Bibliographie sélective OHADA

<p>This book examines the law, national and/or international, that arbitral tribunals apply on the merits to settle disputes between foreign investors and host states. In light of the freedom that the disputing parties and the arbitrators have when designating the applicable law, and because of the hybrid nature of legal relationship between investors and states, there is significant interplay between the national and the international legal order in investor-state arbitration. The book contains a comprehensive analysis of the relevant jurisprudence, legal instruments, and scholarship surrounding arbitral practice with respect to the application of national law and international law. It investigates the awards in which tribunals referred to consistency between the legal orders, and suggests alternatives to the traditional doctrines of monism and dualism to explain the relationship between the national and the international legal order. The book also addresses the territorialized or internationalized nature of the tribunals; relevant choice-of-law rules and methodologies; and the scope of the arbitration agreement, including the possibility of host states presenting counterclaims in investment treaty arbitration. Ultimately, it argues that in investor–state arbitration, national and international law do not only coexist but may be applied simultaneously; they are also interdependent, each complementing and informing the other both indirectly and directly for a larger common good: enforcement of rights and obligations regardless of their national or international origin.</p>

Ever since the colonial era, attempts have been made throughout the various regions of Africa at building supranational units chiefly for administrative and legal convenience. Examples of such attempts include the Federation of Rhodesia and Nyasaland, the East African High Commission and the federations in former French West and Equatorial Africa, all of which were attempts at forging a supranational nation state. These experiments laid the foundation for further supranational initiatives in post-colonial Africa. In this respect, every region in Africa has either experimented with or is currently experimenting with the idea of supranational regional organisations. This article aims at investigating selected attempts at supranationalism on the continent, the successes and failures of such experiments, and the lessons to be learnt from them. As Africa embarks on the journey of solidifying its unity through the establishment of leviathan continental institutions, efforts should be geared towards building on the experiences of past and present experiments at the sub-regional level. Such experiments offer instructive lessons as they are rooted in similar historical and social contexts. &nbsp;&nbsp;&nbsp;&nbsp;

The World Bank legal review gathers this input from around the world and compiles it into a useful resource for all development practitioners and scholars. The subtitle of this volume, legal innovation and empowerment for development, highlights how the law can respond to the chal-lenges posed to development objectives in a world slowly emerging from an economic crisis. The focus on innovation is a call for new, imaginative strategies and ways of thinking about what the law can do in the development realm. The focus on empowerment is a deliberate attempt to place the law into the hands of the poor; to give them another tool with which to resist poverty. This volume shows some of the ways that the law can make an innovative and empowering difference in development scenarios. Development problems are complex and varied, and the theme of innovation and empowerment naturally has a broad scope. Consequently, this volume reaches far and wide. It considers the nature, promise, and limitations of legal innovation and legal empowerment. It looks at concrete examples in places such as Africa, the Asia-Pacific region, and Latin America. It considers developments in issues with universal application, such as the rights of the disabled and the effectiveness of asset recovery measures. The theme of legal innovation and empowerment for development complements substantive and institutional sensibilities in current development policy. Substantively, development policy discourse seems to have moved away from tacking hard toward statist policy or neoliberal policy. Although this brief introduction cannot do justice to the richness and complexity of these contributions, it does consider each focal point in turn.

No abstract available

This thesis investigates how International Financial Reporting Standards (IFRS) come to act within an organizational context. In particular, the thesis explores how the requirements for goodwill accounting and leasing influence organizational calculative practices, transforming and shaping operations management. Drawing on actor-network theory, this study moves away from a priori distinctions, following the construction and mobilization of accounting numbers across institutionalized boundaries within and around the organization. The empirical investigation took place in a large, worldwide active media group that is listed on a European stock exchange. The group is a particular interesting setting because of its diverse business structure and its German code-law accounting roots. Business combinations are a major growth factor within the industry and a high degree of decentralization in the organization placed responsibility for investment decisions at low hierarchical levels. Goodwill accounting and impairment testing were therefore highly significant calculative practices in the group. The study finds that the constitutive role of the financial reporting standards in the organization both solves tensions and dilemmas around the number and creates new ones when crucial interests are lost in translation. These tensions and dilemmas arise between the aim of standardization and closure for the construction of a legitimate value of the future, and the aim to mobilize numbers in order to motivate and create value for a future. Originally intended for the financial representation of organizational substance and performance, the standards become associated with operations management activities, helping to create the faithful records that sum up the organization. This interrelation helps to close concern around the representation of the future in a ‘fair’ value by distributing the calculative practices over a wide network of actors spanning inside and outside the organization. However, the relationship also forces a connection between calculations and ambitions that otherwise would have preferred to stay separate. This thesis offers a new perspective on IFRS implementation by emphasizing organizational activities. Through a focus on integration and the link between financial and management accounting, the ‘implementation problems’ highlighted in previous literature gain a refined theorization. When taking organizational practice seriously, integration becomes a process that may find temporal stability but will never be final. In the process, conflicts might be solved but new dilemmas will arise. In turn, concepts like decision usefulness, comparability and earnings management cannot exist in a stable form but are rather constructed in networks that disregard commonly assumed boundaries inside and around the organization.

It is widely acknowledged that entrepreneurial companies play a key role in shaping a local economy. Entrepreneurial companies are a source of growth and innovation for an industry and provide jobs for the local population. However, entrepreneurs of high growth oriented companies rarely have the capital to finance their innovative ideas themselves and therefore also have to accept the risks associated with assessing and acquiring the necessary finance resources from other investors. The goal of this dissertation is to study the impact of venture capital (VC) finance on such entrepreneurial finance decisions. Although VC investors are a highly focused and specialized kind of investors that offer a wide range of differentiated services, it is to date still unclear how VC investors may reduce agency costs for other potential investors. The first study of this dissertation studies the effect of VC finance and associated VC ownership for finance decisions from other investors who have the potential to invest in these companies. This study demonstrates that VC ownership results into a larger supply of finance for the entrepreneurial company. Second, I find that VC ownership results into an even larger positive effect on capital investment decisions from equity investors as VC finance is typically also associated with the implementation of an equity-oriented corporate governance mechanism in entrepreneurial companies. VC ownership does not have an effect on the supply of finance from financial debt investors, however. Nevertheless, I find that debt finance is equally available for companies with VC ownership as compared to companies without VC ownership, which is a surprising result given the high risk associated with high growth companies that raise VC finance. Another important finding of this study is that the positive effect of VC ownership is stronger for repeated VC finance versus non-repeated VC finance. In fact, these results indicate that the effect of VC finance for entrepreneurial companies’ finance decisions is considerably larger if VC investors commit to further finance the company. The second study of this dissertation extends the first study and explores the effect of VC ownership on entrepreneurial finance decisions in different institutional settings. Although the effect of VC ownership is not limited to one specific institutional context, this study shows that its impact on entrepreneurial finance decisions is stronger in countries with a better quality of law enforcement and in countries where the entrepreneur is able to obtain a fresh start after bankruptcy. Specifically, in countries with a better enforcement of law, VC investors are more effective in reducing agency problems between entrepreneurs and potential investors. The attractiveness of a fresh start after bankruptcy will also be higher for an entrepreneur who raised VC finance, as VC investors focus more on maximizing the value of their portfolio rather than on the survival of individual firms. The third study acknowledges the fact that VC investors are not all equal and explores which VC investor types have more bargaining power versus the entrepreneur and how such differences in VC investor bargaining power affect company valuations in VC investment rounds. VC investor bargaining power is important because company valuations are the outcome of negotiations between the VC investor and the entrepreneur. We show that university VC firms and government VC firms negotiate lower valuations compared with independent VC firms. The proprietary deal flow of university VC firms and the limited competition in niche markets in which government VC firms compete will directly increase their bargaining power versus the entrepreneur, which these VC investor types then further exploit by negotiating lower company valuations compared with independent VC investors. Although differences in VC investor type did not affect entrepreneurial finance decisions in the first and second study, they do affect the equity stake that an entrepreneur will have to give up in order to raise VC finance and in order to a have a greater access to entrepreneurial finance from potential investors in the future.

This thesis comparatively analyses the SA income tax general anti-avoidance rule (GAAR) in s 80A-L of the Income Tax Act 58/1962 and similar rules in Australia, Canada, the UK and the judicial doctrines in the US and the UK. It is argued that, while the SA GAAR may serve as a deterrent, it is going to have limited efficacy against impermissible tax avoidance due to the uncertainty it creates. It is argued that uncertainty will cause judicial activism to protect permissible tax avoidance, extensive and inconsistent judicial interpretation and confusion amongst taxpayers and SARS as to what constitutes permissible or impermissible tax avoidance. This thesis ends by recommending certain amendments, based on the comparative analysis, to the SA GAAR which can reduce uncertainty and thus improve it efficacy.

This article argues that, with the global or cross-border nature of many corporate activities, there is an increasing need for a uniform insolvency law approach to the financial distress of a corporation in the Southern African Development Community. In doing so, the article highlights lessons the community may learn from the Insolvency Act of the Organisation for the Harmonization of Business Law in Africa. Emphasis is given to that organization’s success in developing a uniform insolvency act (ie one which is directly applicable in its contracting states). The article also proposes a number of recommendations.

In a region where there is diversity of laws, the author maintains that law reform is a catalyst for investment and development. This thesis aims at demonstrating that OHADA provides practical lessons for the development of a uniform commercial law structure in the SADC. This is following OHADA’s success in developing uniform commercial rules that are directly applicable in the contracting states. To achieve this, the thesis uses a “structured focused comparison” methodology that allows for two separate, but structurally linked accounts of the structures of both organisations. In exploring the structures of both organisations, the thesis endeavours to: determine whether there is the need for the development of a commercial law structure in the SADC; whether such a structure can be developed within the current SADC structure and whether OHADA can serve as a possible model for the SADC. The findings show that no part of the African continent has witnessed regional legal reform on the scale of that initiated by OHADA. It equally reveals the absence of a uniform commercial law structure in the SADC and the lack of supranational structures to adopt full panoply of business laws and to preserve the uniformity of laws in the member states. The findings from this thesis provide evidence that there is the need forthe development of a commercial law structure in the SADC and improvement of the current SADC structure. There is no doubt that thi swould do away with legal uncertainty in cross-border commercial transactions among SADC states.

To reflect the growing trends in the international scene and in furtherance of the objective of its Revised 1993 Treaty, the Economic Community of West African States (ECOWAS) summit in December 2006 revolutionised the structure of ECOWAS by re-designating the Executive Secretariat into a quasi-independent commission headed by a President with a Vice President and seven commissioners. The rationale behind the revision was to make ECOWAS a supranational entity. This article considers whether or not a supranational system is essential for the attainment of ECOWAS' objectives. It asks if the conditions for an effective supranational system are in place in the West African sub-region which could provide a solid foundation for its success and why the quest for a supranational system has not yielded any fruitful result in West Africa. It argues that a retreat from the quest for supranationalism and a return to an inter-governmental system would be a retreat rather than the way forward, and expresses the need for the course of action to be sustained courageously till the impact of integration begins to emerge, and the disguised, patriotic impulse of states to protect their national sovereignty gives way to the full manifestation of ECOWAS as a supranational entity. &nbsp;&nbsp;

The Tanzanian private sector is growing, partly due to the state’s efforts to conform to the global economy. As the economy expands and the National Microfinance Policy of 2001 is realised, more and more credit has been made available to consumers. As a direct consequence of the increase of credit, the number of over- indebted consumers in Tanzania is on the rise. The current debt relief system is regulated by the Tanzanian Bankruptcy Act no. 9 of 1930, a piece of colonial legislation. Unfortunately this law is ineffective, costly and outdated. Some of the problems identified in this study with this debt relief regime include the lack of a cost- effective alternative to bankruptcy and its total reliance on the judiciary, an institution that is itself overburdened and requires reform. The purpose of this study is to make recommendations for the reform of the current debt relief system and propose a debt relief dispensation for consumer debtors in Tanzania that will efficiently cure over- indebtedness. A wide comparative investigation was undertaken in this study of selected common law, civil and mixed legal systems that have substantial experience with the boom in over-indebted consumers now facing Tanzania. A number of solutions were borrowed from these systems that may potentially solve Tanzania’s debt relief problem. One of the main findings of this thesis is that, over time, developed jurisdictions that rely on credit in the private sector appear to be converging on the same type of procedures and moderate philosophies for consumer debt relief. These include less judicial supervision for debt relief procedures, less freedom of choice for over-indebted consumers when it comes to the type of procedures available, and mandatory surplus income repayments for debtors who can afford it. In order to address the problems of the Tanzanian debt relief system, this thesis proposes a complete overhaul of the administration of debt relief procedures in Tanzania and the introduction of a combined alternative to bankruptcy that consists of three joint procedures. A number of amendments are also proposed for the Bankruptcy Act no.9 of 1930. This thesis states the status of legal developments as they were in the selected jurisdictions on 31 December 2012.

Examining the legal effects of EU concluded treaties, this book provides an analysis of this increasingly important and rapidly growing area of EU law. The EU has concluded more than 1,000 treaties including recently its first human rights treaty (the UN Rights of Persons with Disability Convention). These agreements are regularly invoked in litigation in the Courts of the member states and before the EU courts in Luxembourg but their ramifications for the EU legal order and that of the member states remains underexplored. Through analysis of over 300 cases, the book finds evidence of a twin-track approach whereby the Court of Justice of the European Union (CJEU) adopts a maximalist approach to Treaty enforcement, where EU agreements are invoked in challenges to member state level action whilst largely insulating EU action from meaningful review vis-à-vis agreements. The book also reveals novel findings regarding the use of EU agreements in EU level litigation including: the types and which specific EU agreements (including the types of provisions) have arisen in litigation; the nature of the proceedings (preliminary rulings or direct actions) and the number of occasions in which they have been addressed in challenges to member state or EU action and the outcomes; who has been litigating (individuals, institutions, or member states) and which domestic courts have been referring questions to the CJEU. The significance of the judicial developments in this area are situated within the context of the domestic constitutional ramifications for member state legal orders thus revealing a neglected dimension in the constitutionalization debates, which traditionally emphasized the ramifications of internal EU law for the domestic constitutional order without expressly accommodating the constitutional significance of this external category of EU law nor the different challenges that this poses domestically.