Bibliographie sélective OHADA

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

This study was motivated by the quest to find new innovative and practical ways of combating public procurement corruption in developing countries to complement the existing measures. This was achieved by comparing three jurisdictions, Hong Kong-China, Botswana and South Africa. The focus was on how each jurisdiction uses the following four measures to curb public procurement corruption: criminal measures; administrative measures; institutional measures and civil activism measures. It was established that Hong Kong uses what this study has classified as the traditional approach of combating public procurement corruption. The traditional approach is characterised by the use of a separate procurement legal framework and a separate corruption legal framework to curb public procurement corruption. Its strengths are in the strict enforcement of criminal measures that are anchored on a robust legal framework, a clear anti-corruption strategy, an independent anti-corruption agency (institutional measure), effective internal oversight and a strong political will. However, the following weaknesses of the traditional approach were identified: over reliance on criminal measures; excessive dependence on one enforcement institution; it neglects the development of administrative measures and has weak civil activism measures. It was established that Botswana uses what this study has classified as the classical approach of combating public procurement corruption. The classical approach is characterised by a procurement legal framework that incorporates very minimum anti-corruption provisions. The anti-corruption provisions in the procurement legislation are enforced by an external institution (the DCEC in the case of Botswana) which relies heavily on the criminal measures. Its strengths are the following: a strong legal framework which provides for a clear anti-corruption strategy; it has anti-corruption units in each Ministry and it has a dedicated Corruption Court. However, the classical approach has the following weaknesses: the anti-corruption agency is not adequately independent as it under the control of the executive (the President in the case of Botswana); lacks effective internal oversight mechanisms; weak political will; neglects the development of administrative measures and civil activism measures are almost non-existent save for the media. It was established that South Africa uses what this study has classified as the traditional cum silo approach of combating public procurement corruption. The traditional cum approach is characterised by multiple procurement legislation which has certain but minimum anti-corruption provisions and a separate corruption legal framework. Multiple anti-corruption agencies are prone to political interference which renders them ineffective and unfit for purpose. Its strength is in the promotion and protection of civil activism measures (right to access information, right to freedom of speech and legal protection of whistle-blowers). Notable weaknesses of the traditional cum silo approach are: the poor enforcement of criminal measures; there is no lead anti-corruption agency that spearheads and coordinates all cases of public procurement corruption; there is no clear anti-corruption strategy; the administrative measures such as debarment are poorly enforced; it has multiple anti-corruption institutions that lack focus and professionalism which results in political manipulation. The thesis concluded by suggesting a new approach, the contemporary approach to combating public procurement corruption which entails the enactment of a single procurement legislation (model law) the Public Procurement and Combating of Public Procurement Corruption Act (hereafter PPCPPC). The contemporary approach advocates for the regulation of public procurement and the combating of public procurement corruption in one legislation. This legislation (PPCPPC) takes into account, the current demands for public procurement as well as future developments of public procurement. These include but are not limited to self-cleaning, cyber-crime and public procurement corruption as well as the role of foreign convictions for debarment purposes. The envisaged PPCPPC will in addition to regulating public procurement, encompass the best criminal measures, administrative measures, institutional measures and civil activism measures. In addition, the contemporary approach through the PPCPPC proposes two new innovations: the corruption clearance certificate and a mandatory anti-corruption clause in all government contracts.

Abstract : Each member state of the BRICS countries is different about the modalities and limitations of party autonomy in their field of Private International law. The principle of party autonomy allows parties to choose the law applicable to their contract and is meant to respect the choice of contracting parties. Since laws are not absolute, they need to change to the needs of a changing society. This can generate a problem in instances where contracting parties have already chosen a choice of law to govern their contract. The question is then whether the governing law of a contract that was previously chosen by the parties can be changed after that contract has been concluded. The scope of party autonomy extends to permitting parties to modify their chosen law in instances where it is necessary to do so, subject to limitations of a specific legal system and principles of conflict of laws. However, the legal rules of each BRICS countries differ in permitting parties to modify the chosen law. This minor dissertation analyses whether the principle of party autonomy is recognised in each member state of the BRICS countries and whether it extends to allow for modification of choice of law. It further asserts that the BRICS countries could plausibly refer to the rules and recommendations of Article 2(3) of the Hague Principles on Choice of Law in International Commercial Contracts to advance the wide acceptance of modification of choice of law. <br>LL.M. (International Commercial Law)

Le constat de l’obsolescence du droit africain a fait germer l’idée de créer une réglementation moderne et adaptée à l’économie des pays africains dans l’esprit des décideurs africains. L’entreprise s’était révélée nécessaire en raison de l’absence jusque-là de tout effort législatif destiné à épousseter la législation africaine postcoloniale alors qu’ailleurs, en France et dans la plupart des pays occidentaux, le droit des affaires était à mise à jour permanente ; constamment les textes y sont modifiés parce que le monde est soumis à de constants bouleversements. C’est dans ce contexte que l’OHADA a été instituée par le Traité constitutif signé à Port Louis (Ile Maurice) en Avril 1993, entré en vigueur le 18 septembre 1995, il a été révisé à Québec en 2008 . Le droit Ohada est un système juridique et judiciaire qui vise à garantir la sécurité juridique des affaires en adoptant un droit commun des affaires dont l’interprétation est confiée à une seule instance juridictionnelle, la Cour commune de justice et d’arbitrage. Il est composé aujourd’hui de dix-sept (17) Etats d’Afrique subsaharienne ayant en commun un même droit des affaires.

This research traces the developments of the directors’ fiduciary duty to act in the best interests of the company and looks at how these developments affect human rights and interests of stakeholders. The main focus of the study is on the human rights impact of this duty. Initially, this duty was only regulated in terms of common law which proved to be problematic. The problem with common law lies within the definition of ‘best interests of the company’, which not only exclude the interests of other stakeholders but also has the potential to bring about violation of human rights, particularly the rights to equality, dignity and fair labour practice. At common law best interests of the company means interests of the company itself and its shareholders. The common law only protects the company and its shareholders, while excluding the rights and interests of stakeholders. The common law duty to in the best interests of the company is not in line with our contemporary law because it ignores human rights. The neglect of human rights by this duty renders it inconsistent with the values contained in the Constitution. Furthermore, the exclusion of stakeholders’ rights by this duty cannot be justified because stakeholders play an important part in safeguarding the stability and continued existence of the companies. The fiduciary duty to act in company’s best interests is now contained in the Companies Act of 2008. Inclusion of this duty in the Act enables our courts to interpret it in a manner that protects human rights and which takes into account interests of other stakeholders. Section 7 (a) of the Act provides that among other goals of the Act is the promotion of compliance with the Bill of Rights when applying the company law. The impact of section 7 is that it imposes an indirect duty on directors to consider the human rights impact of their decisions. Section 158 of the Act enables the courts to “develop common law as it is necessary to improve the realisation and enjoyment of rights established by the Companies Act of 2008.” Given this recognition of the Bill of Rights by the Companies Act, it’s of vital importance that our courts should interpret and apply the duty to act in the best interests of the company in manner that is consistent with the Constitution. Directors are now obliged to pay attention to the human rights impact of their decisions.

Abstract available in pdf.