Bibliographie sélective OHADA

The internet and digital technologies have irreversibly changed the way we find and consume news. Legacy news organisations, publishers of newspapers, have moved to the internet. In the online news environment, however, they are no longer the exclusive suppliers of news. New digital intermediaries have emerged, search engines and news aggregators in particular. They select and display links and fragments of press publishers’ content as a part of their services, without seeking the news organisations’ prior consent. To shield themselves from exploitation by digital intermediaries, press publishers have begun to seek legal protection, and called for the introduction of a new right under the umbrella of copyright and related rights. Following these calls, the press publishers’ right was introduced into the EU copyright framework by the Directive on Copyright in the Digital Single Market in 2019.

There are many employment positions in the labour market that could be filled by the disabled of whom most, given the right environment, could be productive in the workplace. However, there are employers who still labour under the misconception that Persons with Disabilities (PWDs) are unqualified and unproductive although their participation in the workplace could contribute to the national economy, while restoring their dignity and social integration. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) entered into force on 3 May 2008. The CRPD is the first international legally binding treaty aimed specifically at protecting the rights of PWDs. It is expected of ratifying States Parties to either amend their domestic existing laws or to enact new legislation in order to meet their obligations, as set out in the CRPD. In 2008, South Africa ratified the CRPD and the Optional Protocol, thus committing itself to the provisions relating to, inter alia, workplace integration. Article 26 of the Convention mandates States Parties to take effective and appropriate measures to enable PWDs to attain and maintain maximum independence, physical, mental, social and vocational ability, and to ensure their social inclusion. Article 27 stipulates, inter alia, that States Parties shall safeguard and promote the realisation of the right to work, including those who incur a disability during the course of employment. Legislation should make provision for, inter alia the following: • enable PWDs to have effective access to general technical and vocational guidance programmes; • placement services and continued vocational training; • promote employment opportunities and career advancement; • assistance in sourcing, obtaining, maintaining and returning to work; and • reasonable accommodation in the workplace as well as vocational and professional rehabilitation. Although the Compensation for Occupational Injuries and Diseases Act 130 of 1993 was amended recently to include rehabilitation, re-integration and return to work (RTW) as part of its objectives, it will be argued that South Africa needs to initiate targeted legislation and policies that make disability management functions mandatory. Employers’ obligations need to be set out clearly in the Act, because, as it stands, the following lacunae exist: • There is no obligation to appoint Case Managers; • Dismissal protection is not provided for; • The regulation of negative incentives to assist with RTW compliance is lacking; and • The roles of different stakeholders in the RTW process require clarification. Without South Africa having an appropriate and detailed RTW framework, ill or injured employees stand the risk of losing their jobs and becoming dependent on family members and/or disability grants. Against this background, a comparative analysis of international and regional law and the RTW practices of two foreign jurisdictions were made. This enabled the author to devise recommendations and identify the roles of the government, employers, employees and Case Managers. The primary objective of this thesis is to determine how and to what extent regional and international standards and RTW programmes in other countries could assist in developing and amending the current legislative and policy framework in South Africa to promote the RTW of disabled employees.

Le cotitulaire est celui qui, au même titre qu’un ou plusieurs autres, est investi du même droit. Cette idée de détention de droit ou de titularité de droit est accentuée par la nature incorporelle ou immatérielle de la “chose’’ création intellectuelle. Juridiquement en effet les choses incorporelles et plus encore la création intellectuelle semblent se réduire à chacun des droits portant sur elles pendant que seul le droit de propriété saisit la totalité de la chose, de la chose corporelle. La nature de droit réel sur une “chose’’ immatérielle, droit non absolu, droit différent de la propriété de droit commun sur cette chose a été révélée et retenue. Lorsqu’on analyse alors la cotitularité du droit de propriété intellectuelle, c’est-à-dire lorsqu’on se situe au niveau du droit, de la relation interne entre un sujet et son objet, que ce sujet ne peut exclure deux ou trois autres, et ce, de façon définitive, le problème n’est pas seulement au niveau de l’exclusivité des parts telle que régie par le régime de l’indivision du Code civil. Il se pose une question d’exercice du même droit entre personnes titulaires de ce droit unique et égal entre eux, question non réglée, voire soigneusement éludée par ce texte. Les cotitulaires du droit de propriété intellectuelle font son acquisition ensemble pour pouvoir en bénéficier, pas pour avoir une part de la création intellectuelle, chose immatérielle. La présente thèse démontre l’inapplicabilité du régime de droit commun de l’indivision aux droits de propriété intellectuelle et montre que le contrat est le seul régime d’exercice du droit de propriété intellectuelle en situation de cotitularité de droit.

With the developments happening globally that are aimed at curbing base erosion and profit shifting by multinationals, improving the resolution of transfer pricing disputes has been identified as one of the key issues. This thesis investigates the challenges uniquely faced by African countries that militate against the use of the OECD transfer pricing dispute resolution mechanisms. The thesis starts by reflecting on the effect of transfer pricing manipulation by multinational enterprises in Africa in particular. Transfer pricing manipulation is one of the causes of the so-called tax gap, which is, the gap between anticipated and actual revenue collection. The aggression by revenue authorities against transfer pricing manipulation in order to close this gap has triggered a lot of transfer pricing adjustments. These adjustments have resulted in multiple transfer pricing disputes. In the analysis of the adopted OECD dispute resolution mechanisms, the thesis focuses on the effectiveness of the mutual agreement procedure (MAP), the advance pricing arrangement (APA) and the mandatory binding arbitration (MBA). It identifies the problems that result in the failure of or the delay in the resolution of many transfer pricing disputes by analysing the domestic frameworks that exist in four African countries namely: South Africa, Kenya, Uganda and Ghana. The thesis identifies problems such as the absence of a tax treaty network within the African continent, the use of underdeveloped double tax agreements and the lack of commitment from African countries to subscribe to and ratify multilateral conventions. These problems delay or stifle the resolution of tax treaty disputes. They also cause uncertainty for taxpayers and lead to continued tax avoidance by multinational enterprises that essentially avoid paying tax in African countries where the economic activities of these enterprises take place. The thesis also identifies the importance of other OECD supporting tools such as the exchange of tax information in the resolution of transfer pricing disputes. It focuses on tools such as country by country reports, the master file, the local file and simultaneous tax examination as covered by the Multilateral Convention on Mutual Administrative Assistance in Tax Matters. The thesis contributes to the resolution of the identified problems with transfer pricing dispute resolution in Africa by recommending certain improvements that can be effected. These recommendations entail, regarding the MAP, the expansion of tax treaty networks by African countries and the establishment of a Tax Treaty Dispute Resolution Committee by ATAF. Regarding the APA, it is recommended that African countries should sign the multilateral instrument (MLI) and make use of advance tax rulings (ATRs) as alternatives. With respect to the MBA, this thesis recommends that African countries should use optional arbitration by effectively using article 25(4) of the OECD Model tax convention (MTC). It also recommends that African countries must enhance their tax transparency by ratifying multilateral conventions that seek to address international tax co-operation and to improve compliance with transfer pricing documentation requirements in order to make the resolution of transfer pricing disputes more effective.

This thesis investigates the process of integration in the African Union (AU), and the reasons behind the slow progress of the AU to achieve the goal of deeper economic integration. In the research I explore the role of an AU member state in the process of African integration: Algeria. The research scrutinises the development of Algerian foreign policy towards the AU and highlights any changes in the Algerian FP attitudes and the reasons behind these changes. Similarly, the research unveils the reality of the decision-making process in this country, and the different agents that influence it. To achieve the main goals of the research, different theoretical choices were elaborated. This resulted in researching European integration theories; Neofunctionalism was, then, selected to study the Algerian development in the making of its foreign policy in general and towards the African Union specifically. Some concepts within the Neofunctionalist thinking were used including the principle of the shift of loyalties, the socialisation process, the spillover system, and the role of interest groups in the process of integration. Moreover, the theory of Regionalism was used to examine the process of integration in the AU discovering new reasons that led to the slow development of economic integration in Africa. Consequently, the research highlights the current obstacles and challenges that have hindered the process of economic integration in the AU, including the poverty of most of the AU member states, the limited financial budget of the Union and the instability of the majority of African countries. Furthermore, the research unveiled the lack of political will towards AU economic integration plans. Hence, this contribution extends beyond the traditional models of explanation, and discusses the situation in AU member states (in this case Algeria) and points to other factors as well such as the weakness of the lobbyist activities and business groups in Algeria specifically and Africa more generally. The thesis, then, focusses on Algeria’s supportive and active status in the AU security sector, highlighting how Algeria has been successful in pushing its own security and antiterrorism agenda to the AU level, thereby demonstrating that integration into the AU is possible, if it is backed by influential member states, and wider coalitions can be built to promote integration and cooperation.

The lack of long-term and stable financial support for SMEs is the fundamental reason why enterprises cannot develop for a long time. At present, the situation of financing difficulties for SMEs is becoming more and more serious. Private equity (PE) investment has emerged as an important financing method. Private equity investment, while broadening the financing channels of SME capital markets, brings advanced management experience to enterprises, which helps enterprises to develop rapidly and effectively. According to the statistics of the Zero2IPO Research Center, the active investment institutions in China's equity market have grown from more than 200 in 2000 to more than 14,000 in 2018, with a total asset under management over RMB 9 trillion. Great progress has been realized in the scale and development of the industry. In addition, with the launch of the GEM in 2009, PE investment industry met new opportunities of development and became popular. At present, the development of China's PE investment business is still at an early stage. Neither relevant policies, laws and regulations nor supporting mechanisms are mature enough. Therefore, researches on China's PE investment business needs to be carried out. In this context, more and more scholars are beginning to focus on the field of PE investment. This paper focuses on whether PE investments can fundamentally increase the enterprise value. The basic theory is sorted out to serve as the theoretical basis for this study. Through a systematic analysis, this paper draws out 4paths of PE investment affecting enterprises, which are the influence on technological innovation, corporate governance activities, dividend distribution decision and earnings management, respectively. And through empirical analysis, it finds the empirical basis of the impact of PE investment on enterprise value, and investigates how PE investments affect enterprise value based on the difference in investment characteristics such as investment duration and whether the investment is joint or not. This paper conducts an empirical test by selecting the listed companies of the Shenzhen Stock Exchange GEM in 2015-2018 as sample. The results show that the investment of PE firm will significantly increase the value of the target enterprise. This paper makes a detailed analysis of sample data. The conclusion of the study is that private equity investment will have a significant impact on the value of target enterprises. Private equity investment plays an important role in the modern governance structure of small and medium-sized enterprises in China This paper enriches the existing literature and provides constructive suggestions for the health development of the PE investment market. 中小企业缺乏长期稳定的资金来源是企业无法长久发展的根本性原因，目前 中小企业融资难的形势越来越严峻，私募股权投资作为一种重要的融资手段应运 而生。私募股权投资在拓宽中小企业资本市场融资渠道的同时，给企业带来先进的 管理经验，有助于企业快速并有效的发展。据清科研究中心的统计数据显示，中国 股权市场活跃的投资机构已由 2000 年的 200 多家发展到 2018 年的 1.4 万多家，管 理资本量超过 9 万亿人民币，行业规模和发展实现了质的飞跃。此外，随着 2009 年创业板的推出，私募股权投资行业的发展业迎来了新的希望和契机，私募股权投 资业务开始盛行。目前，我国私募股权投资业务的发展还处于早期阶段，无论是从 政策还是法律法规再到配套机制，都还不够健全。因此，对我国私募股权投资业务 的研究亟需开展，在此背景下，越来越多的学者开始关注私募股权投资这一领域。 本文研究的重点是私募股权投资是否能够根本上提升企业价值。本文首先对 基础理论进行了梳理，以此作为研究的理论依据，而后论述了私募股权投资对被投 资企业价值影响的理论分析，。本文通过系统的理论分析得出了私募股权投资影响 企业的路径，并通过实证分析，得到私募股权投资对企业价值的影响的实证依据， 并且从投资期限和是否联合投资等投资特征的差异性，深入研究私募股权投资对 企业价值的影响方式。本文通过选取深圳证券交易所创业板 2015-2018 年的上市企 业作为样本，进行了实证检验，并得出以下研究结论:私募股权投资的参与会显著 提升目标企业的价值，同时，私募股权投资的期限越长、联合投资机构的数量越多， 目标企业的价值也会越高。 本文基于理论又结合实际，对样本数据进行了分析，研究的结论是私募股权投 资会对被投资企业的价值产生显著影响。私募股权投资对于我国中小企业的现代 化治理结构起到了完善作用。本文的研究结果丰富了现有文献，对私募股权投资市 场健康发展提出了建设性的建议。

My dissertation investigates two streams of managerial accounting literature; specifically, corporate social responsibility (CSR) and executive personality. Paper 1 focuses on whether companies strategically engage in CSR practices to retain employees. Using a difference-in-differences design, I find that an increase in the enforcement of non compete agreements (which enhances a firm’s ability to retain employees) deteriorates CSR performance. Paper 2 extends prior literature and links managerial risk tolerance and firms’ CSR performance. The empirical result of Paper 2 shows that pilot CEOs are less likely to exhibit better CSR performance. Paper 3 examines the spillover effect of managerial risk tolerance along the supply chain. Specifically, I follow Paper 2 to use the pilot status of CEOs to proxy for the customers’ risk tolerance level. Overall, the results support a negative association between customer risk tolerance and supplier investment efficiency, and customer companies ran by pilot CEOs leads to supplier investment inefficiency. Each chapter is designed to be self-contained and provides a more detailed discussion of the research question and contribution.

International commercial arbitration has established itself as the main dispute resolution mechanism for international commercial disputes. This increased visibility has drawn attention to arbitrators’ public role, leading to a well-established general perception that arbitrators are bound to special obligations, such as the duty to be independent and impartial or the obligation to assure that arbitral proceedings are not abused to achieve nefarious goals. Despite this general acknowledgement, little attention has been paid to the mechanisms that ensure that arbitrators adhere to these obligations. In particular, there has been limited analysis of the underlying mechanisms that incentivise the production and enforcement of professional norms in this field. <p></p> This thesis argues that the particulars of the arbitration market largely explains why the evolution of the regulation of international arbitrators has not matched those of other professions. At the same time, it will argue that those same particularities create incentives for several actors, most notably the arbitral community itself, to step in and occupy this regulatory vacuum. In particular, it explores the notion that the market strategies employed by arbitrators, arbitral institutions and other members of the arbitral community have the production of professional norms as a by-product. It further explores how the arbitral market tends to create an environment where compliance with professional norms is rewarded, leading, at the same time, the arbitral community to work as a network that promotes adherence to professional norms through mostly informal sanctions.

The issue of portability of social security benefits is a daunting issue facing migrant workers in both Southern Africa and the world in general. In the Southern African Development Community region migration seems to be driven mainly by the need to attain economic freedom. The fact of the matter is that migrant workers from Lesotho and Swaziland who work and have worked in South Africa do play a major role in boosting these countries’ economies. Another issue that cannot be ignored is the fact that circular migration as a phenomenon is unlikely to come to an end any time soon in this part of the world. This means that social security benefits of migrant workers and its portability should be an issue that is dealt with cautiously and speedily, especially in terms of looking at the millions of unclaimed social security benefits reported each year by social security funds and schemes in South Africa. While examining the extent to which selected SADC member states, namely Lesotho, Swaziland and South Africa, have undertaken to combat this issue, international and regional instruments that have a bearing on social security rights are analysed and the realisation is that in as much as these do provide for social security rights and portability of benefits thereof, a lack of ratification and implementation play a vital role in achieving efficient portability of these rights. Although South Africa, as the largest migrant-receiving country in the SADC region, does provide for the right to social security in its Constitution, the fragmented nature of its social security framework, together with other factors such lack of information, exploitation by employers, distances travelled to lay claims and a non-existent social security adjudication system means that migrant workers are normally left with lack of redress when their contracts of employment reach an end. On the other hand, Swaziland and Lesotho, as migrant-sending countries, do not even have provisions in their constitutions that specifically deal with the right to social security. This means that citizens who work abroad do not have sufficient social security coverage in either country, as well as in South Africa as a host country. Consequently, multilateral and bilateral agreements on social security are pivotal in addressing this issue of unclaimed social security benefits as they go a long way in making sure that migrant workers are provided with adequate social security protection and coverage as a whole. Migrant sending countries also need to undertake unilateral initiatives to guarantee that their citizens are adequately protected in this specific sphere of social security. Examples are further drawn from the best practices of different regions in the world, namely the Southeast Asian Nations Region, Caribbean Community and Common Market and the Southern Common Market. The above-mentioned regions have established multilateral social security agreements that seek social security protection for migrant workers who play an undeniable role in their economies. Bilateral social security agreements between Zambia and Malawi, together with the one between Sweden and Philippines, are taken into consideration as best practices that Lesotho, Swaziland and South Africa may draw examples from when drawing up and concluding their own bilateral social security agreements. The Philippines’ unilateral initiatives are also discussed and hailed as the best practices that migrant-sending countries such as Lesotho and Swaziland may further draw examples from. The Philippines has developed strategies aimed at guaranteeing social protection for its migrant workers abroad and further makes sure that it enters into bilateral agreements with any country that receives services from its citizens. While the need to conclude multilateral and bilateral agreements on social security cannot be denied, there is also a need for migrant-sending countries to come up with unilateral initiatives to lessen the burden on migrant-receiving countries in this social security domain. Sectors such as the mining sector should also have mining-specific agreements that specifically deal with issues related to migrant mine workers. Lack of statistics of migrant workers moving in and out of South Africa has also been labelled as one of the reasons halting access and portability of social security benefits; hence there is a need to develop a data-base aimed at keeping track of all migrant workers, retired and otherwise. Migrant workers who seek redress regarding access of their unclaimed or unpaid social security benefits also have to be provided with comprehensive protection from the courts of law. This therefore means that an adjudication system should be established to deal with social security woes so that those seeking redress have adequate legal support.

Em vista de um contexto crítico ao Direito Internacional Privado, em que se retrata a disciplina como inerte frente aos desafios da globalização, composta por técnicas neutras e indiferentes a ideais de justiça na conjuntura da alocação da governança global, esta tese pretende propor uma reinterpretação das normas de aplicação imediata e da exceção da ordem pública. Almeja-se adaptar estes institutos jurídicos para que comportem uma dimensão social, incorporando fatores axiológicos que permitam a promoção do interesse público e dos direitos humanos. Esta pesquisa é permeada pelas seguintes perguntas: (i) frente a asseverada neutralidade do Direito Internacional Privado, as normas de aplicação imediata e a exceção da ordem pública conseguiriam representar uma quebra desta ausência valorativa, englobando fatores axiológicos? (ii) Se esta ruptura da neutralidade é comprovável, de quais fatores axiológicos se revestem as normas de aplicação imediata e a exceção da ordem pública? (iii) Há possibilidade de serem agregados outros fatores axiológicos aos existentes? (iv) Os fatores axiológicos existentes e os fatores axiológicos agregados seriam capazes de ensejar um fomento do interesse público e dos direitos humanos, conformando uma função social do Direito Internacional Privado? Visando a enfrentar estes questionamentos, empregou-se um método dedutivo de abordagem e foram utilizadas técnicas de pesquisa histórica e comparativa, combinadas à análise de fontes doutrinais, legislação e jurisprudência nacionais e estrangeiras. Incialmente, foram expostas as premissas da pesquisa, estudando-se a construção histórica do paradigma de neutralidade do Direito Internacional Privado e como as normas de aplicação imediata e a exceção da ordem pública podem representar uma ruptura a esta neutralidade. Posteriormente, foram analisados os valores intrínsecos às normas de aplicação imediata e à exceção ordem pública, propondo-se que outros valores sejam a estes agregados, no sentido de se promover o interesse público e os direitos humanos.

Ever since the formation of limited companies became permissible, unsecured creditors have faced a Sisyphean struggle to regularly recover substantial levels of the debts owed to them should corporate creditors enter insolvency. These low recovery rates result in many issues for lenders, including large losses, and in some cases, the insolvency of the lender themselves. The causes of these low return rates are long established and clearly demarcated. They consist of the existence and widespread use of security interests - which remove the majority of the company’s assets upon insolvency occurring - and the statutory priority of distribution, which ensures that parties other than the unsecured creditors have their debts discharged first by the liquidator from the already insufficiently resourced asset pool. English insolvency law has sought to provide some protection to the unsecured creditors through the anti-deprivation and personal liability provisions of the Insolvency Act 1986, which are intended to protect the integrity of the insolvent company’s asset pool. However, as concluded by this thesis, these provisions fail to afford adequate protection as a consequence of their substantive, evidential and remedial limitations, potentially resulting in the distributable assets being misappropriated and out of the reach of unsecured creditors. This thesis therefore analyses the limitations of the existing anti-deprivation and personal liability provisions before concluding as to how and why they fail to adequately protect unsecured creditors. This is done through a doctrinal and theoretical analysis of the provisions, before these conclusions are then tested empirically in two case studies. Given the inadequate protection provided by the Insolvency Act, this thesis then analyses the resulting trust – on which little analysis has been conducted in the context of insolvency – to determine whether it is capable of assisting unsecured creditors to increase their liquidation return rates. This increase is achieved through returning assets beneficially owned by the company to the company, or by preventing parties from becoming unsecured creditors in the first place by removing assets beneficially owned by them from the company. This analysis too will adopt a doctrinal and theoretical methodology, and it is concluded that the resulting trust is able to assist should the requisite factual matrices occur.

Party autonomy is a well-accepted doctrine codified by national, international and supranational organizations that enables parties to be able to not only shape their contract but also their dispute resolution methods. It is believed that parties know their best interests; therefore, it is reasonable to give parties the freedom to decide whom they contract with and on what terms. This maximizes the autonomous freedom of the parties. Therefore, today it is well accepted that parties could waive their right to go to court and choose arbitration instead. However, through history, party autonomy has been seen as a direct threat to sovereign authority. States were always suspicious that arbitration hearings may not be as fair as court hearings since parties have the right to manipulate the arbitration processes. As a direct result of this, states regulated restrictions on party autonomy in international commercial arbitrations. Unfortunately, there is not an accepted definition of these restrictions and their effects on party autonomy have not been established or regulated internationally. Since party autonomy is the backbone of international commercial arbitration, it is important to crystalize the restrictions on party autonomy in procedural issues which directly affects the wellbeing of the arbitration process. Well accepted international regulations such as the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards or UNCITRAL Model Law on International Commercial Arbitration helped to establish a unified system of restrictions on party autonomy but every state and state's courts interpret these restrictions differently. As procedural issues affect the result of international commercial arbitration, restrictions on party autonomy in procedural issues should be examined carefully. It is not an exaggeration that in international commercial arbitration the real and complicated questions most of the time originate from the issues of the boundaries of party autonomy. The tension between the party autonomy and efficiency of an arbitration process affects every decision which can be made by parties, arbitrators or courts. Therefore, this dissertation will investigate these problems in three parts by outlining; the source of party autonomy, the restrictions of party autonomy and the applications of these restrictions to party autonomy in procedural issues in international commercial arbitration. In the first part, the origin of party autonomy doctrine and how the doctrine developed throughout time will be examined. The law of arbitration, lex arbitri will be examined first. There are two accepted theories to determine lex arbitri. According to the territorialism theory, arbitration gets its power from the law of the place where the arbitration takes place. This theory suggests that the place where the arbitration takes place has control power over the procedure of arbitration. On the other hand, delocalization theory suggests that arbitral tribunals are detached from and not under the control of the law of the seat of arbitration. Although it looks like delocalization theory suits the needs of the international trade practice better because it assumes that arbitration is not in control of any law, it is still important to accept the power of the seat of arbitration since arbitration always needs a law to be controlled and get help. This section will also cover how different countries and international regulations determine lex arbitri and how it is determined in Turkish law according to the Turkish International Arbitration Law, Law no.4686. In the second part, restrictive measures of party autonomy will be examined. It will start with why party autonomy in procedural issues is needed to be restricted. Then the source of these restrictions will be mentioned. Afterwards, the common notions of the restrictions will be examined under the concepts of principles and rules. Under principles, the public policy and the common due process issues such as party equality, right to be heard, independence and impartiality of arbitrators will be examined in great detail. Then, mandatory rules which are based on these principles and their effect on party autonomy will be explained. The section will be closed with the examination of the circumstances where these principles and rules contradict each other. The main purpose of the second part is to look for commonly accepted problems of restrictions of party autonomy in procedural issues and how these common problems may evolve to a uniformed standard of the law, namely lex proceduralia. In the third part, the application of restrictions on party autonomy will be examined. The application of restrictions has different effects on parties, arbitrators and courts. Parties' autonomy is restricted while they are preparing their agreement on procedural issues, arbitrators are restricted during the arbitration processes and courts are restricted while helping the arbitration or controlling the awards. Before the arbitration process is initiated, parties' autonomy to shape their agreement looks like it is almost unlimited. However, parties' autonomy is always restricted by their choices. This situation is called the autonomy paradox. Therefore, the question of what parties can decide before the arbitrators join the processes is of the upmost importance. When the process starts and arbitrators start working, they balance the choice of parties and the restrictions of party autonomy. Since it is accepted that arbitrators are bound by the parties' choice and their power comes from the agreement of parties, it should be questioned whether they need to execute every choice of parties even if the choice is against mandatory provisions of lex arbitri or general accepted due process norms. Last but not least, courts' role on determining the party autonomy will be questioned. The power of courts to intervene in the arbitral process determine the practical limits of the autonomy of parties. During the arbitration process, the court may intervene in the process to help or control the arbitration; but real control power comes from when one of the parties asks courts to set aside or enforce the arbitral awards. While courts examine the arbitral awards, they also indirectly decide the limits of party autonomy. Therefore, this section will examine, which restrictions will affect the fate of the arbitral awards and how the courts should evaluate these restrictions. In conclusion, the dissertation will mainly investigate the topic of freedom of parties to determine the procedural issues in international commercial arbitration. It will aim to interpret and make use of the party autonomy doctrine as coherent as it can in the modern age. By illustrating the definition and limitations of the party autonomy in the procedural issues in international commercial arbitration, the dissertation will try to find a common international ground. This common ground may help to keep arbitration processes efficient while it provides fair hearings.

Mobile money services have considerable potential in modern economies. They have the potential to increase financial inclusion for poor people and people excluded from formal financial services. This is because mobile money services can be accessed simply using a mobile cellular phone and the majority of people nowadays own mobile phones, including people living in the rural areas. Mobile money can therefore solve the problem of financial exclusion because even the people who live in the rural areas without access to formal financial services can now access financial services thorough mobile money services. Financial inclusion, on the other hand, is simply defined as a situation where every member of the society has access to and is able to use financial services offered by formal financial services institutions, such as banks and insurance companies. Financial inclusion has many benefits, the main benefit being the stimulation of the economy of a country. For mobile money services to operate smoothly and financial inclusion to be achieved, there must be enabling regulation. Regulation must not be so strict as to prevent mobile money service providers from operating. Regulation must allow for innovation and at the same time maintain financial integrity and stability by ensuring that financial crimes, such as money laundering, do not affect mobile money services. Although mobile money services can increase financial inclusion, regulators must be vigilant to ensure that they stop criminals from using mobile money services to commit money laundering offences. This research focuses mainly on mobile money services in the Kingdom of Lesotho. The aim is to find out how regulation can be improved to ensure that mobile money services can help to increase financial inclusion. The aim is also to find out how regulation can help to ensure that mobile money services operate smoothly, and that the crime of money laundering is prevented from affecting mobile money services. To achieve this aim, the research is divided into different chapters and in each chapter the aim is to find ways in which the main aim can be achieved. In the research, mobile money and financial inclusion will be defined and their importance in modern economies will be demonstrated in greater detail. Furthermore, the issues of money laundering will be discussed. The threat of the crime of money laundering will be highlighted. An analysis of the legal regulatory framework of mobile money services and money laundering in Lesotho will be undertaken to determine the extent to which these regulatory frameworks can help realise financial inclusion and promote mobile money services in Lesotho. The same discussion is made in respect of other African countries. The legal regulatory framework of Lesotho will be compared to the framework of other African countries to ascertain how mobile money services and money laundering and financial inclusion issues are regulated in those countries. The countries discussed in this research are South Africa, Malawi, Kenya, Nigeria, Uganda, Tanzania, and Ghana. Based on these discussions, some shortcomings in the legal regulatory framework of mobile money services and money laundering in Lesotho will be identified and the conclusion will be drawn that the two frameworks have to be revisited to ensure that mobile money services will operate smoothly in the Kingdom of Lesotho. Furthermore, recommendations will be made to address the legal shortcomings identified in the framework.

Bu doktora tezi, anonim ortaklıklar hukukunda esas sözleşme özgürlüğü ve bunun sınırlarının çeşitli açılardan incelenmesini konu almaktadır. Üç bölümden oluşan tezin ilk bölümü konunun kuramsal çerçevesini çizmeyi hedeflerken, ikinci ve üçüncü bölümler ise mevcut sorunlar karşısında dogmatik hukuk bakımından çözümler geliştirmeyi amaçlamaktadır. Bu kapsamda öncelikle özel hukukta ve ortaklıklar hukukunda sözleşme özgürlüğünün kavramsal, teorik, tarihsel, anayasal, ekonomik ve ahlaki zemini ortaya koyulmuştur. İkinci bölümde sözleşme özgürlüğünün anonim ortaklıklar hukukundaki görünümü ele alınmış ve bunu hayata geçiren en önemli işlem olan esas sözleşme çeşitli açılardan irdelenmiştir. Son bölümde ise esas sözleşme özgürlüğünün genel hükümler ve anonim ortaklıklar hukuku çerçevesindeki sınırları incelenmiştir. Bu bağlamda TK m. 340 hükmünde düzenlenen emredici hükümler ilkesine özel bir önem atfedilmiştir. Çalışmada disiplinler arası yöntemin esas alınması doğrultusunda ortaklık teorilerine ve hukukun ekonomik analizine başvurulmuştur. Anılan yöntemlerin katkısı hem pozitif hukuk hem de hukuk politikası açısından ortaya koyulmuştur. Ayrıca incelemede karşılaştırmalı hukuka ve tarihsel araştırmaya geniş yer ayrılmıştır. This doctoral thesis analyzes contractual freedom in articles of association and its limits in joint stock companies from various aspects. The thesis consists of three parts. While the first part aims to set the theoretical framework of the problem, the second and third parts intend to find solutions vis-à-vis existing problems in terms of positive law. Within this scope conceptual, theoretical, constitutional, economic and ethical aspects of contractual freedom in private law and corporate law are primarily examined. The second part deals with contractual freedom in corporate law and examines articles of association from various perspectives as it is the most important legal act that brings contractual freedom into being. The last part analyzes the limits of contractual freedom in articles of association pursuant to general provisions of civil law and joint stock company law. In this regard, the principle of mandatory norms stipulated in Turkish Commercial Code numbered 6102 Article 340 is attached a particular importance. Theories of the corporation and economic analysis of law are applied in accordance with the interdisciplinary methodological view adopted in this study. Contribution of the mentioned methods are set forth in terms of both positive law and legal policy. Moreover, comparative legal analysis and historical analysis are used extensively.

Maritime transport is essential to the world’s economy and maritime arbitration plays a crucial role in maritime dispute resolution. Nowadays, many coastal jurisdictions have set up their own maritime arbitration institutions such as those in the US, the UK, Germany, Australia, China, Japan, Hong Kong, and Singapore. Building a national world-advanced maritime arbitration system as soon as possible to suit China’s rapid developments in shipping and international trading does not permit of any delay. How should China improve her laws, rules and institutions, including those for the enforcement of maritime arbitration awards, having regard to leading international maritime arbitration systems? It is posited that selective adaptation from the successful experience of other maritime arbitration systems is the most convenient and effective way to achieve such a goal. This adaptation will follow from a comprehensive and comparative study of the maritime arbitration laws, rules and the maritime arbitration institutions, including the laws relating to the enforcement of maritime arbitration awards, from these main global maritime arbitration centres in order to make China’s maritime arbitration more competitive at the international level. This thesis does not purport to cover every research field relating to maritime arbitration. Instead, as previously stated, it will focus only on the comparative study of some selected key issues of international commercial arbitration among the selected jurisdictions. A comprehensive study of international commercial arbitration or international maritime law is not the subject of this thesis. It should be noted further that this research basically concentrates on the practical problems of maritime arbitration practices, rather than taking an overly theoretical approach. The thesis selects the UK, the US, Singapore and Hong Kong as the target jurisdictions for comparison. Through selective comparative analysis of the key issues of maritime arbitration systems in the selected jurisdictions, which are internationally recognised as significant by many arbitration scholars, this thesis proposes that all these issues could conveniently be categorised into four key criteria; namely, fairness, confidentiality, efficiency and enforceability. It follows that the adaptations of the Chinese maritime arbitration system should mainly focus on these four criteria, as these are the most critical factors for the development of Chinese maritime arbitration system. Moreover, these four criteria should also have significance for other underdeveloped maritime arbitration systems. Also, based on these four key criteria, the thesis provides some specific suggestions on how the Chinese maritime arbitration system can be adapted to reflect other selected jurisdictions in the respects of some key issues of international commercial arbitration.

"Bu tez çalışması ile işletme yöneticilerinin ticari belge tanzim ve hukuki süreçlerine ilişkin bilgi ve algı düzeyleri ortaya konmaya çalışılmıştır. İşletme yöneticileri içinde faaliyet gösterdikleri ülkenin hukuki kurallarına göre iş piyasası ve iş hayatında faaliyet gösterirler. Ve bu kurallar ticari hayat içinde onlar için en önemli bağlayıcı normlardır. Bu çalışma ilgi ticaret hukukunun iş hayatında en önemli faaliyet ve uygulama alanı bulan ticari belge tanzimi ve hukuki süreçlerinin yöneticiler tarafından ne seviyede algılandığının ortaya konması amaçlanmıştır. Tez çalışma dört bölümden oluşturulmuştur. İlk bölümümüz giriş bölümüdür. İkinci bölümde yönetim konuları, ticari belgeye ilişkin hukuki argümanlara yer verilmiştir. Üçüncü bölüm uygulama bölümüdür. Dördüncü bölümde ise sonuç ve yorumlara yer verilmiştir. With this thesis, the level of knowledge and perception of business executives regarding the issuance and legal processes of commercial documents has been tried to be revealed. Business executives operate in the labor market and business life according to the legal rules of the country in which they operate. And these rules are the most important binding norms for them in commercial life. With this study, it is aimed to reveal the level of perception of commercial document arrangement and legal processes, which find the most important field of activity and application in business life, by managers. The study is composed of four parts. Our first part is the introduction. In the second part, administrative issues and legal arguments related to the commercial document are included. The third part is the implementation part. In the fourth section, results and comments are given."

This dissertation examines a multiplicity of factors that influence at the microeconomic level the level of Foreign Direct Investment (FDI). The main objective of the dissertation is to empirically explore and validate the effect of a select set of individual-level perceptual factors on FDI decisions. Given the paucity of research on the topic in comparison to macroeconomic studies of investment inflows between regions and countries, we conduct the study as a mixed-method study. The study consists of three interconnected empirical studies. The first seeks to identify the presence of factors that shape an individual’s decisions on FDI inflows. The two following ones seek to validate the effects of these factors on the individual decision maker's propensity to invest in a specific country. The first study belongs to a qualitative strand and answers the following research question: What are the investor’s critical perceptual factors and experiences that influence their FDI decisions? The study participants consisted of 30 foreign investors, the government’s Ministries, Departments, and Agencies (MDAs), and the Nigerian investors in the diaspora. The paper finds that on the supply side, several key FDI perception factors influence decision-making. On the demand side, there are four attractors and four repellents that influence potential investors' decisions. In the quantitative strand of the study, we offer the following questions: (1) To what extent do investment decision perception impact foreign direct investment (FDI) inflows? And (2) To what extent do the investors from Europe and North America and investors from Asia and Africa (the West and the East) influence what factors matter in foreign direct investment (FDI) decisions? The samples consist of 269 individuals from the private sector, both in Nigeria and in the diaspora that participated in the survey. I use structural equation modeling to find that Return on Investment (ROI), Security/Personal Safety, and Investment Facilitation Services have a significant direct effect on the FDI decisions. A post hoc exploratory analysis indicates positive relationships between Ease of Doing Business and Investment Promotion and FDI are significant for investors from the investors from Europe and North America as well as the negative impact of Corruption. In contrast, the positive relationship between Return-On-Investment and FDI is more substantial for investors from East Asia and Africa. The next part of the quantitative strand investigates (1) to what extent investment promotion services and Investment Facilitation effects in the receiving country shape positive investment decision outcomes, and (2) to what extent investment perceptions and related decisions vary across industry groups facing different investment horizons and risk levels. The analysis indicates that the Investment Promotion services significantly mediate Corruption Perceptions and Investment Facilitation services. And Investment Facilitation does moderate the effect of Investment Promotion. The exploratory industry-level analysis reveals that the effects of Return On Investment to FDI decisions and Security to FDI decisions significantly differ across Infrastructure-Mining/Services, Services/Agriculture-Manufacturing, and Agriculture-Manufacturing/Infrastructure-Mining industries suggesting significant Industry-level effects. Generally, these findings reveal much more refined and complex dynamics of FDI inflows and how individual investor’s perceptions shape them. Specifically, the results provide deeper insights into the investor’s risk perceptions that arise in a particular country. This depends on holistic perceptions of the country’s economic, political, and social environment, and also the investor’s time horizon and risk preferences signaling significant individual and situational differences in how decision-makers approach FDI.

The emergency arbitrator mechanism makes interim measures possible for parties involved in international commercial arbitration before the constitution of arbitral tribunals under urgent situations. However, with the development of the emergency arbitrator mechanism, the enforceability of interim measures made by an emergency arbitrator is questioned. This uncertainty leads to the hesitation of legal practitioners to apply the emergency arbitrator mechanism in practice. The research conducted two comparisons between different arbitration rules and between arbitration laws in jurisdictions. After discussing the legal status of an emergency arbitrator, the legal criteria to render interim measures, the potential barriers for the enforceability, and possible harmonization, it concluded that the interim measures granted by an emergency arbitrator in international commercial arbitration should be enforced and even harmonized through mandatory and non-mandatory methods.

أصبحت العقود النموذجية أكثر انتشارا في الآونة الأخيرة نظرا لما يتطلبه العصر الحالي من سرعة في المعاملات في أقصر مدة وأقل جهد مع تحقيق الغاية المراد الوصول إليها، وبالرغم أنها ليست عقودا بالمعنى الفني الدقيق بل مجرد شكل نموذجي يكون بحكم طبيعته قابل للتطبيق على علاقات قانونية غير محددة سلفا إلا أنها أصبحت تغطي جل أنواع المعاملات ولا تقتصر على نوع معين ولعل هذا مايميزها عن باقي العقود وجعلها ظاهرة تستحق البحث والدراسة لما تثيره من مشكلات كثيرة في الحياة العملية من حيث تكييفها والرقابة عليها ومدى الزاميتها، وتفسيرها هل يكون بالرجوع إلى البنود المطبوعة أو الى الإرادة الحقيقة للمتعاقدين، وطريقة إدماجها في العقود التي تبرم على منوالها هذا، وتعمل العقود النموذجية على توحيد الأنظمة القانونية التي تحكم العقود وتعتبر وسيلة ناجعة لعلاج جميع المشكلات المتعلقة بالعقود ولا سيما العقود المدنية والتجارية التي تنصب موضوعاتها على أمور فنية أو تقنية تتطور بسرعة كبيرة. باعتبارها أمر يواكب مقتضيات الوقت الحالي، هذا وتعد العقود النموذجية من الوسائل الفعالة في الرفع من سرعة التبادل وتوفير تكاليف التعاقد واختصار الوقت وتجنب الأخطاء الشائعة في العقود لما تتميز به من دقة ووضوح.

و في ھدا الصدد يتوجب على البنوك مرافقة أصحاب المشاريع الاستثمارية الدين استفادوا من قروض ضخمة في شتى مراحل الانجاز والاستغلال تكريسا لحق الرقابة البعدية للبنوك وفعاليتھا،وھذا ما يدخل في مھام عملھا المعتاد وحفاظا لحسن استغلال الأمثل الموارد المالية والتجسيد الفعلي والناجح للمشاريع،ودلك بھدف التقليل من حدة المخاطر التي تعتري البنوك بمناسبة منح القروض والتحكم فيھا أوتلك التي تعتري المشاريع الاستثمارية الھادفة إلى تحقيق التنمية الاقتصادية. وبمعنى أخر فان الاعتماد على الاستثمارات العمومية بفعل تمويل الخزينة العمومية بشكل كبير قد يضعف ويقزم تدخل البنوك في مجال التمويل الاستثماري سواء كان عمومي او أجنبي وھذا ما يجعل عمل البنكي عملا روتينيا لا يتماشى مع متطلبات الساحة الاقتصادية بل يكتفي بتسيير النشاط الكلاسيكي ومنح قروض معينة او محددة السقف المالي و بمخاطر اكبر يصعب التحكم فيھا و دلك على عكس المشاريع العمومية التي يكون فيھا الضامن ھو الدولة والتي تتصف بحدة اقل للمخاطر و ربحية أكثر، -إن قرار منح القرض لاسيما ذات الطابع الاستثماري والدي لديه اثر مباشر على التنمية ھو قرار واعي و مسؤول من جانب البنك لان ھدف ھدا الأخير ھو دعم المشاريع المربحة و الناجحة مھما كانت تكلفة الموارد المالية الممنوحة بحيث أن مسالة تقديم الضمان من طرف صاحب المشروع سواء كان عيني أو شخصي لا تكتسي في حقيقة الأمر أھمية بالغة بقدر ما يريد البنك جني ثمار تمويله لمشروع معين و جني معه الأرباح المادية خلال فترة عمر المشروع و بدرجة مخاطر اقل حدة ودلك استنادا لضوابط معينة و مدروسة مسبقا.