Bibliographie sélective OHADA

This thesis identifies the circumstances under which corporate governance regulation can help gain traction to minimise systemic risk. Systemic risk is the risk that local losses spread through the financial system and badly affect the financial system and the real economy. Excessive risk-taking by financial institutions can contribute to such systemic risk. Prudential regulation and supervision of financial institutions leave corporate decision-makers with room for discretion to increase or decrease systemic risk. The incentives of these decision-makers are not necessarily aligned with minimising systemic risk. The thesis shows that this problem exists across different business models. More specifically, it identifies perverse incentives in the case of systemically important banks, CCPs, mutual funds, and hedge funds. The need for corporate governance regulation therefore lies in the inherent incompleteness of prudential regulation and supervision. Corporate governance regulation can help fill this gap by regulating the environment within which choices are made within these types of institutions. The analysis has three steps. First, it characterises the systemic importance of financial-sector activities carried on outside the context of ‘banks’. The governance literature so far has focused on the ‘systemic externalities’ created by banks. However, our analysis shows that other non-bank SIFIs generate similar systemic externalities with socially harmful consequences. These systemic externalities are not considered by SIFIs when taking business decisions. In a second step, the thesis shows that prudential regulation and supervision are incomplete and leave room for governance regulation to fill in the gaps. The final step shows that a corporate governance framework focused solely on the interests of shareholders will have negative consequences for systemic stability. Given such divergence between the decision-makers’ and society’s interests, corporate governance regulation can complement the traditional prudential framework.

Las crisis económicas sufridas por la mayoría de los países industrializados han removido los cimientos del Derecho concursal, especialmente en lo que atañe a sus principios y funciones elementales. En este sentido, el aumento del volumen y de la complejidad de las estructuras empresariales ha incidido notablemente en las recientes reformas del Derecho concursal, las cuales han tratado de incentivar la función conservativa de los procedimientos concursales. El propósito de este artículo es analizar las dinámicas en la configuración de la función del Derecho concursal presentes en las recientes intervenciones legislativas llevadas a cabo por algunos países Europeos y Latinoamericanos. Para alcanzar dicho objetivo se sigue fundamentalmente un método analítico-descriptivo, a través del cual se justifica la relevancia interpretativa de la función del Derecho concursal, y se exponen las funciones tradicionales atribuidas a este sector del ordenamiento jurídico y el protagonismo de la función conservativa presente en las últimas reformas. A partir de ello, se realiza un análisis económico-funcional de esta tendencia, lo cual permite descubrir las tensiones existentes entre la función conservativa y la función solutoria. Desde esta perspectiva, se concluye sobre la necesidad de priorizar la finalidad solutoria de los procedimientos concursales, a pesar de la relevancia que actualmente se atribuye a la protección de la empresa en crisis mediante su saneamiento o rehabilitación. The financial crisis suffered by most of the industrialised have removed the foundations of bankruptcy law, especially as regards its elementary principles and functions. In this sense, the increase in the volume and complexity of business structures has had a notable impact on the recent reforms of bankruptcy law, which have tried to encourage the conservation function of bankruptcy proceedings. The purpose of this article is to analyze the dynamics in the configuration of the function of bankruptcy law present in the recent legislative interventions carried out by some European and Latin American countries. In order to achieve this objective, an analytical-descriptive method is basically used, through which the interpretative relevance of the function of bankruptcy law is justified, and it exposes the traditional functions attributed to bankruptcy law and the protagonism of the conservation function present in the latest bankruptcy reforms. From this, an economic-functional analysis of this trend is carried out, which allows to discover the tensions existing between the conservative function and the solution function of bankruptcy proceedings. From this perspective, we conclude on the need to prioritize the solution of bankruptcy proceedings, despite the relevance currently attributed to the protection of the company in difficulty through its reorganization or rehabilitation.

Les débats sur le comportement de financement de l’entreprise familiale ont tendance à se complexifier au fur et à mesure de leur occurrence. La diversité des résultats qui en découlent souvent en manque d’un consensus sur le détail et le caractère influent de ses facteurs constitutifs, en témoigne à suffisance. L’objectif de cet article est donc de mettre en lumière les facteurs d’incitation du financement par les dettes de ces entreprises dont les dirigeants sont souvent reconnus pour leur frilosité à l’égard de tout ce qui engendre la perte de propriété. L’approche hypothético-déductive et la procédure de tests d’homogénéité emboîtés sont mobilisées. Il se dégage des résultats obtenus que, la tangibilité de l’actif, le coût de la dette, la rentabilité économique et financière justifient le recours à l’endettement des entreprises familiales au Cameroun.

The right to health and the right to development are intertwined socio-economic rights that affect the well being and growth of a country’s populace. Most developing and least developed countries face challenges in ensuring access to essential medicines vis a vis the realisation of the right to health and full potential of development. Patents, provided for under the TRIPS Agreement are partly to blame for the lack of access to essential medicines as they account for the excessive pricing of medicines. Zimbabwe being a developing country currently facing dire economic and political challenges but being obliged under the International and Regional Human Rights Conventions it subscribed to, has to ensure the progressive realisation of the right to health and development. However, as a member of the TRIPS Agreement, there are limitations to the country’s ability to ensure access to medicines and healthcare for developmental purposes. This thesis has outlined the problematic provisions of the TRIPS Agreement and Zimbabwe’s attempt to use the flexibilities provided to its advantage. Zimbabwe has only put into use the flexibility of compulsory licensing and parallel importation to a limited extent; hence the recommendation that even though the country has domesticated the Agreement to its advantage, the country needs to explore other flexibilities comprehensively and promote the realisation of the rights to health and development.

La presente monografía analiza el régimen jurídico instaurado tras la entrada en vigor de la Ley 12/2021, de 28 de septiembre, por la que se modifica el texto refundido de la Ley del Estatuto de los Trabajadores, aprobado por el Real Decreto Legislativo 2/2015, de 23 de octubre, para garantizar los derechos laborales de las personas dedicadas al reparto en el ámbito de las plataformas digitales, que añade una Disposición Adicional 23ª al texto del Estatuto de los Trabajadores, consagrando a nivel legal la presunción de laboralidad de las relaciones entre trabajador y empresa en el ámbito de las plataformas digitales de reparto. Además, la norma jurídica viene a modificar el artículo 64.4 del Estatuto de los Trabajadores, introduciendo un nuevo apartado bajo la letra d), ampliando así el derecho de información de los comités de empresa, en su condición de máximo órgano de representación del conjunto de los trabajadores. Por otra parte, el trabajo centrará sus esfuerzos en desgranar la adaptación o reformulación de los clásicos conceptos jurídicos de Derecho del Trabajo de dependencia y ajenidad, como características esenciales del trabajo asalariado o por cuenta ajena, frente al trabajo por cuenta propia, clave fundamental para determinar, en definitiva, la existencia o no de una relación de naturaleza laboral. Utilizando como principal referencia la Sentencia número 805/2020, de fecha 25 de septiembre de 2020, del Tribunal Supremo, Pleno de la Sala de lo Social (recurso número 4746/2020), en cuyos principios se ha inspirado la posterior norma jurídica, trataremos de analizar la evolución que han sufrido estos conceptos a raíz del imparable auge del modelo de relaciones laborales surgido a la sombra de la economía tecnológica y del entorno digital, especialmente, en el ámbito de las plataformas de reparto de mercancías y toda clase de productos de consumo.

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.