Bibliographie sélective OHADA

Cette étude entend contribuer au développement économique des États d’Afrique subsaharienne francophone, notamment ceux membres de l’Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA). En effet, les États qui constituent l’espace communautaire avaient déjà chacun dans leur sein des dispositions chargées de régir les activités économiques. Cependant, avec le temps, la disparité des normes régissant ces activités est apparue comme un frein à l’émergence économique de ces États. C’est dans ce cadre qu’ils ont décidé, lors de la signature du 17 octobre 1993 instituant l’OHADA, de mettre en place un droit commun des affaires en mesure de faciliter leur intégration juridique en promouvant le développement économique. Ce droit se veut « harmonisé, moderne et simple ». Si l’organisation a, à ce jour, adopté onze Actes uniformes couvrant plusieurs pans du droit des affaires en vue de réaliser la croissance économique prévue dans le Traité, il est important de souligner que le droit issu de l’OHADA souffre d’une certaine lourdeur liée à son enracinement non africain. Aussi, l’harmonisation du départ considérée comme le fer de lance de l’Organisation s’est matérialisée sur le terrain par une uniformisation du droit des États membres dans une société traversée par le multiculturalisme. Cette situation peut être de nature à contraindre les mœurs par le droit. On peut également ajouter à cela, le fait que le droit issu de l’OHADA est marqué par le sceau du mimétisme juridique en ce qu’il ne prenne pas en compte le secteur informel qui occupe une place très importante dans les relations d’affaires. Enfin, puisque l’enchâssement de la loi dans l’identité culturelle est l’une des conditions déterminantes de son efficacité, les précurseurs du droit OHADA auraient tout à gagner en faisant ressortir le droit OHADA des valeurs des sociétés africaines, sinon, le développement économique tant recherché de l’Afrique n’aura pas lieu. This study aims to contribute to the economic development of French-speaking sub-Saharan African countries, particularly those that are members of the Organization for the Harmonization of Business Law in Africa (OHADA). Indeed, the states that make up the community already had provisions in place to govern economic activities. However, over time, the disparity in the standards governing these activities has emerged as an obstacle to the economic emergence of these states. It was in this context that, when signing the agreement establishing OHADA on October 17, 1993, they decided to put in place a common business law capable of facilitating their legal integration by promoting economic development. This law aims to be “harmonized, modern, and simple.” While the organization has, to date, adopted eleven Uniform Acts covering several areas of business law with a view to achieving the economic growth envisaged in the Treaty, it is important to note that OHADA law suffers from a certain cumbersomeness due to its non- African roots. Thus, the harmonization that was initially considered to be the Organization's spearhead has materialized in practice as a standardization of the laws of member states in a society marked by multiculturalism. This situation may be such as to constrain customs through the law. To this can be added the fact that OHADA law is marked by legal mimicry in that it does not take into account the informal sector, which plays a very important role in business relations. Finally, since the embedding of law in cultural identity is one of the determining conditions for its effectiveness, the precursors of OHADA law would have everything to gain by highlighting the values of African societies in OHADA law; otherwise, the much sought-after economic development of Africa will not take place.

The dissertation examines the role the Southern African Development Community (SADC) and the Economic Community of West African States (ECOWAS) can play in facilitating the political and economic convergence of the African Union (AU) member states. The developmental challenges facing Africa in spite of its wealth of human and natural resources is poignant. The genesis of this problem can be traced to the history of colonialism and the wave of independence in the continent in the late 1950s. Arguments have been put forward to suggest that one of the most viable ways of promoting Africa’s development is by developing and promoting intra-continental trade which can be possible through continental integration. The specific areas reviewed are regional stability and how intra-regional trade and investment is used to promote economic convergence. Africa's need for political and economic integration at a continental level is further sustained by the assumption that neocolonialism can be blamed for the weakness of structures in African states. Some scholars agree on the idea that regionalisation is often seen to offer a possibility to respond to the challenges of globalization. This impact nevertheless is dependent on the relation between globalisation and regional sentiment. Regional integration implies a form of interdependence among nation-states. Such interdependence leads to an establishment of regional integration arrangements between sovereign states within a geographical space. These agreements are shaped formally and there is a commitment to work together in order to realise political and socio-economic benefits. This study maintains that in order to achieve effective integration of the continent, Nigeria and South Africa as case studies, as continental giants have a key role to play to this end and as members of ECOWAS and SADC respectively. It is argued here that both the SADC and ECOWAS as sub-continental blocks have made some notable and commendable progress in developing policies for trade liberalization and economic integration, this, however, is not enough as such policies are also pertinent at a continental level. The study found that SADC and ECOWAS as regional blocks can play a role in aiding the continent to achieve a trade liberalization to achieve continental economic development.

The Abuja Treaty is the blueprint and reference point for continental-level economic integration that was first established in 1991 to see to the creation of an African Economic Community (AEC). The Treaty acknowledges that, the African continent, as a unified unit of countries, wields immense power in the international system, in terms of trade and political influence, and thus it seeks to bring to fruition a highly integrated Africa. This study strives to evaluate the progress made on the implementation of the Treaty Establishing the African Economic Community (AEC) by comparing two regional blocs, the Economic Community of Central African States (ECCAS) and the Economic Community of West African States (ECOWAS), which serve as 2 of 8 building blocks for the realisation of the AEC. Accordingly, the research method used was qualitative and employed a purposive sampling method that draws on the selection of experts in the field of regional integration to shape the outcome of the study. The research findings include the fact that regional integration, on the continent, has progressed positively although it manifests slowly. Additionally, it found that both the ECOWAS and the ECCAS have progressed in terms of the implementation of the stages of the Abuja Treaty, although the former surpasses the latter in this regard. Yet, in spite of their progress, both RECs have faced challenges unique to their regions. ECOWAS for instance faces the problem of inability to completely enforce protocols on free movement of persons. The lack of national implementation of free movement legislation creates avenues for its ineffectiveness. Border checks are commonplace and there is very little standardization of official forms. ECCAS on the other hand faces a problem of overlapping goals and ideas with CEMAC as well as the failure of member states to carry out agreed decisions within their states due to issues such as conflict and instability in the region. On a whole, the study refutes the common idea that the Abuja Treaty has not been implemented at all but only sees its implementation as slow-paced.

The United Nations Commission on International Trade Law (UNCITRAL) is one of the most prominent legal bodies in international commerce. In 1980, the final draft of the United Nations Convention on Contracts for the International Sale of Goods (CISG or the Convention) was approved by the United Nations (UN) General Assembly and came into operation on 1 January 1988. Generally, the diversity of laws is an impediment to international and regional trade. Traders are discouraged from entering into international sales contracts due to the dissimilarities of legal systems. However, the CISG seeks to unify laws relating to the international sale of goods, whilst codifying the existing rules of international trade. The main objectives of the Southern African Development Community (SADC) are to achieve development and economic growth through regional integration.1 The legal integration and unification of sales law has a significant role to play in regional integration. Hence, SADC would do away with difficulties that affect interregional and intra-regional trade by impeding economic growth by making use of widely accepted trade laws, such as the Convention. International trade promotes both economic development and social upliftment. Moreover, democracy, political stability and human rights must be respected to foster sustainable economic growth and development in Southern Africa. 2 With advantages such as accessibility, flexibility, indorsing party autonomy, simplicity, and uniform interpretation, the paper revisits the call for the unification of laws on the sale of goods in SADC and considers the role and significance of the CISG in the region. <br>LL.M. (Commercial Law)

Trade in Services can be described as a transaction between a supplier and a consumer without any physical movement of goods across international borders. This, in itself, presents major economic growth possibilities in both regional and multilateral terms. Regional trade agreements, if drafted to suit the specific region's strengths, can promote Trade in Services and establish regional integration. The fact that Trade in Services and regional integration, throughout the Southern African Development Community (SADC) specifically, is moving forward at such a slow pace is due to the lack of political ambition and policy makers failing to emphasise the establishment of trade specific regulatory coherence among member states. Given policy’s impact on Trade in Services, regional trade agreements must be designed to address new and emerging issues that, not only haven't been taken up in previous trade agreements, but which is also region specific and focused enough to build on new standards found in other new trade agreements that will boost regional integration. SADC countries are still in process of establishing a regional services market and, as it currently stands, major development possibilities still exist. This study compares the Trans-Pacific Partnership (TPP) with SADC’s Protocol on Trade in Services (PTIS), with the goal to determine the principles that are necessary to establish a regional market for the integration of Trade in Services. It was found that the PTIS lacks such principles and that integration of services throughout the SADC region is highly unlikely if set forth in its current direction. The finding was that the establishment of regional integration of Trade in Services throughout SADC will have to start with regulatory coherence among its members.

A intensificação dos processos de integração regional no pós-Guerra Fria e a ascensão de alguns países do Sul global trouxeram para o campo das Relações Internacionais o desafio da atualização do estudo acerca do tema. Partindo do entendimento que estas regiões periféricas possuem uma lógica singular, o presente trabalho busca ver os blocos de integração estabelecidos neste contexto como uma forma de modificar a inserção internacional desfavorável e promover desenvolvimento nos países-membros. Para validar tal análise, a Comunidade para o Desenvolvimento da África Austral (SADC) foi selecionada como estudo de caso, fazendo-se o esforço de correlacionar as políticas do bloco com as transformações econômicas, políticas e sociais que ocorreram nos anos de vigência da integração.

Sanitary and phytosanitary (SPS) measures are measures aimed at the protection of human, animal and plant life and health within specified territories from the risks associated with the introduction and spread of pests and diseases through trade. The World Trade Organisation (WTO) developed an agreement on the application of SPS measures. South Africa is a member of both the WTO and the Southern African Development Community (SADC). In SADC, SPS measures are provided for in the SADC Sanitary and Phytosanitary Annexure to the Protocol on Trade of 1996. International Standard Setting Bodies (ISSBs) facilitate the effective application of the main elements of the relevant SPS agreements, especially harmonization and equivalence by establishing scientifically justified standards on which members may base their SPS measures. The relevant ISSB’s in terms of SPS measures are the OIE, IPPC and Codex Alimentarius. SPS measures have the potential to become or be used as non-tariff barriers to trade (NTBs). The SADC Protocol on Trade 1996 stipulates that policies and measures are to be implemented by members to eliminate existing forms of NTBs. Additionally members may not enforce new NTBs affecting or related to intra-SADC trade. The most relevant South African legislation in the context of SPS measures and this study is as follows: Agricultural Pests Act 36 of 1983, the Agricultural Products Act 119 of 1990; the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947, the Liquor Products Act 60 of 1989, Meat Safety Act 40 of 2000, Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972, Medicines and Related Substances Act 101 of 1965 and National Regulator for Compulsory Specifications Act 5 of 2008. The purpose of this study is to establish to what extent the South African legal framework complies with its obligations in terms of the SADC SPS Annexure to the Protocol on Trade.

O presente trabalho de pesquisa tem por objetivo analisar a origem e os fundamentos da Cooperação Internacional para o Desenvolvimento (CID), com ênfase na Cooperação Sul-Sul (CSS), no sentido de que esta possa atuar como instrumento potencializador do desenvolvimento nacional da República da Guiné-Bissau. Para tanto, o trabalho se estrutura em três capítulos onde se analisa interdisciplinarmente os fundamentos da CID e da CSS. Neste sentido, igualmente analisa o funcionamento da CID na República da Guiné-Bissau e indica uma proposta para o desenvolvimento da República da Guiné-Bissau a partir do Documento Estratégico Nacional para a Redução da Pobreza, do fortalecimento das instituições, das capacidades, da participação do setor privado e das oportunidades de uma parceria estratégica com a República Federativa do Brasil.

The Southern African Development Community (SADC), formerly known as the Southern African Development Coordination Conference (SADCC), is an organization of Southern African states initially formed to reduce economic dependence on South Africa (then an Apartheid state) and to harmonize and coordinate development in the region. The vision and mission of SADC reach well beyond the harmonization of development within the region. It extends to fields that include political stability, peace building, the maintenance of security and justice as well as economic cooperation. The attainment of these goals requires well co-ordinated regional mechanisms; as such over the past decade member states have paid particular attention to the possibility of attaining these goals through regional integration. The transformation from SADCC to SADC indicated that the body would no longer be a loose association (conference) of states but rather a regional body that would have a legally binding effect on its member states. The question is, when the member states assembled in Windhoek, August 1992, did they create an institutional framework, and policies that would have enough legal force to ensure that the institutional agenda of integration is not defeated by member states? The argument of this dissertation is that the Treaty and the policies established afterwards contain principle imperfections that are self defeating for the pursuance of regional integration. The work will begin by discussing regional integration in general, highlighting the historical origins of SADC as well as the role of the African Union. The work will then discuss the dimensions and functioning of SADC, laying the foundation for a proper critique on how the institutional framework contains inherent weaknesses that eventually hinder the progression of SADC. The dissertation ultimately will discuss and benchmark the European Union against SADC, in an attempt to extract important lessons for the progression of SADC.