Bibliographie sélective OHADA

It has been over a decade since the Companies Act 71 of 2008 introduced business rescue proceedings which provided for the rescue of financially distressed companies. This procedure replaced the then statutory procedure of judicial management under Companies Act 61 of 1973. The business rescue proceedings begin with the general moratorium or stay on legal proceedings against the company or its property. This has a consequence that any claims against the company may only be enforced with the consent of the business rescue practitioner or the leave of the court. However, the courts continue to grapple with the interpretation, effect, and application of the key elements of business rescue provisions while always striving to accord respect to the legislative intention of business rescue as set out in section 7(k) of the Companies Act 71 of 2008. After a decade since its introduction, it is an opportune time to ascertain whether the business rescue proceedings is an effective corporate rescue procedure suitable to the modern-day demands of the South African economy. The research analyses the effect and the consequences of the moratorium on the rights of property owners. The moratorium has the effect that companies are given temporary immunity to actions brought by creditors which would have been due and enforceable. In this regard, the property leased by the property owner remains occupied by the company during business rescue proceedings as the property owner is barred by the moratorium to institute legal proceedings against the company. Further, when the repossession of the property is not possible and the rental due or installment is not payable by the company, the business rescue proceedings encroaches on the right of the property owners. The purpose of the research is to highlight the effect of the moratorium on the lease agreement between the company and property owners and the possible protection of the property owners’ rights. The study includes a critical analysis of judicial decisions on the moratorium, together with a discussion of the legal position in comparable foreign jurisdictions. In my conclusion, based on the findings, the business rescue is not free from imperfection. Therefore, I recommended that the legislature amend some parts of Chapter 6 of the Companies Act 71 of 2008.

The main rationale of prudential bank regulation and supervision of banks has traditionally been to ensure the safety and soundness of banks and protection of depositors. However, best practice standards in bank supervision acknowledge that it is impossible to completely prevent bank failures. Therefore, it is crucial to have regulatory measures in place to deal with banks that fail. Banks are core players in the financial system as the intermediaries between savers and users of capital. In addition, banks provide critical services to consumers, small and medium-sized businesses, large corporate entities and governments who rely on them to conduct their daily business, both at domestic and international level. Banks also fulfil a sui generis role that sets them apart from other financial institutions that are role players in the financial system because, inter alia, they hold “highly” liquid liabilities in the form of deposits that are repayable on demand; they extend long-term loans that may be difficult to sell or borrow against on short notice; they are the back-up source of liquidity to all other institutions (financial and non-financial); and, are also the transmission belt for monetary policy. Unlike other players in the financial system, banks are vulnerable to loss of public confidence and to liquidity risk. Liquidity risk being the risk that a bank will not have sufficient cash to meet short term obligations and the fact that a "run on the bank" by depositors can result in devastating liquidity drainage. Because banks play a special role in the economy and their failure may have a significant impact on financial stability, they need a special approach when they become insolvent or are likely to become insolvent. The 2008 Global Financial Crisis (“GFC”) demonstrated the importance of special resolution regimes for banks; and the need to balance the interests of shareholders, creditors and depositors, while promoting financial stability objectives. Given the critical role of banks in the economy the need is clear for a special resolution regime for banks that provides a legal framework for regulators that avails to them a suite of resolution tools which they can apply to resolve the bank in an orderly manner; to rescue those parts of the bank that may still be viable and to liquidate those parts that are not whilst avoiding a drain on public funds. In order to deal with bank failures in Zimbabwe, the Banking Act [Chapter 24:20] has provided for the mechanism of curatorship since 2000, as a rescue measure aimed at restoring failing banks to economic viability. Curatorship has over the years been applied with mixed success; consequently, Zimbabwe has undertaken a number of reforms which include the enactment of the Troubled Financial Institutions (Resolution) Act in 2005; and the introduction of the problem bank regime via the Banking Amendment Act of 2015. Throughout these reforms, Zimbabwe has elected to retain curatorship, which was once a standalone process in banking legislation to enable bank rescue; and assimilated it into a broader bank resolution framework. This study seeks to determine whether Zimbabwe’s resolution regime requires to be strengthened and if so, to recommend reforms that will align the resolution regime in Zimbabwe with international best practice. For such purpose it will draw upon the Financial Stability Board’s Key Attributes of Effective Resolution Regime as international best practice benchmark. It will further also consider guidance yielded by a comparative study of the resolution regimes in the United Kingdom and South Africa.

No abstract provided.

Although extreme poverty has decreased in the last decades, we are a long way from eradicating global poverty. Similarly, the world has seen a considerable decrease in global inequality due to recent developments in emerging economies, but overall inequality between nations has risen in the last decades. International tax law may have a relevant role in improving or worsening global inequality. Extensive research has shown that the present international tax system was designed in a way that tends to benefit high-income economies. However, there has been no significant discussion about whether and how international tax law rules should be changed to address global inequality. The main goal of this thesis is to analyze the existing legitimacy and distributive justice issues that limit the ability of lower-income countries to raise tax revenues and consider what can be done to make the current international tax regime more aligned with global justice principles.The thesis builds on the contemporary literature in international political economy and global distributive justice and puts forth a normative framework for allocating the international tax base among states. First, it analyzes some of the legitimacy deficits of the present international tax system. In contrast to prevailing views about improving legitimacy, it demonstrates the shortcomings of focusing solely on making international tax policymaking processes more inclusive and argues for a greater focus on global distributive justice. It then analyzes the main tax theories that have defined international tax relations to date and demonstrates some of their limitations. The final part of the thesis puts forth normative principles that integrate distributive justice and considers the practical implications of the proposed normative framework for some of the most recent issues discussed in international tax policy

“It is a curious fact that the Americanization of international arbitration is a topic that is often felt but is rarely discussed.” Roger P. Alford Similar to Alford’s sentiments, the shift towards arbitration in the United States alone is a phenomenon often felt, but feebly interrogated. Law schools across the nation continue to operate under the premise of judicial decision-making grounded in “rights protection.”[1] Yet, there is a clear shift towards arbitration as the preferred procedural process, with over 303,999 cases resolved by way of arbitration in 2019 alone.[2] While this brief note does not seek to interrogate the shift towards arbitration as much as it intends to examine the impact of American arbitration on international commercial arbitration generally, that shift, as you will see, looms in the background of any and all analysis of arbitration in the United States. I will begin by briefly noting the origins- and current regime of international commercial arbitration in the United States so to address the impact of its arbitration law and arbitral institutions on arbitration globally. I will then offer thoughts on the prospective evolution of international arbitration in the United States and how that may change the directions of legal procedural processes both in the United States and abroad. I. ORIGINS- AND CURRENT REGIME OF INTERNATIONAL ARBITRATION IN THE USA As arbitration flourishes as the choice for commercial disputes, there is no doubt that the United States has become a newfound hub for arbitration. It was not always this way, however. The Federal Arbitration Act (FAA) of 1925 established a steady road to an increasingly pro-arbitration policy, in three chapters, that shows itself in case-law as: when in doubt, favor arbitration.[3] The first chapter of the FAA establishes the framework for arbitration seated in the U.S. and provides the grounds for enforceable arbitration agreements and awards, while the second and third chapters implement the 1958 New York Convention and 1975 Panama Conventions, respectively. The strictly pro-arbitration policy does not lack in its own confusion, however, because of its basis in an otherwise federalist system. The FAA has largely remained unchanged since its nascence and has thus, left a substantive amount of discretion in interpreting arbitration law in the United States to the Supreme Court. One such source of confusion in U.S. arbitration law due to a lack of amendment lies in the term “arbitrability.” Arbitrability is the susceptibility of a case to be resolved by way of arbitration. In order to define the parameters of this susceptibility, the Supreme Court has distinguished between “procedural” and “substantive” arbitrability, wherein the former concerns itself with “prerequisites such as time limits, notices, laches, estoppel, and other conditions” and the latter, with a court’s decision.[4] The benefits to arbitration remain unmatched for commercial entities, however, which inspires the aforementioned pro-arbitration policy despite any real judicial framework. Arbitration allows parties to customize their dispute resolution by choosing the venue, applicable procedural law, and an expert adjudicator who may be more familiar with the intricacies of the dispute, among other benefits. There is a commitment to secrecy that is not found in the common court and the single, binding, and final resolution of a dispute through arbitration is the precise source of criticism that inspires the flock towards arbitration. Without the federal rules of civil procedure that would otherwise govern litigation, arbitration is governed by the procedural rules that each side agrees upon. The FAA paved the way for case law in the United States that would eventually shape a stronger pro-arbitration policy than ever—counseling against “even the mildest interference by courts in the conduct of U.S.-seated arbitrations.”[5] II. THE IMPACT OF U.S. ARBITRATION LAW AND U.S. ARBITRAL INSTITUTIONS IN THE WORLD OF ARBITRATION Assessing the impact of U.S. arbitration law begins by assessing what characterizes U.S. law: civil procedure. The adversarial form of litigation in which procedural tools are employed by advocates to advance arguments in a distinct style distinguishes the United States from other countries—and this feature inevitably slipped, in some capacity, into global arbitral institutions. Because the Rules of Arbitration for the International Chamber of Commerce are so brief,[6] American lawyers had tremendous flexibility in bringing American trial procedures with them. This came specifically in the form of document production for discovery and cross-examinations “to confront adverse witnesses.”[7] Critics refer to these added procedures as costly in both time and expense, defining them as the source of the “Americanization” of arbitration. Yet, while there is truth to such criticism, it may be more accurate to acknowledge the incorporation of aspects of American trial procedure as one country’s influence on arbitration. Far from inheriting solely American practice, global arbitral institutions maintain classic procedural tools while assimilating facets of each major country’s influence on arbitration.[8] III. THE PROSPECTIVE EVOLUTION OF INTERNATIONAL ARBITRATION IN THE USA Apart from being a source of revenue,[9] international arbitration is the natural response to the increase in “trade, investment, and supply-chain relationships” that hope to live free of potential biases from domestic fora.[10] The California Supreme Court may have briefly lost sight of this when deciding Birbrower, wherein attorneys not admitted to the bar of a certain state are not only ineligible to recover attorney’s fee but also, may be fined for unauthorizing practice of law.[11] Since Birbrower over two decades ago, however, the California Legislature unanimously passed Senate Bill 766. Under SB 766, non-California lawyers are able to represent parties in international arbitration proceedings in California, bringing California to the arbitration table. As home to Silicon Valley – and even aside from big technology, home to some of the largest companies in the world – California’s SB 766 will bring a swath of arbitration proceedings to its terrain. While California may certainly work in tandem with New York as the home to arbitration for technology and privacy concerns, reserving trade and investment disputes for New York, California may very well be the next major hub of arbitration. Already, it has received massive interest in being an arbitration destination. SB 766 will transform that interest into a revenue. It thus becomes all the more important, internationally, to understand and confront the ways in which the Americanization of arbitration would take place. [1] See, e.g. Thomas E. Carbonneau, Revolution in Law Through Arbitration, The Eighty-Fourth Cleveland-Marshall Fund Visiting Scholar Lecture, 56 Clev. St. L. Rev. 233, 233 n.3 (2008), available at https://engagedscholarship.csuohio.edu/clevstlrev/vol56/iss2/3 (“judicial decision-making has shifted from rights protection to guaranteeing access to some form of adjudication. As a result, law and adjudication have become less sacramental.”) [2] See American Arbitration Association, Adr.Org, https://adr.org/ (last visited Dec. 28, 2019). [3] See, e.g., Moses H. Cone Memorial Hosp. v. Mercury Construction Corp., 460 U.S. 1, 24-25 (1983) (“[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration …”). [4] See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 (2002) (distinguishing between “issues of substantive arbitrability [which] are for a court to decide and issues of procedural arbitrability, i.e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, [which] are for the arbitrators to decide.”) (citations omitted). [5] See Laurence Shore, Tai-Heng Cheng, Jenelle E. La Chuisa, Lawrence Schaner, and Mara V.J Senn, International Arbitration in the United States 1, 320 (2018). [6] George M. von Mehrem and Alana C. Jochum, Is International Arbitration Becoming Too American?, 2 Global Bus. L. Rev. 47, 51 (2011) available at https://engagedscholarship.csuohio.edu/gblr/vol2/iss1/6. [7] Id. [8] Philip J. McConnaughay, Introduction to International Commercial Arbitration in Asia 1, xxix (2002). In support of his assertion, McConnaughay reports that from 1995 to 2000, China’s leading international arbitration commission, CIETAC, received 4,200 new international commercial arbitrations and the Hong Kong International Arbitration Centre (HKIAC) received 1,394, totaling 5,594. Id. Note: interrogatories and depositions are not included. [9] See ICC (International Chamber of Commerce), ICC Arbitration Figures Reveal New Record for Awards in 2018, https://iccwbo.org/media-wall/news-speeches/icc-arbitration-figures-reveal-new-record-cases-awards-2018/. [10] Daily Journal, International Arbitration Finally Comes to California, Howard B. Miller, https://www.dailyjournal.com/mcle/330-international-arbitration-finally-comes-to-california. [11] See generally, Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal. 4th 119 (1998).

The OPA. Notions of takeover bids. Recognising and distinguishing the various forms of control within a company. Type of takeover bid. Subsequent defence techniques. The US control market and details of M&A and tender offers. Bids and acquisitions in China. Comparative European case studies. Shaldeholders' agreements. Regulatory sources and definition of covenants. Concerted action. Takeover obligations arising from concerted action. Cases. The Fondiaria-Sai case. Unipol-BNL. Other case of exemption.

La fabrication, l’utilisation et la vente aux États-Unis d’un produit couvert par un brevet américain, sans l’autorisation du breveté, constitue une contrefaçon de ce brevet. Toutefois, certains développements législatifs et des décisions de justice rendues ces dernières années ont montré que la portée d’un brevet américain pouvait être étendue à des activités se produisant en dehors du territoire américain. The unauthorized making use or sale within the United States of a product covered by a U.S. patent infringes the patent. However, in many cases damages and liability for infringing U.S. patents can extend beyond purely domestic uses to cover activities taking place far outside the United States. U.S. patents may cover activities that have little or nothing to do with the United States. Many companies are unaware of this surprisingly broad geographic reach. This article reviews such activities.

The Uniform Act related cooperative societies (UA-COOP) is the main source of cooperative law in all the seventeen States parties to the OHADA founding Treaty. Ten years after its entry into force (2011-2021), the aim of this study is to assess the level of enforcement of this Act. More concretely, the aim is to compare the state of cooperative law at the time of the entry into force of the UA-COOP (2011) with the current situation (in 2021). Such a comparison should make it possible to assess the contribution of the UA-COOP to the development of cooperative law and strengthening of national cooperative movements in the OHADA zone.

"The aim of this book is to analyse the level of implementation of the Uniform act on cooperatives (Acte uniforme relatif au droit des sociétés coopératives, AUSCOOP) ten years after its enactment. The authors' analysis, conclusions and recommendations lead to two main ideas: on the one hand, the need to correct the weaknesses and inconsistencies of the Act, and on the other hand, the lack of coherence of the Act with the area’s legal environment.

L'Acte uniforme sur les procédures collectives d’apurement du passif révisé a considérablement amélioré la situation du débiteur à travers le renforcement des mesures de sauvetage et la légitimation du droit au rebond qui lui permet sous certaines conditions de bénéficier de la purge de ses dettes. Ce changement de paradigme devrait absolument tenir compte des intérêts des créanciers qui attendent désespérément le règlement de leurs créances. L’ambition de la présente étude est de démontrer que malgré le vent de la modernité, le législateur OHADA n’en a pas tenu compte dans la dernière réforme de la matière collective au vu de l’importance des ajustements qui profitent principalement au débiteur. Ce renforcement des mesures de protection en faveur d’un seul protagoniste n’augure pas des lendemains meilleurs dans un espace juridique où les États membres n’ont pas la culture, encore moins des possibilités de consentir facilement aux entreprises nécessiteuses, des crédits comparables à ceux régulièrement obtenus des créanciers.