Or, la sentence est rendue en dernier ressort. L'appel n'est plus possible. Ici encore,. Peut-il alors, dans le mois de la signification, former un recours? Cette enumeration est-elle limitative? Les cas de refus de Y exequatur. L' enumeration faite par l'article 25 est-elle limitative? Les voies de recours. Sur toutes ces questions v.
Sur la question v. Commentaires, op.
Allocution de M. L'apparition d'un droit international des affaires en Afrique [article] Jacqueline Lohoues-Oble. Plan Introduction [link] I. Attributions de la Cour commune de justice et d'arbitrage [link] Les fonctions juridictionnelles [link] arbitrage [link] Conclusion [link]. L'adoption des projets d'actes uniformes Maintien de l'obligation de publier les actes uniformes Des assouplissements existent Aucune autorisation du mari n'est 9 J. Les baux commerciaux et le fonds de commerce La vente entre professionnels La refonte du droit comptable des entreprises Les personnes physiques Le redressement judiciaire La liquidation des biens Les sanctions patrimoniales Les fonctions juridictionnelles Des dispositions de cet article il ressort deux principes : 20 J.
Conclusion Notes 1. In practice, written observations are prepared by national commissions—if and where they exist—who study and react to draft Acts. This is particularly the case in OHADA states where the heavy colonial heritage of French legal and administrative institutions in African collective psyche may cause some economic agents to hesitate to submit to rules perceived as imposed by hostile powers.
For example, Article 9 of the Uniform Commercial Code is predominantly the product of and reflects the views of the American Law Institute, which regroups a certain legal elite in the United States. I am grateful to Prof. Catherine Walsh for sharing her views on this point. Most often, commissions are composed only one or two jurists. This will also be needed in the case of indigenously rooted new laws that seek to induce social change rather than reflect it. Measures to help legal acculturation include avoiding fictions, new words and excessive formalities since these exacerbate the foreign character of the transplant.
The select and expensive ERSUMA and private firm trainings both of which often foreign subsidised on OHADA law and the scarce trainings provided in rural areas such as the ones funded by the International Trade Center are insufficient to palliate to the legal education needs of local businesses. Given that the Acts—whether revised, as originally enacted or recently promulgated—remain overwhelmingly inspired from foreign laws and poorly adapted to domestic usages and given their supranational, abrogative and viral-like nature, there is reason to hypothesize that OHADA law is currently ineffective at promoting the operation of local businesses in member states.
The paragraphs below look at the circumstances giving rise to the debate between civil law and common law and at some of the arguments put forward by its stakeholders. This is because, amongst other things, they do not rely on strong empirical data on OHADA states and they ignore the influence and potential contributions of the plural legal cultures operating in these states. They date from long before the first commercial relations with Europeans. Broad timeline-based categorizations can nonetheless be made. Prior to European contact in the 15th century, business law in West and Central Africa developed at the tribal and kingdom levels as well as being influenced by Arabic and Islamic commerce.
Scott Clark ed. These symbols can be found in the text of the new rules expressions, terms, etc. The s saw many African colonies regain independence from European metropoles as pan-African political movements expanded and pleaded for re- appropriation of Africa by Africans. This brought about the creation of a number of regional trade, security and monetary integration organisations on the continent. French commercial laws remained in force in former French colonies, with only few statutes being superseded and some amended. The maintenance of French law facilitated the transition to independence since the then few African jurists who had received formal legal education prior to independence had been trained in French law.
Their shared civil law colonial inheritance was a determining factor in their coming together and in the project itself coming to life. Mouloul , supra note They argued that this is because, for one thing, common law regimes offer more protection to investors. Again, the contention was that common law promotes the Rule of Law better than civil law. The publication was prepared largely by the same scholars advocating the superiority of the common law tradition.
Authors also claim that civil law states except for Scandinavian ones e. Djankov et al.
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Initially the mandate given by the OHADA indicated the need to integrate principles from all of private international law, common law and Roman-Germanic law. However, as a result of pressures and requests by local jurists protective of their civil law tradition, the first version of the draft Act was revised so as to incorporate more French civil law concepts. As was noted earlier, some of the Acts are quasi-exclusively grounded in the civil law tradition, others in both the civil law and the common law.
There are many grounds on which the legal origins thesis can be challenged. Stages considered are: starting a business, dealing with construction permits, registering property, getting credit, protecting investors, paying taxes, trading across borders, enforcing contracts and closing a business. Kerhuel, Is Law an Economic Contest? In environments that led to high mortality rates, Europeans set up more extractive institutions. These institutions impacted the development of the colonies to this day.
Moreover, the Acts currently do not directly regulate three of the nine criteria measured by the report namely i obtaining construction permits; ii paying taxes; and iii trading across borders. It should also be noted that some of the variables for measuring credit access look at actual uptakes for example, they look at the number of individuals and firms listed in public registries It is also a task that can be counterproductive because it leads scholars to seek out contrasts rather than similarities and to exacerbate such distinctions in order to attribute determinate effect to them.
What is more, the exercise generates purely academic debate between experts from competing legal traditions and wastes research resources simply in proving or disproving the thesis. Fourth, the legal origins thesis fails to address the question of the influence of legal traditions other than civil law and common law. If the legal origins thesis were to have any explanatory power in the OHADA context, it would have to account for these legal traditions and look at their impact, alongside that of civil law and common law, on economic development in the region.
In so doing, it would have to examine the complex interactions between indigenous and Western normative orders and how these interactions shape formal and unofficial business laws. Ultimately though, the point should not be to determine whether common law and civil law are compatible but rather to find or design the rules that work best in member states.
Some jurists argue that there is no such thing as purely indigenous business rules in West and Central Africa. This, the argument goes, is in part because pre-colonial trade was for the most part subsistence-based thus not requiring the development of a coherent and comprehensive business law system. Accordingly, there would be no indigenous business rules or legal origins to account for in modern-day commercial law making. The list also does not account for differences between the significantly distinct U. For a good example of the significance of these distinctions see: G.
See also: D. Harrison and S. Huntington eds. Law reformers would thus only have one choice: start from scratch or start from the regime put in place during colonial times. This argument does not withstand scrutiny. Indeed, subsistence-based commerce and simpler social relations do not equate with the absence of trading rules. This is especially true where large segments of a population continue to abide by them, as is the case in OHADA states today. An approach, which I have qualified as clinical legal pluralist CLP may be more useful for determining how commercial law in OHADA states can effectively promote the operation of business and contribute to alleviate poverty in the region.
Briefly stated, clinical legal pluralism insists on the importance of being attentive to the social, economic and political context in the course of law-making activities.
Business Regulation Information
It calls on law- makers to be informed both by specific empirical data and secondary empirical information on the actual uptake of laws and by legal theory. Macdonald, What is a Critical Legal Pluralism? According to a transsystemic approach, it would not be enough for law reformers to understand different conceptions of law. As such, the specific set or sets of rules that will govern any given transaction will depend more on the specific circumstances surrounding said transaction than on predetermined normative ordering.
CLP seeks to provide a methodology to follow at the main stages of law making: i the preliminary needs-appreciation stage ii the law design stage iii and the application and acculturation stage. At each of these stages, CLP favors a multifaceted approach aimed at identifying the legal practices and conditions in the host community and not taking them for granted.
PROGRAMMES D'ÉTUDES OFFERTS À L'UL
It aims at developing techniques for law reform that account for the multiple legal orders that interact in the host system and finding solutions that prioritize individual agency. At the application and acculturation stage, it calls for persistent monitoring of the actual outcomes of laws rather than only checking that prescribed reform procedures were fulfilled.
In the context of OHADA states, CLP calls for the methods used to assess the need s for reform, to design or revise business legal structures and to ensure acculturation should pay more attention to autochthonous legal traditions and to the modes and usages of local economic actors in addition to seeking to please the interests of foreign investors as is currently the case. While the OHADA and Treaties do not explicitly indicate the intention of member states to focus on large businesses and foreign investment, the underlying ambition of the regime has been outward looking and aimed at larger enterprises and economic actors operating in the official sector.
Stakeholders make this ambition clear in various fora. They contend that formalisation of lending conditions would place foreign lenders on the same level playing field as local lenders. Yet, they do not provide evidence of the extent to which local know-how actually assists local lenders and better safeguards their rights. At the moment, the Acts reflect rules and principles that are often too foreign and abstract with regard to the needs of MSMs and other local agents. Haselman, K. Its popularity across classes and ethnic groups as well as in rural and urban settings make it an ideal tool of legal education and acculturation in the region.
Boddy, womb as oasis: the symbolic context of Pharaonic circumcision in rural Northern Sudan, 9 American Ethnologist, In particular, these methods will help lawmakers better appreciate the real and potential consequences of the rules they design on socio-economic development.
The OHADA project is a significant effort to modernize and streamline this key area of legal regulation. This paper sought to pose the key questions for assessing how successful it has been in promoting MSM activity and thereby alleviating poverty among member states. Opinion no. From the above paragraphs, it can be observed that the Civil Law and the Common Law languages obey different syntactic, stylistic and pragmatic norms. Legal translators must respect these norms in order to produce a translation that is communicative, natural and adequate taking into account the function of the translation in the target language.
Failure to do so can only result in unintelligible and unnatural translations with limited impact.
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As such, the most obvious challenge in the translation of OHADA laws from French Civil Law into English Common Law is the finding of appropriate or acceptable common law equivalents for purely civil law terms and concepts. For example, under the law of contract, the conditions for the validity of a contract are not the same in both systems.
The requirement of la cause for example under Civil Law is unknown at Common Law while the requirement of consideration at Common Law is strange to Civil Law jurists. The ideal translation in this context is the one that renders the incompatible legal terms without any material losses in terms of content. According to Weston , functional equivalence is the ideal method of translation of legal texts.
A survey carried out by Joanna J. As it can be seen, the quest for functional equivalence in legal translation is a priority for legal translators when faced with terminological stress. This must be a conscious exercise to produce a target version that is meaningful and coherent in the target legal system. Some translation techniques may also be relevant in this respect. De Groot proposes additional solutions to terminological problems. After comparing the terms and concepts in both legal systems, a closer equivalent term, that is, a term with the same legal content must be found in the target legal system.
However, if no acceptable equivalent term can be found as it is often the case with unrelated legal systems, such as, Civil Law and Common Law, the translator must resort to one of the subsidiary solutions, such as, using the source language term in its original or transcribed form, using a paraphrase or creating a neologism, borrowing, or using calques.
This translation strategy has the merit of protecting the integrity of the ST term. This approach is foreignizing in essence.
Principles of OHADA Accounting
The inconvenience of this method is that it may create reluctance especially to common law jurists who may not be comfortable with frequent resort to Civil Law terms. This translation method is closer to the one described by Dickerson when she refers to terms with special meanings assigned by OHADA. This method will require a carefully designed terminological data bank with these OHADA terms and specific meanings defined by the Organization.
For this method to be successfully implemented, both Common Law jurists and their Civil Law counterparts must be involved in the process. There must also be adequate training in favour of the direct users, namely, judges, lawyers, bailiffs, and translators who will have the ultimate task of appropriately using these various terms in their translations. As it can be seen therefore, this translation method can be significantly helpful to resolve terminological stress especially if the process is carefully conducted.
In a specialized language, borrowing means the adoption of a terminology unit from one language or legal system for use in the target language or target legal system. It is worth noting that the frequent recourse to this strategy has the disadvantage of rendering the translation unnatural in the target language. It may also render understanding difficult especially if the borrowed term has not been adequately established in the target system. Another frequent method of borrowing used in the translation of OHADA documents is the use of functional or close equivalent terms in the Common Law system followed by the borrowed term in bracket.
This approach can be very commendable in that it maintains a balance between the source legal language and the target language while trying to be as communicative to the target reader as possible. In addition, it avoids the risk of misinterpretation. When borrowing is used without the functional or close equivalence in the target legal system, it should be systematically explained in the footnote.
The same principle applies for neologisms which may not readily be understood by the target text readers. In an attempt to fill the terminological gaps between the Civil Law and the Common Law, translators may sometimes have to use neologisms, that is, using a term in the target legal language that does not form part of the existing target legal language terminology, if necessary with an explanatory footnote or explanatory note. Definition and paraphrases may appear in some cases as the most effective methods of compensating the lack of equivalence in the target legal language.
This consists in presenting the legal information in the neutral language that facilitates understanding. However, these methods require a certain degree of research, legal training and relevant background knowledge on the part of the translator. Indeed, poor definition and paraphrases can be as damaging as false equivalence. Therefore, a translator who opts for these methods must ensure that he is properly documented in the relevant field and that he has a proper understanding of the subject-matter. In any case, it is always advisable to seek the assistance of an expert.
In practice, descriptive paraphrases are highly used by legal translators. Indeed, language consistency plays an important role in technical translation as it is assumed that the difference in terminology implies the difference in meaning. VI Discussion of some theoretical issues in legal translation The choice among these translation techniques will depend on the approach adopted. Alternatively, he can opt to domesticate the ST by taking the writer to the reader through translation strategies that are target-system friendly and that facilitate assimilation by the TT reader.
Both foreignisation and domestication have advantages and inconveniences. Starting with foreignisation, it has the advantage of avoiding distortion and loss of meaning. It therefore enables the translator to remain faithful to the source legal language. Apostles of the foreignisation approach maintain that the TT must remain as close as possible to the ST.
The TT must be ST bound. It is essential that formal equivalence is stated primarily in terms of a comparison of the way in which the original receptors understood and appreciated the text and the way in which receptors of the translated text understand and appreciate the translated text.
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It is admitted in this paper that foreignization can resolve several language-related difficulties by enabling the translator to stay as closer or as faithful to the Civil Law text as possible. With regards to domestication, its advocates the use of completely contrary arguments to support the need to use target text oriented methods. According to them, the focus should be on the target legal language rather than the source legal language.
The taking into consideration of Common Law terms, concepts and principles may be an attempt to apply this method in the context of OHADA translation. However, this method should be carefully applied to avoid divergence in interpretation and implementation in Civil Law and Common Law jurisdictions. This may lead to a target text which is nonsensical, unintelligible and incomprehensible to the target readers.
Therefore, if domestication has to be used, it must be done with tact to ensure that the same legal information in the Civil Law text is conveyed to the Common Law jurists. This means that the content of the ST should be produced as accurately as possible in the TT in keeping with the spirit of the law.
To achieve this noble objective, it is essential to reconcile both the communicative and receiver-oriented approaches with the requirement of fidelity to the ST. This approach corresponds to the functional equivalence approach described by Peter Newmark. If this approach is properly implemented, the author of this article believes that the product might be a hybrid system of law resulting from cross-fertilization of the Civil Law and Common Law systems.
The task of interpreting and applying Uniform Acts uniformly in both Civil Law and Common Law jurisdictions is rendered more difficult considering the degree of unrelatedness. He posits that the fact that each legal system has its own rules of classification and interpretation, sources of law, methodological approaches, designation of competent legal authorities to perform given judicial acts, and procedural rules render the uniform interpretation and application difficult, or even impossible in practice.
The following examples are enough to illustrate this point. In Civil Law jurisdictions, actions are ordinarily commenced in court by assignation while in Common Law jurisdictions, actions are commenced by the writ of summons. So, summons is often used to translate assignation. Assignation in Civil Law is an extra-judicial act while a writ of summons is signed by a judge, a magistrate or other legal officers empowered to sign summonses. Besides, it is very strange in the Common Law jurisdictions of Cameroon to seise the Court of First Instance and the Court of Appeal in case of an execution dispute using a writ of summons.
Enonchong illustrates the difficulties faced in the use of these terms. Indeed, the normal practice under Common Law and which still applies in the Cameroon Common Law jurisdictions is that such disputes are referred to the President of the Court of First Instance of the place of residence of the debtor by way of motion on notice.
Finally, the Civil Law and the Common Law have different legal officers who have the competence to perform certain judicial acts. There is no exclusive jurisdiction in Common Law which entertains urgent matters. Some degrees of variance are inevitable.