Bibliographie sélective OHADA

The internet and digital technologies have irreversibly changed the way we find and consume news. Legacy news organisations, publishers of newspapers, have moved to the internet. In the online news environment, however, they are no longer the exclusive suppliers of news. New digital intermediaries have emerged, search engines and news aggregators in particular. They select and display links and fragments of press publishers’ content as a part of their services, without seeking the news organisations’ prior consent. To shield themselves from exploitation by digital intermediaries, press publishers have begun to seek legal protection, and called for the introduction of a new right under the umbrella of copyright and related rights. Following these calls, the press publishers’ right was introduced into the EU copyright framework by the Directive on Copyright in the Digital Single Market in 2019.

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The future of sustainable development in Africa and for its growing population will depend on investments which might come mostly from abroad attracted by a favourable investment climate (or ecosystem). It is rather doubtful that the actual ('old') international legal framework for investment-related and investment-specific measures which does hardly create an adequate balance between the interests of all important public as well as private stakeholders would meet the requirement of today and tomorrow. But any alterations or improvements must start from the present state of things. So, this study looks at the different levels and various instruments dealing with traditional standards of investment and investor protection, e.g. BITs und TIPs, and at the activities of global, regional and sub-regional organizations (in particular EU and OHADA). Moreover, new developments at global and regional levels are discussed including trends showing a somewhat specific African approach to investment issues ('Africanization'). Finally, a very important topic, i.e. the relation between investment protection and human rights (of investors and of other people negatively affected by relevant activities), is described and assessed in more detail. A second part of the analysis will turn to elaborating on dispute settlement and enforcement issues since till today, there seems to be a sharp distinction between Investor-State- Dispute Settlement (ISDS) by way of mediation, conciliation and arbitration on the one hand and judicial redress by national courts (of home, host or third States) on the other.

There are many employment positions in the labour market that could be filled by the disabled of whom most, given the right environment, could be productive in the workplace. However, there are employers who still labour under the misconception that Persons with Disabilities (PWDs) are unqualified and unproductive although their participation in the workplace could contribute to the national economy, while restoring their dignity and social integration. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) entered into force on 3 May 2008. The CRPD is the first international legally binding treaty aimed specifically at protecting the rights of PWDs. It is expected of ratifying States Parties to either amend their domestic existing laws or to enact new legislation in order to meet their obligations, as set out in the CRPD. In 2008, South Africa ratified the CRPD and the Optional Protocol, thus committing itself to the provisions relating to, inter alia, workplace integration. Article 26 of the Convention mandates States Parties to take effective and appropriate measures to enable PWDs to attain and maintain maximum independence, physical, mental, social and vocational ability, and to ensure their social inclusion. Article 27 stipulates, inter alia, that States Parties shall safeguard and promote the realisation of the right to work, including those who incur a disability during the course of employment. Legislation should make provision for, inter alia the following: • enable PWDs to have effective access to general technical and vocational guidance programmes; • placement services and continued vocational training; • promote employment opportunities and career advancement; • assistance in sourcing, obtaining, maintaining and returning to work; and • reasonable accommodation in the workplace as well as vocational and professional rehabilitation. Although the Compensation for Occupational Injuries and Diseases Act 130 of 1993 was amended recently to include rehabilitation, re-integration and return to work (RTW) as part of its objectives, it will be argued that South Africa needs to initiate targeted legislation and policies that make disability management functions mandatory. Employers’ obligations need to be set out clearly in the Act, because, as it stands, the following lacunae exist: • There is no obligation to appoint Case Managers; • Dismissal protection is not provided for; • The regulation of negative incentives to assist with RTW compliance is lacking; and • The roles of different stakeholders in the RTW process require clarification. Without South Africa having an appropriate and detailed RTW framework, ill or injured employees stand the risk of losing their jobs and becoming dependent on family members and/or disability grants. Against this background, a comparative analysis of international and regional law and the RTW practices of two foreign jurisdictions were made. This enabled the author to devise recommendations and identify the roles of the government, employers, employees and Case Managers. The primary objective of this thesis is to determine how and to what extent regional and international standards and RTW programmes in other countries could assist in developing and amending the current legislative and policy framework in South Africa to promote the RTW of disabled employees.

This paper analyses financial inclusion in Africa focusing on the role of political business cycles and pricing behaviour of banks. We employ a sample of 330 banks operating in 29 African countries to test for two related hypotheses. Panel fixed and random effects were estimated for the period 2002 to 2013. The regression results that ensued suggests first that loan price increases in pre-election and election years. Building on this result and employing various specifications of financial inclusion, the second results suggest that, high bank loan prices in election years tend to increase financial access more, compared to non-election years, and that, high deposit price reduces financial usage but increases financial access in election years, compared to non-election years. By extension, these results have important policy implications for policymakers.

That intellectual property is the creation of ideas in the form of new discoveries, literary works, and works of art, symbols, names and images used in trade. Of course, intellectual property is closely related to the world of commerce because its emergence is triggered by the desires of the members of the World Intellectual Property Organization who want to protect their economies in the era of free trade. In this case how the form of protection of intellectual property rights in the perspective of international trade, it can be seen that basically the laws and or regulations in every country in the world are different and each country has the right to implement its own legal rules in the jurisdiction of their country.

Le juge togolais a rendu une intéressante décision sur la contrefaçon en cas de cumul des droits, notamment de brevet et de marque, sur un produit. D’un côté, quant à l’appréciation de la contrefaçon de brevet d’invention, ne constitue pas une contrefaçon, la mise sur le marché d’une invention dont le mécanisme a une double fonction distincte de l’unique fonction de l’invention protégée. De l’autre, l’apposition de la marque d’autrui sur les emballages et l’étiquette du prix d’un produit constitue un comportement gênant et troublant susceptible de donner lieu à une réparation du dommage subi par le propriétaire de la marque. La portée de la décision dépasse de loin les seules conséquences de la contrefaçon. Elle implique également que, la propriété intellectuelle étant fille de la liberté de commerce et de l’industrie, l’appréciation de la contrefaçon ne puisse oblitérer l’aspect concurrentiel de ces droits. La liberté de commerce et de l’industrie peut donc aussi bien intervenir pour soutenir les titulaires de droit de propriété intellectuelle que pour encadrer leurs pratiques.

With the developments happening globally that are aimed at curbing base erosion and profit shifting by multinationals, improving the resolution of transfer pricing disputes has been identified as one of the key issues. This thesis investigates the challenges uniquely faced by African countries that militate against the use of the OECD transfer pricing dispute resolution mechanisms. The thesis starts by reflecting on the effect of transfer pricing manipulation by multinational enterprises in Africa in particular. Transfer pricing manipulation is one of the causes of the so-called tax gap, which is, the gap between anticipated and actual revenue collection. The aggression by revenue authorities against transfer pricing manipulation in order to close this gap has triggered a lot of transfer pricing adjustments. These adjustments have resulted in multiple transfer pricing disputes. In the analysis of the adopted OECD dispute resolution mechanisms, the thesis focuses on the effectiveness of the mutual agreement procedure (MAP), the advance pricing arrangement (APA) and the mandatory binding arbitration (MBA). It identifies the problems that result in the failure of or the delay in the resolution of many transfer pricing disputes by analysing the domestic frameworks that exist in four African countries namely: South Africa, Kenya, Uganda and Ghana. The thesis identifies problems such as the absence of a tax treaty network within the African continent, the use of underdeveloped double tax agreements and the lack of commitment from African countries to subscribe to and ratify multilateral conventions. These problems delay or stifle the resolution of tax treaty disputes. They also cause uncertainty for taxpayers and lead to continued tax avoidance by multinational enterprises that essentially avoid paying tax in African countries where the economic activities of these enterprises take place. The thesis also identifies the importance of other OECD supporting tools such as the exchange of tax information in the resolution of transfer pricing disputes. It focuses on tools such as country by country reports, the master file, the local file and simultaneous tax examination as covered by the Multilateral Convention on Mutual Administrative Assistance in Tax Matters. The thesis contributes to the resolution of the identified problems with transfer pricing dispute resolution in Africa by recommending certain improvements that can be effected. These recommendations entail, regarding the MAP, the expansion of tax treaty networks by African countries and the establishment of a Tax Treaty Dispute Resolution Committee by ATAF. Regarding the APA, it is recommended that African countries should sign the multilateral instrument (MLI) and make use of advance tax rulings (ATRs) as alternatives. With respect to the MBA, this thesis recommends that African countries should use optional arbitration by effectively using article 25(4) of the OECD Model tax convention (MTC). It also recommends that African countries must enhance their tax transparency by ratifying multilateral conventions that seek to address international tax co-operation and to improve compliance with transfer pricing documentation requirements in order to make the resolution of transfer pricing disputes more effective.