Harmonisation Of Commercial Law Research Articles

The Case for the Harmonisation of Commercial Law in West Africa

The realisation of West Africa’s objective of economic growth and sustainable development has been the basis behind a further push towards regional integration over the past two decades. This paper puts up a case on the need for a harmonised system of laws to regulate commercial transactions within the region by addressing two core aspects of promoting regional trade namely: a) The existence of an economic body and;b) A legal system to govern the commercial laws of countries within the region. In light of the recent formation and success of OHADA, an organisation charged with the task of harmonising commercial laws in Africa, this paper analyses OHADAs impact and its potential for success if applied in across West Africa whilst comparing OHADA with other advocated approaches to the harmonisation of commercial law in West Africa.

On the model laws of UNCITRAL with special reference to model laws in the area of public procurement and infrastructure development

UNCITRAL (United Nations Commission on International Trade Law) is an international organization focused on the modernization and harmonization of commercial law at the international level. Its normative work primarily marks enactment of the law sources which belong to the soft law sources (guidelines, communications, model laws, etc.). The subject of research in this paper are the UNCITRAL Model Laws, and their importance as a law source for the international economic relations. The author's intention is to draw attention to the characteristics and adequacy of the application of the model law primarily in the areas of public procurement and infrastructure development, in terms of identifying strengths and weaknesses in regulation of this very important matter in the field of market relations by aforementioned law source. In order to analyze the reasons pro et contra regulating this material by model law, it was necessary to carry out a comparative analysis with other law sources that govern the same issues (primarily the EU directives), with special reference to the regulations that exist in the national legal systems, which model laws should not be an alternative, but guide to creating quality rules.

The harmonization of commercial law in Africa: The project related to telecommunications in the OHADA harmonization process

The article starts from the examination of the reasons of the recent trends towards legal integration and gives a brief overview on the system to pursue the objective of legal integration. Then the major form of legal integration in the African continent ‐ the OHADA ‐ is taken into consideration by giving the main features of this legal harmonization process. The article further focuses on the possibility of reaching harmonization of the legal rules on telecommunications in the countries belonging to the OHADA. The paper also presents the reasons in favour of such legal harmonization, the possible obstacles that can be faced, and suggests some hints for the drafting process of the possible future uniform act.

Les réactions de la doctrine à la création du droit par les juges : le droit des entreprises

This paper attempts to survey the present state of the law and current trends in legal literature as regards the concept of enterprise in Quebec law. The legal concept of enterprise does not carry the same meaning for all legal scholars in Quebec. A more traditional group restricts it to cases where some type of legal entity is created as a subject of rights and liabilities. A modernist group is prepared to give legal recognition to the enterprise as the basic economic unit, having rights and duties on a broad societal scale. This latter approach, closer to the realities of economics, is obviously followed in federal and Quebec legislation, whether protective or interventionist, with the result that conflicting definitions of the enterprise have been used for many different purposes. Through an increasing body of published writings, Quebec legal scholars have been contributing to the rationalization and harmonization of commercial law in relation to the concept of enterprise. Judicial adherence to traditional views has sometimes prevented or slowed down the implementation of rules suggested by scholars. In some cases, though, bold judicial pronouncements have met with unqualified approval from the writers. In certain areas, administrative bodies such as regulatory agencies have clearly outdone the regular courts at creative and effective law-making. In spite of shortcomings on the part of legal writers, legislators and judges, a concept of enterprise is gradually emerging as the key element in the development of a more realistic system of commercial law.

Political Economies of Harmonization: Database Protection and Information Patents

Laws concerning intellectual property have been part and parcel of the international harmonization of commercial law for over a century. With the 1994 TRIPS Agreement, international standards for protecting intellectual property were firmly woven into the larger structure of global economic integration. Since then, there has been continued, rapid development of international legal norms for protecting intellectual property. This paper, however, concerns two areas of intellectual property law that have shown themselves resistant to harmonization: extra-copyright protection of databases and the broader field of information patents. With database protection, the EU moved decisively to create this kind of intellectual property in 1996; half a decade later the US has no such law and protection of databases is uncertain. With information patents,the US provides robust patent protection across the whole range of information patents, while Europe has expressly declined to embrace business method patents and patenting of software inventions remains uncertain. For each of these two areas, this paper offers descriptive lessons about the political realities of intellectual property policy; a normative account of when intellectual property policy should be changed; and, finally, an analysis of how future policy developments in these two areas of intellectual property can and should be held to that higher normative standard.

Insularity or Leadership? The Role of the United Kingdom in the Harmonisation of Commercial Law

The last few decades have seen a substantial growth in what has become known as transnational commercial law, by which I mean that body of commercial law principles and rules, from whatever source, which is common to a number of legal systems. The various types of harmonisation fall broadly into four groups, each possessing its own implementing agency: