Bibliographie sélective OHADA

Domestic laws on the African continent have been considered inadequate to attract the investment needed for development and economic growth. A crucial catalyst in attracting investment on the continent is law reform. The formulation of legislation has twofold effects: firstly, it is perceived to mitigate the risks associated with doing business in Africa; secondly, it legally obligates African governments to comply with standards of protection accorded to international investors through the regulation of the business environment. The formulation of legislation is a key determinant of the quality of investment attracted to the continent. This Chapter assesses how the Organization for the Harmonization of African Business Law (OHADA) has contributed to regional integration and economic growth on the continent.

Until recently, doing business in developing countries, and in Sub-Saharan Africa in particular, was associated with high risk. Although each investment decision is associated with some risk, there are always obligations incumbent on host States in that regard. However, when domestic law is too obsolete to match the requirements of an evolving investment and commercial environment which it is supposed to regulate, and when its effects are unpredictable, one of the fundamental conditions for attracting investment goes missing. This eventually underscores the need for a legal reform. The phenomenon of 'globalisation' on the one hand, and the need for (developing) countries to integrate their economies into the global market, on the other hand, considerably accentuated the postulate of development through law.Against this background, some African countries, at the dawn of the 1990s, felt a need to 'modernise' their legal systems for the major part inherited from colonialism. In this vein, they entrusted a supranational organ, the OHADA, to perform that legal reform. This paper is an attempt to test the OHADA against the discourse of law as a development engine. Furthermore, this is an assessment of the extent to which OHADA, as a legal tool, could be useful in serving the purpose of regional integration and economic growth in Africa.

The promotion of international trade is seen as one of the important instruments to ensure development in developing nations and regions. The history of the World Trade Organisation (WTO) and the drafting of many regional and similar international trade agreements are evidence of this. The Southern African Development Community (SADC) is no exception.1 It is therefore strange that many states that are members of the WTO and actively encourage the opening up of international borders to free trade do not include public procurement2 in such free trade arrangements. This is particularly evident in developing states. If the WTO Government Procurement Agreement (GPA), which is a plurilateral agreement, is considered it is clear that many states do not wish to open their internal markets to competition in the public procurement sphere. It is therefore not surprising that public procurement has been described as the last rampart of state protectionism (Ky, 2012). Public procurement is an important segment of trade in any country (Arrowsmith & Davies, 1998). It is estimated that public procurement represents between 10% and 15% of the gross domestic product (GDP) of developed countries and up to 25% of GDP in developing states (Wittig, 1999). Unfortunately, governments often expect private industry to open up national markets for international competition but do not lead the way. Except for the limited use of pooled procurement,3 no specific provision is at present made for the harmonisation and integration of public procurement in the SADC. In view of the proximity of the member states, the interdependency of their economies and the benefits that can be derived from opening up their boundaries to regional competition in public procurement, the possibility of harmonisation and deeper integration in this sphere needs to be given more attention. The importance of public procurement in international trade and regional integration is twofold: first, it forms a substantial part of trade with the related economic and developmental implications; secondly, it is used by governments as an instrument to address socio-economic issues. Public procurement spending is also important because of its potential influence on human rights, including aspects such as the alleviation of poverty, the achievement of acceptable labour standards and environmental goals, and similar issues (McCrudden, 1999). In this article the need to harmonise public procurement in the SADC in order to open up public procurement to regional competition, some of the obstacles preventing this, and possible solutions are discussed. Reference is made to international instruments such as the United Nations Commission on International Trade Law (UNCITRAL), the Model Law on Public Procurement and the GPA. In particular, the progress made in the Common Market for Eastern and Southern Africa (COMESA) with regard to the harmonisation of public procurement, which was based on the Model Law, will be used to suggest possible solutions to the problem of harmonising public procurement in the SADC.

The Southern Africa Development Community (SADC), the African Union (AU) and other African regional economic communities (RECs) have as their ultimate objective the political and economic integration of the African continent. The SADC is home to a number of countries, all of them striving to improve their investment climate to attract foreign investors by reducing the costs of doing business in the region. One way of achieving this is by setting targets for and speeding up political and economic integration, improving interconnectivity and thereby enlarging the market size and enhancing its attractiveness. The SADC region still suffers from high levels of energy poverty through low access levels in all countries except South Africa and Mauritius. Numerous studies have shown that greater regional trading and cooperation on power development within the SADC could substantially reduce investment and operational costs as well as carbon emissions. The need for a regional power trading pool and regional cooperation grew out of the power utilities’ recognition of the vulnerability of individual countries if each continued to pursue a policy of self-sufficiency rather than out of a desire to minimise the social or financial costs of the region’s power. The power sector in southern Africa is undergoing tremendous reforms, more especially since the establishment of the Southern African Power Pool (SAPP) in August 1995. The SADC, however, faces serious challenges that include diminishing surplus generation capacity and the need to ensure that SADC citizens have equitable access to electricity at affordable prices. To meet these challenges, treaties and protocols have been adopted but are failing to deliver at the implementation stage. This article reviews the SADC energy-electricity regulatory framework in the context of economic and political integration and recommends the establishment of an independent regional regulatory authority to oversee the implementation of integrated holistic energy and air pollution control and prevention, and a common climate change policy. Such a regulator would be a highly resourced regional institution that will liaise with international institutions. This independent regional authority will serve as a catalyst for regional economic integration. It will also have a mandate to introduce and coordinate the establishment of an SADC regional emissions trading scheme that will contribute to managing the mitigation of greenhouse gases (GHGs) and the implementation of global warming adaptation strategies in the region.

The role of African Union in the African integration project has remained a topical issue among scholars. Various views have been canvassed on how to strengthen African Union for a more effective regional integration in Africa. This paper examined the central role the African Diasporas can play in repositioning African Union for a sustainable regional integration in Africa. Its analysis of the situation was anchored on the mo-functionalist integration framework and applied essentially the secondary data gathering techniques. Among other recommendations, it suggested for the creation of a pan-African Diaspora Organization.

Depuis la décennie 1990, une nouvelle génération des Organisations internationales africaines (OIA) émerge sur l’échiquier africain en s’inspirant, pour l’essentiel de son articulation normative et institutionnelle, du modèle européen d’intégration, notamment dans sa dimension communautaire tout en y apportant des spécificités africaines. Dès lors, le droit communautaire pose ses racines dans certaines OIA suscitant l’intérêt sans cesse nourri de la doctrine sur cette nouvelle matière. Mais existe-t-il vraiment un droit communautaire africain dont la doctrine s’efforce de présenter les grandes lignes, du moins de manière thématique ? La présente étude constitue une contribution à la problématique posée en envisageant de cerner la nature ainsi que les caractéristiques de ce droit qui se développe, principalement, en Afrique centrale et occidentale. Since the 1990s, a new generation of African International Organizations (AIO) emerges on the African continent, inspired, for most of its normative and institutional articulation, by the European model of integration, including its Community law while by bringing African specificities. Thus Community law is rooted in some AIO and the interest by the doctrine on this new branch is still constant. But is there really an African Community law that the doctrine seeks to systematize, at least thematically? This paper is a contribution to the problem posed by considering the nature and characteristics of this law developed mainly in Central and West Africa.

This thesis was submitted for the degree of Doctor of Philosophy and awarded by Brunel University LondonThis study is an attempt at determining the normative legitimacy of the Economic Community of West African States (ECOWAS). At its core, it scrutinizes the current mandate of the organization following the layering of economic integration objectives with human rights protection, sustenance of democracy, and the rule of law. The study discusses the elements of legitimacy across disciplines mainly, international law, international relations and political science. Legitimacy is eventually split along two divides, the normative and descriptive/sociological aspects. The study traces the normative content (shared/common values) underlying integration in Africa, concluding that integration has been born on new ideals such as human rights, democracy and the rule of law. Expectedly, Regional Economic Communities (RECs) as building blocks of the prospective African Economic Community (AEC) under the African Union (AU) regime are mandated to play a vital role in moving the continent forward upon these values. The inquiry is extended to the institutions of ECOWAS to determine their capacity to effectively implement the new mandate of the organization and operate supranationally. In the process, key legal and institutional shortcomings are discussed, particularly in relation to national institutions. It is argued that while human rights protection enhances the normative legitimacy of ECOWAS, it must not be pursued in isolation. Economic integration and protection of citizens’ rights are co-terminus and mutually reinforcing. Hence, community institutions must reflect this link if they are to be effective. The study concludes on the note that, while ECOWAS possesses layers of legitimacy, and have carried out legitimation steps, it cannot be considered a legitimate organization if Member States continue to be non-compliant with community objectives and if key legal questions remain unaddressed. It is submitted that ECOWAS is merely undergoing legitimation, whether it can eventually be considered a legitimate organization is dependent on addressing the identified challenges

Pretende–se com esta tese intítulada “ Direito Comunitário material e Integração Sub–Regional: Contributo para o Estudo das Mutações no Processo da Integração Económica e Monetária da África Ocidental” pôr em evidência as mutações ocorridas na actual zona franco, no período colonial e pós colonial dos países africanos e as reformas das principais instituições comunitárias nela verificadas.Impõe–se uma nova abordagem da realidade contemporânea, no quadro das profundas mudanças ocorridas, a reclamar novos instrumentos de análise e de integração regional.Neste sentido, o Tratado da União Monetária Oeste Africana (UMOA) proclamou expressamente a vontade que animava os Estados–membros de prosseguirem na via da integração regional e de transformarem o conjunto das relações entre os si numa União Económica e Monetária.Com o propósito de somar à moeda única a harmonização legislativa, a abertura e a unificação dos mercados, a adopção de politicas económicas convergentes, propõe–se a União Económica e Monetária da África Ocidental (UEMOA) levar a cabo a habitual sequência da integração regional.Analisamos profundamente as políticas comunitárias, distinguindo primeiro políticas visando mais directamente a livre circulação das mercadorias, das pessoas, dos serviços e dos capitais no âmbito da UEMOA e da CEDEAO.A presente tese de doutoramento visa retratar o regime monetário regional que historicamente está ligado ao espaço colonial francês e depois se integrou progressivamente no sistema monetário internacional.Enfatizamos os principais instrumentos de política monetária regional, bem como o quadro institucional da União.Traçamos as premissas para uma teoria geral da integração dos Estados–membros da zona franco no contexto duma integração monetária e do novo multilateralismo comercial.Num ambiente cada vez mais concorrencial e difícil tornam-se prementes uma firme e necessária cooperação e integração regionais.No contexto da União Africana e da Nova Parceira para o Desenvolvimento do Continente Africano (NEPAD), evocamos as condições prévias do desenvolvimento com relação ao combate à pobreza. A nova Parceria Económica entre os países africanos e a União Europeia, consubstanciada no reforço do comércio internacional, permitindo robustecer as económicas africanas frágeis, que evidenciam falta de competitividade e de complementaridade, e uma um melhor inserção na económia regional e mundial.Nesta ordem de ideias, debruçamo-nos sobre as vantagens comparativas dos países da zona franco face às regras da Organização Mundial do Comércio (OMC).Partindo do entendimento de que o comércio internacional é necessário e que as trocas comerciais venham mesmo a ser inevitáveis, o que se propõe é uma nova discussão, inquirindo–se se o sistema multilateral de comércio pode fomentar e englobar um projecto de desenvolvimento.