Bibliographie sélective OHADA

This thesis examines the structure of enquiry that arbitral tribunals use to distinguish between regulatory expropriation and legitimate non-compensable regulation in international investment law. The thesis proposes a new taxonomy of the possible structures of enquiry: the enquiry could look exclusively to the effects of the measure on the protected property; exclusively to the characteristics of the impugned measure; or to both the effects on the property and the characteristics of the measure. The application of this taxonomy shows that there is no agreed structure of enquiry in decisions on regulatory expropriation in international investment law. However, various threads of jurisprudence do show some degree of internal consistency. The thesis identifies six approaches in the decisions of arbitral tribunals: two that look exclusively to the effects of the measure; one that looks exclusively to the characteristics of the measure; and three that consider both the effects and the characteristics of the measure. Of the three approaches that consider both the effects and the characteristics of a measure, one is a direct adoption of US 5th Amendment jurisprudence and another is a direct adoption of ECHR Article 1 – Protocol 1 jurisprudence. Chapters 4 and 5 examine the jurisprudence of the US and ECHR in detail. These chapters show that, unlike international investment law, each of these jurisdictions has an established structure of enquiry in cases of regulatory expropriation. All six approaches to regulatory expropriation are sketched as models. These model approaches are applied to the case study of Piero Foresti. The case study demonstrates the most significant conclusion of this thesis: that different structures of enquiry, and different approaches within those structures, necessarily entail different legal outcomes on the same facts.

The construction of copyright law can be causally explained by two possible types of explanation: dialectical explanations and material explanations. I argue that an adequate causal description of the copyright discourses of Western legal systems must incorporate a material explanation in order to account for many of the general and particular characteristics of the evolution of copyright. As a vast variety of contingent and interactive social and technical conditions have caused the evolution of copyright, we should expect a plausible material explanation to be multifaceted and multi-layered. However, in addition to providing a causal sociohistorical description, a good legal explanation should also seek to include a normative account detailing the moral grounds of the law, or lack thereof. Dialectical explanations can be teleological: they can presuppose that the law is directed towards a perfect legal state and that it is essentially guided by a set of moral ideals. Material explanations, on the other hand, are essentially non-normative and do not explicitly address moral questions. But this does not entail the elimination of moral considerations from material explanations. As I aim to show, we should not address the moral and sociohistorical elements of copyright legal discourses independently because they are causally connected: moral justifications have been rhetorically used by social actors to influence lawmaking processes, and conversely, changes in technical conditions have given rise to sociotechnical formations that enable and structure the norms of copyright. Given this, I propose that lawmakers should adjudicate and legislate from a broad and flexible standpoint. They should not attempt to merely apply old principles to new problems, but should comprehend new moral norms introduced by new conditions, and balance them against the older, more established principles enshrined in traditional intellectual property theories.

Tesis dirigida por María Isabel Huertas Martín. Esta investigación, se centra en el estudio de la institucionalidad como tal y a ciertas semejanzas y/o diferencias que existen entre las legislaciones de Iberoamérica en ese tema.