commercial arbitration and the regulations of the most well-known international arbitrations in England.

There is substantial scholarship on the limitations that international investment agreements (IIAs) place on States’ authority to regulate in the public interest. An area of fundamental importance that has not received scholarly attention in connection with IIAs is public procurement regulation. Given that public procurement is about the needs of States and their citizens, States would want to retain their authority within municipal public procurement laws to decide with whom to contract to meet those needs, and to pursue socioeconomic and industrial policies through procurement. However, most States are parties to IIAs, which impose obligations on them with respect to the protection of foreign investment. This article explores this seminal issue of whether IIAs stand to limit the authority of States in the implementation of procurement legislation and policies. Based on textual analysis and arbitral case study, it argues that treaty-based standards of investment protection can limit States’ authority on the implementation of methods of procurement (such as national competitive tendering or restricted tendering) and socioeconomic policies in procurement. A question that needs fuller engagement is the extent of conflict between specific IIAs and public procurement laws and policies, either regionally or globally, and how to reconcile conflicting obligations to promote foreign investment and sustainable development. This article provides the foundation for such future research.

This paper examines the ongoing transition to the revised Organisation for the Harmonisation of Business Law in Africa Act on Accounting and Financial Reporting for companies in general and to the International Financial Reporting Standards for listed and group companies with a particular focus on recent institutional developments and corporate concerns. The study used 80 professional accountants, most of whom were members of the Institute of Chartered Accountants of Cameroon and academics. Using the descriptive statistics, the study shows that the transition to the revised OHADA brings about a high level of comparability and transparency of the financial statements, that the International Financial Reporting Standards can be implemented in Cameroon (but not fully), and that the benefit of the transition exceeds the cost.

The dispute board as an alternative dispute resolution mechanism in international construction contracts. The functioning of the dispute board. Issues related to the legal nature and the enforcement of the final determination. Evaluation and familiarity with the mechanism of the dispute board. The Italian case and the distrust towards the development of "private justice systems".

Illegal, unreported and unregulated (IUU) fishing threatens the ability of the aquatic systems to continue providing vital ecosystem services and essential food resources. Most of the existing economic analysis on IUU fishing is conducted from the perspective of IUU fishing vessels rather than that of States. This paper seeks to fill this gap and concludes that trade measures against IUU fishing are cost-effective for the international community, as the IUU fishing has reached such a substantial scale that the total harm or loss caused is estimated to be greater than the total abatement costs required. Meanwhile, from a legal point of view, trade measures against IUU fishing might have more tensions with international trade law than with the international law of the sea. This paper draws on relevant GATT and WTO jurisprudence for guidance to eliminate such tensions. Two other comprehensive solutions to ensure legal compliance of trade measures against IUU fishing include taking such measures on a cooperative basis and making use of the standard-setting process through competent international organizations or conferences such as the FAO.

The research aims to evaluate the adequacy of the insolvency system in Libya to support the national desires and objectives identified in the country to enhance the national economy and to maintain social stability. The thesis considers the need for reform in the current business insolvency and rescue framework taking into account the country’s domestic circumstances. To conduct this evaluation, the research reviews the Libyan insolvency law by examining the theoretical approaches to corporate insolvency laws in order to understand the role that should be played, or the goal that should be reached, by the insolvency law. This is important to identify whether the insolvency and rescue laws should be concerned only about maximising economic interests or should be concerned also about wider societal interests and objectives. The study also undertakes an in depth evaluation of the current business insolvency and rescue framework by using the international benchmarks with particular reference to the UNCITRAL Legislative Guide on Insolvency Law. The thesis establishes that the current insolvency law is insufficient to promote the economic and social goals of the country because of both the deficiency of the legislative framework and inefficient institutions. The investigation reveals also that an application of the social justice theory as traditionally perceived by the Civil Code 1953 (as manifested in property law and contract law) that is primarily designed to achieve social goals (for example, the priority given to the wide-ranging category of privileged creditors over secured creditors) prevents the insolvency law from achieving the sought-after objectives leaving much to be desired for a reform. The research builds on these foundations to identify challenges and impediments to the development of the insolvency and rescue regime of Libya.

This article examines the effectiveness of the framework for the resolution of intra-African cross-border commercial disputes, arising from the projected increase in intra-African trade in goods, services, and investments under the African Continental Free Trade Area. It examines the peculiar nature of intra-African trade and of the participating entities to provide the context to discuss the three major processes adopted in commercial dispute resolution (litigation, mediation, and arbitration) in Africa. It then argues for the promotion of arbitration as the dispute resolution process of choice for such disputes. It reimagined the framework for arbitration at the continental level and made two proposals targeted at the greater efficiency of the process: the designation of Regional Arbitration Centres across the African Union's eight recognized Regional Economic Communities, to administer such references; and the establishment of an African Commercial Court as a one-stop court for the enforcement or annulment of the final award.

Cette thèse propose d’examiner la relation entre la représentation des salariés dans le conseil d’administration et l’engagement RSE de l’entreprise. En particulier, nous étudions comment les investisseurs perçoivent-ils le reporting RSE et laperformance ESG lorsque les salariés sont représentés au sein du conseil d’administration. En utilisant un échantillon de sociétés françaises appartenant à l’indice SBF 120 sur deux périodesdifférentes de 2001 à 2011 et de 2007 à 2017, nos résultats montrent que la présence des administrateurs salariés modère positivement la perception du reporting RSE et négativement la perception de la performance ESG par les investisseurs. Un examin plus détaillé montre que les administrateurs élus par les salariés par leur droit de travail améliorent exclusivement la performance sociale et modèrent négativement la perception des investisseurs vis-à-vis de la performance ESG. Au contraire, les administrateurs élus par les salariés actionnaires renforcent la performance ESG globale ainsi que les performances environnementale et de gouvernance et modèrent positivement la perception de la performance ESG par les investisseurs. Nos résultats mettent en évidence un conflit d’intérêts entre les actionnaires et les administrateurs salariés, notamment avec les représentants des travailleurs. Cette thèse couvre plusieurs disciplines à savoir la comptabilité, la gouvernance d’entreprise et lagestion des ressources humaines. En conséquence, elle intérèsse vivement les législateurs, les investisseurs, les managers et les actionnaires.

Almost 20 years after it adopted the Uniform Act on Arbitration, OHADA revised its Uniform Act on Arbitration and adopted a new Uniform Act on Mediation along with the fresh set of arbitration rules of the Common Court of Justice and Arbitration in Abidjan. These three texts were revised with the assistance of consultants. Among other changes, with the 2018 Uniform Act on Mediation, a solid platform for the use of mediation in the region is now in place. The ability of mediators to carry out their adjudication function with judicial intervention remains a major challenge by parties under the OHADA zones. In this light, the worry which this article seeks to uncover is how the new mediation law is applicable and facilitates the amicable settlement of investment disputes. The article also highlights the legal basis regulating the mediation process as a whole. In attaining these objectives, we employ doctrinal research methodology. The article conclude with vigorous recommendations which if effectively implemented will go a long way to enhance business (investment) security.

The Organization for the Harmonization of Business Law in Africa, OHADA, is a regional entity whose primary objective is to harmonize the Business Law of its members. It has adopted legislative measures and institutional setups to ensure the realization of this object. This paper critically examined the effectiveness of the harmonization tool adopted under OHADA. The paper first gives a brief overview of OHADA setups, then the advantages and shortcomings of the harmonization tool adopted under the OHADA regime and finally concluded that though OHADA is a major step towards the attainment of harmonization of business law and Integration with the view of fostering development and business activities, its harmonization tool is lacking full efficacy towards the attainment of the objectives of the organization due to prevailing limitations and challenges.

International trade law is at a turning point, and the rules as we know them are being broken, rewritten, and reshaped at all levels. At the same time that institutions like the World Trade Organization (WTO) face significant change and a global pandemic challenges the rules of the market, Africa’s new mega-regional trade agreement, the African Continental Free Trade Area (AfCFTA), is emerging as a promising framework for redesigning international economic law. As this Article will argue, the AfCFTA presents a new normative approach to trade and development that is positioned to rewrite the rules in a more inclusive and equitable way and, over time, possibly affect global trade well beyond the African continent.Historically, trade and development have been linked through the framework of Special and Differential Treatment (S&D), which has been a central feature of the WTO and is increasingly shaping regional trade agreements (RTAs) as well. Although the connection between trade and development is more important than ever before, traditional S&D is not positioned to deliver on broader priorities of social and economic development in the current international climate. Fortunately, as this Article will argue, Africa’s approach under the new AfCFTA sets the stage for a needed refresh of S&D. While the AfCFTA incorporates traditional aspects of S&D, it also includes elements of a forward-looking, rules-based approach to further economic and social development, advancing the Sustainable Development Goals (SDGs). This new dimension of S&D holds great potential for promoting integration through trade, representing the needs of a diverse group of countries in the rulemaking process, and reshaping international economic law more broadly to generate positive development outcomes. This Article begins with an assessment of the AfCFTA as an alternative model for trade and development law, evaluating the agreement in the historical and evolving context of S&D and examining its role in shaping a new normative approach to S&D. The AfCFTA, we argue, represents a shift from using S&D as a largely defensive trade approach to one that positions S&D as an affirmative tool for achieving sustainable development through the design and implementation of the rules of trade themselves, while still maintaining flexibility for countries that need it. This new approach may finally replace the old trade paradigm of the ”haves and have nots” with a system in which trade rules can be designed to benefit all. Although the AfCFTA is still at an early stage and will have to overcome formidable challenges, this Article provides an initial assessment of the AfCFTA’s proactive new model in the context of the substantive areas of law identified as next-stage (Phase II) negotiating priorities: intellectual property rights (IPR), investment, and competition law. The Article’s comparative assessment draws upon the laws of African nations, African and international RTAs, and other proposals for international legal reform. Finally, the Article looks to the future, positing that the AfCFTA could be the best legal instrument available to break the stalemate in international rulemaking, design new trade law approaches to pressing issues like global health and food security, and close the loop between trade rules and development goals, including the seventeen SDGs. As the AfCFTA is rolled out and implemented, it could have a profound impact on trade and development law, reshaping the rules for Africa and perhaps the world as well.