Bibliographie sélective OHADA

The sale in execution of theprimary residence of a consumer has numerous implications. This is especially in light of section 26 of the Constitution of the Republic of South Africa, 1996(‘Constitution’) which gives people the right to adequate housing and to not be arbitrarily evicted from their homes. The enactment of the National Credit Act 34 of 2005(‘NCA’) which aimsto balance the rights of creditors and consumers also impacted the procedure to sell homes in execution. In particular, section 129 of the NCA has pre-enforcement procedures whilst section 130 allows credit agreements to be reinstated if consumers can pay the overdue amounts and other costs in full. In addition, amendments were made tothe Magistrates’Court Rules and the Uniform Rules of Court regarding the sale of consumers’homes.The new requirements introduced by the NCA and procedures introduced by thecourt rules resulted in a great deal of confusion with different courts and judges adopting different approaches. Eventually, several matters which sought to sell consumers’homes in execution were heard in Absa Bank v Mokebe and Related Matters 2018 (6) SA 492 (GJ)(‘Mokebe case’). Van der Linde Jofthe Gauteng Local Division of the High Court, used the power granted in section 14(1)(b) of the Superior Courts Act 10 of 2013 to, in consultation with the Judge President, discontinue the hearing of the matters before him and refer the mattersto the full bench of the Division.In essence, the court held that a uniform approach must be taken by the judges of this Division regarding how they handle foreclosure matters. This thesis investigates the procedure that creditors should follow before they are entitled to sell consumers’ homesin execution. In order to do this, this thesis will examinethe Constitution, NCA, court rules, practice notesand case law. More specifically, the persons that are the focusof the investigation are creditors that have a security right in the form of a mortgage bond over the home,versus consumers who have become overindebted and are no longer able to meet their obligations under the loan agreement that was entered into with the creditors. There cent landmark Mokebe case is examined in depth to determine what the current law is and how it can be improved.Furthermore, the effect of the Mokebe case inother High Court Divisions in the country will be briefly discussed.Lastly, this thesis sets out what consumers can do to prevent their homes being sold on publicauction especially after they default in their payments. This thesis will show that the procedure to sell homes in execution has drastically changed from the pre-constitutional to the current constitutional dispensation. However, it is submitted that the procedures can still be improved upon. This is because the right to adequate housing is an important socio-economic right which has been undervalued and overlooked. The courts have previously allowed execution of homes without considering the circumstances of consumers. The court rules allowed for this as the contractual rights of creditors were held at a higher standard than the socio-economic rights of consumers. It is argued that in the light of the NCA and its aims, there must be an appropriate balancing of the rights of creditors and consumers to create just outcomes. If we are to truly create a society based on ‘human dignity, the achievement of equality and the advancement of human rights and freedoms’ as expressed in the founding values of South Africa’s Constitution and reiterated to a large extent in the NCA; foreclosure laws must also reflect that vision.

The adoption of International financial reporting standards (IFRS) has been presented in several empirical literature as a factor that could improve the quality of financial reports. However, Ghana has not attained the desired levels of financial reporting quality after the adoption of IFRS. Literature reveals that lack of proper enforcement of these high-quality standards may result in limited compliance and will undermine the effectiveness of these standards in terms of attaining high-quality financial reports. This study therefore argues that the relationship between IFRS compliance and reporting quality revolves around some enforcement mechanisms like corporate governance structures. In view of that, by using random effect estimation technique, this study examined the role of corporate governance in the relationship between IFRS compliance and the reporting quality of firms listed on the Ghana Stock Exchange (GSE). The study found that the right corporate governance mechanisms will enhance the positive effect of IFRS compliance on reporting quality. This study further recommends that to gain an appreciable level of public confidence in the annual reports of firms listed on the GSE, the audit committee’s independence and the board’s independence should be strengthened to ensure that management does not only adopt IFRS, but that the standards are actually complied with.

This research paper looks at the South African common law right to lien as it currently stands as the only compensatory remedy for a construction subcontractor in the event of non-payment by the main contractor. The nature and scope of the builder’s lien in this regard will be analysed and its limitations will be highlighted. Accordingly, having critically considered a potential alternative remedy, an unjustified enrichment claim, for the subcontractor, this research paper will illustrate that there is insufficient protection for an unpaid subcontractor in our legal system. Hence, there is a need for our common law builder’s lien to be developed into a statutory builder’s lien. An analysis of foreign jurisdictions legal position, in particular Canadian law, with regard to the construction subcontractor and the right to lien as a remedy has a commendable statutory measure in place to assist a subcontractor by attempting to prevent such a financial predicament and if it nonetheless still occurs, that in the event of non-payment, the subcontractor is adequately protected. This research project proposes that our legal system should take influence from the Canadian legal system and be developed in accordance with our legal framework in order for construction subcontractors to also have sufficient and effective protection under our legal system.

Les « Modes Amiables de Résolution des Conflits » (MARC) représentent toutes les méthodes qui permettent de résoudre un différend sans recours au juge, telles que la médiation, la conciliation, la négociation, la négociation raisonnée, la transaction, la procédure participative, l’avis technique ou juridique amiable, procès simulé, etc. Aujourd’hui, dans la pratique des affaires, tant en France qu’à l’international, les MARC ont le vent en poupe. Issu d’un colloque, cet ouvrage s’adresse aux professionnels du droit, aux chercheurs, aux juristes d’entreprise et aux PME qui sont souvent tentés par le recours aux MARC et souhaitent connaître avec précision le régime et l’effet des accords amiables. L’objectif est d’explorer toutes les questions qui se posent lorsque les parties à un différend économique l'ont résolu au moyen d'un accord amiable, au moment où elles doivent concrètement mettre en œuvre cet accord. En particulier, comment rédiger l'accord et comment garantir son exécution ?

Adoption of International Financial Reporting Standards (IFRS) is supposed to help enhance comparability of financial statement, improve the quality of financial reporting and accounting information of businesses in a country. This is expected to help improve Foreign Direct Investment (FDI) in the adopting countries. This study examined the effect of IFRS adoption on FDI inflows in Africa. Unlike previous studies that sample both adopting and non-adopting countries, this study sampled only Africa countries that have adopted IFRS to determine whether the adoption has improved FDI inflows. To achieve this objective, 20 African countries that have adopted IFRS were sampled covering a period 1980 to 2015. Data was sourced from The World Bank financial and Economic Data. Control variables such as GDP growth, openness of the economy, government debt and population growth were included in the model. The correlation and regression analysis showed that IFRS adoption has a positive and significant influence on FDI inflows in Africa. On the other hand, open economy, government debt and population growth had a positive and significant association with FDI. Overall, the results show that African countries that want to improve FDI inflows must improve the quality of their reporting environment by adopting IFRS.

Please refer to full text to view abstract. <br>LL.M. (Commercial Law)

Les États membres de l’OAPI forment un espace d’harmonisation du droit d’auteur en Afrique. Cette harmonisation est encore inachevée. Les règles conventionnelles relatives au contrat d’édition en témoignent. Aussi, enquêter sur le contrat d’édition dans l’espace OAPI nécessite un examen tant du texte de l’Accord de Bangui que des lois nationales des dix-sept États membres, dont il faut relever quelques différences sans éluder la question d’éventuels conflits de lois.

In international arbitration, arbitrators have procedural powers that allow them to manage and conduct the arbitration proceedings in a fair and efficient manner. These powers are typically set out in the arbitration rules that the parties have agreed to, such as the International Chamber of Commerce (ICC) rules or the United Nations Commission on International Trade Law (UNCITRAL) rules. Arbitrators have the authority to determine the procedure to be followed in the arbitration, including the admissibility, relevance, materiality, and weight of the evidence presented. They can also decide on the language to be used in the arbitration and the location of the hearings. In addition, arbitrators can issue orders and directions as needed to ensure the fair and efficient conduct of the proceedings. This may include ordering the production of documents or witness testimony, or setting time limits for the submission of evidence. The present paper critically examines the lex arbitri, the law that governs the arbitral proceedings, and makes out a case that lex arbitri cannot be challenged in court, as the parties to the arbitration have agreed to resolve their disputes through arbitration rather than through the courts. However, if the tribunal exceeds its powers or acts in a manner that is inconsistent with the lex arbitri, the parties may have grounds to challenge the tribunal's decision on the grounds of lack of jurisdiction or due process. The paper summarises some key judgments in which Courts have upheld or quashed the Tribunals procedural orders. It will be concluded that the procedural powers of arbitrators in international arbitration are real and not perfunctory, though bounded within powers extended by Parties to the arbitral tribunal.