Bibliographie sélective OHADA

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 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.

Global trade has consistently been on an upward trajectory over the past few decades. In 2001, the International Monetary Fund (IMF) estimated that over the course of the previous twenty (20) years world trade had grown at an average rate of six (6) percent per annum, double as fast as world output.1 A substantial component of global trade consists of cross-border transactions. It was projected that between 2010 and 2022, the number of global transactions would double from three (3) to six (6) trillion per year.2 These volumes of global trade naturally entail an enormous number of cross-border commercial contracts, which often result in disputes over defective goods or services, payment or, delays... <br>LL.M. (International Commercial Law)

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.

The sale in execution of theprimary residence of a consumer has numerous implications. This is especially in light of section 26 of the Constitution of the Republic of South Africa, 1996(‘Constitution’) which gives people the right to adequate housing and to not be arbitrarily evicted from their homes. The enactment of the National Credit Act 34 of 2005(‘NCA’) which aimsto balance the rights of creditors and consumers also impacted the procedure to sell homes in execution. In particular, section 129 of the NCA has pre-enforcement procedures whilst section 130 allows credit agreements to be reinstated if consumers can pay the overdue amounts and other costs in full. In addition, amendments were made tothe Magistrates’Court Rules and the Uniform Rules of Court regarding the sale of consumers’homes.The new requirements introduced by the NCA and procedures introduced by thecourt rules resulted in a great deal of confusion with different courts and judges adopting different approaches. Eventually, several matters which sought to sell consumers’homes in execution were heard in Absa Bank v Mokebe and Related Matters 2018 (6) SA 492 (GJ)(‘Mokebe case’). Van der Linde Jofthe Gauteng Local Division of the High Court, used the power granted in section 14(1)(b) of the Superior Courts Act 10 of 2013 to, in consultation with the Judge President, discontinue the hearing of the matters before him and refer the mattersto the full bench of the Division.In essence, the court held that a uniform approach must be taken by the judges of this Division regarding how they handle foreclosure matters. This thesis investigates the procedure that creditors should follow before they are entitled to sell consumers’ homesin execution. In order to do this, this thesis will examinethe Constitution, NCA, court rules, practice notesand case law. More specifically, the persons that are the focusof the investigation are creditors that have a security right in the form of a mortgage bond over the home,versus consumers who have become overindebted and are no longer able to meet their obligations under the loan agreement that was entered into with the creditors. There cent landmark Mokebe case is examined in depth to determine what the current law is and how it can be improved.Furthermore, the effect of the Mokebe case inother High Court Divisions in the country will be briefly discussed.Lastly, this thesis sets out what consumers can do to prevent their homes being sold on publicauction especially after they default in their payments. This thesis will show that the procedure to sell homes in execution has drastically changed from the pre-constitutional to the current constitutional dispensation. However, it is submitted that the procedures can still be improved upon. This is because the right to adequate housing is an important socio-economic right which has been undervalued and overlooked. The courts have previously allowed execution of homes without considering the circumstances of consumers. The court rules allowed for this as the contractual rights of creditors were held at a higher standard than the socio-economic rights of consumers. It is argued that in the light of the NCA and its aims, there must be an appropriate balancing of the rights of creditors and consumers to create just outcomes. If we are to truly create a society based on ‘human dignity, the achievement of equality and the advancement of human rights and freedoms’ as expressed in the founding values of South Africa’s Constitution and reiterated to a large extent in the NCA; foreclosure laws must also reflect that vision.

The adoption of International financial reporting standards (IFRS) has been presented in several empirical literature as a factor that could improve the quality of financial reports. However, Ghana has not attained the desired levels of financial reporting quality after the adoption of IFRS. Literature reveals that lack of proper enforcement of these high-quality standards may result in limited compliance and will undermine the effectiveness of these standards in terms of attaining high-quality financial reports. This study therefore argues that the relationship between IFRS compliance and reporting quality revolves around some enforcement mechanisms like corporate governance structures. In view of that, by using random effect estimation technique, this study examined the role of corporate governance in the relationship between IFRS compliance and the reporting quality of firms listed on the Ghana Stock Exchange (GSE). The study found that the right corporate governance mechanisms will enhance the positive effect of IFRS compliance on reporting quality. This study further recommends that to gain an appreciable level of public confidence in the annual reports of firms listed on the GSE, the audit committee’s independence and the board’s independence should be strengthened to ensure that management does not only adopt IFRS, but that the standards are actually complied with.

This research paper looks at the South African common law right to lien as it currently stands as the only compensatory remedy for a construction subcontractor in the event of non-payment by the main contractor. The nature and scope of the builder’s lien in this regard will be analysed and its limitations will be highlighted. Accordingly, having critically considered a potential alternative remedy, an unjustified enrichment claim, for the subcontractor, this research paper will illustrate that there is insufficient protection for an unpaid subcontractor in our legal system. Hence, there is a need for our common law builder’s lien to be developed into a statutory builder’s lien. An analysis of foreign jurisdictions legal position, in particular Canadian law, with regard to the construction subcontractor and the right to lien as a remedy has a commendable statutory measure in place to assist a subcontractor by attempting to prevent such a financial predicament and if it nonetheless still occurs, that in the event of non-payment, the subcontractor is adequately protected. This research project proposes that our legal system should take influence from the Canadian legal system and be developed in accordance with our legal framework in order for construction subcontractors to also have sufficient and effective protection under our legal system.

Les « Modes Amiables de Résolution des Conflits » (MARC) représentent toutes les méthodes qui permettent de résoudre un différend sans recours au juge, telles que la médiation, la conciliation, la négociation, la négociation raisonnée, la transaction, la procédure participative, l’avis technique ou juridique amiable, procès simulé, etc. Aujourd’hui, dans la pratique des affaires, tant en France qu’à l’international, les MARC ont le vent en poupe. Issu d’un colloque, cet ouvrage s’adresse aux professionnels du droit, aux chercheurs, aux juristes d’entreprise et aux PME qui sont souvent tentés par le recours aux MARC et souhaitent connaître avec précision le régime et l’effet des accords amiables. L’objectif est d’explorer toutes les questions qui se posent lorsque les parties à un différend économique l'ont résolu au moyen d'un accord amiable, au moment où elles doivent concrètement mettre en œuvre cet accord. En particulier, comment rédiger l'accord et comment garantir son exécution ?

Adoption of International Financial Reporting Standards (IFRS) is supposed to help enhance comparability of financial statement, improve the quality of financial reporting and accounting information of businesses in a country. This is expected to help improve Foreign Direct Investment (FDI) in the adopting countries. This study examined the effect of IFRS adoption on FDI inflows in Africa. Unlike previous studies that sample both adopting and non-adopting countries, this study sampled only Africa countries that have adopted IFRS to determine whether the adoption has improved FDI inflows. To achieve this objective, 20 African countries that have adopted IFRS were sampled covering a period 1980 to 2015. Data was sourced from The World Bank financial and Economic Data. Control variables such as GDP growth, openness of the economy, government debt and population growth were included in the model. The correlation and regression analysis showed that IFRS adoption has a positive and significant influence on FDI inflows in Africa. On the other hand, open economy, government debt and population growth had a positive and significant association with FDI. Overall, the results show that African countries that want to improve FDI inflows must improve the quality of their reporting environment by adopting IFRS.

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

Les États membres de l’OAPI forment un espace d’harmonisation du droit d’auteur en Afrique. Cette harmonisation est encore inachevée. Les règles conventionnelles relatives au contrat d’édition en témoignent. Aussi, enquêter sur le contrat d’édition dans l’espace OAPI nécessite un examen tant du texte de l’Accord de Bangui que des lois nationales des dix-sept États membres, dont il faut relever quelques différences sans éluder la question d’éventuels conflits de lois.