Bibliographie sélective OHADA

For the past twenty years, international commercial arbitration scholarship has mainly focusedon the private dimension of international arbitration. Part of a greater movement toward the privatization of justice and law, this understanding of the discipline has obscured arbitrators'adjudicative role. By reflecting on different adjudicative models and by analyzing the form andcontent of arbitral decisions, new light can be shed on our understanding of international commercial arbitration.

A inserção internacional de Moçambique é um processo que ocorreu em fases, tendo se iniciado com os esforços empreendidos na década de 1960 pelo Dr. Eduardo Chivambo Mondlane, Primeiro Presidente da Frente de Libertação de Moçambique (FRELIMO). Visando criar o isolamento internacional do regime colonial Português e obter o apoio necessário para a causa da independência de Moçambique, Mondlane estabeleceu contatos com governos de vários Estados do mundo incluindo países ocidentais, países progressistas africanos e países socialistas, projetando, deste modo, a imagem de Moçambique no mundo. Iniciada com as decisões tomadas no Segundo Congresso da FRELIMO realizado em 1968, a política externa de Moçambique tinha em vista “criar mais amigos e poucos inimigos”, num contexto de bipolaridade ideológica que caracterizava a guerra-fria. O novo contexto internacional emergente no período após o fim da guerra-fria viria a originar uma redefiniçao desta política que passou a ser definida como de “criar mais amigos e mais parceiras”. A nível da região da África Austral a FRELIMO considerou sempre que a independência de Moçambique só seria completa com a libertação de todos os países da região que ainda se encontravam sob a dominação de regimes coloniais e minoritários tendo dado o seu apoio incondicional à luta de libertação do Zimbábue, África do Sul e Namíbia, para além do seu grande empenho no processo de cooperação e integração regional. É neste contexto que se pode enquadrar esta tese cujo tema é “a política externa de Moçambique e sua inserção na região da África Austral” a qual procura, através de uma vasta revisão bibliográfica, analisar os contornos que estiveram à volta da afirmação de Moçambique como Estado reconhecido no concerto das nações tanto a nível regional como internacional. The international insertion of Mozambique is a process that took place in phases, starting with the efforts made in the 1960s by Dr. Eduardo Chivambo Mondlane, First President of the Liberation Front of Mozambique (FRELIMO). In order to create the international isolation of the Portuguese colonial regime and obtain the necessary support for the cause of Mozambique's independence, Mondlane established contacts with governments in several states of the world including Western countries, progressive African countries and socialist countries, thus projecting the image of Mozambique in the world. Initiated by the decisions taken at the Second FRELIMO’s Congress held in 1968, Mozambique's foreign policy aimed to "create more friends and few enemies" in a context of ideological bipolarity that characterized the Cold War. The new emerging international context in the period after the end of the Cold War would lead to a redefinition of this policy, which was defined as "creating more friends and more partners". At the level of the southern African region FRELIMO always considered that Mozambique's independence would only be complete with the liberation of all the countries of the region that were still under the domination of colonial and minority regimes and gave its unconditional support to the liberation struggle in Zimbabwe, South Africa and Namibia, in addition to its strong commitment to regional cooperation and integration. It is in this context that one can frame this thesis whose theme is "the foreign policy of Mozambique and its insertion in the region of Southern Africa" which seeks, through a vast bibliographical review, to analyze the contours that were around the affirmation of Mozambique as State recognized in the concert of nations at both regional and international levels

Corporate law is based on the premise that directors are fiduciaries of their companies. This is an unbending duty which has to be adhered to at all cost by individuals appointed as directors of a company. Previously the director’s duties were governed by the common law which often relied on the interpretation of the courts on a case by case basis. Therefore the courts would often arrive at different conclusions based on a similar set of facts. The advent of the 2008 Companies Act (Act 71 of 2008)1 brought about a major evolution in South African company law by partially codifying the fiduciary duties of the directors. Understanding fiduciary duties of a director is of significant importance in the modern democracy based on the fact that directors engage on the international spectrum. Company directors have discretionary power which may be abused if they are not familiar with the fiduciary duties. This study seeks to comprehend fully the fiduciary duties of a director of a company. These are the duty to act bona fide, the duty to act for a proper purpose, the duty to avoid conflicts of interest and the duty not to use a corporate opportunity and information for personal profit. This task will be undertaken both in terms of the common law as well as statute (Companies Act 2008 Act). The study will delineate the fundamental consequences of partial codification of these duties and set out the current legal position of the common law which operates in tandem with the statute. In addition, it will deal with whether the common law provisions are still applicable side by side with the statutes. The duties of a company director represent a subject that is not merely academic in nature, but one that is of vital importance in our ever changing commercial world. More and more people are appointed as company directors every day and often they do not know or understand the implications of what they have agreed to.

LL.M. (Commercial Law) <br>The Constitution of the Republic of South Africa is the supreme law in the land. Thus, all law is subject to the Constitution and this inevitably includes the law of contract. The South African law of contract has been inherited from common law, namely Roman–Dutch law and has been applicable in South Africa to date. The Constitution states that the common law should be developed when it is not in line with the provisions of the Constitution. The values underpinning the Constitution are human dignity equality and freedom and these values must therefore be reflected in contractual relations. The common law principle of pacta sunt servanda, which means that agreements must be kept, at times this principle yields unjust and unreasonable results. The strict adherence to pacta sunt servanda has led to difficulties. The unenforceability of these contract terms has been shown in reported case law to stem from standard term contracts, unequal bargaining power and from persons who contract out of necessity. This dissertation concludes that South African law of contract and the current legal treatment of balancing contract law with constitutional values is unsatisfactory. The Bill on the Control of Unreasonableness, Unconscionableness, or Oppressiveness in Contracts or Terms which was tabled in 1998 should be revised and legislated, so as to regulate contracts and infuse the law of contract with the constitutional values of human dignity, equality and freedom.

L’Economie Sociale et Solidaire (ESS) est une nouvelle économie née des inégalités qu’ont connues les sociétés prolétaires mais qui de nos jours demeure une alternative pour lutter contre les conséquences désastreuses de l’économie capitalistique et de la mondialisation. Son principe de base étant de placer l’Homme au cœur de ses diverses activités et organisations, lui permet ainsi de promouvoir la solidarité, une gestion participative, etc. Cependant, elle doit faire face à des problèmes et surtout de financement. C’est dans ce contexte que nous nous interrogeons sur une question de grande actualité aussi en Afrique Sub-saharienne (AfSS) et particulièrement au Congo Brazzaville et au Sénégal à savoir : les mécanismes de financement de l’économie social et solidaire. L’objectif pour nous, est d’étudier les éléments qui forment, cadrent et financent l’ESS en AfSS et particulièrement au Congo-Brazzaville et au Sénégal et de vérifier si les dispositifs existants répondent-ils aux valeurs et principes de l’ESS t-elle que connu aujourd’hui dans le monde. De ce fait, et à partir de nos recherches, nous orientons notre travail sur : le Cadre théorique de cette ESS et ses pratiques en AfSS ; son cadre juridique et dynamique et enfin son rôle et système de financement dans l’activité économique au Congo-Brazzaville et au Sénégal. Ce qui nous a permis d’ailleurs de comprendre que l’ESS est un concept ancien dont les valeurs et pratiques ont toujours existés en AfSS. Qu’elle repose sur des dispositifs juridiques et des réseaux de promotion. Et que malgré quelques insuffisances notoires, les dispositifs financiers mis en place dans ces deux pays en particulier ont permis le développement et la modernisation des pratiques et organisations de l’ESS

A governança global é um fenômeno relativamente novo na ordem internacional. A responsabilidade social corporativa surge como um mecanismo da governança global no que tange à responsabilização das sociedades que assumem atribuição cada vez mais relevante diante do mundo globalizado. Os danos ambientais comumente são fruto da ausência de instrumentos efetivos de responsabilidade. O descarte de resíduos sólidos nos oceanos há tempos vem acontecendo e prejudica o meio ambiente marinho vinculado às águas brasileiras. A comunidade internacional enfrenta o descarte de resíduos em águas internacionais basicamente por meio da elaboração de uma legislação que objetiva regulamentar o despejo de resíduos nos oceanos. Assim, cabe investigar se há uma efetiva resposta ao enfrentamento do problema em termos da logística jurídica atualmente utilizada e sua fiscalização pela comunidade internacional. Parte-se da hipótese de que os instrumentos legais em vigor não se apresentam como uma solução estanque ao problema ante a argumentação da soberania dos Estados que leva a não observância das normas internacionais e a não responsabilização dos infratores. Um mecanismo mais eficaz em termos de regulamentação e de fiscalização, aliado à conscientização e educação ambiental são exigências que se fazem necessárias para combater os efeitos dessa prática que ecoa um dano permanente ao meio ambiente marinho. A metodologia utilizada neste trabalho dar-se-á através da análise teórica sobre o fenômeno a partir de doutrina selecionada que trata das construções conceituais que abordam o tema.

Many contemporary private and public enterprises have been hit by scandals and underperformance which have been linked to organizational leadership. This study therefore sought to establish the impact of leadership styles on organizational performance. Leadership and organizational performance crises that have rocked institutions such as Eskom, the South African Broadcasting Corporation and the South African Airways, Steinhoff, Enron and others necessitated the study. The study focused on MBA year three students (class of 2017) at the University of KwaZulu-Natal. The assumption has been that since these are masters’ students, they have once been exposed to various leadership styles, some of them are leaders, all have studied leadership styles and therefore likely to understand how these styles impact on organizational performance. This is a quantitative study. The total population was 140 students of which a total of 100 were targeted. Simple random sampling was used. Most of the participants revealed that there is a significant link between leadership styles and organizational performance. They unanimously agreed that there is definitely a noteworthy relationship between leadership styles and the organizational performance. The respondents also revealed that transformational leadership style is the most complimentary leadership style to organizational performance followed by strategic and open leadership styles respectively. Participants agreed that toxic leadership style and autocratic leadership style are undermining the organizational performance. It is therefore recommended that organizations ensure continuous checks on leadership in order to ensure that available leadership can assist in the realization of organizational goals. In addition, it is also recommended for organizations to assess the "type" of a leader in terms of leadership styles before he/she is promoted to take leadership roles in the organization in order to make proper placements. This will allow the organization to assess whether that type of a leader is suitable for the organization. Future research is needed on how models can be developed on how to make proper placements to leadership levels/roles. Research should also focus on how leadership styles dovetail with other organizational efforts that are meant to boost organizational performance.

Şirketler Topluluğunda Hakimiyetin Hukuka Aykırı Kullanılması başlıklı çalışmamız ile 6102 sayılı TTK ile ilk defa pozitif düzenlemeye kavuşturulan şirketler topluluğu sorumluluk hukuku incelenmiştir. Kanun koyucu TTK m. 202 hükmü ile alelade hakimiyet bakımından, TTK m. 203 vd. hükümleri ile de tam hakimiyet bakımından hakimiyetin hukuka aykırı kullanılması ve sonuçlarını düzenlemiştir. TTK'nın şirketler topluluğuna ilişkin hükümlerinin önemli bir kısmı AktG sistematiği örnek alınarak oluşturulmuştur. Bu doğrultuda şirketler topluluğuna ilişkin TTK sistematiği incelenirken Alman doktrinine de sıklıkla başvurulmuştur. Çalışmamız kapsamında TTK m. 195 hükmünde düzenlenen kontrol araçları ve hakimiyet kavramı; yönlendirme, talimat ve yapısal karar alınması yoluyla hakimiyetin hukuka aykırı kullanılması; kayıp-denkleştirme sistemi; hakimiyetin hukuka aykırı kullanılmasından kaynaklanan sorumluluk, unsurları ve öngörülen talep hakları ayrıntılı olarak incelenmiştir. The new Turkish Commercial Code (TCC) Nr. 6102 has introduced the notion of "groups of companies" to the Turkish Commercial Law; hereby the "groups of companies" concept was spelled out for the first time in Turkish law. This thesis examines corporate group law in Turkey and demonstrates the intragroup responsibility regime in comparison with the German system. TCC Art. 202 foresee the consequences of unlawful exercise of control in basic dominance/control. Whereas TCC Art. 203-206 regulate the responsibility regime regarding the unlawful exercise of control with regards to full-control. Turkish corporate group law has been enacted under the big influence of the German AktG-System. Although our thesis focuses on the analysis regarding corporate group provisions of the TCC, the research on German law also covers a significant part of our thesis. This thesis examines in detail the control instruments stipulated in TCC Art. 195, the concept of control, the unlawful exercise of control by means of TCC Art. 202/1, TCC Art. 203 and TCC Art. 202/2, the concept of disadvantage and adjustment, the different liability regimes with regards to the category of the unlawful exercise of control and the rights of action.

The primary contribution of the thesis is a theory enhancing the legal understanding of the phenomenon of virtual property, encompassing presentation of data and a new conceptual framework to interpret it. The author argues that the normative debates concerning the phenomenon have underestimated the importance of understanding and conceptualizing it first, and aims at amending this gap. The ‘virtual property phenomenon’ refers to the users of internet platforms and online computer games ‘possessing’ virtual items – digital objects that exist within these services – and getting into economic and social relations concerning these items, with other users, service providers and third parties. These relations are regulated by different types of service-specific rules – contractual and the ‘code’ – created unilaterally by the service providers, who additionally retain the ability to interpret and enforce them, using ‘digital force’, i.e. by modifying and deleting virtual items, and blocking users’ accounts. The primary challenge stems not from the fact that the phenomenon is not regulated, but from the fact that lawyers lack words – terms and concepts – to even conduct a meaningful debate about it, or how to respond to it. The thesis consists of six chapters. Firstly, the author describes the phenomenon and analyzes the theoretical and regulatory legal challenges posed by its emergence. Secondly, he critically assesses the state of the art. Thirdly, a methodology to address these challenges is proposed, which can also be used in other research projects concerning law and technology. Fourthly, the author explains how the process of digitalization has fundamentally challenged the assumptions that private law held about the structure of reality, and proposes new doctrinal tools to conceptualize it. Fifthly, the author presents a legally useful concept of virtual items, and argues that granting users property rights over them might not be the optimal means of realizing the property goals. Finally, the author proposes a normative solution, a correction of private law, responding to the new type of inequality in relations, namely a user protection law.

This dissertation examines the phenomenon of book digitization and the legal challenges for the creation of digital libraries. It explores whether the current copyright framework supports libraries in the digital era as they strive to remain the institutional guardians of our literary treasures. The thesis hypothesis is that the current framework is unsuccessful or inadequate in supporting libraries. To test this hypothesis and identify the legal inefficacies the dissertation examines context, i.e. the history and rationale for applying copyright rules to books and libraries, the copyright rules as applied to libraries before and after digitization was possible, various digitization projects and the practical challenges that digitization brought about, and, the relevant litigation which has started on both sides of the Atlantic covering over a decade now. Furthermore, the thesis explores normative directions of copyright rules, including their exceptions, applicable to libraries in the digital era. It ultimately proposes that among various players claiming this role, libraries, given their institutional functions and capabilities, should be attributed rights to digitization and a favorable legal framework for providing access to digital material.

The ability of an organization to adjust its operation in light of the evolving changes in their operating environment determines the sustainability of the business unit in both the short and long term. The objective of the study was to determine the response strategies adopted by Kenyan commercial banks in response to the interest capping laws. A descriptive cross-sectional design was used. The population of the study was 42 commercial banks operating in Kenya. Primary data was collected using a questionnaire that was both closed and open ended. Data was analysed using the descriptive statistics. The study found that banks have employed adaptation strategies through working with other partners in the banking sector to leverage their synergy and concentrate on areas that enhance competitive advantage. The research findings also reinforced the need for the banks to work together as a sector and attempt and change the laws that inhibit their operations through lobby groups in parliament and other forums. The study also show that there exists a link between firms‟ strategic activities and their strategic responses and therefore, bank managers should diversify their product range especially to the youth who are apt in using the mobile technology to access services and improve the bank level of efficiency and effectiveness in their operations. The study recommends that the commercial banks ought to conform to the regulations to attract customers while the Central Bank as a regulator should likewise be sensitive to the operating environment and should be flexible in setting the rules in order to attract investment and support the growth in the banking industry. The Interest capping law is still at its infancy stage in Kenya and thus there is room for further research as the full impact of the law is realized in the long term.

The thesis entitled "Consumer arbitration in South Africa and its effect on the consumer‘s right to redress and enforcement" notes with concern the outdated and inadequate nature of the Arbitration law currently applied in South Africa. The fact that the Act was enacted in 1965 and has never been amended highlights the desperate need to review the prevailing arbitration law with a view to aligning it with the current needs of the business world. The thesis addresses the concern that consumers are not adequately protected by the current arbitration law and thus substantially develops the discourse on the topic of arbitration in situations of unequal bargaining power. It raises three primary research questions in this context. The first question reads thus, if private arbitration is properly conducted should it still provide the parties with the envisaged benefits? Secondly, is private arbitration constitutional, especially as it impacts upon consumers‘ contracting with large corporations? Thirdly, is the private arbitration process as it is currently applied, constitutional as far as it denies parties an appeal on merits against an award that is clearly wrong? The thesis attempts to answer these questions and offer recommendations for the South African Law Reform Commission (SALRC) within the specific context of commercial arbitration. In addressing these research questions, the thesis incorporates a brief overview followed by a detailed discussion of the Arbitration law framework in South Africa and abroad. The discussion of arbitration abroad is done in order to identify best practices, which could be adapted to suit the South African environment. International Arbitration law receives attention and a few observations regarding how selected foreign jurisdictions treat arbitration. Finally, the thesis explores the possibility of establishing an independent institution that will be fully equipped to handle arbitration proceedings from inception to completion.

This thesis examines the jurisprudence of the World Trade Organization (WTO) Panels and Appellate Body (AB) and investment tribunals on non-discrimination clauses contained in the WTO agreements and investment agreements respectively. The thesis puts forward an alternative conceptual perspective through which the interpretation of non-discrimination provisions in international economic law could be analysed. It is argued that nondiscrimination obligations (as every legal rule to a greater or lesser extent) are inherently indeterminate. This is a fortiori the case in regard to non-discrimination provisions due to their link to the concept of equality. The concept of equality is open-ended and value-laden: its content depends on the prioritisation of different values. Thus, equality in the economic sphere can accommodate different conceptions which reflect different ideological approaches in relation to regulation, economic development and the proper role of the State in the economy. International courts and tribunals enjoy broad discretion in selecting which conception of equality to adopt when interpreting non-discrimination clauses. This indeterminacy is a positive characteristic of international economic regimes. Both the WTO and the investment arbitration regime are equipped with institutional characteristics which enable the contestation of different ideological approaches and promote pluralism. In the WTO context, this role is fulfilled by the institutional structure of the organization which facilitates the dialogue between the WTO members and the WTO Dispute Settlement System. In the realm of international investment arbitration, the mechanism of party-appointed arbitrators, despite its shortcomings which can be addressed, ensures value pluralism.

The focus of this study is the protection of creditors’ rights in South Africa’s statutory business rescue regime provided for in Chapter 6 of the Companies Act 71 of 2008. In this analysis, three issues in particular are addressed in depth. The first is the creditors` power to initiate the business rescue process. The second is the position of creditors between the commencement and the termination of the business rescue process. The third issue is to suggest (on the basis of experience drawn from reported case law and academic criticism of the current business rescue statutory provisions) an improved model that will more effectively safeguard creditors’ rights in South Africa’s business rescue regime. In exploring these issues, I give a critical review of pertinent literature. With respect to the first issue, I conclude that the legislative provisions granting creditors the right to seek a court order initiating the business rescue process are open to criticism. By contrast, a resolution of the board of directors for the commencement of business rescue is a simpler route. With regard to the second issue I conclude that the company’s creditors have considerable influence in the business rescue process. Overall, the current statutory business rescue regime is intended to give a voice to all major stakeholders in the company’s continued solvent existence. In the event of certain irresoluble disputes in the course of that process, the judiciary has the final say. A substantial number of judicial decisions have provided interpretations of the statutory provisions, and the trend has been to try to restore financial ailing companies to solvency and viability where there is a reasonable prospect for success in this regard. In my conclusion, I propose a legislative model that seeks to strike an optimum balance between the competing and sometimes conflicting interests of the various interested parties and I suggest reforms directed at enhancing the protection of creditors’ rights. This thesis takes account of South African legislation and legislative amendments as at 31 December 2016 and of decisions of the South African courts up to and including those handed down during April 2017 and reported in the saflii on-line law reports. Since a substantial part of this thesis was written from outside South Africa, the author relied heavily on the safllii data base of judgments of the South African courts, rather than on hard copy law reports which take time to reach their destination by post.

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

Proteção internacional do consumidor turista. Primeiramente, são apresentados elementos para demonstrar a relevância e a contextualização do tema. Em seguida, são apresentados alguns conceitos importantes para delimitar o tema, seguido de uma descrição sobre o comportamento e as expectativas do consumidor turista. Na segunda parte, são apresentados os diferentes meios de tutela internacional do consumidor turista, começando pelas organizações internacional, passando pelos blocos regionais e concluindo com os desenvolvimentos nacionais. Na terceira parte, trata-se da governança global em prol da proteção internacional do consumidor. Começase pela governança local e a cooperação jurídica internacional; em seguida, é trabalhada a governança regional e a cooperação jurídica internacional, concluindo com a governança global e a cooperação jurídica internacional. Como conclusão, defende-se a inserção de proposta da regra mais favorável ao consumidor em casos internacionais na atualização do Código de Defesa do Consumidor; no âmbito regional, há uma demanda por aprimoramento e estruturação da tutela do consumidor turista internacional; Por fim, conclui-se da necessidade de uma proteção do consumidor turista internacional de forma mais difusa, por meio de uma convenção da Conferência de Haia sobre o Direito Internacional Privado - HCCH.