Commercial Law Research Articles

The potency of the OHADA law in the African digital economy

Abstract There are various technological developments or innovations that have (or will in the future) radically transform business transactions and the way in which people work, enter into contracts, and fulfil their contractual obligations. The principal focus of this article is to analyse the shortfall of the Organisation for the Harmonisation of Business Laws in Africa’s (OHADA) law, through its Uniform Act on General Commercial Law, in failing to embrace new technologies in a trending digital era when applying traditional contract laws rules to the buying and selling of goods. This is significant because the Uniform Act, as a tool for the regulation of cross-border sale of goods contracts, has been put to the test. Although the scope of the OHADA Uniform Act on General Commercial Law is not extensive to new technologies, this article probes the question as to whether the pulse of technology poses a challenge for the traditional 20th-century rules under OHADA. In other words, is the statute robust enough to reflect the modern digital world, or will it become outdated if it is not revamped or supplemented by other conventions to accommodate new technologies and ways of conducting business? This study uses an in-depth critical analysis of the provisions of the Uniform Act in order to ascertain its potency as it concludes that it is imperative in this modern digital age for such a statute to embody technological innovations for the efficient conduct of transnational businesses.

The Conflict and Integration of Environmental Law and Commercial Law: Exploring Environmental Responsibility in International Trade

The Conflict and Integration of Environmental Law and Commercial Law: Exploring Environmental Responsibility in International Trade

The value relevance of deferred tax assets: An empirical analysis of German HDAX-listed companies

Deferred taxes emerge from timing differences in recognizing income and expenses between commercial and tax financial statements. However, the capitalization of deferred tax assets remains contentious, with questions raised about their value relevance to investors. This study aims to investigate the informational value and economic significance of deferred tax assets in financial statements prepared in accordance with both German commercial law (HGB) and International Financial Reporting Standards (IFRS). The analysis is based on financial data from 1,066 firm-year observations of HDAX-listed companies from 2000 to 2022. Using an Ordinary Least Squares (OLS) regression model, the study examines the relationship between deferred tax assets and the market value of equity. Key financial variables, including research and development expenses, deferred tax liabilities, net income, and the market-to-book ratio, are incorporated to provide a comprehensive assessment of deferred tax asset relevance in capital markets. The results demonstrate that deferred tax assets have a negligible impact on the market value of companies, with no statistically significant effect detected. Conversely, research and development costs, as well as net income, exhibit a strong positive influence on firm valuation. These findings suggest that deferred tax assets serve largely as an accounting mechanism, lacking informational value for investors.

Commercial Law and its Evaluation in International Law

The ease and prevalence of capital movement across international borders has led to its expansion in trade and the economy in recent years, and this may make resolving legal disputes more challenging. As a result of all these changes, national markets are becoming more and more global marketplaces, and commerce is expanding. Legal processes in this process must first be identified, and their characteristics ascertained in order to resolve legal disputes. While research has been done on qualified merchants in commercial law and related fields, no research has been done on qualified merchant requirements on an international scale. This study has, therefore, evaluated the global nature of the qualified trader under commercial law. Semiotic analysis and content analysis techniques were used in the study to evaluate conceptual studies carried out in academic settings. The research findings indicate that while certain national laws exist in the field of commercial law for eligible merchants, significant shortcomings persist in this domain, even within domestic legal frameworks. Confusion in domestic law stems from a number of factors, including the distinction made between the concepts of tradesman and merchant, the definition of "commercial enterprise," and the use of the term "part of" in reference to the requirement of operating a portion of the commercial company. International legal confusion results from inadequate representation of the qualifications of domestic and foreign traders in the legal system, which in turn affects local and national definitions of qualified traders and international activity areas. As a result, both domestically and globally, a more flexible, inclusive, and problem-solving legal strategy is needed.

Islamic commercial law in action: a look into AAOIFI’s Sharīʿah standard on Waqf

Purpose The purpose of this paper is to analyse the Sharīʿah Basis of AAOIFI’s Sharīʿah Standard No. (60) – “Waqf” and gain an insight into the Islamic jurisprudential schools of thought depended on while drafting/issuing the standard. Design/methodology/approach This research uses a qualitative methodology and AAOIFI’s Sharīʿah Standard No. (60) – “Waqf” as a case study. This is referred to as a single/holistic case study design. Findings The findings of this study reveal that while AAOIFI’s Sharīʿah Standard No. (60) – “Waqf” did depend on the Maliki school of fiqh, it certainly referenced other jurisprudential schools of thought, such as Ḥanafī and Shāfiʿī schools of law. This raised a question of legal pluralism and how contemporary Sharīʿah jurisconsults are able to select rulings within particular Islamic jurisprudential schools to fit current needs and for the overall betterment of society. Research limitations/implications This research does not delve into the technical aspects of AAOIFI’s waqf standard (furūʿ al-fiqh), but rather, is limited to understanding the basis of rulings therein and the jurisprudential schools of thought heavily depended on. Originality/value Given that the (revised) AAOIFI waqf standard is relatively new, limited studies have been conducted particularly focusing on the basis of Sharīʿah rulings therein. This research contributes to knowledge by providing one of the starting points to deliberate on this matter.

Cross-Border Enforcement of Consumer Banking Law

This literature review examines the ongoing challenges and advancements in consumer protection within international finance and arbitration. It highlights regulatory failures, particularly in the context of high-profile financial scandals, underscoring the necessity for more robust financial regulations. The review discusses the issues of cross-jurisdictional consumer protection, focusing on the implications of regulatory arbitrage and its detrimental effects on consumer rights in global contexts. Additionally, it addresses the role of online dispute resolution as a means to reduce barriers to justice in cross-border financial transactions. The importance of fairness and efficiency in consumer arbitration processes is emphasized, particularly in relation to emerging digital finance models. The review also explores the critical issues of transparency and potential bias in international financial dispute resolution. Furthermore, it underscores the urgent need for reforms in international commercial law to effectively protect consumers amid the complexities of globalization and evolving financial landscapes. This compilation of insights presents a comprehensive understanding of consumer protection in cross-border financial environments, illustrating the necessity for improved regulatory frameworks and dispute resolution mechanisms to safeguard consumer rights effectively.

The evolution of Islamic trade law under the influence of international trade practice: towards the problem of convergence of legal orders

The article provides a historical and legal analysis of the development of Islamic trade law under the influence of secular European trade law. It was concluded that until the second half of the 20th century the influence of European trade law on Muslim legal orders was one-sided. Initially, the penetration of secular European trade law into Islamic commercial law was carried out through the law of medieval merchants (lex mercatoria). From the beginning of the 19th century the reception of secular European trade law was determined by the active colonial policy of European states (the model was the French system of trade law, reflected in the Napoleonic Commercial Code). Only at the end of the 20th century international commercial practice began to take into account Islamic contractual structures, as well as religious prohibitions and permissions of Sharia.

Analyzing the New Institute Cargo Insurance Clauses of 2009 and its Harmonization with the Arabic Marine Insurance Legislations

The aim of this paper is to discuss in details the new changes in the marine cargo insurance in particular and the new editions of the Institute Cargo Clauses of 2009 known as (l.C.C clauses) in comparison with the old editions of the 1982 clauses. The old clauses at that time were a radical change in the world of marine cargo insurance. The paper examines briefly the reasons behind the change that occurred in 1982 to better understand the recent changes of 2009. The paper also investigates the aims behind the 2009 changes carried out by the Institute of London Underwriters. This paper will also discuss whether the new changes came in favor of the insurers or the insureds. The method adopted by the researcher to tackle with the subject is the analytical and comparison study. The paper considers this matter and the effect of the clauses and harmonization of their wordings compression with the provisions of the English marine insurance ACT of 1906 and the Jordanian Maritime Commercial Law of 1972, which is very similar to other Arab concerned legislations. Finally, the paper will evaluate arrived at the following conclusions; 1- the changes in the marine insurance clauses designed to keep up with the new developments in the international trade and politics. 2- The intention of the draftsman was to create self-standing clauses, stating clearly the terms of the marine insurance contract. A new balance between the insurers and the insured has been achieved, and in general the changes was in favor of the assureds. 4- the new versions of the I.C.Clauses may applied in the Arab marine insurance market without any contradiction the Arab marine insurance legislations.

The Adequacy of the UAE Commercial Law in 2023 in Regulating Artificial Intelligence as a Subject of the Contract

The study aims to identify the adequacy of the UAE Commercial Law in 2023 in regulating artificial intelligence as a subject of the contract, This will be done by searching for the way in which the UAE legislator intervened to control the good and effective use of artificial intelligence, whether it was able to reconcile between protecting the interests of the parties to the transaction and encouraging technological development and investment in artificial intelligence to achieve the goals of the National Strategy for Artificial Intelligence. Then, the cases of using artificial intelligence as a subject for commercial transactions will be highlighted, because artificial intelligence is considered one of the funds and products that can be the subject of commercial transactions between professional traders, which remain subject to the applicable legislation, even those that link the trader to the consumer due to the availability of the elements of the consumer process in this type of transaction, which is concerned with protecting the consumer because the consumer transaction must be carried out with transparency and responsibility. However, as a result of the privacy of such transactions, the current legislation does not appear sufficient, but rather work must be done to establish legislative provisions to control dealings in artificial intelligence at the local and international levels to govern artificial intelligence.

Termination of the Mandate of an Agent: An Examination under OHADA Uniform Act on General Commercial Law

When an agency relationship is created, it confers on the parties obligations which must be fulfilled by the parties. These obligations do not remain forever as they can come to an end. This can be done under normal circumstances by the act of the parties or by operation of the law and when the conduct of the agent is in contradiction to the mandate agreement as may be the case if the agent is liable for serious misconduct as provided by the OHADA Uniform Act on General Commercial Law. The provisions of the act regarding termination on grounds of serious misconduct is worrisome, as the act talks about termination in such manner only for commercial agents and is silent about the other two types of agents: the broker and the commission agent. The act also, does not tell us what this serious misconduct it mentions by the commercial agent is, nor gives us insights on what constitutes such conduct to warrant termination of the mandate of the agent by the principal. When termination of the agency is done under conditions as such, it has grave consequences on the agent who might not be entitled to certain benefits associated with termination of the contract such as loss of the right to compensatory allowance or indemnity and more importantly may give room to arbitrary or wrongful termination of the mandate of the agent. Through analytical and comparative studies, this paper focuses on termination of the mandate of an agent under the OHADA Uniform Act on General Commercial Law, wherein, the different modes of termination of the mandate of an agent have been discussed, and more specifically makes an attempt in looking at what serious misconduct is and what could amount to such conduct so as to avoid arbitrary or wrongful termination. It is therefore suggested that, statutory guidelines found in other statutes in relation to the subject matter can serve as a lamp light in our context.

Sexual Violence And Its Relationship With Human Trafficking And The Provisions Of Commercial Law

Sexual Violence And Its Relationship With Human Trafficking And The Provisions Of Commercial Law

General theoretical characterization of contractual obligations for the provision of agency services

Problem setting. The development of market economy and globalization of business processes have increased the importance of agency services. However, the legal regulation of agency relations in Ukraine is characterized by gaps and conflicts, creating problems in law enforcement practice. This problem is particularly acute in the field of courier activities, where issues of consumer protection and distribution of responsibility between the agent and the principal arise. Purpose of research is to conduct a comprehensive theoretical and legal analysis of contractual obligations for the provision of agency services, determine their place in the system of civil law contracts of Ukraine, and develop proposals for improving their legal regulation. Analysis of recent researches and publications. The issues of agency contracts and services have been studied by such scholars as R.A. Maidanyk, Ye.O. Kharytonov, O.I. Kharytonova, N.V. Fedorchenko, A.B. Hryniak, M.D. Pleniuk, O.O. Kot, H.B. Yanovytska and others. However, despite the significant number of scientific works, the specifics of agency services in the field of courier activities and consumer protection remain insufficiently studied. Article’s main body. The legal regulation of agency relations in Ukraine is analyzed, the elements of the agency agreement and the peculiarities of the rights and obligations of the parties are determined. The article examines the fiduciary nature of agency relations and its impact on the assessment of the parties’ actions in the performance of the contract. Particular attention is paid to the specifics of providing agency services in the field of courier activities, including issues of consumer protection, personal data protection, and dispute resolution. The article proposes ways to improve the legal regulation of agency services, including the development of special regulatory acts for courier agents, the introduction of a certification system, and the development of effective mechanisms for consumer protection. Conclusions and prospects for the development. The study concludes that agency services are an important element of modern economic relations that requires proper legal regulation. The legal framework of Ukraine in this area is characterized by complexity but contains certain gaps and conflicts that need to be addressed. The agency agreement has specific elements that distinguish it from other types of contracts. For improving the legal regulation of agency services, it is necessary to unify approaches in civil and commercial law, develop special mechanisms for consumer protection, harmonize legislation with international standards, and improve mechanisms of agent liability. Future research should focus on developing detailed recommendations for improving legislation in the field of agency services, taking into account international experience and the specifics of different sectors of the economy.

Legal Evaluation of Premium Payment as a Condition Precedent for a Valid Insurance Contract

The idea of insurance is widely recognized in commercial law and has evolved into a fundamental tenet of contemporary business dealings and contracts. It was designed to satisfy the requirements of contracting parties and has been supported as a workable and commercial tool that an insured can use to reasonably mitigate the effects of a disaster or other occurrence by purchasing an insurance policy. A service known as insurance exchanges risk for monetary responsibilities known as premiums. It is not uncommon for an insured party, before the advent of Insurance Decree 1997 after negotiating and executing an insurance policy, to defer payment of premium until a later date; or for insurance companies to accept part payment of premium, on the condition that payment would be made in full before the end of the insurance policy period. This position changed with the provision of ‘no premium no cover’ under Section 37 of the Insurance Decree, 1997. In an action for enforcement of a contract, the party who alleges breach must prove the existence and validity of a contract between him and the other party. A very important ingredient of the insurance contract is consideration; that is, for a contract to be valid, something of some value, e.g. money or services, must be exchanged for the promise under the contract. Offer and acceptance refers to an offer being made and then being accepted by the other party. Fulfilment of this legal requirement implies that negotiations have been settled and parties have come to an agreement. Current study examined and evaluated premium payment of premiums as a prerequisite to enforceable insurance agreements and claims. It revealed that payment of full insurance premiums is imperative if a contract of insurance is legal and enforceable under section 50(1) of the 2003 Insurance Act. Also, it will be unreasonable and unjustifiable for an insured to be expecting indemnity when a full premium has not been paid to the insurer for proper coverage.

IMPACT OF LAW 05-02 ON THE PRINCIPLE OF BALANCE BETWEEN LANDLORD AND TENANT INTERESTS IN COMMERCIAL LEASE AGREEMENTS: BETWEEN THE PROVISIONS OF OLD LAW AND NEW AMENDMENT

Objective: This article aims to shed light on the extent to which the principle of balancing the legal positions of the lessor and the lessee has been established in light of the Commercial Law before and after the issuance of Law 05-02, as well as to address the new developments in the approach adopted by the Algerian legislator in the context of providing a legal framework that protects the contractual relationship related to commercial leasing. Theoretical framework: The Algerian legislator has been keen to devote enhanced protection to the tenant by stipulating the tenant’s right to commercial ownership and renewal of the commercial lease, as well as the eviction notice and the compensation due when the landlord refuses to renew the commercial lease. However, this protection has diminished with the issuance of Law 05-02 amending and supplementing the Commercial Law, through which the legislator introduced a number of important amendments that affected the provisions of the commercial lease, represented in amending the rent and the lease term, especially the requirement of the official form for drafting the commercial lease contract, especially the introduction of Article 187 bis obligating the tenant to leave the commercial premises, and exempting the landlord from his obligation to notify the eviction and the compensation due, which led to an imbalance between the interests of the landlord and the tenant. Methods: As an analytical study, the methodology of analyzing the content of the legal rules related to commercial leasing was relied upon, whether before or after the amendment, and comparing them to reach the various provisions related to evaluating the extent to which the Algerian legislator balances the positions of the lessor and the lessee.The descriptive methodology was also relied upon, by relying on studies published in this context, in order to list the various points of view presented on the legislator's position on the contract related to commercial leasing, as well as to come up with new results to rely on in discussing the new law. Research implications: In the context of discussing a deep research problem, which is to estimate the position of the Algerian legislator towards the parties to the commercial lease contract, and their legal positions, through what it has established of rights and duties for each of the parties, the practical aspect surrounding the application of the legal text makes extracting the protective objectives that the legislator has taken into consideration the subject of unstable provisions, are the targeted dimensions purely legal, or do they follow a new legal approach within the framework of the new policies in legislation in general in Algeria. Originality of the research: The article studies the points of failure that may arise between the positions of the tenant and the landlord in the commercial lease contract, and raises the most important challenges facing the implementation of the new direction of the Algerian legislator, especially in the context of encouraging foreign investment, and the advantages that the tenant must enjoy in the context of eliminating the complications that may arise within the framework of these contracts.

The Effects of Artificial Intelligence and Modern Technology on Commercial Transactions for Commercial Transactions Law 2023

In light of the Fourth Industrial Revolution, the intervention of artificial intelligence in commercial transactions has expanded, and it has not remained a mere subject or subject of the contract, whether it is a material or moral product, but has gone beyond that to have a fundamental and effective role in concluding the contract as an electronic agent that makes the contract automated and concluded in whole or in part in an automated manner without human intervention. The UAE legislator was interested in regulating its use, whether under the Electronic Transactions Law of 2006 and the current one of 2021, and referred to this possibility under the Trade through Modern Technology Law of 2023; It considers it an information program that represents the original principal and bears the effects of the transaction concluded with the intervention of artificial intelligence despite not granting the electronic agent legal personality. The integration of artificial intelligence and modern technology into commercial transactions has profoundly transformed the landscape of commercial law. Artificial intelligence techs, including natural language processing and machine learning algorithms, are increasingly utilized for contract formation, risk assessment, and dispute resolution. Such technologies enhance efficiency, decreases human error, and advance transactional processes, offering substantial advantages for businesses and consumers. Modern technology, consists of digital currencies, smart contracts, and blockchain, has further revolutionized commercial transactions through offering unprecedented levels of security, transparency, and automation. Blockchain technology warrants irreversible and provable records, while smart contracts perform automatically when predefined conditions are met. This minimizes the need for intermediaries and enhancing integrity of the transactions carried out. Additionally, this paper addresses the legal and regulatory responses to these technological advancements. Jurisdictions across the world are grappling with the need to update existing laws or come up with new ones in order to address the challenges posed by AI and modern tech in commerce. The dynamic nature of technology calls for a flexible and adaptive legal approach in order to make sure that commercial laws remains to be relevant and effective.

From revelation to modern Islamic finance: Islamic commercial law in the UAE as a case study

From revelation to modern Islamic finance: Islamic commercial law in the UAE as a case study

Problematika nepomenovaných zmlúv v občianskom práve a ich uzatváranie s pohľadom de lege ferenda

One of the key branches of private law is the law of contractual obligations. In addition to innominate contracts, which are most often used in practice, a category of innominate contracts and a special category was created, the category of so-called mixed contracts. In practice, innominate contracts are a tool frequently used to anchor contractual relationships in all spheres of life. The institution of innominate contracts is not a new one; it is based on the principle of dispositional autonomy, which is known to have already existed in ancient Roman law. In the Slovak Republic, there are two codes, one specifically regulating civil law and the other regulating commercial law. Civil law in the Slovak Republic is regulated in the Civil Code, which regulates the natural persons’ mutual rights and obligations. In contrast, commercial law, which is regulated separately in the Commercial Code, regulates the mutual rights and obligations of legal persons, and the rights and obligations that exist between natural persons and legal persons. This means that the institution of innominate contracts is found in the Slovak Republic not only in civil law but also in commercial law, i.e., in two legal codes, when the subjects of obligation-law relations are dependent on the use of analogy-based legal reasoning due to the absence of contractual types when regulating the rights and obligations of the various subjects of their obligations.

Rules on Family Enterprise in Czech Law

For more than two decades the family business enterprises of the first generation (generation of founders) are more and more dominant in the category of today’s Small and Medium-sized Enterprises in the Czech Republic. The necessary legal background defining the legal relationships and rights of all participating persons was, however, limited to general provisions in the Commercial Code that hasn’t solved many of the problems associated thereto. Only in 2012, the new Czech Civil Code, Act. No 89/2012 Sb., introduced the institute of a family enterprise as a completely new institute in Czech Civil law. The present paper aims to analyse the key rules of the existing legal regulation, focusing on significant aspects of the institute in the context of commercial law and family law, as well as to highlight the potential weaknesses in the regulation itself.

The Impact of Regional Economic Integration on International Commercial Law: The Cases of the EU and ASEAN

This paper explores the profound impact of regional economic integration on international commercial law by analyzing the cases of the European Union (EU) and the Association of Southeast Asian Nations (ASEAN). The study first outlines the theoretical foundations and main types of regional economic integration. It then delves into the high degree of legal unification in the EU and the flexible legal coordination in ASEAN. By comparing their legal systems, corporate law, contract law, and dispute resolution mechanisms, the paper reveals how the EU plays a leading role in international commercial law through its strict legal framework, while ASEAN achieves regional cooperation through non-binding consensus mechanisms. The research finds that regional economic integration not only enhances legal standards and innovation in international commercial law but also significantly impacts the legal compliance and business operations of multinational enterprises. The paper concludes with policy recommendations to strengthen regional legal cooperation and further harmonize international commercial law, and it suggests future research directions, including the impact of other regional economic integration organizations and deeper studies into specific legal fields.

Functions of taxes and other public liabilities. Can thefiscal function be performed by remuneration received bycompanies with State Treasury participation on the basisof civil law relations?

The scope of the functions of taxes and the entire tax system has not been precisely defined by the Legislator.Both fiscal and non-fiscal goals/functions are implemented by the tax system. Ensuring budget revenues to fulfillthe redistributive function is the foundation of the tax law system. On the other hand, all tax law norms also fulfillmany other functions, including: stimulation, development, protection, social or political. However, the indicatedfunctions are implemented by general legal norms, in particular public law – tax law, through public finance ties and units. Constitutional guarantees regarding the manner and procedure of shaping tax law provisions ensurethe security of citizens/taxpayers with regard to public law obligations. The statutory exclusivity in shaping taxesand other public levies provides a guarantee for counteracting the authoritarian imposition of „universal financialobligations” on citizens (entities from the sphere of private l aw).The issue to be analyzed is to determine whether fiscal and non-fiscal functions can be entrusted by the State toentities from the sphere of private law – including: commercial law companies with State Treasury participation.The actual entrustment of such functions would take place outside parliamentary control and without regard tothe requirements and regulations applicable to public finance entities and units. Additionally, the takeover and,consequently, the implementation of non-fiscal functions (e.g. stimulating or political) by commercial law companieswould be in violation of the provisions regulating business activity and the standards regulating the functioningof commercial law companies.In practical terms, the way civil law relations are shaped by companies with State Treasury participation, whichactually implement State monopolies, may result in the imposition of general, additional, economically unjustifiedfinancial burdens on citizens and private entities.