Bibliographie sélective OHADA

It is nowadays generally accepted that international commercial arbitration is the most popular method of resolving international disputes between commercial parties. This popularity is the cumulative result of many advantages that international commercial arbitration offers to the parties. It is suggested in the literature that one of these advantages is the freedom of parties and the resulting procedural flexibility. In virtue of this principle, the parties have the opportunity to establish a specific method of adjudication adapted to the nature of their dispute. This opportunity is provided by the fact that the arbitration regulations do not include detailed rules on the collection of evidence, thus leaving the parties and the arbitrators' range of motion. Therefore, we consider that this procedural flexibility has emerged as a possibility obtained at the expense of certainty in international commercial arbitration proceedings. This uncertainty is to such an extent that it also warrants the question as to whether there is an applicable law to take evidence in international commercial arbitration proceedings. Such procedural flexibility afforded to the parties, however, comes at a price of uncertainty with respect to arbitral procedure. International commercial arbitration developed as a reaction to the failings of proceedings in domestic courts, which were subject to detailed rules of evidence. Thus, the consensus in the arbitration community is that party freedom and the procedural flexibility that comes with it are fundamental attributes of arbitration. Although this presumption is theoretically correct; in other words, the parties are indeed able to craft such a procedure that would perfectly fit for adjudication of their disputes, mostly it does not reflect the practical reality. In practice, when parties are negotiating the terms of an agreement to govern their business relationship, they generally tend to avoid discussions as to what will happen if things go wrong. As a matter of fact, according to our practice experiences, when one of the parties' legal counsel tries to address such hypothetical scenarios, the parties generally prefer to suppress such "negative thoughts" and refuse to make in-depth discussions as to how a possible dispute is to be handled. Hereby, this leaves open the question of the procedure to be followed in arbitration proceedings in case of potential disputes. As a result, the provisions on how to resolve disputes that may arise between the parties, in other words, the "dispute resolution" provisions, are left to the very end of the negotiations and passed over in a few sentences. When the relationship between the parties becomes truly strained and a dispute comes to an unavoidable stage, it becomes even less likely that the parties will agree on how to gather evidence on the dispute in question. In a such situation, any suggestions made by one party regarding the procedure for the taking of evidence will be viewed with suspicion by the other party. In an environment of suspicion and animosity, it is often unrealistic to expect productive negotiations to take place on procedural matters. As a result, although the parties have a wide range of motions to make agreements regarding the method of collecting evidence in arbitration proceedings, they are often unable to exercise this authority in practice. As the parties are not exercising their rule-making powers, this important task, which is decisive for the resolution of the dispute, shifts to the arbitrators. Therefore, in our opinion, it would not be a wrong assessment to say that the freedom of the parties has turned into the freedom of the arbitrator in practice. Once appointed, arbitrators have to decide on many issues with respect to the taking of evidence as rules applicable to arbitration are generally silent as to these matters. Although arbitrators have the opportunity to be guided by some non-binding rules, such as the IBA Rules and the Prague Rules, which are considered to be effective and instructive in the arbitration community, they are ultimately left to make their assessments and reach an award based on their judgment. The above-mentioned non-binding rules can undoubtedly assist arbitral tribunals to a certain extent with regard to the taking of evidence. However, it is not possible to say that these rules are enforceable guidelines that can be blindly followed by arbitral tribunals. A closer look at these rules reveals that they leave many issues to the discretion of the arbitral tribunals. Of course, any decision regarding the taking of evidence in international commercial arbitration is already within the discretion of the arbitral tribunals, even in the absence of these rules. Therefore, these provisions, which have been drafted to allow the arbitral tribunals to decide as they see fit, are no more than general guidance on how to exercise their discretion. For these reasons, even if the parties have agreed on the application of these non-binding rules, the fact remains that the collection and evaluation of evidence are still left to the discretion of the arbitral tribunals. This study takes an inductive approach by analyzing the normative and non-binding rules of law applicable to evidence in international commercial arbitration. Firstly, this study examines whether there is a body of rules that can be characterized as the law of evidence in international commercial arbitration. It is determined that there is a law of evidence in international commercial arbitration; however, its content is rather composed of general principles. After determining that these rules have normative value, it is examined how and to what extent these general principles are concretized in terms of the types of evidence used in international commercial arbitration. Although the degree of concretization of these principles varies according to the types of evidence, as a general characteristic, it is determined that arbitral tribunals are left with a very wide discretionary power. It is concluded that arbitral tribunals have a wide latitude of action with respect to the submission of documents, the presentation of witness testimony, the use of expert testimony, the use of discovery and the extent of the res judicata effect of a prior award. Subsequently, the rules on the admissibility and evaluation of evidence are analyzed and it is concluded that the arbitral tribunals have wide discretion in international commercial arbitration, as in other matters relating to evidence and even the discretion regarding the evaluation of evidence is relatively wider. Since it is difficult to review the discretionary power exercised in these matters, it is observed that the arbitral tribunals' decisions on evidentiary issues fall outside the scope of judicial review. This leads to a further blurring of the already grey evidentiary issues in international commercial arbitration proceedings. This is because it is not possible to determine the extent to which the arbitral tribunal has relied on evidence that ostensibly played a role during the proceedings. In the last instance, although the arbitrators' discretionary powers are limited by general principles such as due process and opportunity to be heard, the limits of such discretionary powers are, generally speaking, somewhat blurred as these are general principles. Another issue is that arbitral tribunals are often subject to pressure from the parties when making their decisions on the taking of evidence during the arbitral proceedings. The parties are more interested in being the winner of the concrete proceedings than in the proper conduct of the proceedings in accordance with the law, procedure and rules. In this sense, a party whose request for evidence is likely to be rejected will often argue that the arbitral tribunal's decision violates the principle of a fair trial, even if this is not the case. It is in these circumstances that arbitral tribunals must strike a balance between a fair trial and an efficient trial and make appropriate decisions on evidentiary issues. If arbitral tribunals emphasize procedural efficiency and defer to the parties' presentation of their claims and defences, this may not in itself constitute an obstacle to legally correct decisions. However, this would violate the fundamental procedural safeguards of the participants in the proceedings and may even lead to arbitration proceedings becoming a mechanism for arbitrary and haphazard decision-making. If the opposite approach is taken, in other words, if the priority is to uncover the material truth at all costs and the procedural economy is put on the back burner, this will result in costly and protracted proceedings that will far exceed the limits of reasonableness. Given the limited scope of the guidelines available to arbitrators on the collection and evaluation of evidence, striking this balance is not an easy task. Therefore, it is quite understandable that arbitral tribunals, when deciding on evidentiary issues, may prefer the safer route and give precedence to claims of breach of the principle of a fair trial, even at the expense of the efficiency of the proceedings. Additionally, the confidential nature of the international commercial arbitral proceedings also amplifies the problem. As a result of this principle, the available knowledge as to the practice of arbitration becomes limited to anecdotal stories as to what has happened in certain individual international commercial arbitration proceedings. The arbitrators do not have sufficient opportunity to know about how their colleagues have dealt with certain issues that may have similarities with the issues that they have been trying to solve. In conclusion, in light of the foregoing, since the arbitral tribunals are the rule-makers of arbitration proceedings, the extent to which arbitration proceedings will function correctly and efficiently depends on the experience of the arbitral tribunals and their knowledge of the law, procedure and rules. Basing a correct and efficient arbitration procedure solely on the initiative of experienced arbitrators reduces the 'certainty' of the arbitral procedure. In the face of this situation, it may be tempting to argue that it is inappropriate for arbitrators to have so much freedom and that the rules applicable to arbitral proceedings should be revised to be more detailed. Indeed, there are those who argue that such a change should take place. In the final analysis, a good system should be able to function well regardless of how qualified (or unqualified) its participants are. It is obvious that an argument that sees detailed procedural rules as a remedy for this would contradict the historical development of arbitration and therefore would not be accepted by the international arbitration community. Likewise, from the other side of the coin, it could be argued that detailed procedural rules that are not appropriate to the nature of the individual dispute would prevent qualified and experienced arbitral tribunals from formulating rules that are appropriate to the resolution of the dispute in question, and that the hands of arbitral tribunals may be tied in this way. Although it may be argued that these counter-arguments are equally justified, they do not negate the fact that certainty should be ensured in international commercial arbitration proceedings. Therefore, this suggests that it may be appropriate to resort to alternative methods to ensure certainty. Indeed, it would be a mistake to assume that the only way to achieve certainty is through a detailed set of rules, as we, as legal practitioners in the Continental European legal system, are accustomed to. In the countries subject to the Common Law system, many branches of law do not have such a detailed set of rules and therefore it is not possible to claim that these legal systems lack certainty. Especially in the common law, certainty is provided by case law. If the same logic were to be applied to international commercial arbitration proceedings, it would mean that making information on arbitration proceedings more accessible could help to achieve the goal of certainty. In recent years, there have been some initiatives recognizing the benefits of this approach. While arbitral tribunals are under no obligation to follow the decisions of other arbitral tribunals, having the opportunity to see that there is a consistent pattern of decisions on a particular issue would undoubtedly provide valuable guidance for arbitral tribunals. As the pool of information available to arbitral tribunals and the parties expands, it is obvious that the grey areas regarding evidence in international commercial arbitration will diminish over time. In this way, it will be possible to achieve greater certainty without undermining the fundamental values of the arbitral procedure. Reducing the uncertainty caused by procedural flexibility on procedural certainty in this way will contribute significantly to the development of international commercial arbitration.

Letters of credit and demand guarantees play a prominent role in financing international trade. They provide assurance of payment and security for the performance of contractual obligations and have been described as the ‘lifeblood’ of international commerce. Autonomy is the central principle for the instruments of letters of credit and demand guarantees. Under the autonomy principle, the bank’s undertaking to pay for the beneficiary ought to be independent of the diversity of other relationships arising from the underlying contract. In spite of the autonomous nature of these instruments, in certain cases, the national laws will recognise some exceptions or limitations that restrict the application of the doctrine of autonomy. Exceptions such as fraud, nullity, and illegality will allow the national courts to interfere and override the autonomy doctrine by considering other matters, even those concerning the underlying contract. Furthermore, the exceptions of unconscionability or abuse of rights have an effective role in providing deep solutions, especially with regard to the problem of abusive calls for demand guarantees. The autonomy principle is recognised under Libyan commercial law but has yet to form the subject of serious academic literature covering its legal aspects. This study, in part, aims to fill that gap and will examine the extent to which legal aspects govern the principle of autonomy and its exceptions under Libyan law with reference to the new Libyan Commercial Code. A comparison of the laws in England, Libya, and Egypt will be conducted to examine how legal matters concerning autonomy and its restrictions in their laws are addressed. Furthermore, consideration will be given to the experience of Singapore, particularly with regard to the unconscionability and nullity exceptions. The results of this study will consider many different exceptions to autonomy and suggest that fraud is not the only exception to autonomy and that it is not imperative that all exceptions in letters of credit be equally applied to demand guarantees.

Aujourd'hui plus qu'hier, la médiation suscite l’intérêt tant des chercheurs, des praticiens, que des politiques. Cet intérêt se matérialise notamment par les différents cadres juridiques dont elle bénéficie dans plusieurs législations. Afin de promouvoir la médiation au sein de ses États membres, L’Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA) a adopté le 23 novembre 2017 un Acte Uniforme relatif à la Médiation (AUM). Après avoir adopté depuis plus de deux décennies un Acte uniforme sur l’arbitrage, l’organisation régionale confirme sa volonté de promouvoir les modes alternatifs de règlement de conflits dans le domaine du droit des affaires. Cependant, l’AUM est un instrument juridique particulier attendu qu'il est le premier de son genre à s’appliquer également aux domaines non encore régis par le droit OHADA. Toutefois, si la médiation tend à se développer de plus en plus, il convient de prendre garde à ce que cette évolution, notamment en ce qui concerne son encadrement légal, ne conduise pas à sa dénaturation. Voilà l’un des défis auquel est également soumis le législateur OHADA.

Section 19(1) of the current Companies Act 71 of 2008 states that once a company is incorporated in accordance with this Act, it is considered as a juristic person and exists indefinitely until its name is removed from the companies register. It exists independently from its shareholders and controllers. This effect grants the company with characteristics of a natural person. This analogy implies complete independence of the company. However, this concept finds refuge from the English legal system and was later adopted by South African company law. This notion provides some legal protection to businesses and shields their owners from personal liability for the company's debts and commitments. Companies can use this to enter new markets, reduce their taxes, and take advantage of advantageous business environments. Furthermore, this doctrine promotes joint ventures and partnerships among enterprises from many countries, allowing them to share resources and risks. As a result, this allows international enterprises to benefit by conducting international transactions, expanding abroad, and entering contracts in foreign countries. However, like any other concept, it is susceptible to abuse. Individuals take advantage of it to benefit themselves. This is detrimental to the significance of this doctrine. This dissertation aims to look deeply into this concept, by examining its origins and influence throughout the years and during its current application in the South African legal framework and highlight instances where this doctrine will be set aside. This will be conducted by fully analysing Salomon’s case and the influence it has over current company law. More importantly, the author will further examine the significance of this doctrine in modern company law. This will be done by testing the application of this doctrine to modern corporations and challenges they face.

This thesis considers whether jurisdictional exigencies should influence competition law enforcement, with a specific focus on merger analysis. It examines various approaches and schools of thought regarding the goals of competition law and how these play out within jurisdictional parameters. The history of enforcement of American antitrust is scrutinised to establish the nature of the interplay between greater economic policy direction and the goals of competition law. The study also explores the issue of convergence and whether developing jurisdictions should align their competition law to that of developed jurisdictions with mature competition law.

Dans un marché bancaire oligopolistique, marqué par un nombre limité d'institutions bancaires et financières offrant des services bancaires de plus en plus innovants et attractifs à une quantité innombrable de consommateurs, le système bancaire ouvert a engendré la multiplicité de ces services, grâce aux entreprises de technologie financière qui se présentent comme des concurrentes de taille face aux banques traditionnelles. Désormais, le consommateur peut procéder à des transactions électroniques, dont celles relatives au paiement ou au transfert électronique de fonds, sans devoir passer au comptoir de sa banque traditionnelle. Depuis la mise en place du Règlement général sur la protection des données et de la Directive révisée sur les services de paiement au niveau de l'Union européenne, les entreprises commerciales peuvent avoir accès aux renseignements personnels, dont les données financières des clients de banques, notamment pour initier un paiement, par le truchement des interfaces de programmation d'applications. Toutefois, le traitement des renseignements personnels des consommateurs par les entreprises commerciales augmente le risque de vol d'identité, étant donné la présence d'une quantité impressionnante de données sur le Web, sans un contrôle adéquat pour en assurer la confidentialité. Les conséquences d'une fuite de ces données sont pourtant non négligeables, aussi bien à l'égard de la banque, de la personne concernée que de l'État qui doit en assurer une protection optimale. Devant ce phénomène où le consommateur est vulnérable, l'État intervient pour le protéger et contrebalancer le déséquilibre dans sa relation contractuelle avec les prestataires de services financiers.

The objective of this study is to understand and explore the rapid pace at which ML has evolved and the global and local impact thereof.

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Ships, the high-value asset used in both seagoing and inland navigation, and in which various legal and natural persons have interests, must be secured against legal risks arising from any cross-border legal divergence. Legal certainty of ownership of the ship is therefore desirable but it is under challenge with regard to the judicial sale of a ship: the effects of a judicial sale may be denied in a jurisdiction other than the place where it was sold under the principles of state jurisdiction. Multiple efforts have been made to address legal uncertainty. Particularly important is a new treaty governing the international effects of judicial sales: the United Nations Convention on the International Effects of Judicial Sales of Ships (Beijing Convention). This dissertation is intended to contribute to that process by setting out two tasks; first, it seeks to identify the obstacles to the recognition of foreign judicial sales, providing additional knowledge which may aid national legal orders when deciding recognition approaches; second, it looks for a universal solution that better guarantees recognition which would benefit shipping. A comparative legal research exercise exploring similarities and dissimilarities in the municipal and international laws governing the recognition and sale procedures is undertaken. Research results are presented in this kappa and research papers, exhibiting the profuse difficulties a party seeking recognition may encounter in the current legal framework, and explains the new recognition approach under the Beijing Convention. Based on the research findings, a universal solution is proposed that avoids révision au fond, defines the finality of a judicial sale, and sets forth a fixed number of grounds for denial of recognition which may bring greater certainty. This purported optimal solution should guarantee equal treatment for all foreign sales seeking recognition before the registry while minimising the registrar’s burden of finding and examining foreign laws. In the interest of universality, this solution better accommodates disagreeing principles underlying certain aspects of the sale, viz., the ship’s location at the time of sale, the notification of sale, and the variance in the standard sale, namely, court-approved private sales, in a manner that more states may accept. This solution is largely in line with the recognition approach under the Beijing Convention. Considering the greater legal certainty the new instrument may bring, ratification is supported.

L’invasion de l’Ukraine par la Fédération de Russie le 24 février 2022 marque l’application de régimes de sanctions internationales économiques et financières aux navires de grande plaisance. Ce mémoire prétend décrire ces différents régimes de sanctions et expliquer avec une approche critique que l’application de certains régimes de sanctions aux navires de grande plaisance peut être remise en cause. Les mesures de gel et leur pendant (l’interdiction de mise à disposition de fonds ou de ressources économiques au profit de la personne ou entité sanctionnée) ont vocation à inciter un changement de comportement auprès de leur cible. Ainsi, cette étude vise également à montrer l’efficacité relative des mesures de gel de navires de grande plaisance dans la poursuite de cet objectif. The invasion of Ukraine by the Russian Federation on 24 February 2022 marks the application of international economic and financial sanctions to yachts. The subject aims to describe these different sanctions regimes and to explain critically that the application of some of them to yachts may be called into question. The freezing measures and their counterpart (the prohibition on making funds or economic resources available to the sanctioned person or entity) are intended to encourage a change in the behaviour of their target. This study therefore also aims to show the relative effectiveness of measures to freeze yachts in achieving this objective.

Les choke-points maritimes sont des passages vitaux du commerce mondial empruntés chaque jour par un nombre impressionnant de navires. Bien que ces passages soient les piliers de nos routes maritimes, ils sont pourtant largement méconnus du grand public, mais aussi des acteurs du monde maritime. Ancré dans la mondialisation, beaucoup ne les résume qu’à de simples lieux de passages, or ils sont des artères économiques aux multiples facettes. Générateur de grands enjeux financier et diplomatique, ils présentent également des risques importants pour la navigation, tels que la piraterie ou le trafic d'armes. Enfin il est nécessaire le développement de routes alternatives pour soulager ces passages saturés par le trafic mondial, sans oublier la protection des océans et des espèces vivantes. Maritime chokepoints are vital passages in world trade, used every day by an impressive number of ships. Although these passages are the pillars of our maritime routes, they are largely unknown to the general public, as well as to those involved in the maritime world. Anchored in globalization, many people think of them as mere transit points, yet they are multi-faceted economic arteries. Generating major financial and diplomatic stakes, they also present major risks for shipping, such as piracy and arms trafficking. Last but not least, alternative routes need to be developed to relieve these passages, which are saturated by global traffic, not to mention the protection of oceans and living species.

IKS stakeholders often debate the divide between indigenous and other knowledge systems. IP rightsholders seek advice on how they can strengthen and secure their proprietary rights or broaden the public domain, while other interest groups such as indigenous peoples and local communities want to know how the public domain can be enclosed. One reason for this divide seems to be that the IP regime operates in a sphere where the public domain is demarcated by individual rights, as opposed to the indigenous knowledge systems regime where the public domain is demarcated by social embeddedness and connected to the land on which indigenous peoples and local communities live. This problem manifested itself over centuries of colonialism and technological development worldwide, but also because indigenous worldviews do not share the pre-appropriation narrative of the public domain than technological advanced societies. Within the context of this narrative the research question was posed, namely "what are the appropriate legal instruments for protecting Indigenous Knowledge Systems without compromising the public domain?" To answer this question, the public domain was analysed from three perspectives, namely international law instruments, human rights and IP rights. It was found that none of these perspectives lead to a narrow interpretation of the public domain – in fact, they all aim to broaden the public domain. These early findings on the public domain assisted to apply the fundamentals of the public domain to international law instruments and their application to IKS. In this regard it has been shown that the existing international law instruments, as well as the natural evolvement of these instruments over time, adequately provides for the protection and commercial exploitation of IKS worldwide. There is a proviso, though: IKS need to be viewed through the WIPO lens, which provides for the distinct delineation of categories of IKS, namely traditional knowledge, traditional cultural expressions and genetic resources. For example, the Bern Convention is founded on the three principles of droits des auteurs, droit moral, and domaine public. The boundaries of the public domain within the context of IKS can be reconciled with all three of these principles, and national legislators merely need to apply these principles to national legislation. With these insights gained on international law instruments, a few countries were analysed to ascertain how they address their local challenges pertaining to IKS. The countries that were analysed all aimed to appreciate international law instruments to which they are signatories, while they develop country specific IKS-related jurisprudence, although it cannot be said to be the same in each country. None of the findings pertaining to these countries could provide convincing arguments as to why a sui generis system for IKS can work. The research then moved to a legal analysis of South African legislation in relation to IKS. It has been shown that in general, South African legislation on IP is well aligned with international law instruments. These findings assisted with the research question at hand and was instrumental with coming to the early conclusion that IKS neatly fits into South Africa's current IP regimes and their associated public domains. Throughout the thesis, the rights and obligations of IKS rightsholders were demarcated since no right is absolute, as has been shown when the South African Constitution was discussed. In this regard, the droit moral of individuals from indigenous peoples and local communities, as well as the indigenous peoples and local communities, are to be respected. This approach led to more practical measures to ensure that matters such as prior informed consent, secrecy and sacredness, equity and access to TK, TCE and GR and benefit sharing were all understood within the boundaries of the public domain.