Bibliographie sélective OHADA

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

Abstract : Each member state of the BRICS countries is different about the modalities and limitations of party autonomy in their field of Private International law. The principle of party autonomy allows parties to choose the law applicable to their contract and is meant to respect the choice of contracting parties. Since laws are not absolute, they need to change to the needs of a changing society. This can generate a problem in instances where contracting parties have already chosen a choice of law to govern their contract. The question is then whether the governing law of a contract that was previously chosen by the parties can be changed after that contract has been concluded. The scope of party autonomy extends to permitting parties to modify their chosen law in instances where it is necessary to do so, subject to limitations of a specific legal system and principles of conflict of laws. However, the legal rules of each BRICS countries differ in permitting parties to modify the chosen law. This minor dissertation analyses whether the principle of party autonomy is recognised in each member state of the BRICS countries and whether it extends to allow for modification of choice of law. It further asserts that the BRICS countries could plausibly refer to the rules and recommendations of Article 2(3) of the Hague Principles on Choice of Law in International Commercial Contracts to advance the wide acceptance of modification of choice of law. <br>LL.M. (International Commercial Law)

Le constat de l’obsolescence du droit africain a fait germer l’idée de créer une réglementation moderne et adaptée à l’économie des pays africains dans l’esprit des décideurs africains. L’entreprise s’était révélée nécessaire en raison de l’absence jusque-là de tout effort législatif destiné à épousseter la législation africaine postcoloniale alors qu’ailleurs, en France et dans la plupart des pays occidentaux, le droit des affaires était à mise à jour permanente ; constamment les textes y sont modifiés parce que le monde est soumis à de constants bouleversements. C’est dans ce contexte que l’OHADA a été instituée par le Traité constitutif signé à Port Louis (Ile Maurice) en Avril 1993, entré en vigueur le 18 septembre 1995, il a été révisé à Québec en 2008 . Le droit Ohada est un système juridique et judiciaire qui vise à garantir la sécurité juridique des affaires en adoptant un droit commun des affaires dont l’interprétation est confiée à une seule instance juridictionnelle, la Cour commune de justice et d’arbitrage. Il est composé aujourd’hui de dix-sept (17) Etats d’Afrique subsaharienne ayant en commun un même droit des affaires.

This research traces the developments of the directors’ fiduciary duty to act in the best interests of the company and looks at how these developments affect human rights and interests of stakeholders. The main focus of the study is on the human rights impact of this duty. Initially, this duty was only regulated in terms of common law which proved to be problematic. The problem with common law lies within the definition of ‘best interests of the company’, which not only exclude the interests of other stakeholders but also has the potential to bring about violation of human rights, particularly the rights to equality, dignity and fair labour practice. At common law best interests of the company means interests of the company itself and its shareholders. The common law only protects the company and its shareholders, while excluding the rights and interests of stakeholders. The common law duty to in the best interests of the company is not in line with our contemporary law because it ignores human rights. The neglect of human rights by this duty renders it inconsistent with the values contained in the Constitution. Furthermore, the exclusion of stakeholders’ rights by this duty cannot be justified because stakeholders play an important part in safeguarding the stability and continued existence of the companies. The fiduciary duty to act in company’s best interests is now contained in the Companies Act of 2008. Inclusion of this duty in the Act enables our courts to interpret it in a manner that protects human rights and which takes into account interests of other stakeholders. Section 7 (a) of the Act provides that among other goals of the Act is the promotion of compliance with the Bill of Rights when applying the company law. The impact of section 7 is that it imposes an indirect duty on directors to consider the human rights impact of their decisions. Section 158 of the Act enables the courts to “develop common law as it is necessary to improve the realisation and enjoyment of rights established by the Companies Act of 2008.” Given this recognition of the Bill of Rights by the Companies Act, it’s of vital importance that our courts should interpret and apply the duty to act in the best interests of the company in manner that is consistent with the Constitution. Directors are now obliged to pay attention to the human rights impact of their decisions.

Abstract available in pdf.

This dissertation explores the concepts of non-disclosure and misrepresentation in South African law. The principal focus surrounds the effect non-disclosure as a form of misrepresentation has on the liability of contracting parties. In order to explore this effectively, the study explores the concept of duty of disclosure, and whether such a duty exists in South African law. Instances when a duty to disclose arises are explained, such as positive steps taken to conceal facts, the seller having sole knowledge of the material fact, an omission or misleading language, and a change in circumstances. Similarly to the English law duty of disclosure in relation to information in contracts uberrimae fidei, the similar South African law concept in insurance or agency contracts known as ‘utmost good faith’, is discussed and explored. The study determines whether such a concept should be a mandatory requirement in pre-contractual negotiations. Additionally, this study explores the various avenues of relief that are available to those who have fallen victim to misrepresentation. This results in an analysis of the effectiveness and success of the current traditional methods of claiming and quantifying damages that are adopted by South African legislature and the judiciary. The discussion then explores the proposed alternate method which aims to combine a claim into one of delict and that of contractual liability, or on the other hand institute a claim solely based on contractual liability. Lastly, this study explores the effect the Consumer Protection Act 68 of 2008 has had on contractual agreements, remedies and penalties, and how this ground-breaking legislation has altered the approach previously adopted by the common law and whether it has done enough to protect consumers.