Bibliographie sélective OHADA

It may be assumed that all of the United States’ trading partners were impacted by the recent “Liberation Day” announcement – an announcement which constitutes “two distinct tariff actions” – as will be highlighted in this paper. However, despite previous concerns of being targeted by their free trade agreement (FTA) partner, Canada and Mexico – as would have been or should be expected, have been exempted from the tariff imposition. As well as addressing factors which have contributed to the shift from free trade to increasingly and predominantly protectionist stances and most likely, fair trade practices, this paper is aimed at highlighting and explaining the rationales behind the recent historical developments – as well as highlighting those factors that have triggered the build up to the Liberation Day Announcement of the 2nd April 2025. It is remarked that “Trump’s reciprocal tariff doctrine, holds foreign countries accountable”. Against this backdrop of discontent with World Trade Organisation’s dispute resolution mechanisms, which will be further elaborated on, in the paper, the immediate and possible long term impacts of the Announcement, will be considered. As well as exploring the reasons for recent developments – by way of reference to historical developments and data, the paper also considers the underlying frameworks governing the calculations of recent tariff rates and hikes. Whilst there are arguments regarding the validity of such calculations, or whether the current scenario justifies the basis for implementing “national emergency measures”, what can be regarded as an emergency response can be determined through a consideration of underlying and contributory factors. If negotiations, and more specifically, bilateral negotiations, take place as hoped, between those countries impacted by the Liberation Day Announcement, financial stability across global markets is expected to be restored. However, if retaliatory measures follow – with an escalation of trade wars, possible repercussions should be cause for concern. The global trading system is still recovering from the recent crisis which was largely uncontrollable – hence, it is more likely (and hoped) that the recent market turbulence and volatilities will be short term.

Notwithstanding past trade reforms, trade in Africa and particularly intra-Africa trade, remain dismal. Africa has even created economic communities, fitted with monetary, fiscal, and socio-political anchors, by way of various Regional Economic Communities (RECs) – now reflected by the African Continental Free Trade Area (AfCFTA). Whilst these have yielded marginal benefits, the persistence of low intra-Africa trade calls into question their suitability. Focused on the realities of institutions targeted by these reforms and Africa's context – i.e., weak linkages between institutions, high informality, and low social capital – we posit that reforms have not elicited the hoped-for high intra-Africa trade because of their near total reliance on the neo-liberal approach, which neglects Africa's context. Drawing on Africa's sociology and new institutional economics, we use a conceptual institutional analysis to evolve a political economy based framework that suggests potential solutions: Linking the formal sector that currently underpins economic/trade policies to the informal institutions that are reflective of Africa's norms, values, cultures and expectations (the informal sector), and scaling up production; via the cooperatives production model, strategic procurement mandates, and effectuation of continental transportation infrastructure network, are our recommended pathways to reversing the current dismal intra-continental trade.

International trade rules enshrined in agreements like the General Agreement on Tariffs and Trade (GATT) promote free trade, with exceptions for environmental protection. This paper explores the tension between these rules and Earth Systems Science's concept of planetary boundaries, which define environmental tipping points beyond which humanity faces irreversible harm. We analyse GATT's provisions, particularly Article XI's prohibition on trade restrictions and Article XX's exceptions, through the lens of planetary boundaries. Our analysis argues that current interpretations of these articles are inadequate to address the environmental impact of raw material trade. We further examine the concept of permanent sovereignty over natural resources, which grants states autonomy over resource exploitation and trade. We posit that planetary boundaries are not a restriction on sovereignty but a call for modifying state trading behaviour and consequently how international trade rules is structured and interpreted. This analysis demonstrates the complexity of transforming the legal landscape necessary for a global just energy transition, a response to climate change that requires aligning international trade with environmental sustainability.

This study examines the impact of the African Continental Free Trade Area (AfCFTA) on regional trade in the Information and Communication Technology (ICT) and Digital Technologies (DT) sector across 43 African countries from 2014 to 2021. Employing the augmented gravity model and confidence-level estimations, it highlights AfCFTA's mediating role in enabling ICT&DT trade on the continent. Using hierarchical regression analysis of a panel dataset comprising 5,160 observations, the findings imply that trade openness and productive capacities not only facilitate trade in the ICT&DT sector but also result in positive spillover effects across various economic sectors. This study contributes to the international business literature by refining the application of the gravity model to capture the need for sector-specific analyses to unpack institutional dynamics and dis-enablers of trade. It identifies AfCFTA as a pivotal yet underexplored element in the global trade landscape, highlighting its potential as Africa seeks a more prominent role on the global stage. The research stresses the significance of digital empowerment and policy reforms to maximise the benefits of regional integration under AfCFTA.

The contemporary international system is dominated by international trade. Therefore, it is the fundamental and critical aspect of international economic relations. The study investigated the how African states participate in common bilateral and multilateral trade relations. Its core objective is to study whether trade barriers have been made less cumbersome among the participating countries in African continental region. Common trade and international trade justify the essence of globalization. The wave of globalization has necessitated the flux of multilateralism and bilateralism among the participating nations in the international trade. Methodologically, the study adopted comparative theory of international trade. Its method of data collection is documentary method and analyzed through interpretive studies. As the international trade continues to take the centre stage in the international economic relations; States continue to engage in multilateral and bilateral trade relations. The operations of Transnational Corporations (TNCs) and Multi-national Corporations (MNCs) as non-state actors also engage in multilateral and bilateral agreements with the host states. Several agreements led to the establishment of General Agreement on Tariff and Trade (GATT) and World Trade Organization (WTO) remains conspicuous products of multilateralism and bilateralism in the international trade in the recent time. African Continental Free Trade Area (AFCFTA) is a multilateral agreement enacted by fifty-four members of the African Union (AU) in 2019 to boost trade relations among them. Its core benefit is to facilitate free trade and removal of trade barriers in the region Therefore, this study is set to examine the advantages and impacts of AFCFTA and other multilateral and bilateral agreements in Africa and the world at large.

This work explored the dynamics of Nigeria-China relations from the political and economic points of view between 1999-2023. The primary concern of this paper is to discern the extent Nigeria-China relations is mutually beneficial and how Nigeria can stand to gain more if the relationship is properly aligned to Nigeria’s national interest. The central argument of this work is that Nigeria stands to gain more from China than from the West bearing in mind the fact that over one hundred years of Africa’s relationship with the West has been largely exploitative and disadvantageous. In this regard, the research employed both primary and secondary sources of data collection. The primary sources relied on first-hand information gathered from the Chinese Embassy as well as key actors within the Nigeria External Affairs Ministry and Key Informant Interviews on experts in Nigeria-China relations. The secondary sources relied on already existing information from libraries, text books, journals and the internet. The theoretical framework employed is the Complex Interdependence Theory. The conclusion drawn from this work is that Nigeria-China relations have not fully developed to the extent of being more beneficial to Nigeria economically and politically. What currently subsists is that China is gaining economically more in terms of trade to Nigeria’s disadvantage. However, politically and socio-culturally, the two countries are mutually benefiting due to various diplomatic protocols and cultural exchanges. The study recommended among others that Nigeria must strive to develop her techno-industrial export-oriented base to ensure more symmetric beneficial relationship with China.

The establishment of the African Continental Free Trade Area (AfCFTA) has opened new avenues of research interest in International Business and International Management. However, scholarly work in this fledgling area of research has been disparate and often lacking in the assessment of core international business implications of the emergence of the AfCFTA on member states as well as non-member states. This is because, as yet, no systematic attempt has been made to explore the AfCFTA in the context of IB research, or project future IB research directions. Hence, in this paper, using the PRISMA method we have systematically identified the current published research and scholarly work on the AfCFTA and provided a robust picture of the current state of knowledge and available literature on the AfCFTA while at the same time outlining potential areas for future international business research.

Background Considering the declining situation of sustainability in global marine fisheries, World Trade Organization (WTO) members successfully concluded the Agreement on Fisheries Subsidies(AFS) after 21 years of negotiations in 2022. As an the integral part of these negotiations, special and differential treatment (SDT) provisions provide developing countries with special rights and developed countries with the possibility to treat developing countries more favorably than other WTO members. Objective This study analyzed the role of SDT for fisheries subsidies in ensuring sustainable fishery governance by the rule of law, as well as the reflection of SDT under the AFS, to explore whether SDT can support sustainable fishery governance under the WTO framework. Methods This study is primarily based on official data and critical legal studies and used normative analysis and historical analysis to expose the essence of the SDT issue in the AFS as a political game in the legal form. Results The practical challenges in the implementation of SDT may affect the compliance willingness of member states. To overcome the obstacles, such as ambiguity and inefficiency, that impede the legalization process of sustainable global marine fishery governance, it is necessary to emphasize the value of SDT for the common interests of the WTO members in marine fisheries legislation. This will benefit the developing countries, especially the small island developing states, in the short term; and the common interests of developed and developing countries in the long term. Policy implications SDT facilitated the consensus between the developing and developed countries on issues such as illegal, unreported, and unregulated fishing subsidies and overfishing subsidies. However, current SDT practices have deviated from the original intention of the fairness and democratic approach of global marine fisheries governance, which should take into consideration the specific situation of developing countries.

Cameroon commercial relations with other African countries, just as that of other countries with Cameroon, had heretofore stood at the queue of controversies as businesses suffered from exorbitant duties and related levies on their goods and services prior to the Agreement on the African continental Free Trade Area (AfCFTA). Considered to be a great game changer, the AfCFTA has the capacity to significantly transform African Economies thereby increasing its tentacles to the global business hub. In order to achieve this, Cameroon needs to actively carry out reforms both policy wise and complimentary structures. This will help mitigate the constraint and fiscal adjustment costs that may accrue with the new Agreement. This will equally lead to a positive win-win continental trade-integration outcome. This article assesses how Cameroon accommodates the implementation phase of the AfCFTA as a member State.

Les ressources naturelles occupent une place prépondérante dans le commerce international. L’Afrique en est riche. Par contre, le problème de leur gestion se fait sentir sur le continent au point que des chercheurs ont évoqué la « malédiction des ressources naturelles ». Le droit de l’OHADA ne les a pris en compte que timidement. Cette insuffisance de règlementation dans le droit communautaire a des incidences tant sur le commerce de ces produits dans l’espace OHADA que sur la jouissance de certains droits humains. Les tentatives de règlementation de certains aspects de ce secteur d’activité de la part d’autres organisations internationales et de certains États montrent la nécessité de les intégrer correctement dans le corpus juridique de l’OHADA. Un Acte Uniforme serait susceptible d’atténuer, au sein des États parties, la « malédiction des ressources naturelles » aussi bien que les atteintes aux droits de la personne résultant de leur exploitation comme le droit à un environnement sain et les droits économiques et sociaux.

La souveraineté des États membres est la condition d’existence de la zone de libre-échange continentale africaine (ZLECAf). Par conséquent, l’avenir de cette dernière dépend de la capacité des États membres à imposer le respect de l’Accord suscité et à empêcher toute violation des règles et principes établis en vertu de la ZLECAf. Ceci serait une action susceptible de conduire l’Afrique vers son indépendance économique et sortir l’Union africaine de sa dépendance de l’aide internationale. Dès lors, la capacité des États à imposer le respect de l’Accord précité crée un climat favorable à une coopération commerciale renforcée et permet la réalisation d’une complémentarité économique performante au sein de la ZLECAF. L’emploi effectif de la souveraineté des États parties démontre leur volonté de participer au développement de l’Afrique. Car ils sont passés de la gestion individuelle des activités commerciales à la gestion collective de la chose commune.

Choice of law is a perplexing concept due to the importance of party autonomy, the diversity of connecting factors, and the variety of different contractual issues. The problem of choosing a governing law is complicated in consumer contracts by industrialised mechanisms depriving consumers of negotiation rights. The core mandate of the African Continental Free Trade Area (AfCFTA) is to establish a single market for goods and services associated with the free movement of legal persons for economic integration. This objective requires a harmonised consumer protection policy to resolve the diverse consumer protection regimes applicable in state parties within AfCFTA member states. This policy should provide suitable consumer protection mechanisms generally and in the context of choice of law specifically. Implementing a draft competition policy bestows a legitimate mandate on the AfCFTA to negotiate a continental framework on consumer protection as both fields of law complement each other to safeguard consumer rights in cross-border trade. This article argues the dynamics of providing adequate choice of law rules on consumer contracts to inform suitable mechanisms on consumer interest within the AfCFTA. The article discusses the abuse of choice of law clauses in consumer contracts, affecting consumers’ rights in cross-border contracts within the AfCFTA. It suggests a harmonised consumer protection policy to regulate and mitigate these clauses. The article also examines trends in Global North jurisdictions like the European Union to inform a context-specific institutional framework for the AfCFTA’s choice of law rules.

Where the parties to an international contract fail to specify the choice of law, a forum selection agreement is one of the most, if not the most, significant factors to consider in implying the choice of law in many international, supranational, regional instruments, and national jurisdictions. However, it is an ill-defined, notoriously complex, and hotly debated issue as to the weight that should be attached to a forum selection agreement in implying the choice of law. Hence, this article is devoted to discussing this topic from a comparative perspective, in order to propose a guide to global uniform criteria. To achieve this, the article covers all relevant international, regional, and supranational instruments, and selected legal systems in Africa, Asia, Australasia, Europe, the Middle East, and North and South America. The legal systems compared include those from the global North and global South, including common law, civil law, and mixed legal systems. The article’s core proposal is that an exclusive forum selection agreement should be a key factor in implying the choice of law. However, except in such cases as where a forum is chosen on a neutral basis, there should be a general requirement of corroboration with at least one other factor of significance. The aim of the proposal is to contribute to greater uniformity, predictability, and certainty in the global community in this field of law.

International investment law is facing a legitimacy crisis, in which to tackle, substantial efforts are being made in structural and procedural areas. The first step to overcoming this crisis is identifying the roots of it. The lack of a dynamic balance between public and private interests is one of the main factors creating this legitimacy crisis in this legal system.[1] This paper focuses on the changes in the investment arbitration jurisprudence to create this balance. The findings of this paper can explain one of the convergence points of international trade and investment law. Such a claim is based on the evolution of international trade law in facing a similar legitimacy issue and the structural-procedural approach of this legal system in balancing public and private interests as an ultimate solution to the crisis.[2] From this perspective, one of the major factors in creating a legitimacy crisis in both legal systems is the dominance of the paradigm for preference of private interests; and one of the convergence points of international trade and investment law has been to replace it by accepting the paradigm of creating a dynamic balance between competing goals.[3] This paper examines this convergence in arbitral jurisprudence.IntroductionIn recent years, the legitimacy crisis of the regime of international investment law and, as a result, the investor-state dispute settlement system has been one of the most important and controversial topics in the academic environment and the practice of states consequently, serious efforts in various fields to tackle this crisis have begun. According to this paper, choosing an arbitration mechanism modeled on international commercial arbitration to resolve disputes between host states and foreign investors can be evaluated as a wrong and hasty action that, regardless of its factors and contexts, has changed the nature and function of this system over time.[4] It should be noted that the main factor in such consequences is how this dispute resolution system is used which, contrary to the accepted model, always puts the host states in a "respondent" position in possible future disputes and, as a result, disrupts the balance expected in any international dispute settlement system. On this basis, the confrontation of the host state's sovereign competence in ensuring public interests with the foreign investors’ ability to challenge this competence is brought into the spotlight: currently, within the regime of international investment law, host states have only responsibilities and obligations in contrast to extensive and exclusive rights and privileges recognized for foreign investors, and this can be considered as the most important factor disturbing the said balance. The main issue in this field is to analyze the role of the investment arbitral tribunals in creating such a balance. In this regard, the authors, by focusing on the nature of investment treaties, and the relations between the parties in investment disputes and with emphasis on the general legal regime governing international investment, consider creating a dynamic balance between public and private interests to be the key to solving the crisis. They emphasize that; As long as the rights and obligations of the parties to the dispute are based on imbalanced grounds, the change in nature of the disputes and the function of the system -as the main roots of this legitimacy crisis - will remain. In this remark, it is very important to focus on the two-sided nature (public-private) of the relationships established in the framework of investment treaties. The relationship between the host state and the foreign investor is created within the framework of investment treaties and in light of fundamental differences from purely private relationships in international commercial arbitration.[5] Note that any dispute arising from this relationship is affected by its inherently public nature governed by public international law.[6] Thus, a purely private attitude towards these relations does not seem viable. As Ian Brownlie has stated in the case of SME v. the Czech Republic, it can lead to ignoring some of the basic elements of the relevant investment treaty.[7] In other words, the right and duty of the host state in protecting and promoting public interests is a fundamental part of this relationship, and any indulgence of it leads to a serious disruption of the mentioned balance through which the system's legitimacy will be the first victim.It is clear that the main task of any dispute resolution system is to create such a balance, and on this basis, and compared to the WTO dispute resolution system, the role of the investment tribunals in this process is discussed. This jurisprudential convergence is in line with the goal of strengthening the legitimacy of the international investment law system as a whole.Based on the above, the first part of this paper focuses on the process of establishing the ISDS in international investment law and its characteristics, the factors of the crisis of legitimacy are analyzed with an analytical approach, while also explaining the nature of investment treaties and explaining the general legal regime governing international investment. Furthermore, the lack of a dynamic balance between public and private interests is emphasized as the main cause of the crisis. In the second part, while comparing the two legal systems of international trade and investment with a similar crisis of legitimacy, we will examine the interaction of investment arbitration with the WTO's jurisprudence in facing this crisis through a case study of several investment arbitral awards. [1]. David Gaukrodger, “The Balance between Investor Protection and the Right to Regulate in Investment Treaties: A Scooping Paperˮ, OECD Working Paper on International Investment 2017/02, at 4.[2]. Nicholas DiMascio & Joost Pauwelyn, “Non-Discrimination in Trade and Investment Treaties: Worlds apart or Two Sides of the Same Coin?”, AJIL, Vol. 102, No.1, (2008), at 89.[3]. Jurgen Kurtz and Sungioon Cho, “Convergence and Divergence in International Economic Law and Politics”, EJIL, Vol. 20, No. 1, (2018), at 187.[4]. Benedict Kingsbury & Stephan W. Schill, “Public Law Concepts to Balance Investor's Rights with State Regulatory Actions in the Public Interest - The Concept of Proportionalityˮ, In Schill Stephan W., International Investment Law and Comparative Public Law (UK: Oxford University Press, 2010) at 76. [5]. Crina Baltag, “Reforming The ISDS System: In Search of a Balanced Approach?ˮ, Contemporary Asia Arbitration Journal, Vol. 22, No. 2, (2019), at 285.[6]. Ibid.[7]. Andreas Kulick, “Sneaking Through Backdoor – Reflections on Public Interest in International Investment Arbitrationˮ, Arbitration International, Vol. 29, No. 3, (2013), at 438.

Cet article examine l’impact des facteurs de proximité sur l’intensité commerciale intra africaine. Dans le cadre des modèles reposant sur une approche ex post, notre contribution concerne l’usage d’un modèle de gravité avec la prise en compte des distances géographiques et économiques. Nos résultats montrent que les niveaux d’intégration commerciale contrastés au sein des CER risquent d’accentuer l’asymétrie d’intégration continentale, ils révèlent que la distance économique impacte positivement et significativement l’intensité des échanges et suggèrent le renforcement de l’intégration via les chaines de valeur régionales. This article examines the impact of proximity factors on intra-African trade intensity. Our contribution consists of the use of a gravity model with the consideration of geographical and economic distances. Our results show that the contrasting levels of trade integration within the RECs are likely to accentuate the asymmetry of continental integration, they reveal that economic distance has a positive and significant impact on the intensity of trade and suggest the strengthening of integration through regional value chains.

The population of Africa and that of China put together amounts to a little over one-third of the world's total. The theoretical justification of the gravity model is applied to analyze the factors influencing bilateral trade between China and African countries using the panel data regression technique, covering the period between 2002 and 2021 and with special consideration for the income level of the African countries. Empirical results and estimates reveal that the economic size as well as the population of trade partners positively affect China’s trade with 45 African countries. The positive impact that distance has on trade is inconsistent with previous research. We conclude from the analysis that the factors affecting trade between China and African countries are, namely, the size of the population, the economic size represented by the GDP, and the distance between the countries. The indication of effects on the trade sector is important, and the sensitivity of the potential product to distance and countries varies considerably, giving a revealed comparative advantage. African countries should diversify their exports and improve their trade diplomacy.

Soils are essential for food security and the right to food. But where is the connect between soil, trade in agriculture and the rules of the World Trade Organization (WTO)? While the WTO is not an environmental protection agency (as per its initial design at least), existing WTO rules fail to make agricultural trade patterns sustainable when it comes to the medium of soil. Notwithstanding, trade policy is of growing importance to soil protection, biodiversity preservation, deforestation, land degradation and desertification. Soil is key in this regard not only because it is the world's second-largest carbon sink after the oceans. Unsustainable trade in agricultural commodities should increasingly be seen in light of an industrial transition to increased climate neutrality and decarbonisation. This in turn should be guided by the leitmotiv – in times of climate change - to place soil protection for sustainable food security at the centre of any economic policy, also in terms of the rules on international trade in agriculture under the WTO.

This study examines the effect of digitalization on the internationalization of new ventures and further investigates the influence of a home country’s presence of institutional voids and digital infrastructure on the extent of internationalization by new ventures, with the prediction that a home country’s institutional voids and a weak digital infrastructure strengthen the positive relationship between new ventures’ digitalization and internationalization. Applying multilevel modeling on a sample of more than 6000 entrepreneurs from 62 countries the study offers empirical support for these predictions. The findings are robust to alternative specifications. Entrepreneurs using the internet to sell their products and services are more likely to focus on customers in foreign markets when they face institutional voids and a lack of digital infrastructure in their home countries. The study contributes as follows: From a theoretical view, it provides a better understanding of the boundary conditions of the digitalization-new venture internationalization linkage. From a practical perspective, the findings of the study suggest the complementary roles of institutional voids and digital infrastructure at home to help entrepreneurs grow domestically and facilitate their internationalization.

Une bonne partie de la doctrine juridique semble admettre le contrat de commerce international comme source du droit. Pourtant, plusieurs éléments pertinents intrinsèques et même extrinsèques au contrat de commerce international conduisent à contester sa qualité de source du droit. En effet, s’il est possible de retenir qu’il crée des normes, celles-ci sont en opposition avec les critères habituels et les spécificités de la loi. En recherchant des critères d’acceptabilité auprès de la jurisprudence, l’arrimage reste difficile notamment en raison de ce que les parties se tourneront souvent vers une juridiction arbitrale qui saura leur garantir la non-diffusion du litige et du contrat ; une recherche de confidentialité et de secret qui n’est pas de nature à susciter la naissance d’une force créatrice du droit. Le rôle d’influenceur de la doctrine s’en voit ainsi compromis puisqu’il faut que le contrat établi soit connu pour que la doctrine veuille, par son influence toucher le législateur à ce propos. Bref, dans l’ordre juridique interne, le contrat de commerce international, est contesté en tant que source du droit. La lex mercatoria ne semble pas non plus porter un meilleur écho à la thèse du contrat de commerce international comme source du droit. D’ailleurs, de nombreuses controverses remettent en cause sa qualité d’ordre juridique. Et si les pratiques contractuelles internationales organisées ou relativement spontanées sont d’une grande richesse inventive, elles ne semblent pas suffisantes pour alimenter une vraie théorie des sources mercatiques. La juridicité de la lex mercatoria étant contestée, il n’est possible d’y trouver une source du droit que dans l’hypothèse d’une juridicité propre à la lex mercatoria. Et l’émancipation de la lex mercatoria par rapport à l’ordre juridique national et international semble se confirmer.