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Editor's Notes

• #4: Only about 10 – 12 % of African trade is with other African nations by comparison, 40% of North American trade is with other North American countries, and 63% of trade by countries in Western Europe is with other Western European nations. The goal was set to increase intra-Africa trade from 10 – 12 % to 20-25% in the next decade. It must be recognised, however, that increased intra-African trade should not be viewed as the ultimate goal of African integration and cooperation, but rather as a means to achieve structural change and economic development on the continent. Recognising this distinction is important, as doing so can help ensure clear thinking on trade and development in Africa, something that is not always evident in political pronouncements emanating from the region.
• #7: These things are not separate. They overlap, which complicates the process of harmonisation as well as incentivises it. Sate/Sate is a horizontal relationship, State/Person is a vertical relationship, Person/Person is a horizontal relationship as far as power dynamics are concerned. We are all familiar with the first two, but in Africa in particular, awareness regarding the third point is lacking. The global movement toward the harmonisation of private law has been ongoing for close to a century. Both rule-making and domestic implementation have become more complex. A wide range of tools may now be used to formulate and implement uniform rules. The aim of enhancing legal certainty and predictability is still the main driving force of international harmonisation efforts. However, experience with legal harmonisation and the growing interest in legal writings for the relationship between law and economics have produced additional arguments. Of particular relevance are arguments relating to the positive role of legal harmonisation and law reform in reducing transaction costs and facilitating business worldwide. Furthermore, the work of legal harmonisation now involves a large number of organisations – both governmental institutions and private sector representatives. Also, the rise of supranational organisations, of which the European Union provides the ultimate example, has added a new element to the law-making process, with possibly far-reaching consequences.
• #9: Against these two objectives the advantages of harmonisation of law seem to be self-evident. However, the business community is very reluctant to embrace any change in law. The same applies for both the practising lawyers and legislators. "Why mend it what is not broken?" is a question often asked by legislators when law reform is recommended. Accordingly it is often very hard to convince the business community or national legislators even to take an interest in proposals for harmonisation, still less to give the proposal their support.
• #10: Contractual interactions are one of the major sources of economic and social development, as they provide the main channel for cooperation among individuals and for exploiting the undeniable benefits of division of labour, and trade among agents with divergent valuations. 1. First, it facilitates commerce with the lifting of barriers resulting from the complexities of different legal regimes. 2. Secondly, harmonisation of international commercial law creates a legal framework tailor-made for international transactions, disregarding differences in the regulation of domestic transactions. 3. Thirdly, harmonisation normally produces neutral law, e.g. the CISG is a system of international sales law which is compatible with both civil and common law. 4. Fourthly, harmonisation often fills a legal vacuum by providing rules in a field where national law was previously non-existent, e.g. UNCITRAL Model Law on Electronic Commerce, or obscure, e.g. the draft UNIDROIT Convention of Security Rights in Mobile Equipment. 5. Fifthly, effective harmonisation substitutes a single law for a proliferation of national laws and thus within the given field dispenses with the need to resort to conflict of laws rules and the opportunity these give for forum shopping. Ineffective harmonisation, on the other hand, results in increased conflict of laws and wider possibilities for forum shopping. 6. Sixthly, harmonisation of law with the collateral reduced conflict of laws results in significant reduction of transactional costs. 7. Seventhly, in a field of law where conflict of laws has little or no role to play, there is increased predictability and legal certainty and consequent reduction of legal risk. 8. Finally, for a number of legal systems harmonisation of law bears fruits of law reform. While in some countries law reform is a complicated and thorny issue, reforms can more easily be achieved once a provision has been adopted at international level.   Let’s imagine a benevolent Law-maker desiring to improve the welfare of those concerned by a given set of Laws and regulations. In order to aptly carry out this goal, our Law-maker would need: to collect reliable evidence on the actual state of the events one desires to regulate; to consider some range of alternatives for each issue under consideration; to estimate the likely impact of the regulatory alternatives on the position of the relevant individuals and groups; to draft the Law, and legal drafting may be costly depending on the kind and length of the exercise; to invest political capital to convince the relevant public of the virtues of the new legislation, and to overcome opposition from the interest group who may be harmed by the legal reform, even when overall it enhances social welfare. All those preparatory activities for the legal reform to be designed, drafted and passed – and I am abstracting here from implementation and enforcement issues- are costly. And a significant fraction of those costs are invariant to the number of individuals and firms that will benefit from the new legal regime. Part from those costs would not vary much if the Law will be adopted in a jurisdiction with a population of 1 million, or in another with a population of 100 million. That is, there are important monetary and non-monetary fixed –in the sense of population-invariant costs of Law-making.
• #11: The main pitfalls of traditional international harmonisation of commercial law or indeed co-ordination of trade regulation relate to international conventions. Here are the major drawbacks of harmonisation by international conventions: 1. The negotiation and drafting of international conventions is normally a lengthy and costly process. This is also true for all amendments and updates. 2. Because of the participation of states with different legal traditions and different expectations, the degree of unification may be excessively restricted and the differences may be irreconcilable. Irreconcilable differences often result in unacceptable compromises. Conventions reflect the common denominator and this is often very small; i.e. a convention may produce minimum rather than maximum unification of law. 3. It has been observed that on occasions states do not negotiate such treaties as equal partners and issues of sovereignty may arise in the context of international trade regulation.  In any event, a new international law has emerged and questions of legitimacy, accountability, authority, and freedom in this new global legal order may arise.  4. International conventions normally operate through a national act of positive law (ratification or implementing act). Delays in ratification result in conventions coming into forces after many years. In any event, positive law is more predictable and creates legal certainty. However, statutory law is subject to interpretation by the courts or administrative authorities often to the effect that law in action has little in common with law in books. There is no guarantee that harmonised law will be interpreted in a harmonised manner.
• #12: The OHADA Treaty is made up today of 17 African states. Initially fourteen African countries signed the treaty, with two countries (Comoros and Guinea) subsequently adhering to the treaty and a third (the Democratic Republic of Congo) due to adhere shortly. The Treaty is open to all states, whether or not members of the Organisation of African Unity
• #14: These acts are specific enough to be implemented directly without specific national regulations. Art. 10 of the OHADA Treaty provides that the uniform acts pre-empt all domestic statutes covering the same subject matter.
• #16: Instability in Cote d’voire has contributed to the case backlog in the CCJA. Decisions before the CCJA ae directly applicable in the national jurisdictions, but there is a need for an adequate mechanism for recognition and enforcement of final judgments from lower courts applying the OHADA within the OHADA space. At the state level a lack of expertise about OHADA laws and processes persists among accountants, money lenders, court registries, chambers of commerce, business registration units, micro finance institutions, banks, insurance companies, arbitration chambers, etc.