Bibliographie sélective OHADA

This PhD thesis explores how the legal infrastructure for dispute resolution in transnational securities transactions can be improved, considering the regulatory and legal limits of the financial sector in each jurisdiction under study (US, Europe and Brazil). The two main objectives of the work are to a) identify the problems that currently exist for a dispute resolution mechanism in the securities area that can be used transnationally and b) propose solutions that can create a safe legal environment that can be used by the investor in case regulatory rules or the terms of the transaction are breached. The work is justified by the fact that financial markets are legal constructions, making legal certainty and the mechanisms available to enforce the terms of a transaction and apply regulatory rules, especially to the investor that is part of the transaction, essential for the own existence of financial markets. Therefore, the existence of transnational financial markets also depends on the existence of a transnational legal infrastructure, at least broad enough to protect the interest of investors. The argument developed through the work is that the creation of a transnational legal infrastructure depends on the type of dispute that is considered, since not only each type of dispute has its own peculiarities, but the national dispute resolution systems are also built based on the type of dispute that will be submitted to it. To create transnational dispute resolution systems for securities transactions, I propose the use of collective mechanisms of dispute resolution based on the initiative of private parties, the use of arbitration and the establishment of cooperation networks among national alternative dispute resolution mechanisms used to solve financial disputes.

Forfaiting, yatırım malları ve hizmet ihracından doğan alacakların satıcı-ihracatçıya rücu edilmeksizin satışı olarak tanımlanmaktadır. Farklı biçimleri bulunmasına karşılık, bu finansman yönteminin temel konusu poliçe ve bonodan doğan alacaklardır. Poliçe forfaiting'inde poliçe, ihracatçı tarafından ithalatçı üzerine çekilmekte ve onun tarafından kabul edilmektedir. Bu durumda ihracatçı keşideci, forfaiter ise lehdar ya da ciranta konumunda bulunmaktadır. Fakat bu durum bazı problemlere yol açmaktadır. Zira bu finansman yönteminin temel ve ayırıcı özelliği rücu edilmezlik klozudur. Bu kloz, kıymetli evrak hukuku bakımından ihracatçının, ciroya "rücu edilmez" kaydı eklemek suretiyle kendisini poliçenin ödenmemesi sorumluluğundan kurtarmasını ve forfaiter'ın ticari riski üstlenmesini gerekli kılar. Fakat bir poliçenin keşidecisi, poliçenin kabul edilmesini ve ödenmesini garanti etmektedir. Onun kendisini poliçenin kabul edilmemesi sorumluluğundan kurtarması mümkün iken, ödenmemesi sorumluluğundan kurtarması mümkün değildir. Zira keşidecinin poliçenin ödenmemesinden sorumluluğunu kaldıran kayıtlar yazılmamış sayılır. Bu durum ise forfaiting'in özüne aykırıdır. Bahsi geçen bu problem bonolar bakımından söz konusu olmaz; çünkü bono forfaiting'inde ithalatçı, asıl borçlu olarak düzenleyen, ihracatçı ise lehdar konumundadır ve onun kendisini ciranta olarak ödememeden sorumsuz kılması mümkündür. Bu farklılık nedeniyle forfaiting işleminde bir çok ihracatçı tarafından bonolar, poliçelere nazaran tercih edilmektedir. Forfaiting is defined as the purchase, without recourse to any previos holder of receivables due to mature in the future and arising from export of capital goods and services. Although there are several forms of forfaiting, main subjekt of this form of finance is receivables arising from bills of exchange and promissory notes. In bill of exchange forfaiting, the bill of exchange is drawn on the importer (drawee) by exporter (drawer) and accepted by importer. The forfaiter is payee (beneficiary) or indorser. But this cause several problems . Because the main characteristic and distinctive speciality of this financing method is "without recourse clause". This clause requires exporter to free himself from any responsibilities by using of "without recourse, sans recourse stipulation" in the indorsement and requires forfaiter to assume commercial risks in terms of law of negotiable instrument. But the drawer of a bill of exchange guarantees both aceptance and payment. He may release himself from the liability of non acceptance but any stipulation by which he releases himself from the liability of non payment is deemed to be not written. Thus, the drawer of a bill of exchange, the exporter, may not be liable as it is indorser but will always be liable as it is drawer. This situation conflicts with the esense of forfaiting. But the problem as stated above is not seemed in promissory notes because in promissory note forfaiting, the importer is maker as main obligor and the exporter is (payee) beneficiary. And he has the legal right to free himself of any liability as an indorser by using without recourse stipulation. Because of this difference promissory notes are prefered to bill of exchange by many exporters.

The promotion of sustainable development is an objective shared by African Union (AU) member states and the pursuance thereof is expressly mandated by the Constitutive Act of the African Union, 2000 and the Treaty Establishing the African Economic Community, 1992. Lack of access to modern energy sources, such as electricity and the heavy reliance on traditional biomass as primary energy source are factors contributing to the non-achievement of the promotion of sustainable development. These factors are collectively referred to as energy poverty. The African Continent as a whole has limited, and in some instances, lack access to modern energy sources while the majority of its population relies heavily on traditional biomass as primary energy source. Africa can accordingly be classified as an energy poor region–a situation which does not bode well for the promotion of sustainable development. Access to reliable, affordable, economically viable, socially acceptable and environmentally sound energy services and resources is fundamental to socio-economic development. Mitigating the impacts of energy poverty and more specifically lack of access to modern energy sources on the sustainable development of Africa depends upon ensuring increased access to modern energy sources. The above-mentioned instruments furthermore contain provisions which link regional cooperation on the formulation of coordinated regional law and policy on areas/matters of common concern with the achievement of the objective of promoting sustainable development in Africa. One of the areas of common concerns listed is that of energy. Regional cooperation must accordingly be geared towards the effective development of the continent‘s energy and natural resources; promoting the development of new and renewable energy in the framework of the policy of diversification of sources of energy; and establishing an adequate mechanism of concerted action and coordination for the collective solution of the energy development problems within the AU. The formulation of coordinated energy law and policy should take place with reference to the specific sources of energy to be regulated. In this regard, the provisions of the Abuja Treaty and other sub-regional energy access initiatives list various sources of energy as forming part of a diversified AU energy mix – one of which is nuclear energy. In this study recommendations are made as to what should be embodied in a coordinated AU regional nuclear legal framework aimed at regulating increased access to nuclear energy capable of contributing towards the promotion of sustainable development. The recommendations are based on an examination of relevant international, regional and sub-regional legal instruments and other initiatives.

This thesis critically assesses the effectiveness of WTO legal rules in the regulation of international trade in petroleum and highlights potential conflicts between competing resources of energy from the WTO regime’s perspective. The theoretical framework of the thesis is built on the concepts used in natural resource economics, trade theories and international relations. On the basis of Hotelling’s rule of natural resource economics, it proposes a model that reconciles the use of petroleum and the development of renewable sources of energy in the power generation sector, which prospectively can be adopted with respect to the transport sector and other sectors involving energy use. The proposed model may improve global sustainable development. However, it is argued that WTO rules are not properly designed to regulate trade in petroleum and, if applied without due respect to specific issues pertaining to the petroleum industry, would obstruct the achievement of the social optimum, and detrimentally affect the national economies of WTO members and global welfare in general. To improve the WTO system, I propose a reformation of its normative ideology through the introduction of the strategic trade policy theory in complement to the neoclassical theory of trade, at least when trade in energy is concerned. On the basis of the study of the applicability of WTO rules to trade in petroleum and a review of proposals put forward by other scholars to improve the regulation of trade in energy, it is argued that the most effective way to improve the trading regime is to negotiate a new general agreement on trade in energy.The role of the WTO in the regulation of trade in energy is analyzed through a regime management theory borrowed from international relations studies. It is argued that the WTO as a regime manager is capable of improving the regime by properly maintaining the existing equilibrium and by initiating, and leading in negotiations of a new equilibrium.

This thesis explores three important issues in financial distress and corporate bankruptcy: bankruptcy venue choice and creditor recovery, the efficiency of Chapter 11 corporate bankruptcy and distressed exchanges, and the bankruptcy ripple effect on peer firms’ investment policy.