Bibliographie sélective OHADA

The security cession of the rights under life policies marries two separate areas of the law: The Law of cession and the Law of Insurance. This makes for a complex union since varying common law and statutory principles find application, and in reality trade practices also play a role. In theory a cession in securitatem debiti may take one of two possible constructions, namely a pledge or a fiduciary security cession, and each has its own advantages and disadvantages. Disparity arose when judicial preference was given to the pledge construction while academics preferred the other. The problem, however, was larger than a disagreement as to the better construction. The underlying problem was that there was a lack regarding clarity as to the practical operation of security cession of life policies, in addition to the problems surrounding the construction thereof. As a solution to this problem some academics have suggested legislative intervention. The South African Law Reform Commission, nevertheless, advised against it in 1991 and was of the opinion that the issue was one which our courts would eventually solve. In the 22 years since then, our courts have merely confirmed its preference for the pledge construction. The intricacies of security cessions of life policies have seen no further judicial development. It is probable that the courts do not have enough practical information at hand to advance this area of the law. An investigation into the operation of such cessions in practice was thus necessary. The outcome of the practical investigation reveals that legislative intervention is indeed a viable solution especially since the issues are too complex for the courts to solve. As part of this work, legislation has been drafted and it is recommended that this is inserted into the Security by Means of Movable Property Act .

Le 10 décembre 2010, l’Organisation pour l’harmonisation en Afrique du droit des affaires (Ohada) a adopté un nouvel acte uniforme relatif au droit des coopératives. Au cours des travaux préparatoires, il avait été convenu de définir des règles particulières applicables aux coopératives financières (ou coopératives d’épargne et de crédit, Coopec), dont la désorganisation aurait été à l’origine de la réglementation même des coopératives. Curieusement, elles ont progressivement été extraites du texte et ne figurent pas dans la version finale de l’acte uniforme. L’objectif de cet article est de porter une analyse critique sur cette éviction par le législateur Ohada tant du point de vue de la place de ces organisations dans la société que sous l’angle de l’appréciation du procédé d’uniformisation du droit par l’organisation, qui se trouve ici réduit.

The Basel Committee on Banking Supervision has defined operational risk, legal risk and compliance risk. However, the definitions might not be adequate for countries with a hybrid legal system, such as South Africa. This study aims to provide a practical solution to the problems faced by countries with a hybrid legal system wishing to comply with the Basel Committee’s standards. It is argued that compliance, compliance risk and regulatory risk should all be viewed as constituent components of legal risk, and in turn necessarily also of operational risk in a hybrid legal system. Legal risk is a wide concept which includes all aspects of a legal system, while compliance risk is a narrower concept which only includes the codified aspects of a legal system. Legal risk therefore includes compliance risk. However, the opposite is not true as compliance risk does not include legal risk, and the two concepts are decidedly shown not to be synonymous in a mixed legal system.

The role of the Court of Justice of the European Union in the process of direct tax integration in the European Union (EU) has been widely discussed in the academic literature, while another important actor, the European Commission, has attracted much less attention. The Commission’s input is commonly perceived to be limited to the right of legislative initiative. This study questions such an oversimplified interpretation and draws a more nuanced picture of EU tax harmonisation by integrating an analysis of the complex regulatory approaches adopted by the Commission for the establishment and smooth functioning of the Internal Market. It is argued that the past decade brought a notable change in the Court-dominated pattern of direct tax integration. This change is apparent first in the evolution of enforcement strategies under Articles 258 and 260 TFEU; and second, in the increased reliance upon non-binding regulatory measures. Both developments have strengthened the role of the Commission, supplying it with more possibilities for influencing national direct tax systems, despite the reluctance of Member States to agree upon legislative harmonisation. Against this background, the procedural and substantive problems associated with these instruments require closer examination. The normative scope of this research covers the key procedural problems related to the infringement procedure and non-binding regulatory measures. The empirical component explores the Commission’s enforcement and coordination practices, drawing particular attention to two case studies: the tax treatment of losses in cross-border situations and exit taxation. Following the analysis of enforcement and coordination in the field of direct taxation, the study argues the need and proposes potential solutions for (i) the developing of a more comprehensive procedural framework for the infringement procedure and non-binding regulatory acts; (ii) the strengthening of accountability mechanisms; and (iii) the enhancing of the effectiveness of their application.

First paragraph: This article considers the issue of an oral arbitration agreement in relation to the New York Convention. As Townsend once said "[a]rbitration offers a means to an end, and the end is to the resolution of disputes." This end would be extremely difficult to achieve without the approval of national courts. Fortunately, with 146 signatory countries signed on the New York Convention on the Recognition and Enforcement of Arbitral Awards 1958 (The New York Convention), the success of this Convention has attracted businessmen into using arbitration to resolve their disputes. Nevertheless, a voluntary arbitration cannot be commenced without a valid arbitration agreement. Setting out to achieve harmonisation in the enforcement of arbitration agreements, art.II of the New York Convention provides the written requirements to be followed by all 146 signatory countries. Accordingly, written requirements for arbitration are imposed upon all signatory countries and they are obliged under the convention to recognise all arbitration agreements which are made in writing.

The objectives of this research paper are: to examine the status of collective agreements under the common law; highlight impacts of statutory intervention on common law perception of collective agreements, and discuss how the National industrial Court (NIC) and the Constitution of the Federal Republic of Nigeria 1999 (as altered) have broadened the horizon of enforceability of collective agreements in Nigeria. Reliance is placed principally on statutes, judicial decisions, textbooks written by learned authors as well as international best standard and practices championed by the International Labour Organization (ILO) and practices in some foreign jurisdictions. The findings of the research were that under the common law, collective agreements are ordinarily not binding, they are considered as a ‘gentleman's agreement‘, a product of a trade unionist's pressure, binding only in honour or on the goodwill of the parties thereto, unless and until it is incorporated expressly or impliedly into the contract of employment. However, statutory intervention has slightly altered the common law notion of collective agreements, e.g. where the Minister of Labour and Productivity is empowered to declare, by order, that part or the whole of an agreement deposited in his office is binding on the parties. Furthermore, with the enactment of the NIC Act and the listing of the NIC in the 1999 Constitution as a superior court of record (following the alteration of the Constitution, necessitated by the N.U.E.E. V BPE case), the Court now has exclusive jurisdiction to adjudicate on a wide range of labour matters, industrial relations and application of international best practices such as the standard and principles of the International Labour Organization (ILO), and practices in foreign jurisdictions. It has been argued that the enforceability of collective agreements is in tandem with international best practices, which the NIC can readily give effect to, if it is pleaded and established/ proved as a fact. This has invariability expanded the frontiers of enforceability of such agreements. Therefore, the common law position on the status of collective agreements has been rendered otiose and obsolete, giving way to the sparkling provisions of enforceability guaranteed by the NIC Act and the Constitution respectively. Notwithstanding, it is highly recommended that parties to a collective agreement should expressly state their intention whether or not to be bound; the duration of the agreement should be stated and whether, and when, it should, be reviewed; experts and other stakeholders should be properly consulted before an agreement is entered into; an arbitration clause may be included in case a party breaches its own part of the agreement. Industrial democracy ought to be promoted in all sectors. Strikes and lock outs should be used only as a last resort for enforcing compliance with a collective agreement, because these industrial actions cause devastating effects on the economy and on the lives of the citizenry generally.