Bibliographie sélective OHADA

Since the dawn of democracy South Africa has embarked in a process of dismantling protectionist business and trade policies, and made the country’s stream of commerce one of the preferred globally. The country’s sound competition and trade policies, natural resource endowments, market size and regional influence, attracted foreign businesss and foreign direct invetsment (FDI). Equally the country has been under pressure to protect the domestic industries from injurious competition and business, through sector specific laws, anti-dumping and countervailing duties laws, investment and competition regime. The concern has been the likilelihood of the introduction of trade and competition barriers, and the allienation of FDI. This paper critically examines the impact the country’s antidumping and competition law and practice upon foreign direct investment. Domestic industries have never been shy to file anti-dumping and anti-competition suits against foreign companies, sometimes even when there might be a public outcry. Relevant examples of these suits include the famous Wal-Mart anti-competition case, and recently the Brazilian frozen fowl meat anti-dumping case.

The promotion of international trade is seen as one of the important instruments to ensure development in developing nations and regions. The history of the World Trade Organisation (WTO) and the drafting of many regional and similar international trade agreements are evidence of this. The Southern African Development Community (SADC) is no exception.1 It is therefore strange that many states that are members of the WTO and actively encourage the opening up of international borders to free trade do not include public procurement2 in such free trade arrangements. This is particularly evident in developing states. If the WTO Government Procurement Agreement (GPA), which is a plurilateral agreement, is considered it is clear that many states do not wish to open their internal markets to competition in the public procurement sphere. It is therefore not surprising that public procurement has been described as the last rampart of state protectionism (Ky, 2012). Public procurement is an important segment of trade in any country (Arrowsmith & Davies, 1998). It is estimated that public procurement represents between 10% and 15% of the gross domestic product (GDP) of developed countries and up to 25% of GDP in developing states (Wittig, 1999). Unfortunately, governments often expect private industry to open up national markets for international competition but do not lead the way. Except for the limited use of pooled procurement,3 no specific provision is at present made for the harmonisation and integration of public procurement in the SADC. In view of the proximity of the member states, the interdependency of their economies and the benefits that can be derived from opening up their boundaries to regional competition in public procurement, the possibility of harmonisation and deeper integration in this sphere needs to be given more attention. The importance of public procurement in international trade and regional integration is twofold: first, it forms a substantial part of trade with the related economic and developmental implications; secondly, it is used by governments as an instrument to address socio-economic issues. Public procurement spending is also important because of its potential influence on human rights, including aspects such as the alleviation of poverty, the achievement of acceptable labour standards and environmental goals, and similar issues (McCrudden, 1999). In this article the need to harmonise public procurement in the SADC in order to open up public procurement to regional competition, some of the obstacles preventing this, and possible solutions are discussed. Reference is made to international instruments such as the United Nations Commission on International Trade Law (UNCITRAL), the Model Law on Public Procurement and the GPA. In particular, the progress made in the Common Market for Eastern and Southern Africa (COMESA) with regard to the harmonisation of public procurement, which was based on the Model Law, will be used to suggest possible solutions to the problem of harmonising public procurement in the SADC.

The Southern Africa Development Community (SADC), the African Union (AU) and other African regional economic communities (RECs) have as their ultimate objective the political and economic integration of the African continent. The SADC is home to a number of countries, all of them striving to improve their investment climate to attract foreign investors by reducing the costs of doing business in the region. One way of achieving this is by setting targets for and speeding up political and economic integration, improving interconnectivity and thereby enlarging the market size and enhancing its attractiveness. The SADC region still suffers from high levels of energy poverty through low access levels in all countries except South Africa and Mauritius. Numerous studies have shown that greater regional trading and cooperation on power development within the SADC could substantially reduce investment and operational costs as well as carbon emissions. The need for a regional power trading pool and regional cooperation grew out of the power utilities’ recognition of the vulnerability of individual countries if each continued to pursue a policy of self-sufficiency rather than out of a desire to minimise the social or financial costs of the region’s power. The power sector in southern Africa is undergoing tremendous reforms, more especially since the establishment of the Southern African Power Pool (SAPP) in August 1995. The SADC, however, faces serious challenges that include diminishing surplus generation capacity and the need to ensure that SADC citizens have equitable access to electricity at affordable prices. To meet these challenges, treaties and protocols have been adopted but are failing to deliver at the implementation stage. This article reviews the SADC energy-electricity regulatory framework in the context of economic and political integration and recommends the establishment of an independent regional regulatory authority to oversee the implementation of integrated holistic energy and air pollution control and prevention, and a common climate change policy. Such a regulator would be a highly resourced regional institution that will liaise with international institutions. This independent regional authority will serve as a catalyst for regional economic integration. It will also have a mandate to introduce and coordinate the establishment of an SADC regional emissions trading scheme that will contribute to managing the mitigation of greenhouse gases (GHGs) and the implementation of global warming adaptation strategies in the region.

La cyberjustice a révolutionné le système judiciaire dans les pays avancés permettant un accès à la justice de plus en plus probante. Mais quelle peut être sa plus-value en Afrique où le service public de la justice s'est dégradé depuis une décennie du fait des restrictions budgétaires ? Même si les obstacles auxquels se trouvent confronter l'appareil judiciaire et les justiciables ne sont pas négligeables, l'Afrique, qui aujourd‟hui apparaît comme le continent d‟avenir, gagnerait à dépasser ces obstacles en mettant la technologie au service de la justice. C'est ainsi que ce continent parviendra à une justice plus efficace en étant moins lente et plus impartiale entre autres.

Contract of employment was long acknowledged as a subject of genuine and voluntary agreement whose construction or determination should be founded on due notice of the parties thereto. Action for wrongful dismissal would lie if an employment was disturbed, interfered or meddled with, in defiance of the rights of the parties under the contract. The objective of this study was, among others, to determine what constituted a valid contract of employment and remedies for wrongful dismissal. The qualitative and documentary method of data collection was adopted by reference to relevant literature and statutory authorities. From the data gathered, and content analyzed, we found that no law could foreclose an employment from determination, nor could an irregular or wrongful dismissal stand. It was recommended, inter alia, that beside the need to repeal the Public Officers (Protection) Act, both the employer and employee should, in their official dealings, respect the sanctity of their contract, and permit reasonable future modifications thereto as could lawfully enhance the life of the contract and their legitimate desires.