Bibliographie sélective OHADA

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

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Les sociétés civiles immobilières sont des structures courantes qui attire désormais de nombreux particuliers possédant des biens immobiliers dans leur patrimoine. L’intérêt de ce type de société est d’optimiser la location de ses biens, la fiscalité qui leur est associée mais également la transmission de ceux-ci à leurs descendants. Cependant, cette recherche de l’optimisation fiscale nécessite de certaines connaissances comptables et fiscales afin de ne pas faire d’erreurs qui pourront causer des préjudices et réduire cet optimum. Ce mémoire détaille les modalités auxquelles les sociétés civiles immobilières seront confrontées dans le but d’optimiser les coûts de fonctionnement et les frais de transmission.

Em vista de um contexto crítico ao Direito Internacional Privado, em que se retrata a disciplina como inerte frente aos desafios da globalização, composta por técnicas neutras e indiferentes a ideais de justiça na conjuntura da alocação da governança global, esta tese pretende propor uma reinterpretação das normas de aplicação imediata e da exceção da ordem pública. Almeja-se adaptar estes institutos jurídicos para que comportem uma dimensão social, incorporando fatores axiológicos que permitam a promoção do interesse público e dos direitos humanos. Esta pesquisa é permeada pelas seguintes perguntas: (i) frente a asseverada neutralidade do Direito Internacional Privado, as normas de aplicação imediata e a exceção da ordem pública conseguiriam representar uma quebra desta ausência valorativa, englobando fatores axiológicos? (ii) Se esta ruptura da neutralidade é comprovável, de quais fatores axiológicos se revestem as normas de aplicação imediata e a exceção da ordem pública? (iii) Há possibilidade de serem agregados outros fatores axiológicos aos existentes? (iv) Os fatores axiológicos existentes e os fatores axiológicos agregados seriam capazes de ensejar um fomento do interesse público e dos direitos humanos, conformando uma função social do Direito Internacional Privado? Visando a enfrentar estes questionamentos, empregou-se um método dedutivo de abordagem e foram utilizadas técnicas de pesquisa histórica e comparativa, combinadas à análise de fontes doutrinais, legislação e jurisprudência nacionais e estrangeiras. Incialmente, foram expostas as premissas da pesquisa, estudando-se a construção histórica do paradigma de neutralidade do Direito Internacional Privado e como as normas de aplicação imediata e a exceção da ordem pública podem representar uma ruptura a esta neutralidade. Posteriormente, foram analisados os valores intrínsecos às normas de aplicação imediata e à exceção ordem pública, propondo-se que outros valores sejam a estes agregados, no sentido de se promover o interesse público e os direitos humanos.

Ever since the formation of limited companies became permissible, unsecured creditors have faced a Sisyphean struggle to regularly recover substantial levels of the debts owed to them should corporate creditors enter insolvency. These low recovery rates result in many issues for lenders, including large losses, and in some cases, the insolvency of the lender themselves. The causes of these low return rates are long established and clearly demarcated. They consist of the existence and widespread use of security interests - which remove the majority of the company’s assets upon insolvency occurring - and the statutory priority of distribution, which ensures that parties other than the unsecured creditors have their debts discharged first by the liquidator from the already insufficiently resourced asset pool. English insolvency law has sought to provide some protection to the unsecured creditors through the anti-deprivation and personal liability provisions of the Insolvency Act 1986, which are intended to protect the integrity of the insolvent company’s asset pool. However, as concluded by this thesis, these provisions fail to afford adequate protection as a consequence of their substantive, evidential and remedial limitations, potentially resulting in the distributable assets being misappropriated and out of the reach of unsecured creditors. This thesis therefore analyses the limitations of the existing anti-deprivation and personal liability provisions before concluding as to how and why they fail to adequately protect unsecured creditors. This is done through a doctrinal and theoretical analysis of the provisions, before these conclusions are then tested empirically in two case studies. Given the inadequate protection provided by the Insolvency Act, this thesis then analyses the resulting trust – on which little analysis has been conducted in the context of insolvency – to determine whether it is capable of assisting unsecured creditors to increase their liquidation return rates. This increase is achieved through returning assets beneficially owned by the company to the company, or by preventing parties from becoming unsecured creditors in the first place by removing assets beneficially owned by them from the company. This analysis too will adopt a doctrinal and theoretical methodology, and it is concluded that the resulting trust is able to assist should the requisite factual matrices occur.

Party autonomy is a well-accepted doctrine codified by national, international and supranational organizations that enables parties to be able to not only shape their contract but also their dispute resolution methods. It is believed that parties know their best interests; therefore, it is reasonable to give parties the freedom to decide whom they contract with and on what terms. This maximizes the autonomous freedom of the parties. Therefore, today it is well accepted that parties could waive their right to go to court and choose arbitration instead. However, through history, party autonomy has been seen as a direct threat to sovereign authority. States were always suspicious that arbitration hearings may not be as fair as court hearings since parties have the right to manipulate the arbitration processes. As a direct result of this, states regulated restrictions on party autonomy in international commercial arbitrations. Unfortunately, there is not an accepted definition of these restrictions and their effects on party autonomy have not been established or regulated internationally. Since party autonomy is the backbone of international commercial arbitration, it is important to crystalize the restrictions on party autonomy in procedural issues which directly affects the wellbeing of the arbitration process. Well accepted international regulations such as the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards or UNCITRAL Model Law on International Commercial Arbitration helped to establish a unified system of restrictions on party autonomy but every state and state's courts interpret these restrictions differently. As procedural issues affect the result of international commercial arbitration, restrictions on party autonomy in procedural issues should be examined carefully. It is not an exaggeration that in international commercial arbitration the real and complicated questions most of the time originate from the issues of the boundaries of party autonomy. The tension between the party autonomy and efficiency of an arbitration process affects every decision which can be made by parties, arbitrators or courts. Therefore, this dissertation will investigate these problems in three parts by outlining; the source of party autonomy, the restrictions of party autonomy and the applications of these restrictions to party autonomy in procedural issues in international commercial arbitration. In the first part, the origin of party autonomy doctrine and how the doctrine developed throughout time will be examined. The law of arbitration, lex arbitri will be examined first. There are two accepted theories to determine lex arbitri. According to the territorialism theory, arbitration gets its power from the law of the place where the arbitration takes place. This theory suggests that the place where the arbitration takes place has control power over the procedure of arbitration. On the other hand, delocalization theory suggests that arbitral tribunals are detached from and not under the control of the law of the seat of arbitration. Although it looks like delocalization theory suits the needs of the international trade practice better because it assumes that arbitration is not in control of any law, it is still important to accept the power of the seat of arbitration since arbitration always needs a law to be controlled and get help. This section will also cover how different countries and international regulations determine lex arbitri and how it is determined in Turkish law according to the Turkish International Arbitration Law, Law no.4686. In the second part, restrictive measures of party autonomy will be examined. It will start with why party autonomy in procedural issues is needed to be restricted. Then the source of these restrictions will be mentioned. Afterwards, the common notions of the restrictions will be examined under the concepts of principles and rules. Under principles, the public policy and the common due process issues such as party equality, right to be heard, independence and impartiality of arbitrators will be examined in great detail. Then, mandatory rules which are based on these principles and their effect on party autonomy will be explained. The section will be closed with the examination of the circumstances where these principles and rules contradict each other. The main purpose of the second part is to look for commonly accepted problems of restrictions of party autonomy in procedural issues and how these common problems may evolve to a uniformed standard of the law, namely lex proceduralia. In the third part, the application of restrictions on party autonomy will be examined. The application of restrictions has different effects on parties, arbitrators and courts. Parties' autonomy is restricted while they are preparing their agreement on procedural issues, arbitrators are restricted during the arbitration processes and courts are restricted while helping the arbitration or controlling the awards. Before the arbitration process is initiated, parties' autonomy to shape their agreement looks like it is almost unlimited. However, parties' autonomy is always restricted by their choices. This situation is called the autonomy paradox. Therefore, the question of what parties can decide before the arbitrators join the processes is of the upmost importance. When the process starts and arbitrators start working, they balance the choice of parties and the restrictions of party autonomy. Since it is accepted that arbitrators are bound by the parties' choice and their power comes from the agreement of parties, it should be questioned whether they need to execute every choice of parties even if the choice is against mandatory provisions of lex arbitri or general accepted due process norms. Last but not least, courts' role on determining the party autonomy will be questioned. The power of courts to intervene in the arbitral process determine the practical limits of the autonomy of parties. During the arbitration process, the court may intervene in the process to help or control the arbitration; but real control power comes from when one of the parties asks courts to set aside or enforce the arbitral awards. While courts examine the arbitral awards, they also indirectly decide the limits of party autonomy. Therefore, this section will examine, which restrictions will affect the fate of the arbitral awards and how the courts should evaluate these restrictions. In conclusion, the dissertation will mainly investigate the topic of freedom of parties to determine the procedural issues in international commercial arbitration. It will aim to interpret and make use of the party autonomy doctrine as coherent as it can in the modern age. By illustrating the definition and limitations of the party autonomy in the procedural issues in international commercial arbitration, the dissertation will try to find a common international ground. This common ground may help to keep arbitration processes efficient while it provides fair hearings.

Mobile money services have considerable potential in modern economies. They have the potential to increase financial inclusion for poor people and people excluded from formal financial services. This is because mobile money services can be accessed simply using a mobile cellular phone and the majority of people nowadays own mobile phones, including people living in the rural areas. Mobile money can therefore solve the problem of financial exclusion because even the people who live in the rural areas without access to formal financial services can now access financial services thorough mobile money services. Financial inclusion, on the other hand, is simply defined as a situation where every member of the society has access to and is able to use financial services offered by formal financial services institutions, such as banks and insurance companies. Financial inclusion has many benefits, the main benefit being the stimulation of the economy of a country. For mobile money services to operate smoothly and financial inclusion to be achieved, there must be enabling regulation. Regulation must not be so strict as to prevent mobile money service providers from operating. Regulation must allow for innovation and at the same time maintain financial integrity and stability by ensuring that financial crimes, such as money laundering, do not affect mobile money services. Although mobile money services can increase financial inclusion, regulators must be vigilant to ensure that they stop criminals from using mobile money services to commit money laundering offences. This research focuses mainly on mobile money services in the Kingdom of Lesotho. The aim is to find out how regulation can be improved to ensure that mobile money services can help to increase financial inclusion. The aim is also to find out how regulation can help to ensure that mobile money services operate smoothly, and that the crime of money laundering is prevented from affecting mobile money services. To achieve this aim, the research is divided into different chapters and in each chapter the aim is to find ways in which the main aim can be achieved. In the research, mobile money and financial inclusion will be defined and their importance in modern economies will be demonstrated in greater detail. Furthermore, the issues of money laundering will be discussed. The threat of the crime of money laundering will be highlighted. An analysis of the legal regulatory framework of mobile money services and money laundering in Lesotho will be undertaken to determine the extent to which these regulatory frameworks can help realise financial inclusion and promote mobile money services in Lesotho. The same discussion is made in respect of other African countries. The legal regulatory framework of Lesotho will be compared to the framework of other African countries to ascertain how mobile money services and money laundering and financial inclusion issues are regulated in those countries. The countries discussed in this research are South Africa, Malawi, Kenya, Nigeria, Uganda, Tanzania, and Ghana. Based on these discussions, some shortcomings in the legal regulatory framework of mobile money services and money laundering in Lesotho will be identified and the conclusion will be drawn that the two frameworks have to be revisited to ensure that mobile money services will operate smoothly in the Kingdom of Lesotho. Furthermore, recommendations will be made to address the legal shortcomings identified in the framework.