La Nature du Droit OHADA

by | Oct 9, 2019 | JCLA, JCLA V3 I2 2016

La Nature du Droit OHADA

Authors Etienne Nsie

ISSN: 2521-2605
Affiliations: Maître de Conférences agrégé de droit privé; Faculté de Droit et des Sciences Économiques Université Omar BONGO Libreville – Gabon
Source: Journal of Comparative Law in Africa, Volume 3 Issue 2, p. 1 – 30

Abstract

The study assumes that OHADA is an organisation of legal integration that cannot be assimilated to an economic integration organisation or a political union. Based on the exegetical method and comparative approach, we conclude that OHADA law is a supranational law which, although not being a community law, produces the same effects. But the study also notes that the nature of OHADA law is inferred from the scope of the Uniform Acts, which postulate that OHADA law is at once national law, cross-border law and international law. From this double exegetical and comparative approach, both lines of the debate can be deduced. To determine the nature of OHADA law, it is first necessary to focus on the legal nature of the organisation. The qualification of the organisation is the basis for the qualification of the law it produces. These two axes infer two critical issues; on the one hand, the superiority of OHADA law over the domestic laws of the member states; and on the other hand, the relations that OHADA has with the rights arising from the organisations of economic and/or legal integration to which the OHADA member states belong.

Women’s Rights in Africa: An Examination of African Human Rights Systems in the Context of CEDAW and the Universalism Versus Cultural Relativism Debate

by | Oct 9, 2019 | JCLA, JCLA V3 I1 2016

Women’s Rights in Africa: An Examination of African Human Rights Systems in the Context of CEDAW and the Universalism Versus Cultural Relativism Debate

Authors Bukola Faturoti

ISSN: 2521-2605
Affiliations: Senior lecturer, Law School, Aberdeen Business School, Robert Gordon University
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 149 – 176

Abstract

Many African women suffer discrimination on the basis of their gender and other factors like religion, customs, age and marital status. They continue to be victims of harmful practices whose perpetrators are never held to account because the practices have their roots in cultural values and traditions. Any attempt to initiate a change in human rights — in particular, women’s rights — is countered with the argument of the imposition of Western culture on other regions of the world. This argument is based on the premise that human rights should be fashioned along the lines of the cultural beliefs of the people and should never be expected to be universal. By comparing certain provisions of the Convention on the Elimination of All Forms of Discrimination against Women with a number of African human rights instruments, this article investigates the influence of cultural relativism — if any — on the formulation of women’s rights under African human rights regimes.

Les Orientions du Législateur OHADA Dans L’auscgie Révisé

by | Oct 9, 2019 | JCLA, JCLA V3 I1 2016

Les Orientions du Législateur OHADA Dans L’auscgie Révisé

Authors Patrice Samuela Badji

ISSN: 2521-2605
Affiliations: Agrégé des Facultés de Droit, UCAD
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 114 – 148

Abstract

The OHADA legislator has made a decision to make this law attractive, which has been demonstrated through several reforms. Thus, corporate law, a law of globalisation, could not escape this reform movement. Indeed, when browsing the revised Uniform Act relating to Commercial Companies and GIE, it is clear that the legislator is attempting to overcome the endless conflicts between several notions or concepts in an effort to allow inclusive and democratic management of the company. However, shortcomings have been noted with regard to a lack of knowledge of corporate social responsibility standards and procedural rights of managers and associates who are in conflict with the company or partners. The conclusion is that these failures will be met in the next set of corporate law reforms.

Minority Shareholders’ Rights and the Majority Rule under Corporate Governance: An Appraisal

by | Oct 9, 2019 | JCLA, JCLA V3 I1 2016

Minority Shareholders’ Rights and the Majority Rule under Corporate Governance: An Appraisal

Authors Oluwasegun Isaac Aderibigbe

ISSN: 2521-2605
Affiliations: Law lecturer and researcher, Faculty of Law, Bowen University, IWO, Nigeria
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 100 – 113

Abstract

This article examines minority shareholders’ rights under corporate governance; what those rights are and what they should be, particularly in developing jurisdictions like Nigeria. The article subscribes strongly to the quest for the recognition and enforcement of minority shareholders’ rights under corporate governance. Once a company is incorporated, it assumes a legal status distinct from its subscribers; it can sue and be sued in its corporate name. Consequently, whenever the company has been wronged it is only the company that can seek redress; this is founded on the doctrine known as the majority rule as laid down in Foss v Harbottle [fn1]. The courts and a number of corporate laws in developing jurisdictions have over the years laid down several exceptions to this rule, thereby giving the minority shareholders right to seek redress against the majority shareholders in certain circumstances. This article interrogates the rationale behind the exceptions to the majority rule, with a special focus on developing jurisdictions. The article concludes that the majority rule is tainted with oppressive intentions rather than being a strategic imperative, particularly in respect of the right of minority shareholders to seek redress in court and that the strict application of the majority rule may create some intricate practical and legal problems. The success of the free market economy depends on the success of companies which rely on the leadership and performance of directors. The success of companies depends on directors bringing enterprise and integrity into their relationships with all shareholders, particularly minority shareholders. This research paper makes a modest contribution to knowledge in the sphere of minority shareholders’ rights and discusses how to facilitate a robust regime of the recognition and enforcement of minority shareholders rights under corporate governance in developing countries. footnote 1: (1843) 2 HARE 461